Litigation

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    Judge to Rule on Apex Energy Well Drilling in Westmoreland County

    As we have said for years, ever since the Pennsylvania legislature modernized and updated drilling regulations to account for shale drilling in 2012, known as Act 13, anti-fossil fuel nutters have attempted first to destroy Act 13, and later subvert it. Act 13 originally provided for uniform zoning across the state with respect to siting wells. But seven selfish townships sued and eventually won (at the PA Supreme Court) the right to retain their own zoning regulations with respect to oil and gas wells (see PA Supreme Court Rules Against State/Drillers in Act 13 Case). Each town must have at least one zone where oil/gas wells are allowed. However, towns also have the right, via special exemptions, to allow wells in zones that don’t specifically allow wells, or where wells are otherwise prohibited. Exemptions happen on a case-by-case basis, and the town zoning or planning board must approve them. Antis object. They like it when drillers are banned from a zone, pointing to Act 13, saying the town has that right. But when the town then exercises their right to allow a well, also in Act 13, antis object and sue to prevent it. The door only swings one way for antis–to block shale wells. Such is it in Westmoreland County, in Penn Township, where the Penn Township Zoning Hearing Board approved a special exemption for Apex Energy to drill shale wells permitted by the PA Dept. of Environmental Protection. Antis sued saying the Board erred in their decision, and now a judge will decide the fate of the legally-permitted wells…
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    NY Appeals Court Denies Constitution Pipe Motion for Rehearing

    The U.S. Court of Appeals for the Second Circuit (in liberal New York) has refused to re-hear the case against New York’s corrupt Dept. of Environmental Conservation (DEC) for its arbitrary and capricious refusal to grant a water crossing permit to Williams’ Constitution Pipeline. In August MDN brought you the sad news that the Second Circuit ruled against the Constitution Pipeline and their lawsuit against the Cuomo-corrupted DEC (see Court Rejects Constitution Pipe’s Case Against NY DEC; Now What?). On Sept. 1st Constitution filed a request for a rehearing at the Second Circuit (see Not Lights Out for Constitution Pipe Just Yet – Rehearing Request). Last week the court responded loud and clear: NO. By our reckoning Constitution has one card left to play, and they played it a few weeks ago: Request the Federal Energy Regulatory Commission (FERC) to overrule NY DEC because the DEC took more than a year to deliver its rejection of the permit (see Constitution Pipeline Asks FERC to Override NY DEC). If FERC does grant Constitution’s request to overrule the DEC, you can expect a legal challenge from the corrupt Cuomo machine. That’s how it works in dictatorships like New York…
    Read More “NY Appeals Court Denies Constitution Pipe Motion for Rehearing”

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    PA Strippers Back in News, Supremes to Hear Synder Bros Case

    The Pennsylvania Supreme Court said last week it will accept a case about strippers–stripper wells, that is. In brief, in 2012 Pennsylvania passed the Act 13 drilling law that includes a fee on wells targeting shale layers, including the Marcellus. Snyder Brothers, headquartered in Kittanning, PA, drills mostly conventional (vertical only) wells in southwestern PA. In 2011-2012 they drilled 45 vertical-only wells, but targeting the Marcellus, all of the wells fracked. Initially those wells produced more than 90 Mcf/day, but by December of the year they were drilled, they 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. Snyder Bros. sued and after an appeal of the case, Snyder Bros. won their case in March, 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. The PUC is not letting it alone. They conscripted a sympathetic ally in the PA legislature to introduce a bill to “fix” the “loophole” (see PA Lib Dem Introducing Bill to “Fix” Strippers Once and for All). At the same time the PUC kept pushing on the legal front, and last week the PA Supremes agreed to hear an appeal of the case. Looks like those strippers just won’t go away…
    Read More “PA Strippers Back in News, Supremes to Hear Synder Bros Case”

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    Court Backs WVDEP Move to Cancel Permits for Mountain Valley Pipe

