Litigation

Energy Companies | Industrywide Issues | Litigation | Pennsylvania | Southwestern Energy | Susquehanna County

Fracking Trespass Case (Rule of Capture) Still Reverberating in PA
April 9, 2018April 9, 2018

Last week 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 last week’s 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. Was the court’s decision a big deal? Or was is not such a big deal? We’ve seen stories appear every day since the decision, some indicating the decision is monumental in scope and impact–others saying meh, not so big after all. Which is it? We still believe the issue turns on how far cracks extend out from a wellbore during fracking–and whether you can accurately measure the distance of such fractures. If the cracks extend just a few hundred feet, the court decision is not a big deal. Most drillers stay at least 350 feet from the boundary line when drilling a well–meaning the cracks that drain gas do not extend to neighboring properties. However, if the cracks, the fractures, extend out more than a few hundred feet, say more than 300 feet, that’s a problem. Southwestern Energy responded in the lawsuit that IF their cracks had intruded (trespassed) under the boundary line, it would fall under “rule of capture”–the legal principle of he who gets there first, wins. The court ruled otherwise. We’re still haunted by the definition used (and accepted) in the lawsuit that says fracking fluid and sand can travel up to 3,000 feet…
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Allegheny County | Energy Companies | Industrywide Issues | Litigation | Olympus/Huntley & Huntley | Pennsylvania | Seismic Testing

Monroeville Continues to Block Seismic Testing to Prevent Drilling
April 6, 2018April 6, 2018

Monroeville, PA (Allegheny County, suburb of Pittsburgh) is hostile toward the shale industry. In September, Monroeville Council voted to enact a super-restrictive seismic testing ordinance (see Monroeville, PA Passes Restrictive Seismic Testing Ordinance). The ordinance is meant to hassle Huntley & Huntley (H&H), which wants to conduct seismic testing in two rural areas of the municipality (for potential drilling in a neighboring municipality). In October, the contractor hired to do the seismic work for H&H, Geokinetics, took Monroeville Council to court over their punitive seismic ordinance (see Monroeville Seismic Testing Ordinance Challenged in Court). Both sides compromised and in November settled the case, which Monroeville Council voted to accept in December (see Monroeville Council Approves Seismic Testing Court Settlement). That should be the end of the story, right? Wrong. Monroeville has continued their harassment by asking a court to immediately suspend the testing because (they claim) Geokinetics did not give proper notification to residents that the testing was happening. This is nothing more than a transparent attempt to prevent future drilling by slowing, or stopping, H&H’s ability to get an accurate picture of the best places are to drill a Marcellus well. Fortunately Geokinetics just finished the testing, so Monroeville’s pathetic attempt to stop it is now moot…
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Energy Companies | Industrywide Issues | Litigation | Pennsylvania | Southwestern Energy | Statewide PA | Susquehanna County

PA “Rule of Capture” Case has Power to Limit Marcellus Drilling
April 4, 2018April 4, 2018

As we indicated in our post yesterday, the Pennsylvania Superior Court has handed down a decision that has the power to greatly restrict, even stop, Marcellus drilling in PA (see PA Superior Court Overturns “Rule of Capture” for Marcellus Well). This is a legal issue–and MDN is not written by a lawyer. Hence our earlier misreading of the importance and facts in the Superior Court decision. The issue, in brief, is that Monday’s court decision disallows using an age-old principle called the rule of capture, which we previously described. The rule of capture works for conventional drilling where underground deposits of oil and gas are in pools and the pool may exist underneath multiple surface property owners. Whoever gets there first and sucks the oil/gas out, wins. That’s the rule of capture in a nutshell. And it makes sense. You can’t be held responsible for oil and gas moving from one place to another as it’s extracted. And who knows how much of the pool is located under your property, or your neighbor’s property? The Superior Court justices ruled that the rule of capture doesn’t work for hydraulic fracturing because gas (and oil) trapped in shale rock does not freely move from one place to another as it does in a pool. The judges say the gas would “stay forever” where it is without fracking. In the case of Briggs v. Southwestern Energy, the Briggs family (in Susquehanna County, PA) alleges that when Southwestern drilled and fracked on the Briggs’ neighbor, the fracking was done close enough to their property that some of the gas located under their property (unleased) was released and extracted through the Southwestern well–a “trepass.” Southwestern countered that IF such a “trespass” took place, it falls under the rule of capture. The ultimate issue boils down to this: How far do fractures extend from a lateral well? An expert energy attorney told MDN off the record that Monday’s decision “could change the entire Pennsylvania shale industry” in two important ways…
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Energy Companies | Industrywide Issues | Litigation | Pennsylvania | Southwestern Energy | Statewide PA

