Litigation

Hydraulic Fracturing | Industrywide Issues | Litigation | Pennsylvania | Statewide PA | Susquehanna County

Unease Over PA Rule of Capture Case Spreads Nationwide
May 9, 2018May 9, 2018

This much is clear: The “Briggs” court decision in Pennsylvania cannot stand as it is without threatening to end the shale miracle, certainly in Pennsylvania, and perhaps across the country. Some believe we’re making too much of the Briggs decision recently handed down by two judges sitting on PA’s Superior Court (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 them voted to overturn the lower court decision in favor of Southwestern and sent the case back to a lower court where the landowners (the Briggs) now have to prove Southwestern trespassed and work out how much gas they believe was “taken.” Southwestern has asked the full Superior Court–all 20 judges–to hear the case again. No word yet on whether that will happen. We have, from the beginning, considered the Briggs decision to be an existential threat to the Marcellus industry in PA. In a recent Bloomberg article, some experts believe the threat has the potential to spread beyond PA. Below we explain how might happen, and provide some historical perspective on the rule of capture…
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Dominion Energy | Energy Services | Equitrans/EQT Midstream | Industrywide Issues | Litigation | Pipelines

FERC Rejects Rehearing Request from Antis re MVP, ACP Projects
May 8, 2018May 8, 2018

Last September a group of 57 gentry landowners in Virginia and West Virginia, backed by an out-of-state Big Green group, sued the Federal Energy Regulatory Commission (FERC) in an attempt to gut the 80-year old Natural Gas Act that gives FERC the right to grant eminent domain for pipeline projects (see VA, WV Landowners Sue FERC re Pipelines, Seek to Gut Natural Gas Act). Specifically, the colluding landowners oppose Dominion’s $5 billion, 594-mile Atlantic Coast Pipeline (ACP) that will stretch from West Virginia through Virginia and into North Carolina, and EQT’s $3.5 billion Mountain Valley Pipeline project, a 303-mile pipeline that will run from Wetzel County, WV to the Transco Pipeline in Pittsylvania County, VA. The frivolous lawsuit, titled BOLD ALLIANCE, et al. v. FEDERAL ENERGY REGULATORY COMMISSION, et al., was filed in the U.S. District Court for the District of Columbia, which was the wrong court. Only FERC has jurisdiction over the projects and decisions about whether or not they can get built. If a supposedly aggrieved party disagrees with FERC’s decisions, they must first file for a rehearing, and if FERC still refuses, THEN the supposedly aggrieved party can file a lawsuit ONLY with the U.S. Court of Appeals for the District of Columbia. The suers, Big Green group Bold Alliance, filed for a rehearing with FERC. Bold Alliance tried to sidestep the law by moving forward with a lawsuit prematurely. However, the really big no-no is that they filed in U.S. District Court for DC, NOT the Court of Appeals for DC. Big difference. Here’s “the rest of the story”…last Friday FERC rejected Bold Alliance’s request for a rehearing for both MVP and ACP. So we expect the next step is that Bold Alliance will now file an appeal with the correct court, the DC Court of Appeals…
Read More “FERC Rejects Rehearing Request from Antis re MVP, ACP Projects”
Anti-Drilling/Fossil Fuel | Crime | Industrywide Issues | Litigation | Pipelines | Statewide VA | Virginia

Va. State Senator Suing Forest Service for Blocking Illegal Protests
May 4, 2018May 4, 2018

There is nothing mysterious or complex about the actions taken by a Virginia State Senator, Chap Petersen (Democrat from the swamp, the D.C. area). Petersen is a lawyer and has just sued the U.S. Forest Service because the Forest Service is blocking a road in the Jefferson National Forest, which is their RIGHT to do (they manage it), because down that gravel road are several ILLEGAL TRESPASSERS who refuse to come down from trees that need to be cut down to make way for the federally-approved Mountain Valley Pipeline. There’s nothing complex in understanding that Petersen (did we mention he’s a Democrat?) supports lawlessness and anarchy. Imagine that, a lawmaker who supports people that break the laws he makes. How idiotic is that? Here’s the story of how Virginia Dems in high places continue to flout the laws of our country in their quest to retain political power (and contributions) by currying favor with radical Big Green supporters…
Read More “Va. State Senator Suing Forest Service for Blocking Illegal Protests”
Energy Companies | Industrywide Issues | Litigation | Pennsylvania | Southwestern Energy | Statewide PA | Susquehanna County

