Litigation

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    WV Supreme Court Crisis – House Votes to Impeach Sitting Judges

    What in the world is going on in West Virginia? Last Friday in our “best of the rest” list of energy stories, we ran a brief piece about a WV House panel voting to impeach the remaining four (of five) sitting WV Supreme Court justices, claiming the justices had abused taxpayer funds (see Energy Stories of Interest: Fri, Aug 10, 2018). We didn’t think much of it at the time, partially because it was a CNN story–a known source of fake news. Yet the news, in this case, was not fake. On Monday the full WV House voted to impeach all of the sitting justices. One them (a Democrat) promptly resigned her position so that Gov. Jim Justice could not replace her with his own pick. Instead, her office will go on the ballot this November. The Wall Street Journal ran an article yesterday outlining in more detail what the alleged charges are (bordering on embezzlement), and speculating on what happens now. We’re interested in this story because earlier this year it was this group of justices that reversed itself in a highly unusual practice to allow EQT to deduct post-production expenses from flat rate leases (see WV Supreme Court Reverses Itself, Post-Production Deductions OK). That sparked a rebellion in the WV legislature which led to a new law reversing the Supreme Court’s ruling (see WV Gov Justice Signs Bill to Guarantee 12.5% Minimum Royalty). There are other oil and gas cases that may be impacted by a wholesale change in the court as well. Here’s the latest on this developing situation in WV…
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    Antis Still Can’t Come to Terms They Lost NY AIM Pipe Case

    Big Green antis thought they could stop the Algonquin Incremental Market (AIM) pipeline project–an expansion of the existing Algonquin pipeline system designed to carry 342 million cubic feet of natural gas per day to New England states that badly need the gas. On March 3, 2015 the Federal Energy Regulatory Commission (FERC) issued a final approval for the project. Construction began in 2015 and, following extreme opposition from New York State over a small portion of the project near the Indian Point nuclear plant (which will shut down in a few years anyway), AIM finally went online in late 2016. In what has become a typical pattern, Big Green groups asked FERC to rehear their decision to approve AIM, FERC refused, and Big Green then filed a lawsuit in federal court. But two weeks ago the federal court told the antis “no,” crushing their efforts to roll back the expanded pipeline (see DC Circuit Court Denies Anti Request to Rehear AIM Pipe Approval). That should be the end of the matter. There’s no place left to go, court-wise, except maybe (one in a million odds) to the U.S. Supreme Court. Yet the antis, still disbelieving they’ve lost, are threatening to pursue it legally. Some unstable people just can’t let go…
    Read More “Antis Still Can’t Come to Terms They Lost NY AIM Pipe Case”

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    100+ PA Landowners Sue EQT re Gas Storage Field Payments

    According to Washington County, PA landowner Joe Raposky, EQT has been storing natural gas under his property in Finleyville without permission and without compensation since at least 2007. Last year Raposky asked EQT to compensate him and they refused. So Mr. Raposky has organized over 100 of his neighbors along with landowners who sit over top of other similar underground storage fields in the region, and on July 30 they filed a lawsuit against EQT. PA has some 60 gas storage fields spread across 26 counties in the state. The fields are used to temporarily store and then retrieve natural gas. Storage, which is not something we write about very much, is in fact a big deal when it comes to the natural gas market. Not all gas is used as soon as its extracted and sold along a pipeline. There are two main “seasons” in the natural gas industry–injection season, from April 1 through October 31, when a surplus is stored underground, and withdrawal season, from November 1 through March 31, when more gas is used than is produced. Storage fields like the one in Finleyville are an important part of the natgas puzzle. In some cases, landowners are only now becoming aware of the existing fields under their feet and they (rightly) want to be compensated for the use of their property. Is storage the next big bone of contention between landowners and drillers?…
    Read More “100+ PA Landowners Sue EQT re Gas Storage Field Payments”

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    Chesapeake Settles NEPA Royalty Lawsuit for Pennies on the Dollar

