CONSTITUTION PIPELINE: The 2d Circuit Reaffirms a State’s Right to Veto a FERC-Approved Interstate Pipeline Project

Frederick M. Lowther

On August 18, 2017, the U.S. Court of Appeals for the Second Circuit issued a long-awaited decision in Constitution Pipeline Company LLC v. New York State Department of Environmental Conservation et al., Docket No. 16-1568 (“Constitution”). At issue—once again—was whether a single State (in this case, New York) has the power under §401 of the Federal Clean Water Act, 33 U.S.C. §1341 (“CWA”), to deny a water quality certification for an interstate pipeline previously certificated by the Federal Energy Regulatory Commission (“FERC”), when the effect of the denial is to veto a pipeline project that would serve multiple States. In 2008, the 2d Circuit determined that such a veto power exists. Islander East Pipeline Co. v. McCarthy, 525 F.3d 141 (2d Cir, 2008) (“Islander East”). Although the factual situation in Constitution differs in some respects (noted below) from that in Islander East, the end result is the same: if a State determines that a FERC-approved pipeline is not consistent with its water quality standards approved by the Environmental Protection Agency, and the Court finds (as it did here) that the determination was not arbitrary and capricious (i.e., is supported by “sufficient evidence to provide rational support” for the denial, Constitution, sl. op. at 24), the federally-approved interstate pipeline cannot proceed. Continue readingCONSTITUTION PIPELINE: The 2d Circuit Reaffirms a State’s Right to Veto a FERC-Approved Interstate Pipeline Project”

You Made Your Bed, Now Lie in It: Samson Exploration, LLC v. T.S. Reed Properties, Inc.

Liz E. Klingensmith, Jeremy A. Mercer, Amy L. Barrette

In Samson Exploration, LLC v. T.S. Reed PropertiesInc., the Texas Supreme Court affirmed the decision by the Ninth Court of Appeals siding with royalty owners in concluding that the operator of a well within two overlapping units had to pay twice.

Samson’s leases contractually authorized unilateral pooling. Samson created Unit 1, which had boundaries of 6,000 to 13,800 feet subsurface, and obtained production from two wells within Unit 1’s boundaries, Well No. 1 and Well No. 2. Well No. 1 produced from 12,304 feet to 12,332 feet subsurface. Well No. 2 produced from 13,150 to 13,176 feet. Samson then unilaterally amended Unit 1 to reduce the surface acreage and change the depth to 12,400 feet subsurface and below (the “Amended Unit”). No production from Well No. 1 was attributed to the Amended Unit. Continue reading “You Made Your Bed, Now Lie in It: Samson Exploration, LLC v. T.S. Reed Properties, Inc.

ERA Revisited: Solutions For Navigating An Uncertain Legal Landscape

Margaret Anne Hill, Michael L. Krancer, Frank L. Tamulonis III, and Stephen C. Zumbrun

On June 20, the Pennsylvania Supreme Court issued its opinion in Pennsylvania Environmental Defense Foundation (PEDF) v. Commonwealth, 2017 Pa. LEXIS 1393 (Pa. June 20), in connection with the so-called Environmental Rights Amendment or ERA (Article 1, Section 27 of the Pennsylvania Constitution). Suffice it to say, the opinion has reopened the debate as to the meaning of the ERA, and more importantly, how the ERA is implemented as a practical and legal matter. In brief, the court ruled that amendments to the state’s fiscal code (which sought to address budgetary shortfalls by redirecting money from a fund containing rents and royalties from oil and gas leases on commonwealth land to the general fund) violated the ERA. While the facts before the court were narrowly drawn, the court used the opportunity to revisit the decades old “test” applied in evaluating ERA claims, an issue it first addressed in its 2013 plurality opinion in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013). It abruptly rejected the well-established Payne v. Kassab test and roughly 45 years of ERA-related case law, thereby placing the ERA, and industry, back into legal limbo. Despite some legal uncertainty, this opinion should not be interpreted as a major stumbling block to key energy and infrastructure projects.

Continue reading “ERA Revisited: Solutions For Navigating An Uncertain Legal Landscape”

Robinson Rejected: Zoning Ordinance Permitting Oil and Gas Development in Residential-Agricultural Districts Is Constitutional

Jeremy A. Mercer, Margaret Anne Hill, and Frank L. Tamulonis III

Consistent with a line of recent Commonwealth Court decisions, the Commonwealth Court once again held that a township did not violate the Pennsylvania Constitution by passing an ordinance that allowed oil and gas development in various zoning districts, including residential-agricultural (R-A) districts. In Delaware Riverkeeper Network, et al. v. Middlesex Township Zoning Hearing Board, 2017 Pa. Commw. Unpub. LEXIS 415 (Pa. Cmwlth. June 7, 2017), the Court upheld an ordinance and the zoning hearing board’s approval of an oil and gas permit in an R-A district over the objections of numerous entities, including the Clean Air Council (“CAC”) and the Delaware Riverkeeper Network (“Riverkeepers”), who claimed that the township and/or board actions violated several provisions of the Pennsylvania Constitution. Continue reading “Robinson Rejected: Zoning Ordinance Permitting Oil and Gas Development in Residential-Agricultural Districts Is Constitutional”

Drill on Through to the Other Side: No Trespass When Drilling Through Mineral Estate with Surface Use Agreement

Elizabeth E. Klingensmith, Jeremy A. Mercer, and Amy L. Barrette

The Texas Supreme Court annunciated two critical points in Lightning Oil Co. v. Anadarko E&P Onshore: (1) unauthorized interference may be a trespass only when it impacts the mineral lessee’s ability to exercise its rights to explore, obtain, produce, and possess the leased minerals; and (2) the trespass injury must outweigh the interests of the industry as a whole and society in maximizing oil and gas. Continue reading “Drill on Through to the Other Side: No Trespass When Drilling Through Mineral Estate with Surface Use Agreement”

Stretching Sovereign Immunity: The New Jersey High Court Immunizes the State from New Jersey Spill Act Liable for Pre- 1977 Discharges

Sophia LeeKevin J. Bruno, and Louis D. Abrams

The New Jersey Supreme Court’s decision in NL Industries, Inc. v. State of New Jersey will frustrate the equitable allocation of cleanup costs at sites involving pre-1977 discharges where the State would otherwise qualify as a responsible party. Such a result would be particularly severe considering the high cleanup price tag for many sites predating 1977. Any party involved in or contemplating such a contribution action against the State should be mindful of this decision when determining how best to proceed. This should include determining whether a federal forum and contribution claims under the NJ Spill Act’s federal counterpart, CERCLA, might achieve a better result. Continue reading “Stretching Sovereign Immunity: The New Jersey High Court Immunizes the State from New Jersey Spill Act Liable for Pre- 1977 Discharges”

Court Rebuffs Dep’s New Chapter 78A Oil and Gas Regulations

Michael L. Krancer and Michael Joseph Montalbano

The Pennsylvania Commonwealth Court stayed, at least for now, implementation of portions of the new Chapter 78a oil and gas regulations that it considered rogue. These new rules are the poster child for “train-wreck” regulation—they come with the trifecta of horribles: (1) a huge price tag; (2) little or no environmental benefit; and (3) at a time when prices for Pennsylvania producers are low.  This is good news for the competitiveness of Pennsylvania as a leader in responsible energy production. Businesses in the oil and gas industry, royalty owners, and companies in the supply chain should keep a close eye out as this case progresses, as they will be significantly impacted depending on future developments in this case. Continue reading “Court Rebuffs Dep’s New Chapter 78A Oil and Gas Regulations”