    In March, the West Virginia Dept. of Environmental Protection (WVDEP) issued a federal water crossing permit for the Mountain Valley Pipeline (MVP)–a $3.5 billion, 301-mile pipeline that will run from Wetzel County, WV to the Transco Pipeline in Pittsylvania County, VA (see WV DEP Grants Mountain Valley Pipeline Water Crossing Permit). In June, a group of profoundly radical “environmental” organizations (Sierra Club, West Virginia Rivers Coalition, Indian Creek Watershed Association, Appalachian Voices and Chesapeake Climate Action Network) filed a lawsuit in the U.S. Court of Appeals for the Fourth Circuit against the WVDEP for doing their job issuing the permit (see Radicals File Lawsuit Against WV DEP for Approving MV Pipeline). Because of the pressure of that lawsuit, the WVDEP caved and reversed their decision in September, rescinding (called “vacating”) the permit for MVP (see Trouble for Mountain Valley Pipe: WV DEP Withdraws Water Permit). The WVDEP said they will “re-evaluate the complete application to determine whether the state’s certification is in compliance with Section 401 of the federal Clean Water Act.” On Tuesday, the 4th U.S. Circuit Court of Appeals upheld WVDEP’s decision and granted the agency’s motion to invalidate the previous certificate they granted the project. Which means the process begins all over again–a temporary victory for antis. It’s temporary because while all of this nonsense was going on, the Federal Energy Regulatory Commission approved the project–so it will get built…
    Read More “Court Backs WVDEP Move to Cancel Permits for Mountain Valley Pipe”

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    Court Considers if PA Towns Can Regulate ME2 Pipeline Location

    In May six anti-pipeline residents living near where the Mariner East 2 pipeline will pass asked the Middletown (Delaware County, PA) 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 the pipeline, 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. On Wednesday, an “en banc” panel of Commonwealth Court heard arguments in the case (“en banc” meaning all of the judges heard the case, indicating its high importance). One report of the session indicates the judges expressed skepticism that Sunoco Logstics Partners, the builder, does not have to follow local town ordinances because the pipeline is overseen by the the state and state regulations preempt local ordinances. Needless to say if the case goes against ME2/Sunoco, it will make it harder (but not impossible) to finish work on time…
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    Alogonquin Defends AIM Pipe Project Against Radicals in DC Court

    Last year a group of radical environmental groups including Riverkeeper Inc., Sierra Club and Food & Water Watch (Big Green groups) joined a federal appeal (i.e. sued) to stop Spectra Energy from building their Alogonquin Incremental Market (AIM) Project, a project to expand the capacity of the Algonquin Gas Transmission system to flow more Marcellus/Utica gas to markets in the northeast, including New England (see Radical Enviro Groups File Appeal to Stop AIM Pipeline in NY/CT). Most of the project is 20 miles of new pipeline in the Hudson Valley area of New York. In March 2016, New York’s spineless Gov. Andrew Cuomo asked the Federal Energy Regulatory Commission (FERC) to stop work on AIM near a nuclear power plant (see Gov. Cuomo Asks FERC to Halt Algonquin Pipeline Near Nuke Plant). Within a few days FERC said NO (see FERC Denies NY Request to Stop Work on Pipeline Near Nuke Plant). That didn’t make the anti-fossil fuel nutters happy at all. They thought they had a real winner by painting nightmare scenarios of the AIM pipeline blowing up and taking a nuclear plant with it. Their scare tactics didn’t work–so they fell back to the tried and true: gang up and ask a liberal judge to stop it. This week briefs were filed with the D.C. Circuit Court of Appeals. Algonquin argued yesterday in court that parties to the lawsuit, including the Mayor of Boston, don’t have standing to bring a challenge to FERC’s approval of the project…
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    PA Supreme Court Hears Arguments on DEP Request to Unblock Regs

    PA Supreme Court Justices

    In October 2016, after five years in the making, Pennsylvania adopted new shale drilling regulations (see PA’s New Chapter 78a Drilling Regs Go into Effect Oct 8). Although the regs were ready at the end of the Gov. Tom Corbett Administration, Corbett fumbled the ball and the regs didn’t get adopted, which left them vulnerable to the incoming left-leaning Tom Wolf Administration. Wolf’s people mangled the regulations under the Dept. of Environmental Protection (DEP) Dictator/Secretary John Quigley, who got fired over unethical collusion with Big Green groups. Some of the good stuff remained, but onerous new elements were introduced. The Marcellus Shale Coalition (MSC), which represents PA’s biggest shale drillers, filed an appeal in Commonwealth Court to block the most onerous aspects of the new regulations (see Marc. Shale Coalition Files Lawsuit to Block PA Chapter 78a Regs). The judge agreed to “temporarily” block some of the items in the MSC list (see PA Judge Temporarily Blocks Some DEP Chapter 78a Drilling Regs). In December, the DEP escalated the case by asking the PA Supreme Court to undo the block on those regulations imposed by the lower Commonwealth Court (see PA DEP Asks Supreme Court to Overturn Stay on New Regs). Yesterday the Supremes heard oral arguments in the case. Although one activist justice (Sallie Updyke Mundy) seems to want to grant the DEP’s request to allow the stopped rules from going into effect, several other justices appear to want to let the issue play out in the lower Commonwealth Court, preferring to goose the lower court into speedier action…
    Read More “PA Supreme Court Hears Arguments on DEP Request to Unblock Regs”