PA Superior Court Overturns “Rule of Capture” for Marcellus Well
April 3, 2018April 3, 2018

STOP PRESS: Shortly after this post was published, a MDN reader (an energy attorney) called us to alert us that our initial take on this case is not right. The case is NOT about a company stretching a lateral too far so that it trespasses under an adjoining property. Instead, the case is about the “zone of fracking”–that is, that fracking, by its nature, creates cracks that may open up and drain some of the gas under a neighboring property–even though the fracking was done properly within the boundaries of the leased property. The case (ominously) says that fracking itself can cause a trespass. Our attorney friend said this case has the potential to negatively affect Marcellus drilling in PA–in a BIG way. We will write another post on this issue tomorrow. In the meantime, just be aware that our initial take below is not correct. – Jim Willis, Editor

The Pennsylvania Superior Court handed down an important decision yesterday that impacts both Marcellus landowners and drillers. The decision removes “rule of capture” as a way for shale drillers to drill under adjoining neighbors who haven’t specifically leased their property for drilling. The rule of capture came about with conventional (vertical only) drilling, cases in which a pool of oil or natural gas exists that runs underneath the property owned by multiple surface owners (see the image to the left). The rule of capture principle says “the first person to capture a natural resource owns that resource.” If you put a well or two or three on your property to extract the oil/gas, if it flows from the neighbor’s side to your side and up the well, it’s yours. Same for your neighbor. He/she can grab the oil and gas under your property if the pool exists under both. The principle originated in England (it’s a very old principle). However, Southwestern Energy tried to use the rule of capture principle to drill under property not leased for drilling that sits next to property that is leased–claiming the rule of capture. The molecules in shale are a whole other story than molecules sitting in a common pool. That’s what the Superiors ruled. Southwestern (and by extension, other Marcellus drillers) can’t simply extend a lateral well a few hundred feet under an un-leased neighbor, which certainly makes sense to us…
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Accidents | Energy Companies | EQT Corp | Industrywide Issues | Litigation | Pennsylvania | Regulation | Tioga County (PA)

PA Supreme Court Axes DEP $4.5M Fine in EQT Tioga Wastewater Leak
April 2, 2018April 2, 2018

EQT had to take their case all the way to the Pennsylvania Supreme Court, but in the end, the company was victorious over a wildly overinflated $4.53 million fine levied by the state Dept. of Environmental Protection (DEP) for a leaky wastewater impoundment in Tioga County dating back to 2014 (see PA DEP Levies Biggest Fine Ever, $4.5M Against EQT). While EQT did not say there wasn’t a problem with leaks at the site, they did say the way the DEP calculated the fine was unreasonable and arbitrary. In fact, EQT says the DEP levied the fine and took EQT to court because a few weeks prior EQT had sued the DEP over a different, unrelated matter (i.e., sour grapes on the part of the DEP). EQT appealed the fine and the case all the way to the PA Supreme Court, which heard oral arguments last November (see PA Supreme Court Hears Arguments in EQT Wastewater Leak Case). Last Wednesday the PA Supremes ruled (5-2) in favor of EQT, saying that the DEP’s levied fine was excessive and that the DEP misinterpreted language in the 1937 Clean Streams Law…
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Delaware County (PA) | Energy Services | Industrywide Issues | Litigation | Pennsylvania | Regulation | Sunoco Logistics

PA Appeals Court Rules ME2 Pipe NOT Under Local Zoning
March 27, 2018March 27, 2018

The entire panel of judges sitting on Pennsylvania’s Commonwealth Court, an appeals court in PA, ruled yesterday that zoning regulations in a local municipality–in this case Middletown (Delaware County)–do NOT supersede the state Public Utility Commission when it comes to regulating Sunoco Logistics Partners Mariner East 2 (ME2) NGL pipeline. In May 2017, six anti-pipeline residents living near where the ME2 pipeline will pass asked the Middletown town council to reject the path of the pipeline near their property because it would, supposedly, pass closer than town code allows. The town council told the residents they’re out of luck–the town will not pursue any action to block Mariner East 2. Period. The residents, amped-up, agitated and funded by Big Green groups filed a lawsuit against ME2, to force it to conform with Middletown’s ordinance (see 6 Middletown Antis Sue Sunoco LP to Stop Mariner East 2 Pipe). The lawsuit was filed in the the Delaware County Court of Common Pleas. The judge dismissed the case in June, so the antis, again funded by Big Green groups, appealed the case to the next higher court, Commonwealth Court. An “en banc” panel (meaning all of the judges) heard the case, indicating its high importance. The en banc panel ruled yesterday, against the Middletown residents…
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Anti-Drilling/Fossil Fuel | Dominion Energy | Energy Services | Industrywide Issues | Litigation | Pipelines