Another Look at “Rule of Capture” Case that Threatens PA Marcellus
May 4, 2018May 4, 2018

MDN brought you important news in April that the 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. Southwestern, following the decision, petitioned the Superior Court to have all of the sitting justices (called en banc) hear the case (see Southwestern Appeals “Trespass” Case to Entire PA Superior Court). No word yet on whether the Superiors will do it. In the meantime, we spotted an article by the ace lawyers at the Blank Rome law firm discussing the case and its implications. We can’t stress enough just how critical this case is to the future of drilling in Pennsylvania, which is why we bring you the following…
Read More “Another Look at “Rule of Capture” Case that Threatens PA Marcellus”
Anti-Drilling/Fossil Fuel | Industrywide Issues | Litigation | Pennsylvania | Statewide PA

Antis Weaponize PA Enviro Rights Amendment in Effort to Kill Shale
May 3, 2018May 3, 2018

AR-15 rifle

The Pennsylvania Environmental Rights Amendment (ERA), passed by the good citizens of PA in 1971, is a poorly worded piece of legislation with good intentions, adopted in a hurry in response to a disaster. Like all legislation that’s hurried and adopted in response to disasters (natural or man-made), the ERA is deeply flawed. Antis are now using the ERA as a bludgeon–perhaps a better analogy is more like an AR-15 semi-automatic rifle–in their attempt to assassinate the Marcellus Shale industry. Unfortunately, they are having some success in the PA court system. The ERA laid dormant after its adoption until an awful PA Supreme Court decision in 2013 breathed new life into it for antis (see Ongoing Fallout from PA Supreme Court’s Wrong Act 13 Decision). Since that time, antis have sued drillers and pipeline companies a number of times, citing the ERA, and in some cases winning (see PA Anti Strategy: Weaponize Recent Court Ruling Against Shale Dev). Emboldened by these wins, “Article 1, Section 27” as the ERA is known, is being employed in more places, even (especially) outside the court room…
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Energy Services | Industrywide Issues | Litigation | New York | Pipelines | Regulation | Statewide NY | Williams

Supreme Court Rejects Constitution Pipe Request to Overrule NY
May 1, 2018May 1, 2018

In January 2018, Williams, builder of the proposed Constitution Pipeline–124-mile pipeline from Susquehanna County, PA to Schoharie County, NY to move Marcellus gas into NY and New England–took their last, best shot at overturning a politically-based decision by the corrupt New York Dept. of Environmental Conservation (DEC) to deny the Constitution necessary water permits to build (see Constitution Pipeline Appeals NY Fight Directly to U.S. Supreme Court). Williams appealed an appeals court decision to the U.S. Supreme Court, hoping against hope that the high court would hear the case–and overturn the appeals court decision, thereby forcing NY to allow pipeline construction. Sadly, the attempt has failed. Yesterday the U.S. Supreme Court denied the petition to hear the case. Let’s be honest, it was a long shot to begin with–the Supremes only hear a handful of cases each year. But still, the decision is disappointing. Unlike antis, when our side loses a court case like this, we acknowledge and accept it. If it had gone the other way, antis would have claimed the court decision was illegitimate and launched illegal actions to block construction–like sitting in the tops of trees. They resort to anarchy, mob rule and bullying when they don’t win. We accept the rule of law and pledge to soldier on and fight another day. That’s the difference between unmoored radicals and people with their heads screwed on straight. So what happens now? Is this truly the end of the line for the Constitution? The project has one, possibly two very slim chances left…
Read More “Supreme Court Rejects Constitution Pipe Request to Overrule NY”
Anti-Drilling/Fossil Fuel | Industrywide Issues | Litigation | Pennsylvania | Pipelines | Statewide PA