    Chesapeake Energy has, according to the Pittsburgh Post-Gazette, “reached a $7.75 million settlement agreement with about two-thirds of its Pennsylvania natural gas royalty owners.” At the end of last year Chesapeake Energy offered a $30 million deal to Pennsylvania landowners to settle claims the company had screwed them out of royalty money by artificially inflating post-production costs in an elaborate scheme to pocket more money at landowners’ expense (see Chesapeake Agrees to $30M Royalty Settlement for PA Landowners). Chesapeake’s proposed deal last year would have given the average PA leaseholder (some 14,000 of them) a one-time $2,140 payment–adjusted up or down for the size of their acreage. This new deal, for 10,000 of the same leaseholders, offers $7.75 million–an average of $775 per landowner. Which is piddly. It’s nothing. An insult. Last year Chesapeake’s deal with leaseholders required the state Attorney General’s office, which has an ongoing, separate lawsuit filed against Chesapeake over the same issue, to settle as well. The AG’s office refused (see PA AG Not Backing Down re Chesapeake Energy Royalty Lawsuit). In fact, the AG’s office is still refusing to settle, with this new deal. Yet now Chesapeake is willing to move forward without the AG as part of the settlement. Heck yeah! Convince these desperate folks to take, literally, pennies on the dollar. What company wouldn’t go for that deal? Any way you slice this, northeast PA landowners are getting screwed if they agree to Chesapeake’s deal. They get a maximum of 8% back of the inflated “costs” Chesapeake originally deducted from royalty checks. We suppose some will say 8% now is better than maybe nothing or very little years from now. We don’t see it. We see these good landowners getting shafted in this deal…
    Read More “Chesapeake Settles NEPA Royalty Lawsuit for Pennies on the Dollar”

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    Franklin County, VA Landowners Lose Round #1 to Stop MV Pipe

    A federal judge turned down a request by six Franklin County, VA landowners to shut down construction of the Mountain Valley Pipeline (MVP) in their area. The six claim that work being done by MVP is leading to soil erosion–that storm water runoff has resulted in mountains of mud ending up on their property. The legal argument is “trespass” for failing to do the work correctly, thereby leading to an intrusion on their property. The judge denied the request. However, the judge did not toss out the entire lawsuit–only a request for a preliminary injunction. The lawsuit itself will continue. Not that it makes much of a difference. All work on MVP is currently stopped anyway (see FERC Shuts Down ALL Work on Mountain Valley Pipeline in WV, VA). There’s no need for a preliminary injunction if there’s no work happening. Here’s the story of six ticked-off landowners not happy with how MVP is doing work in their area…
    Read More “Franklin County, VA Landowners Lose Round #1 to Stop MV Pipe”

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    Federal Court Stops Works on Some (All?) of Atlantic Coast Pipe

    In a pattern that has become obvious, and disturbing, the radicalized Sierra Club has once again prevailed in shutting down work on a second mammoth pipeline project–Dominion’s Atlantic Coast Pipeline (ACP)–by concentrating their legal arguments at one small, specific point of the project. This happened with Mountain Valley Pipeline (MVP). As we reported yesterday, the Federal Energy Regulatory Commission (FERC) told MVP to stop work on the entire project, at least for now (see FERC Shuts Down ALL Work on Mountain Valley Pipeline in WV, VA). The Sierra Club convinced the without-experience-in-the-oil-and-gas-industry judges of the federal Fourth Circuit Court of Appeals to overturn permits granted by the U.S. Forest Service (USFS) and Bureau of Land Management (BLM) to build MVP across 3.5 miles of Jefferson National Forest, on the border of WV and VA. This time, with ACP, the Sierra Club convinced the Fourth Circuit to overturn permits granted by the U.S. Fish and Wildlife Service (FWS) and the U.S. National Park Service (NPS) granted to ACP to cross the Blue Ridge Parkway. However, the rolled-back permits affect more of ACP than MVP–about 100 miles of work out of 600+ miles. The court, in rolling back ACP’s permits all but told FERC they need to shut down work on the entire project until this matter is resolved. The court can’t order FERC to do so, but they strongly cautioned FERC that they should do so. Since FERC stopped work on MVP, it stands to reason they will do it with ACP too. So lightening has now struck twice, and it’s not good. Dominion maintains they will continue to build ACP except for those areas where the Fourth Circuit has rolled back permits. In other words, they’ll keep building it in North Carolina and some locations in WV. All eyes are now on FERC. We hate to say this, but our guess is that FERC will shut down the entire ACP project, for now. It’s virtually the same scenario as MVP which FERC elected to shut down. Why would this project be any different?…
    Read More “Federal Court Stops Works on Some (All?) of Atlantic Coast Pipe”