Fed Court Dismisses Anti Lawsuit to Stop Atlantic Coast Pipeline
March 27, 2018March 27, 2018

Earlier this month MDN reported that the Southern Environmental Law Center and Appalachian Mountain Advocates, on behalf of a mishmash of second tier radical groups, filed a “hail Mary” request with the federal Fourth Circuit Court of Appeals to stop construction of Dominion Energy’s Atlantic Coast Pipeline until a lawsuit sitting before the Fourth Circuit questioning the validity of the permits granted for the project is played out (see Big Green Makes Desperate Attempt to Stop Atlantic Coast Pipe). Last week the Fourth Circuit responded by denying the request to stop ACP. Why? Because the Federal Energy Regulatory Commission (FERC) has not yet decided on whether or not to rehear their decision on ACP, which Big Green previously requested. FERC has used a “tolling order” to give themselves more time to consider whether or not they were wrong in approving the ACP project. The Fourth Circuit doesn’t have jurisdiction until FERC makes a decision on rehearing. In the meantime, construction on ACP continues…
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Anti-Drilling/Fossil Fuel | Energy Services | Equitrans/EQT Midstream | Industrywide Issues | Litigation | Pipelines | Statewide VA | Statewide WV | Virginia | West Virginia

WV Judge Refuses to Eject Tree Sitters Blocking Pipeline Work
March 22, 2018March 22, 2018

If the so-called “tree sitters” in Jefferson National Forest who are trying to block tree cutting for the Mountain Valley Pipeline (MVP) get themselves hurt, Monroe County Circuit Court Judge Robert Irons will be the one to blame. Well actually, the protesters can blame themselves (they’re idiots), but Irons is certainly complicit. On Tuesday Judge Irons refused to grant MVP a court order to remove the radical protesters. Apparently they are 7 feet outside of the right of way zone for tree felling. Have you ever cut a big tree down? Trees don’t care if they fall 7 feet this way or 7 feet that way when they fall. MVP wants to ensure the protesters don’t get hurt, and wants them gone before they cut trees near them. But because the radicals technically, according to the judge, are not in the actual right of way, they can stay up the trees where they’ve been for the past 25+ days. There are two suspended tree houses (platforms), held in the trees with ropes. Up to seven people have been living in the two magic tree houses, eating, breathing and defecating up in the trees (harming the environment they profess to be protecting). MVP technically has a deadline of March 31 to fell trees along the path of the pipeline. We suspect MVP has a Plan B for this segment where the loons have perched themselves up a tree. We predict sitting up a tree will get old sooner or later–and MVP can wait them out…
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Chester County | Energy Services | Industrywide Issues | Litigation | Pennsylvania | Pipelines | Statewide PA | Sunoco Logistics

Philly Suburbanites Launch Class Action Lawsuit Against ME2 Pipe
March 22, 2018March 22, 2018

Sunoco Logistics Partners (aka Energy Transfer Parnters) has had its challenges in constructing the twin Mariner East 2 (ME2) pipelines across Pennsylvania. Earlier this month MDN told you that underground horizontal directional drilling (HDD) work in Chester County had led to a third sinkhole developing in that area (see 3rd Sinkhole Appears Near ME2 Construction in Chester County, PA). For most of its length, ME2 is being built right next to ME1 (Mariner East 1), a liquids pipeline originally built in 1931. The third sinkhole in Chester County exposed a portion of ME1, leading to the state Public Utility Commission temporarily shutting down ME1 (see PA PUC Shuts Down Mariner 1 Pipeline Due to Mariner 2 Sinkhole). Now added to Sunoco’s complications, two residents living near the sinkholes in Chester County have filed a class action lawsuit against Sunoco, saying the company was negligent for using a drilling technique (HDD) not suitable for the geology in the area…
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Industrywide Issues | Litigation | New York | Pipelines | Regulation | Statewide NY