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    H&H Drilling Plan for Upper Burrell Still on Pause, Some Progress

    Huntley & Huntley has plans to drill shale wells in Upper Burrell Township (Westmoreland County), PA. As MDN reported in June, a landowner in Upper Burrell filed an appeal against Upper Burrell’s zoning ordinance that allows drilling in rural, agricultural districts (see Westmoreland Zoning Challenge Heads to Court, Delays H&H Drilling). H&H plans to drill a well near where the woman lives, and she’s arguing such drilling will violate the state’s environmental rights clause and “devalue her property.” The case was supposed to go to township’s Zoning Hearing Board, but all of the (many) lawyers involved agreed to instead move it to county court, making the process faster and less expensive. The same woman then sued the town claiming the town’s very right to issue conditional use permits in agricultural-residential districts is unconstitutional (see Frivolous Lawsuit Delays H&H Drilling in Westmoreland County, PA). Even though legal wrangling may prevent a final outcome any time soon, the town is moving forward anyway. The Upper Burrell Planning Commission voted yesterday to approve H&H’s drilling plans, passing it back to the board of supervisors for a final sign-off…
    Read More “H&H Drilling Plan for Upper Burrell Still on Pause, Some Progress”

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    OH Supreme Court Blocks Youngstown Frack Ban Ballot Measure

    In July MDN told you that puppets of the PA-based Community Environmental Legal Defense Fund (CELDF) have once again gotten enough signatures to put a so-called Community Bill of Rights (i.e. frack ban) ballot measure on the ballot this November in Youngstown, Ohio for a 7th time (see Youngstown Frack Ban Vote on November Ballot – for 7th Time). The same people have tried six times before–and the ballot measure failed every single time. However, as we pointed out, this time is different. In addition to the usual no fracking, no pipelines pablum, this 7th petition has language that makes it legal to break the law. If the ballot measure were to pass, and if an anti got it into her head to sit in front of a bulldozer that was about to clear ground for a wellpad, or dig a trench for a pipeline, the police would not be able to arrest and remove the anti. It would be within her rights to sit there and block legal, legitimate activity–all in the name of saving the planet. It would, in essence, legalize mob rule. In September the Mahoning County Board of Elections voted to NOT allow measure on the ballot in November (see Mahoning County Bans Frack Ban Measure from Nov Ballot in Youngstown). Using the deep pockets of the CELDF, antis appealed the rejection to the Ohio Supreme Court. It didn’t take the Supremes long. They ruled last Friday to uphold the Mahoning County Board of Elections decision to not allow the measure on the November ballot. However, it was a close vote, 4-3, and likely means more litigation will follow in the future…
    Read More “OH Supreme Court Blocks Youngstown Frack Ban Ballot Measure”

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    Antis Redux Court Strategy on Orange County, NY Gas Power Plant

    Antis certainly learn from one another. If an anti-fossil fuel tactic works (in court) in one place, antis in other locations jump on it like white on rice. Ninny nanny antis in the Chenango Valley School District (suburb of Binghamton, NY) got their knickers in a twist when NG Advantage proposed building a “virtual pipeline” project about a mile from one of their schools. A virtual pipe is a compressor station that compresses gas from a pipeline (the Millennium in this case) and loads it onto specially fitted tanker trucks to haul the gas to industrial users. The school paid $40,000+ for an outside-the-area law firm, which sued and in a county-level court (called “Supreme Court” in quirky NY). The Big Money law firm won the case, convincing the judge to proclaim that the local planning board didn’t do a good enough job in considering NG’s application (see Judge Rules Against Broome Virtual Pipe, NG Advantage to Try Again). Hey, it worked in Broome County, NY, so the ninny nanny antis in Orange County, NY (close to New York City) thought they would give it a try. Competitive Power Ventures is in the midst of building a $900 million natural gas-fired electric generating plant in Wawayanda, Orange County. Early on local antis sued to stop the project, but a local judge threw out the case in 2015, clearing the way for construction (see Orange County, NY Marcellus-Fired Electric Plant OK’d by Judge). Antis next tried to deny a source of fuel for the plant. They were successful in pressuring New York’s corrupt governor, Andrew Cuomo, to instruct his corrupt Dept. of Environmental Conservation, to deny a permit for a 7.8 mile pipeline to feed the plant. Eventually, in an unprecedented (and embarrassing for NY) action, the Federal Energy Regulatory Commission overruled the DEC to allow the pipeline to be built. So that avenue to stop the CPV electric plant bombed out for the antis. Back to square one. Antis are now suing the local planning board in Wawayanda, claiming they didn’t do a good enough job in reviewing the original application. Sound familiar? A court date is set for tomorrow in the case…
    Read More “Antis Redux Court Strategy on Orange County, NY Gas Power Plant”