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    PA Supremes Order Rehearing for Rex Permits Near Martian School

    The Martians and their allies have attacked once again. Run for the hills! This is a long-running story that’s just taken another (unfortunate) twist. A handful of anti-drilling parents from the Mars School District (“Martians”) in Butler County, PA, backed by money and legal help from Philadelphia Big Green groups THE Delaware Riverkeeper and the Clean Air Council, have filed frivolous lawsuit after frivolous lawsuit (see Martians Use Riverkeeper to Continue Court Battle Against Rex). The effort is aimed at denying landowners in Middlesex Township revenue from legally permitted drilling. The actions by these radicalized parents have cost the taxpayers of Middlesex Township over $100,000 in legal fees (we hope the taxpayers enjoying paying for this folly). Eventually most of the lawsuits were won by the good guys and at least two wells got drilled. However, in 2016 the Martians appealed a town ordinance that allows the wells to be drilled about 3/4 of a mile from the school. A panel of three western PA judges in Commonwealth Court heard arguments in the case, and in June 2017 the judges ruled against Riverkeeper and the Martians (see Dela. Riverkeeper Loses Martian Case to Stop Rex Energy Drilling). Riverkeeper, using funding from the William Penn Foundation and Heinz Endowments (among other Big Green funders) pressed on, all the way to the PA Supreme Court. Last Friday the Supremes proved they aren’t so supreme after all. In a ruling, the Supremes told Commonwealth Court to do it over again, this time considering PA’s so-called Environmental Rights Amendment as part of their thinking. In other words, do it over, and rule another way this time–that’s what the Supremes are telling the lower court to do…
    Read More “PA Supremes Order Rehearing for Rex Permits Near Martian School”

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    Riverkeeper Too Late to Challenge Penn East Pipe Water Certificate

    In Feb. 2017, THE Delaware Riverkeeper filed a lawsuit challenging water permits issued by PA for the PennEast Pipeline (see PennEast Pipeline Gets 401 Water Quality Certificate from PA DEP). Riverkeeper filed their challenge late, arguing it was confused over where to file the challenge–in federal or state court. Commonwealth Court told Riverkeeper nice try, but no cigar. Last Wednesday Commonwealth Court told Riverkeeper, “you’re too late.” The court said Riverkeeper’s “confusion” over where they should file is not justification for filing WAY past the deadline to challenge the permit. We doubt Riverkeeper even thought this particular lawsuit (one of dozens they’ve launched against PennEast) would bear fruit. This is just one more instance of Riverkeeper’s “throw it against the wall and see what sticks” legal strategy. This particular handful fell to the ground…
    Read More “Riverkeeper Too Late to Challenge Penn East Pipe Water Certificate”

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    Court Tosses Sierra Club Challenge to MV Pipe Work in VA

