2017 PA Enviro Rights Amendment Case Spawns New Drilling Lawsuits
A panel discussion at last week’s Shale Insight event focused on a pair of Pennsylvania lawsuits that has the potential (indeed already is) changing the drilling landscape in PA. The first lawsuit discussed was the decision from June 2017–“Pennsylvania Environmental Defense Foundation (PEDF) v. Commonwealth of Pennsylvania.” PEDF is an anti-fossil fuel group. They convinced the PA Supreme Court to issue a decision that tosses out a decades-old “balancing test” in decisions about drilling and instead said land-use and permitting decisions must now meet standards established by the state’s so-called Environmental Rights Amendment (ERA). The PEDF decision is creating big question marks for drillers and has spawned a flurry of lawsuits to define which standards to use. The second case discussed at Shale Insight was the “Briggs” case that tossed out the rule of capture in PA for shale drilling. Both cases have the potential to greatly limit Marcellus drilling in PA.
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A group of 13 landowners in Virginia whose property was force taken by Mountain Valley Pipeline (MVP) using eminent domain is appealing a case they already lost in federal court to the U.S. Supreme Court. The landowners claim MVP has taken private land–their land–to use for private/corporate gain and not (as the law requires) taken for a “public” benefit. Eminent domain allows the taking of private land for public benefit, but not taking private land for private benefit. The issue really revolves around the question of, What is a public benefit? Can a private company use government powers because what they provide benefits the public? The big question is, will the Supreme Court, which gets some 8,000 such appeals each year, make this appeal one of the 80 or so they consider?
An important court case was decided on Friday in Pennsylvania Commonwealth Court that potentially impacts all shale drilling in the state. You will recall that seven selfish towns sued the state over the 2012 Act 13 law and it’s provision that would substitute a statewide, uniform and fair set of zoning ordinances for drilling in place of a patchwork, crazy quilt system of local ordinances for oil and gas drilling. Seven selfish towns (including Robinson Township) wanted their own ordinances and sued, ultimately winning at the Supreme Court (see 
American Water Management Services (AWMS) owns a wastewater injection well in Trumbull County that supposedly caused a low-level earthquake (that nobody could feel) in 2014. Two wells located at the site, both operated by AWMS, were “temporarily” shut down by the Ohio Dept. of Natural Resources following the quake (see 
The Sisters of the Corn (our name for the a group of nuns in Lancaster County, PA) are not giving up their hypocritical lawsuit against Williams for building the Atlantic Sunrise Pipeline across their property. As we told you in September, the sisters planned to ask the U.S. Supreme Court to hear the case, claiming infringement of religious freedom (see 
On Friday we told you that the Trump Dept. of Justice had petitioned the U.S. Supreme Court to temporarily stop a court case from advancing to trial next week (see 
Lawyers representing a group of 21 children filed a lawsuit in 2015 that aims to force the end using all fossil fuels in the United States, to address so called man-made global warming (see 
Mountain Valley Pipeline, a project of EQT Midstream, continues to work on constructing its 303-mile long project from West Virginia into Virginia–despite a recent court order overturning some of the permits for the project (see 
More bad news for EQT Midstream’s Mountain Valley Pipeline (MVP). Last week the U.S. Court of Appeals for the Fourth Circuit overturned a permit issued by the U.S. Army Corps of Engineers for MVP in West Virginia (see 
In the absence of a guaranteed minimum royalty in Pennsylvania–an issue which continues to divide landowners and drillers–individual landowners are left to litigate in order to get what they are fairly due. Such litigation is time consuming and expensive, and without a certain outcome, which is why most landowners don’t do it. In Washington County, PA a couple who signed a lease with Range Resources have just filed a lawsuit against Range in county court alleging Range violated the terms of the lease by deducting post-production expenses.
We’ve seen this movie before. The U.S. Court of Appeals for the Fourth Circuit (quickly becoming the Fourth Circus) has once again listened to the arguments of anti-fossil fuel groups including the Sierra Club and Chesapeake Climate Action Network and has overturned a recently re-issued permit that allows Mountain Valley Pipeline (MVP) to use certain methods to build the pipeline across streams and rivers in West Virginia. The court action pretty much shuts down all work on MVP in WV.
We’re not quite sure how to tackle this story as there are so many aspects to it. Let’s start here: Two years ago lawsuits filed by some 200 West Virginia residents against Antero Resources were combined into a class action lawsuit. The lawsuits are called “nuisance” lawsuits because, according to the plantiffs, Antero is a nuisance to them (truck traffic, noise, lights at night, etc.). That massive class action lawsuit, filed in early 2016, is about to be heard by the WV Supreme Court–a court in disarray after all of its sitting justices were impeached and removed.
We’ve lost track of how many lawsuits have been filed by anti-fossil fuel groups against EQT Midstream’s Mountain Valley Pipeline (MVP), and Dominion Energy’s Atlantic Coast Pipeline (ACP). Among the flood of never-ending lawsuits was a lawsuit against both pipelines from a group of 50 or so landowners who tried to overturn the constitutional use of eminent domain to force hold-out landowners to accept the pipeline. The landowners tried to court-shop and find a court to aide them in their cause. Last Friday the U.S. District Court for the District of Columbia rejected that effort.
It’s this kind of story that makes our blood boil–we won’t lie. EQT tried to shaft an elderly couple in Ritchie County, West Virginia out of royalty money by slipping in not only post-production deductions never agreed to in the contract, but also by slipping in a deduction for WV severance taxes owed by EQT itself. Maddening!