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    Fed Judge Rules for Seneca Resources in PA Injection Well Fight

    An update in the ongoing case of a proposed injection well in Highland Township (Elk County), PA. In 2013 the radical leftist group Community Environmental Legal Defense Fund (CELDF) convinced ignoramuses in Highland Township to pass a so-called Community Bill of Rights. Seneca Resources, a driller with leases and an active drilling program in Elk, had planned to drill an injection well on their own property to dispose of their own flowback and produced water. The CELDF-inspired ordinance in Highland prevented it, and Seneca threatened to sue the town (see Seneca Resources Threatens to Sue PA Town over Injection Well). Seneca made good and filed to sue, but the town and CELDF tried to block the lawsuit. Didn’t work. The lawsuit advanced. New supervisors were elected and promptly voted to overturn the so-called Community Bill of Rights (see Elk County Town Wises Up, Abandons Effort to Block Injection Well), enraging the nutters. However, last November enough locals remained fleeced to pass a so-called home rule charter which contained language making injection wells illegal. The charter was/is essentially the Community Bill of Rights under a different name and different legal structure. In an effort to extract itself from a legal hellhole of its own making, the new Highland supervisors asked a federal judge to rule in favor of Seneca Resources, but to not make Highland pay legal fees and penalties for delaying the injection well (see PA DEP Issues 2 Wastewater Injection Well Permits, Sues 2 Towns). Last Friday the judge did rule in favor of Seneca, gutting provisions in the home rule charter that attempt to regulate oil and gas (and its waste). It is a legal victory for Seneca Resources and their plan to drill an injection well in Elk County…
    Read More “Fed Judge Rules for Seneca Resources in PA Injection Well Fight”

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    Sierra Club in Court Oct 18 Against Cove Point, 2 More LNG Plants

    The deep pockets of the radical Big Green group, the Sierra Club, continue to vex the oil and gas industry. The Sierra Club is involved in so many lawsuits against our industry, you literally need a score card to keep track. Three of the cases the Clubbers have on deck come before the D.C. Circuit Court of Appeals in two weeks–on Oct. 18th. The three cases involve Federal Energy Regulatory Commission (FERC) approved LNG export projects. One of the three is Dominion’s Cove Point project, which is due to export its first shipment this month or next (see Cove Point to Begin LNG Exports in October or November!). The other two LNG projects in the Clubbers’ sights are both Cheniere Energy projects–Sabine Pass and Corpus Christi. Sabine Pass is currently the only LNG export plant in operation in the U.S. The Sierra Club lawsuit against all three projects challenges FERC’s approval of them, arguing the plants negatively affect the environment and will make Mom Earth sick. While no one expects these lawsuits to go anywhere, you never know, which is why it’s important to keep an eye on it…
    Read More “Sierra Club in Court Oct 18 Against Cove Point, 2 More LNG Plants”

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    FERC’s Rapid Response in Sabal Trail Case Shuts Down Sierra Club

    In August the D.C. Court of Appeals ruled in a case that (we previously thought) may have long-term, very negative consequences for the oil and gas industry related to pipeline development (see DC Court of Appeals Legislates New Law re FERC & Global Warming). The litigious, anti-fossil fuel radicals of the Sierra Club previously filed a lawsuit against the Federal Energy Regulatory Commission (FERC) blaming FERC for not considering mythical man-made global warming as it conducted a review of three pipelines in the southeast. The Southeast Market Pipelines Project (SMP) is an umbrella project for three natural gas pipelines in Alabama, Georgia, and Florida. The linchpin of the project is the Sabal Trail pipeline, which travels from Tallapoosa County in eastern Alabama, across southwestern Georgia, and down to Osceola County, Florida, just south of Orlando (nearly 500 miles). The Sierra Club said the three projects together didn’t take into consideration an increase in carbon and methane that would result from the three projects serving electric generating plants, and that said carbon and methane will contribute to global warming. The D.C. Court of Appeals agreed and instructed FERC to reconsider its environmental assessment of the three projects–vacating an approval of the main part of the project, the Sabal Trail pipeline. In a brilliant move, last week FERC filed a draft supplemental environmental impact statement (SEIS) to fulfill the court’s order. In it, FERC looks at the potential for extra carbon/methane in the atmosphere from several electric generating plants fed by the SMP pipelines. As for evaluating the overall effect on Mom Earth, FERC said there currently is no accurate method available that can do it. In other words, this lawsuit that the Clubbers so fervently thought would lead to stopping all sorts of projects just fizzled out (we can’t be happier) thanks to FERC’s quick action. FERC has effectively shut down the Sierra Club’s best chance of stopping pipeline projects…
    Read More “FERC’s Rapid Response in Sabal Trail Case Shuts Down Sierra Club”