PA Court Rules ME2 Pipe has Power of Eminent Domain, Period
May 1, 2018May 1, 2018

One of the ways anti-fossil fuel groups have tried to stop the Mariner East 2 Pipeline project is by tying it up in court. Various lawsuits have been filed going back years (see our list of lawsuit stories here). One litigant, a Big Green group headquartered in Philadelphia, the so-called Clean Air Council, has tried repeatedly to get the courts to deny ME2 the right to use eminent domain in cases where landowners refuse to cooperate (see Clean Air Council’s Strange War Against Mariner East Pipeline). CAC argued that ME2 is not a “public utility” and therefore not entitled to the use of eminent domain. That argument flamed out. They also argued since ME2 crosses a state boundary–into a small part of Ohio–it’s not an intrastate but interstate project and should be subject to the Federal Energy Regulatory Commission (FERC) instead of the PA state Public Utility Commission (PUC). That argument bombed too. CAC then argued ME2 is using a public taking for a private enterprise (not for the public good). Also tossed out. A court case that began in 2015 made its way to the PA Commonwealth Court and yesterday the Commonwealth Court finally shut down the CAC’s long-running lawsuit once and for all, denying their wild claims…
Read More “PA Court Rules ME2 Pipe has Power of Eminent Domain, Period”
Chester County | Energy Services | Industrywide Issues | Litigation | Pennsylvania | Pipelines | Regulation | Sunoco Logistics

Philly Dem Senator Tries to Shut Down ME2 Pipe Construction
April 30, 2018April 30, 2018

PA State Senator Andy Dinniman

A Chester County, PA (Philadelphia area) Democrat State Senator by the name of Andy Dinniman (who we think looks like Tony Soprano) continues his mission to stop the Mariner East 2 (ME2) project. This is nothing new for Dinniman. He’s been agitating and lobbying and demanding and pouting for over a year in his quest to shut down ME2 (see our Dinniman stories here). According to a press release from Dinniman issued last Thursday, the Senator has filed “a formal legal complaint and a petition for interim emergency relief with the Pennsylvania Public Utility Commission (PUC) to prohibit construction of the Mariner East 2 (ME2) and Mariner East 2X (ME2X) pipelines in West Whiteland Township.” Dinniman claims Sunoco Logistics Partners (builder of ME2) has 20 days to respond to the complaint. No doubt Sunoco will respond, and there’s little doubt the PUC will not do anything about Dinniman’s request…
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Electrical Generation | Industrywide Issues | Litigation | Ohio | Trumbull County

Lordstown, OH Power Plant Investor Tries to Block 2nd Plant
April 19, 2018April 19, 2018

Be careful who you sell your energy projects to. That’s the lesson we take away from a spat that’s developed 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). CEF then 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 equity firm. CEF sued Macquarie in September saying the company 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.” CEF is threatening to sue Macquarie for $100 million for delaying construction. A judge will now decide if construction can proceed and whether or not CEF will need to make annual payments to Macquarie…
Read More “Lordstown, OH Power Plant Investor Tries to Block 2nd Plant”
Energy Companies | EQT Corp | Industrywide Issues | Lease & Royalty Payments | Litigation | Regulation | Statewide WV | West Virginia

EQT Sues WV for Passing Minimum Royalty Law re Flat Rate Leases
April 18, 2018April 18, 2018

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). SB 360 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 an old flat rate lease. 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 they make aren’t all that much anyway. But then 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 last week filed a lawsuit (copy below) asking a judge to block implementation of the law, set to take effect on May 31…
Read More “EQT Sues WV for Passing Minimum Royalty Law re Flat Rate Leases”
Energy Companies | Industrywide Issues | Lease & Royalty Payments | Litigation | Pennsylvania | Southwestern Energy | Statewide PA

Southwestern Appeals “Trespass” Case to Entire PA Superior Court
April 17, 2018April 17, 2018

