Articles, Alerts & Perspectives

The New Energy & Transportation Technology Revolution: Can Pennsylvania Adapt?

City & State Pennsylvania Magazine

(by Jim Chen)

Published in January of this year, the U.S. Energy Information Administration (“EIA”) Short-Term Energy Outlook (‘STEO’) forecast shows a rising trend in energy production across all sectors.  These trends include not only an increase in oil and gas production, but also a rise in alternative energy generation such as wind and solar, supported by battery storage technology that increases by 14 gigawatts this year and 9 gigawatts next year for a total installed capacity of 40 gigawatts by 2025.  Overall, these trends are a net positive for the United States as the country diversifies energy sources in the United States and the means by which electricity is generated.  Diversification of our energy supply matters – not simply from a supply side calculus, but for reasons of national security, technology leadership, economic prosperity and growth, and the environment.  An “all-of-the-above” strategy is simply smart policy for the United States.

From an economic perspective, reliance on a single source of energy leaves the country vulnerable to price shocks and shortages when inevitable issues arise.  Petroleum should be a particular focus as the United States is the largest consumer of oil in the world at over 20 million barrels per day.  Of that amount, 66.6% is consumed in the transportation sector, 43% for motor gasoline alone.  As a result, diversification can be beneficial and reduce risk in the transportation sector as part of the overall energy mix.

The national security and economic implications of an overreliance on a single source of energy are significant, regardless of the U.S. rate of domestic production.  For example, oil is a global commodity subject to volatile price fluctuations based on world events.  When Russia invaded Ukraine in February 2022, oil prices surged significantly with prices for West Texas Intermediate crude increasing by over 50% and Brent crude by over 55%.  As a result of objections over the Russia invasion, U.S. allies in Europe faced significant challenges in weaning themselves off of Russian oil and gas – which amounted to 45% of all natural gas imports into Europe.  Even today, Europe continues to face challenges in sourcing reliable supplies of gas, petroleum and coal that are not reliant on Russia.  Domestic liquefied natural gas (LNG) production from the U.S. has helped our European allies make up some of the shortfall.

Price shocks and supply threats from global events continue as some of the largest oil reserves remain in the most volatile areas of the world.  The Israel-Palestine war, along with agreed upon cuts by OPEC nations, threatens to upend world oil prices.  The World Bank warned in October of last year that “the outlook for commodity prices would darken quickly if the [Israel-Palestine] conflict were to escalate.”  Energy price increases would not only impact commodity prices, but food supplies as well.  Fortunately, the United States and other countries have more diversity in their energy supply.

Introducing renewable energy into the mix of energy sources simply makes sense.  Diversification of the energy in the United States can reduce dependence on imported energy and promote economic development through creation of jobs in manufacturing, installation and maintenance. The International Energy Agency predicts that renewables will make up more than one-third of the world’s total electricity generation by early 2025.  This higher trend is a net positive given that global electricity demand is expected to grow at an ever-increasing rate, due in part to the rise in use of electrification in technologies such as heat pumps and battery electric vehicles.  Pennsylvania has very much been a part of the growth in renewables with nearly 4% of the Commonwealth’s in-state electricity generated by such technologies in 2022.  Governor Josh Shapiro has stated his support for the goal of 30% of all energy sold in Pennsylvania to come from renewable sources by 2030.

While the Governor’s campaign position is a good start, Pennsylvania now has an opportunity to continue its legacy of leadership in energy innovation by diversifying energy generation in the Commonwealth.  This leadership can also include support for the new technologies using that energy, like electric vehicles.  Last year, electric vehicles made up 7.6% of all new vehicles sales in the United States; up from 5.9% in 2022.  That figure equated to 1.2 million electric vehicles sold in 2023.  With ever increasing improvements in range, performance, reliability and choice, electric vehicles are proving to be competitive with the incumbent technology of internal combustion engine equipped vehicles.  Add in the lower maintenance costs and favorable total cost of ownership and electric vehicles make a compelling cost and performance case.  Electric vehicles also provide the platform for the next generation of technology with connectivity and autonomy as gateways to break throughs in human/machine interface and artificial intelligence.

Transportation electrification and its accompanying technological improvements have broad benefits beyond the products themselves.  Economically, the surge in electric vehicles and attendant demand has encouraged manufacturers to invest back into the United States.  Traditional manufacturers like Hyundai and BMW have begun building new plants or expand existing plants in the United States to build new electric vehicle line ups.  New technology companies like Tesla, Lucid, Rivian, Scout, and Lion Electric have built or are building new or refurbished plants, also in the United States, to produce the next generation of electric vehicles.  Today, there are about 30 battery factories either planned, under construction or already operating in the United States with more on the way.  All of these investments have led to job growth and increased economic activity here at home.  In a review of the automotive industry and electric vehicles under the past two administrations, the Washington Post reported that automotive jobs have increased substantially with auto manufacturing jobs at their highest point since 2006.

With all the positives coming from the diversification of the United States’ energy mix and the growth of the electric vehicle industry, careful consideration must be made regarding policies and legislation that impact these promising new technologies.  For several sessions, the Pennsylvania legislature has debated the imposition of an electric vehicle “fee” in addition to traditional registration of vehicles in the Commonwealth.  Currently working through the legislature, Senate Bill 656 (SB 656) would impose an annual fee of $290 on top of the standard registration for every electric vehicle registered in Pennsylvania.  Proponents argue that this fee is fair because electric vehicle owners do not pay gas taxes, which support road infrastructure fees.  The $290 figure represents the average cost of what a Pennsylvania driver pays in gas taxes.  Opponents would note, however, that this proposal does not consider the fact that electric vehicle owners already do pay taxes – on the electricity they use to recharge their vehicles. In addition, opponents note that the share of electric vehicles on the road is miniscule compared to the number of combustion engine equipped vehicles.  As a result, careful review of all the impacts of proposed legislation like SB 656 needs to be conducted.