    The Sierra Club has struck out in its attempt to stop construction of Mountain Valley Pipeline (an EQT Midstream project) in Virginia. Yesterday the U.S. Fourth Circuit Court of Appeals ruled that the VA State Water Control Board did not err in finding MVP would not unreasonably harm streams and wetlands with its construction activities. This is a MAJOR court victory for MVP and begins to clear away some of the doubt cast by other recent court decisions (see Court Cancels Permits for Mountain Valley Pipe on Fed Land). In a strange twist, the same court (the Fourth Circuit) ruled differently concerning the same pipeline project (MVP). The feds ruled “no” to permits issued on federal land in Virginia, but “yes” to permits issued everywhere else Virginia. The pulled permits for MVP on federal land only affect 3.5 miles of pipeline. Everywhere else (at least in Virginia) MVP is good to go…
    Read More “Court Tosses Sierra Club Challenge to MV Pipe Work in VA”

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    WV Close to Starting Construction on First Natgas-Fired Plant

    For years Energy Solutions Consortium (ESC) has been trying to build several natural gas-fired electric plants in West Virginia, but have been prevented from doing so by Big Coal lawsuits. We recently wrote about this issue, naming names (see OVJA Exposed as Front for Murray Energy Blocking Gas-Fired Plants). It’s understandable that coal doesn’t want to give up its virtual monopoly on electric generation in the Mountain State. Some 95% of all electricity produced in the state comes from coal-fired plants. Last year then-WV Sec. of Commerce Woody Thrasher observed that Ohio has built 19 new gas-fired power plants, and Pennsylvania has built 22 new gas-fired power plants, while WV has built NONE. Why not? Because of Robert Murray, CEO and founder of Murray Energy, one of the largest independent coal mine operators in the U.S. Bob Murray is using a front organization called Ohio Valley Jobs Alliance (OVJA) to file a blizzard of frivolous lawsuits that have kept all new gas-fired plant projects from being built in WV. The best chance ESC has in building its first gas-fired plant is in Harrison County. Only one roadblock remains–an OVJA challenge to the project’s air permit previously granted by the West Virginia Air Quality Board. Kind of ironic that Big Coal is challenging an air permit for far-cleaner-burning natural gas. Coal pollutes the air way more than natural gas. The WV Supreme Court hears challenges to these kinds of permits. The paperwork has been filed with the high court. Once the court accepts and hears the case, which ESC thinks will be early fall, and the air permit is upheld, the first shovel of dirt will fly to build the $880 million Harrison County Power Station. An ESC rep recently updated Harrison County officials and labor union members about the status of the project…
    Read More “WV Close to Starting Construction on First Natgas-Fired Plant”

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    PA Briggs “Rule of Capture” Case Turns on Concept of Drainage

    In April, MDN brought you the news that Pennsylvania Superior Court had handed down a decision (known as the “Briggs” case) that has the power to greatly restrict, perhaps even stop, Marcellus drilling in PA (see PA Superior Court Overturns “Rule of Capture” for Marcellus Well and PA “Rule of Capture” Case has Power to Limit Marcellus Drilling). The issue, in brief, is that the Superior Court decision disallows using an age-old principle called the “rule of capture” when it comes to shale drilling and fracking. It opens the door to a myriad of frivolous lawsuits claiming that a fracture, a crack created during fracking, is draining gas from a neighbor’s property without justly compensating the neighbor for the gas. Southwestern successfully argued in a lower court that the odd crack here and there that may slip under a neighbor’s property is permissible. The landowner appealed to Superior Court and three judges heard the case. Two of the three overturned the lower court and sided with the landowner. Southwestern, following that decision, petitioned the Superior Court to have all of the sitting justices (called en banc) hear the case. Sadly, in June the Superiors proved they aren’t so superior after all, declining to rehear the case (see PA Superior Court Rejects Southwestern “Briggs” Trespass Appeal). Southwestern then appealed the case to the PA Supreme Court in early July (see Southwestern Appeals “Briggs” Trespass Case to PA Supreme Court). No word yet on whether or not the Supremes will take the case. In the meantime, this case and its ultimate effect on drilling in PA and beyond is still a hot topic of discussion throughout the industry. We spotted two recent articles tackling it–one from a lawyer who does a great job of crystallizing the important elements in the case–that this case turns on the concept of drainage, and the other article which tackles the broader topic of how energy law in PA is charting its own path separate from Texas and other big oil/gas states…
    Read More “PA Briggs “Rule of Capture” Case Turns on Concept of Drainage”