Southwestern Energy has just taken the next very important step in a process that frankly has us holding our breath. Two weeks ago MDN brought you the news that the Pennsylvania Superior Court handed down a decision 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 the case to Superior Court and three judges heard the case. One of the Superior judges authored a decision overturning the lower court, with a second judge “joining” (agreeing with) the decision. The third judge was AWOL (“not participating”). Frankly, the stakes could not be higher for the future of Marcellus drilling in PA. Southwestern has just filed a request with the Superior Court asking that all 20 judges who sit on that court hear and consider the case, which makes sense given the gravity of the case and PA’s economic future…
Read More “Southwestern Appeals “Trespass” Case to Entire PA Superior Court”
Energy Companies | Industrywide Issues | Litigation | Pennsylvania | Snyder Brothers | Statewide PA | Taxation

PA Supreme Court Takes a Close Look at Strippers…as in Wells
April 16, 2018April 16, 2018

It’s always fun to talk about strippers here on MDN. Uh, stripper wells that is. Background: In 2012 Pennsylvania passed the Act 13 drilling law that includes an impact fee on wells targeting shale layers, including the Marcellus. Snyder Brothers, headquartered in PA, drills mostly conventional (vertical only) wells in southwestern PA. In 2011-2012 they drilled 45 vertical-only wells targeting the Marcellus. All 45 of the vertical-only wells were fracked. Initially those wells produced more than 90 thousand cubic feet per day (Mcf/day), but by December of the year in which they were drilled, the wells produced less than 90 Mcf/day. The way the 2012 Act 13 law is written, if a well produces less than 90 Mcf/day during “any” month it is considered a stripper well and exempt from paying the impact fee. The state’s Public Utility Commission (PUC) assessed the fee anyway because for 11 months the wells produced more than 90 Mcf/day, arguing the word “any” is not a get-out-tax-jail-free card. Snyder Bros. sued and after an appeal of the case, Snyder Bros. won the case in March 2017, exempting those wells from paying impact fees (see PA Court Says Snyder Bros Wells are Strippers, No Impact Fees Due). That sent the state Public Utility Commission (PUC) into a tizzy with claims the Act 13 impact fees are now in jeopardy. So the PUC appealed the case to the PA Supreme Court. The Supremes heard arguments in the case last Wednesday…
Read More “PA Supreme Court Takes a Close Look at Strippers…as in Wells”
Clearfield County | Industrywide Issues | Litigation | Pennsylvania | Wastewater

Clearfield County, PA Residents to Appeal Injection Well Approval
April 11, 2018April 11, 2018

We suppose it was bound to happen. Several weeks ago MDN told you that the Pennsylvania Dept. of Environmental Protection (DEP) had given final approval to Windfall Oil and Gas to drill a wastewater injection well near Dubois, in Brady Township (Clearfield County), PA (see PA DEP Approves Wastewater Injection Well in Clearfield Count). Residents who live near the proposed injection well have opposed the plan from the beginning. They are now pledging to take the next step. What is that step? To appeal the DEP’s approval to the special court set up in PA to hear appeals of DEP decisions–called the Environmental Hearing Board. Clearfield County Commissioners are aiding residents in their fight against the injection well. However, the county and its residents are not putting all their hope in overturning the DEP approval. They’re also making backup plans in case the well is drilled–by testing water wells in the vicinity now, and by making “emergency plans” for the future–whatever that means…
Read More “Clearfield County, PA Residents to Appeal Injection Well Approval”
Energy Services | Industrywide Issues | Litigation | New York | Pipelines | Statewide NY | Williams

Constitution Pipe Files Brief with Supreme Court, Exposes Cuomo/DEC
April 11, 2018April 11, 2018