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    Green, OH Spends Big $ on 2 Appeals in Bid to Stop NEXUS Pipeline

    Back in May MDN told you about the antis running the City of Green, Ohio (see Green, OH Paying Lawyers $100K to Fund Stop NEXUS Crusade). Green City Council voted to use $100,000 of taxpayer money to hire a Cleveland law firm to file a lawsuit “aimed at stopping the pipeline from being built or stopping the project altogether.” Looks like the law firm is earning at least some of that considerable amount (total bill so far: $67,367). The strategy the lawyers have adopted and now implemented is to file two appeals–one with the Sixth Circuit Court of Appeals, the other with the Ohio Environmental Protection Agency’s appeals board. The Green antis hope one or both will throw up a roadblock to slow, and ultimately stop, the NEXUS Pipeline from getting built. NEXUS, a $2 billion, 255-mile interstate pipeline that will run from Ohio through Michigan and eventually to the Dawn Hub in Ontario, Canada, was the first major pipeline project to get approved after the Federal Energy Regulatory Commission (FERC) once again had a quorum (see New FERC Quorum Votes Final Approval for NEXUS Pipeline). Less than two weeks ago the Ohio EPA issued a federal water permit for the project (see Ohio EPA Grants Water Permit to NEXUS Pipe, “Learned” from Rover). Green is asking OEPA to reconsider their action in issuing the permit. Here’s the latest in the ongoing war against fossil fuels…
    Read More “Green, OH Spends Big $ on 2 Appeals in Bid to Stop NEXUS Pipeline”

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    Williams Reveals Eminent Domain Strategy for Atlantic Sunrise

    One of the interesting breakout sessions MDN editor Jim Willis attended at last week’s Shale Insight event in Pittsburgh was a panel of lawyers discussing recent rulings in the Marcellus/Utica related to eminent domain and royalties. Sitting with the lawyers was a non-lawyer panelist from Williams. Aaron Blair is right-of-way manager for Williams in the northeast. He managed securing easements for the Atlantic Sunrise Pipeline project, Williams’ $3 billion, 198-mile pipeline project running through 10 Pennsylvania counties to connect Marcellus Shale natural gas from northeastern PA with the Williams’ Transco pipeline in southern Lancaster County. The lawyers on the panel peppered Blair with questions about his strategy for securing rights. Blair’s strategy boils down to this: if/when you need to file for eminent domain, do so in federal, NOT Pennsylvania state court (and certainly not with appointed commissions). Blair finds federal judges know the law and stick to the law–and the case law with regard to eminent domain, whether you like it or not, is quite clear when it comes to pipelines. Atlantic Sunrise began with needing leases from about 950 landowners. In the end, just under 50 of them had to be settled with eminent domain proceedings in court. Here’s an overview of what Blair said on the panel…
    Read More “Williams Reveals Eminent Domain Strategy for Atlantic Sunrise”

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    Wayne Landowners Will “Fight Like Never Before” to Stop DRBC Ban

    Landowners in Wayne (and Pike) counties in northeastern Pennsylvania are not going to stand by and allow their property rights to be stripped away from them. Two weeks ago the Delaware River Basin Commission (DRBC), which has had an ongoing, “temporary” ban on fracking within the Delaware River Basin since 2010, voted to begin the process of implementing a permanent ban (see Governors from PA-NY-DE Vote to Ban Fracking in Dela. River Basin). That has folks like Wayne County dairy farmer Brian Smith hopping mad. He said if the DRBC bans fracking, “people will fight for their property rights like they’ve never fought before.” DRBC spokesman Clarke Rupert is asking the public to “not prejudge the proposed rules,” which is a joke. What he means is, “Lay down and let us kill your property rights, and don’t say anything while we do it.” Landowners in NEPA are not about to let that happen. Good for them…
    Read More “Wayne Landowners Will “Fight Like Never Before” to Stop DRBC Ban”