NY DEC Files Response re Constitution Pipe Case @ Supreme Court
March 21, 2018March 21, 2018

There’s a number of threads to the ongoing saga of Constitution Pipeline, a $683 million, 124-mile pipeline from Susquehanna County, PA to Schoharie County, NY to move Marcellus gas into New York State and from there, into New England. The Andrew Cuomo-corrupted NY Dept. of Environmental Conservation (DEC) refused to grant the pipeline necessary federal stream crossing permits, blocking construction, in April 2016 (see NY Gov. Cuomo Refuses to Grant Permits for Constitution Pipeline). Constitution filed an appeal of the DEC’s arbitrary and capricious decision with the U.S. Court of Appeals for the Second Circuit, asking the court to overturn DEC’s decision. Unfortunately the Second Circuit refused (see Court Rejects Constitution Pipe’s Case Against NY DEC; Now What?). So Constitution appealed the Second Circuit’s rejection to the U.S. Supreme Court in January (see Constitution Pipeline Appeals NY Fight Directly to U.S. Supreme Court). The Supremes have not yet agreed to accept the case. Hoping to head off a decision to hear the case, the DEC filed a brief last week with the Supreme Court to say Constitution Pipeline has “misread” the Second Circuit’s decision, claiming the DEC was well within their rights to issue the rejection…
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Electrical Generation | Industrywide Issues | Litigation | New York | Orange County | Regulation

Antis Use Corruption Trial Verdict to Challenge NY Gas Power Plant
March 21, 2018March 21, 2018

In September 2016, MDN brought you the sad news that the former head of external affairs and government relations for Competitive Power Ventures (CPV), Peter Kelly, was indicted for bribing New York Gov. Cuomo’s long-time top aide Joseph Percoco to get state approvals for CPV’s $900 million Valley Energy Center natural gas-fired electric generating plant in Orange County, NY (see NY NatGas-Fired Electric Plant an Inside Job for Corrupt Cuomo Aide). Both Kelly and Percoco, along with a third person, Todd Howe (lobbyist who used to work for Cuomo) were indicted. The trial was recently held and a few weeks ago the verdicts came in: Both Percoco and Howe, the people close to Cuomo, were convicted. The jury could not decide on CPV’s Kelly–so Kelly skated. While the entire sordid affair is interesting for those of us who smell the foul stench of corruption that surrounds Andrew Cuomo, and while the trial and its result is interesting to MDN because of the gas-fired CPV project in Orange County, the reason we’re bringing it to your attention is because antis are using the Percoco/Howe convictions in the case to try and shut down the now-completed CPV Valley Energy Center project, claiming the plant would have never been approved without bribes and corruption…
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Energy Services | Industrywide Issues | Litigation | New York | Pipelines | Regulation | Statewide NY | Williams

FERC Grants Limited Rehearing Request for Constitution Pipeline
March 16, 2018March 16, 2018

There’s a number of threads to the ongoing saga of Constitution Pipeline, a $683 million, 124-mile pipeline from Susquehanna County, PA to Schoharie County, NY to move Marcellus gas into New York State and from there, into New England. The Andrew Cuomo-corrupted NY Dept. of Environmental Conservation (DEC) refused to grant the pipeline necessary federal stream crossing permits, blocking construction, in April 2016 (see NY Gov. Cuomo Refuses to Grant Permits for Constitution Pipeline). There have been a number of court cases and regulatory actions since that time. Williams, the builder of Constitution, asked the Federal Regulatory Commission (FERC) to overrule the DEC and allow construction to begin. In January of this year, FERC denied that request (see Death of the Constitution Pipeline? FERC Refuses to Overrule NY DEC). In February of this year, Williams asked FERC to reconsider their decision (see Constitution Pipe Files for FERC Rehearing, Then Back to Court). FERC has 30 days to rule on the rehearing request. If they don’t do anything, it’s considered an automatic rejection. However, on Wednesday (just under the wire), FERC granted a “limited” rehearing request–meaning FERC wants more time to consider the request before making a final decision. It’s not a “yes” that they will reconsider and perhaps overrule the DEC–but it’s also not a “no.” Which is a good thing…
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Anti-Drilling/Fossil Fuel | Energy Companies | Industrywide Issues | Litigation | Olympus/Huntley & Huntley | Pennsylvania | Westmoreland County

H&H About to Drill Well in Upper Burrell as Antis Plead with Judge
March 16, 2018March 16, 2018