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    DC Circuit Court Denies Anti Request to Rehear AIM Pipe Approval

    The Algonquin Incremental Market (AIM) pipeline project is an expansion of the existing Algonquin pipeline system designed to carry 342 million cubic feet of natural gas per day to New England states that badly need the gas. On March 3, 2015 the Federal Energy Regulatory Commission (FERC) issued their final approval for the project, allowing it to go forward. Construction began in 2015 and, following extreme opposition from New York State over a small portion of the project, it finally went online in late 2016. New York’s radical, anti-drilling governor, Andrew Cuomo, tried to stop the Algonquin using the flimsy excuse that some of the drilling for the pipeline would happen a half mile from a nuclear power plant–a plant that’s shutting down anyway. A few weeks after Cuomo requested FERC shut it down, FERC told him “no”–which was the cue for Big Green groups to file an appeal with the District of Columbia Court of Appeals to force FERC to rehear/reconsider their approval (see Radical Enviro Groups File Appeal to Stop AIM Pipeline in NY/CT). They asked the D.C. court to tell FERC to deny AIM after all because, they say, the project should have been lumped in with consideration of a second project, called Atlantic Bridge. Hope springs eternal for antis. Even though the completed project has been up and running for a year and a half, they still hoped they could roll back the clock and stop the extra gas flowing through AIM with their lawsuit. Those hopes were dashed on Friday when the D.C. court denied the rehearing request…
    Read More “DC Circuit Court Denies Anti Request to Rehear AIM Pipe Approval”

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    Court Cancels Permits for Mountain Valley Pipe on Fed Land

    The Sierra Club and two other far-out, radical “environmental” groups have scored a minor victory in convincing the U.S. Court of Appeals for the Fourth Circuit to overturn permits issued by the U.S. Forest Service (USFS) and Bureau of Land Management (BLM) that allows EQT Midstream’s Mountain Valley Pipeline to cross 3.5 miles of Jefferson National Forest in West Virginia and Virginia. The court says USFS and BLM didn’t come to the right conclusion about sedimentation and erosion impacts of MVP. The judges (who don’t know a thing about these issues) say USFS and BLM’s contention that impacts can be adequately mitigated is in error. Ever notice how some judges love to tell other people how to do their jobs? In practical terms, the decision is merely an irritation–affecting maybe 1% of the overall project. But the broader implications are troubling. The Clubbers and their friends have a similar case against MVP at the same court (Fourth Circuit) that asks the court to block construction of MVP throughout Virginia on the theory that a stream crossing permit issued by the U.S. Army Corps of Engineers is faulty (see Army Corps Engrs Reinstates MVP Permits for 4 WV River Crossings). Will the Fourth Circuit judges now tell the Army Corps how to do their job too? That’s the strategy outlined in the Sierra Club’s arrogant, boastful press release following the decision stopping construction of MVP in Jefferson National Forest…
    Read More “Court Cancels Permits for Mountain Valley Pipe on Fed Land”

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    EQT Still Fighting WV Minimum Royalty Law for Flat Rate Leases