In January, the Constitution Pipeline–a $683 million, 124-mile pipeline from Susquehanna County, PA to Schoharie County, NY to move Marcellus gas into NY and New England–filed an appeal with the U.S. Supreme Court asking the court to overrule a lower court decision and allow the pipeline to get built in New York State (see Constitution Pipeline Appeals NY Fight Directly to U.S. Supreme Court). The Andrew Cuomo-corrupted Dept. of Environmental Conservation (DEC) suckered Constitution into refiling an application for a state-issued (but federal) water crossing permit a second time, restarting a one-year clock under which NY could render a decision about the pipeline. Constitution fully cooperated with the DEC, changing plans at the DEC’s request. With four days left on the clock in the second one-year period, DEC, in bad faith, issued a denial of Constitution’s request for the permit (see NY Gov. Cuomo Refuses to Grant Permits for Constitution Pipeline). In January Constitution filed the lawsuit with the Supreme Court, but earlier this week Constitution filed a “reply brief” in the case. In the brief, Constitution exposes the DEC’s actions as nothing more than a political move orchestrated by Andrew Cuomo himself. It is a devastating brief, laying bare the naked corruption of Cuomo and those who run the DEC…
Read More “Constitution Pipe Files Brief with Supreme Court, Exposes Cuomo/DEC”
Anti-Drilling/Fossil Fuel | Apex Energy | Energy Companies | Industrywide Issues | Litigation | Olympus/Huntley & Huntley | Pennsylvania | Regulation | Westmoreland County

Penn Twp Antis Try to Use PA ERA to Block Shale Drilling
April 10, 2018April 10, 2018

Last November we updated you on a lawsuit filed by a group of radical anti-fossil fuelers in Penn Township (Westmoreland County), PA (see Penn Twp Ninny Nannies File Lawsuit to Block Apex, H&H Wells). A group calling themselves Protect PT, backed with money and legal help from Big Green group PennFuture, filed a lawsuit to try and stop Apex Energy and Huntley & Huntley (H&H) from drilling wells in the township. The lawsuit finally made it to a county judge who is hearing testimony this week. One of the “expert witnesses” called by Protect PT is retired and discredited Cornell professor Tony Ingraffea, who makes a living by traveling around the country bashing fracking (see our Ingraffea stories here). The peril with this particular lawsuit is that it uses Pennsylvania’s so-called Environmental Rights Amendment (ERA), which liberal PA judges have, in recent years, breathed new life into. The argument is that fracking denies those who live near this temporary activity their “right” to enjoy Mom Nature, therefore it should be banished forever. That’s what Protect PT is attempting to pull off–a total frack ban in the Penn Township…
Read More “Penn Twp Antis Try to Use PA ERA to Block Shale Drilling”
Energy Services | Industrywide Issues | Kentucky | Kinder Morgan | Litigation | NGLs | Pipelines | Tennessee Gas Pipeline

Kentucky County Suing to Stop TGP from Reversing Pipeline for NGLs
April 10, 2018April 10, 2018

Rowan County, KY

In February MDN told you that Kentucky antis went to court to try and block a plan by Kinder Morgan to convert a portion of the Tennessee Gas Pipeline that flows natural gas from the Gulf Coast to the northeast, to reverse the pipeline and flow natural gas liquids from the Marcellus/Utica region to the Gulf (see Kentucky Antis File Lawsuit to Stop TGP NGL Pipe Reversal). The reversal is part of a $4 billion project called the Utica Marcellus Texas Pipeline (UMTP) project. The first step in reversing the existing pipeline was approved by the Federal Energy Regulatory Commission last October (see FERC Advances Plan to Reverse Part of TGP to Haul M-U NGLs to Gulf). Antis in Kentucky got their bluegrass knickers in a twist over FERC’s action. They filed a request for “rehearing” of FERC’s decision, which is the first step in a process that typically ends up in court. Normally FERC has 30 days to decide on a rehearing, however, they have a tactic they call a “tolling order” which allows them to extend the amount of time to make a rehearing decision–indefinitely. FERC pulled out the tolling order card and played it last November (see FERC Frustrates Kentucky Radicals Seeking to Stop TGP Pipe Reversal). The ticked-off antis filed a lawsuit challenging the FERC tolling order. While all of that continues to play out, one of the Kentucky counties along the TGP route–Rowan County–is filing its own lawsuit to stop the reversal and conversion of the pipeline. No, Rowan County has no standing to file such a lawsuit, but apparently they’ll need to learn that the hard way…
Read More “Kentucky County Suing to Stop TGP from Reversing Pipeline for NGLs”