In some places, drillers have to fight tooth and nail, every inch of the way, just to drill a simple Marcellus Shale well. Such is the case in Upper Burrell (Westmoreland County), PA. Huntley & Huntley has plans to drill four shale wells in Upper Burrell Township. Sure there’s been push-back, but we thought the corner had been turned when town supervisors voted last November to approve H&H’s plans (see H&H Drilling in Upper Burrell Gets Final Approval, Raucous Crowd). The supporters of drilling far outnumbered the antis at the meeting. However, a small group of antis remains committed to blocking H&H’s drilling plans. The latest twist is that antis are asking a judge to rule that the supervisors, who were discharging their duties in accordance with the law, erred in their decision to grant final approval for H&H’s drilling plans. Here we go again…
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Anti-Drilling/Fossil Fuel | Dominion Energy | Energy Services | Industrywide Issues | Litigation | Pipelines | Statewide VA | Virginia

Big Green Makes Desperate Attempt to Stop Atlantic Coast Pipe
March 14, 2018March 14, 2018

Big Green groups opposed to Dominion Energy’s $6.5 billion (up from $5 billion due to delays) Atlantic Coast Pipeline (ACP) from West Virginia through Virginia and into North Carolina are about out of options in their holy mission to stop the project. They’ve tried multiple lawsuits, protests, bullying state environmental agencies–the whole bag of nasty tricks. And yet ACP is now under construction. What’s left to try to stop it? The Southern Environmental Law Center and Appalachian Mountain Advocates, on behalf of a mishmash of second tier radical groups, have filed a “hail Mary” request with the Fourth Circuit Court of Appeals to stop construction of ACP until a lawsuit sitting before the Fourth Circuit questioning the validity of the permits granted for the project is played out. In other words, back to the tried-and-true playbook: delay, delay, delay–until eventually you deny…
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Electrical Generation | Energy Services | Industrywide Issues | Litigation | Millennium Pipeline | New York | Orange County | Pipelines | Regulation

Court Rejects NY DEC Attempt to Stop Short Power Plant Pipeline
March 13, 2018March 13, 2018

Valley Lateral Pipeline map – click for larger version

The Andrew Cuomo-corrupted New York Dept. of Environmental Conservation (DEC) is now out of options in its quest to block a tiny, 7.8-mile pipeline that would connect the Millennium Pipeline to a gas-fired electric generating plant under construction in Orange County, NY. Yesterday the U.S. 2nd Circuit Court of Appeals denied a petition by the DEC asking the court to vacate two orders by the Federal Energy Regulatory Commission (FERC) allowing the pipeline to continue construction. Which means construction on the pipeline has restarted and will almost certainly be completed within a month. The plant the pipeline will feed, Competitive Power Ventures (CPV) Valley Energy Center, is wrapping up construction. Recently antis had a cow when they saw steam coming from the plant, part of the commissioning process (see Antis Apoplectic at Sight of Steam Coming from NY Power Plant). Before the new plant can go online, it needs fuel, which is why the Millennium project is so important. Now that the 2nd Circuit has rejected its petition, the DEC says it is still “reviewing its options” with respect to “next steps.” Frankly, there are no options and no next steps. The Cuomo-corrupted DEC has lost…
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Anti-Drilling/Fossil Fuel | Energy Services | Equitrans/EQT Midstream | Industrywide Issues | Litigation | Pipelines

Part of Jefferson Natl Forest Closed to Keep MVP Protesters Out
March 13, 2018March 13, 2018

Last week MDN told you about a couple of rabid antis who climbed trees in Jefferson National Forest and have perched themselves in homemade tree stands in an attempt to block tree cutting for the Mountain Valley Pipeline (see Radicals Go Up a Tree in Quest to Illegally Block MVP Construction). Time is ticking. Tree felling must happen by the end of March, or the builder (EQT Midstream) will need to wait until October to fell the trees due to a ban on cutting trees during “bat season” (don’t ask). The antis are still, literally, up a tree–still blocking tree cutting in the forest. Last week a judge issued a restraining order that instructs the tree sitters to come down. But they haven’t–not yet, anyway. Following the judge’s order, the U.S. Forest Service, in charge of Jefferson National Forest, issued an emergency closure order, closing the forest along the 3.5 miles of MVP’s path through the forest. The Forest Service is trying to prevent any more tree sitters from invading the forest and setting up what will no doubt be a police action to remove the demented tree sitters already up a tree…
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