    Follow the bouncing ball. Earlier this year the West Virginia legislature passed Senate Bill (SB) 360, which Gov. Jim Justice subsequently signed into law (see WV Gov Justice Signs Bill to Guarantee 12.5% Minimum Royalty). The new law overturns a ruling by the WV Supreme Court in Leggett v. EQT Production, a case in which the Supremes (in a very unusual move) reversed their own previous decision and allowed EQT to deduct post-production expenses in old flat rate leases. In essence, SB 360 guarantees rights owners/landowners a 12.5% minimum royalty, regardless of post-production deductions–but only in flat rate leases. A flat rate lease is a lease in which a company pays a regular (in EQT’s case, annual) payment, regardless of how much oil/gas is produced. Traditionally drillers don’t deduct post-production expenses because the payments landowners get are piddly anyway. But EQT began to claim deductions, prompting a lawsuit that went all the way to the Supreme Court. The legislature aimed to “fix” what they considered an error in the court’s ruling. EQT claims the new law is unconstitutional and in April filed a lawsuit asking a judge to stop the law from taking effect (see EQT Sues WV for Passing Minimum Royalty Law re Flat Rate Leases). WV responded in June, asking the judge to dismiss EQT’s lawsuit (see WV Files Motion to Dismiss EQT Lawsuit Targeting Royalty Law). And now the ball has bounced again. EQT just filed paperwork asking the judge to deny the state’s motion to dismiss the lawsuit, claiming the new law improperly invokes “police power”…
    Read More “EQT Still Fighting WV Minimum Royalty Law for Flat Rate Leases”

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    Squabbling Over 2nd Lordstown Utica-Fired Elec Plant Near an End

    There is an ongoing legal squabble in Trumbull County, OH over a proposed second Utica gas-fired electric plant in Lordstown. Clean Energy Future (CEF) is currently building the Lordstown Energy Center, and has been since June 2016 (see Lordstown Energy Center Breaks Ground on $890M Electric Plant). That project is 95% built. CEF proposed, and got the Ohio Power Siting Board (OPSB) to approve, plans to build a second Utica-fired plant next door to the first (see Ohio Approves 2 Utica-Fired Power Plants in Guernsey, Trumbull Counties). As is typically the case, CEF (the builder) sold most of the first project to investors. In this case the new majority owner for the first power plant is Macquarie, an international investment firm. CEF sued Macquarie last September saying Macquarie is preventing CEF from building the second plant. Macquarie says if a second plant gets built in the same location, the first plant (now owned by Macquarie) will take a $6.7 million hit on earnings each year. Macquarie wants CEF to pay them that amount annually when/if the second plant gets built. To which CEF says, “They’re looking for an extortion payment.” Even though the legal wrangling continues, it’s now close to resolution. Trumbull County Court ruled in favor of CEF, instructing Macquarie to sign paperwork allowing the second plant to get built, and to sell property owned by the first plant to the second plant (as provided for under the original contract). Macquarie has refused to sell the land. CEF has asked the court to find them in contempt and make them sell. CEF also wants Macquarie to pay them $130 million for delaying the second project for more than a year…
    Read More “Squabbling Over 2nd Lordstown Utica-Fired Elec Plant Near an End”

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    Fed Court Tosses Lancaster Nuns’ Lawsuit re Atlantic Sunrise Pipe

    It’s the end of the road for a highly hypocritical order of nuns in Lancaster, the Adorers of the Blood of Christ, who use natural gas to heat an old folks home they operate, yet are trying to block the Atlantic Sunrise Pipeline from traversing that very same property. The nuns appear to be radical environmentalists. We don’t know how they justify using natural gas yet actively try to block a pipeline that delivers it. Only in the mind of a leftist. The nuns, with the help of local anti group Lancaster Against Pipelines, stuck a garden trellis and a few wooden park benches in the middle of a corn field they own (leased to a local farmer), declaring it a “chapel”–hence our attempt at humor, calling them “Sisters of the Corn.” The sisters then sued to block the pipeline based on religious grounds (see Lancaster Nuns Demand “Religious Freedom” Trial re Pipeline). It was a sham lawsuit from the beginning and the courts saw through it. The case was thrown out by a lower court, and appealed to the U.S. Court of Appeals for the Third District. Yesterday that court tossed the case too. The nuns now say they are “exploring their options” for what to do next. We’d say they’ve run out of options. Upon hearing of the court’s ruling, the radicals at Lancaster Against Pipelines encouraged fellow wackos to continue breaking the law (i.e. “civil” disobedience) in order to protest the pipeline…
    Read More “Fed Court Tosses Lancaster Nuns’ Lawsuit re Atlantic Sunrise Pipe”