To be sure, the issue of funding public infrastructure is a very real issue.  Supported by federal and state levied gas taxes, the funding of road maintenance and care for the United States’ aging infrastructure is vital.  But shortfalls in funding for infrastructure have a number of complex root causes, including improvements in vehicle efficiency that have resulted in a decrease in the amount of taxes collected.  In 1984 (the earliest year EPA figures were available), a gas-powered Ford F-150 4WD vehicle with a 5.8L, 8-cylinder engine and automatic transmission achieved a combined EPA fuel economy rating of 10 miles per gallon.  Today, a comparable model year 2023 Ford F150 with a 5.0L, 8-cylinder engine and automatic transmission achieves a combined EPA fuel economy rating of 19 miles per gallon – nearly double its 1984 predecessor.  Accordingly, the issue of supporting infrastructure through a single source of revenue – gas taxes – may be difficult to sustain in the long term.  Other states have considered a range of solutions to the infrastructure funding issue.  For example, states such as Oregon and Virginia are experimenting with a vehicle-miles-traveled (“VMT”) approach that levies fees on drivers based on the actual mileage put on vehicles – agnostic of the type of power train involved.  These other options that directly address the root cause of the issue should be taken into consideration.

Policy and legislation are powerful tools that when used appropriately, can help promote new technologies and achieve laudable societal goals.  Pennsylvania has long been a leader in energy and transportation technology.  Careful consideration of all aspects of new legislation in support of desirable policy goals is paramount.  Anything less would not be in keeping with the Commonwealth’s long-standing position as a leader in energy generation, innovation and technology.

Jim Chen is a shareholder in the Transportation Technology and Energy, Emerging Technologies, and Environmental groups at law firm Babst Calland. Mr. Chen joined Babst Calland in its Washington, D.C. office after more than a decade as an executive at several successful start-up electric vehicle manufacturers, notably as Vice President of Regulatory Affairs at Tesla, Inc. and as Vice President of Public Policy and Chief Regulatory Counsel at Rivian Automotive, LLC. During that time period, he also served as General Counsel and Corporate Secretary at two other start-up manufacturers. Prior to his in-house experience, Mr. Chen was a partner at two other AMLAW 100 law firms where his practice focused on product-related issues in the areas of automobile emissions and safety regulation, chemical and pesticide regulation, and general environmental and safety law.

To view full article online at City & State Pennsylvania Magazine, click here.

A Methane Mixed Bag: EPA Finalizes Methane Rule for New and Existing Oil and Gas Facilities

PIOGA Press

(By Gary Steinbauer and Christina Puhnaty)

On December 2, 2023, the U.S. Environmental Protection Agency (EPA) released a pre-publication version of its final Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review (Final Rule). The Final Rule comes more than two years after EPA published its initial proposal on November 15, 2021 (Initial Proposal) and a supplemental proposal on December 6, 2022 (Supplemental Proposal) (collectively, the “Proposals”). According to EPA, the agency received over one million comments on the Proposals. (For information on the Proposals, please see our November 11, 2021 and December 12, 2022 articles.) This Alert focuses on critical aspects of the Final Rule, including key changes that EPA made since issuing the Proposals.¹ 

Brief Overview of Methane Rule

The Methane Rule is comprised of four separate actions proposed under sections 111(b) and 111(d) of the Clean Air Act. EPA currently regulates emissions of volatile organic compounds (VOCs) and methane from oil and natural gas facilities under 40 C.F.R Part 60 Subparts OOOO² and OOOOa³. First, through this Final Rule, EPA will regulate oil and natural gas facilities constructed, modified, or reconstructed after December 6, 2022, under a new Subpart OOOOb. The requirements in OOOOb will apply to affected facilities 60 days after the rule is published in the federal register. Second, under a new Subpart OOOOc, EPA finalized emissions guidelines that are intended to inform states in the development, submittal, and implementation of state plans to establish standards of performance for greenhouse gases (in the form of limitations on methane) from sources existing on or before December 6, 2022. Under the Final Rule, states and tribes are required to submit plans to EPA for review within 24 months of the publication of the Final Rule in the Federal Register, with a compliance deadline for existing sources that is no later than 36 months after the deadline to submit the plan to EPA. Third, the Final Rule amends OOOOa in response to Congress’ June 2021 revocation of regulatory amendments made by EPA under the Trump administration. Fourth, the Final Rule also includes “Appendix K,” a protocol for determining leaks using Optical Gas Imaging (OGI) that EPA now requires at natural gas processing plants regulated by OOOOb or OOOOc.

Key Requirements of Methane Rule

Significant changes from the existing OOOO and OOOOa regulatory frameworks include:

• Super Emitter Program: The Final Rule will allow certified third parties to monitor well sites, centralized production facilities, and compressor stations regulated by OOOO, OOOOa, OOOOb, or OOOOc using specific remote detection technologies for “super-emitter emission events,” which are defined as emission events resulting in 100 kilograms (220.5 pounds) per hour or more of methane. These third parties are required to submit notifications of super emitter events to EPA’s Super Emitter Program Portal within 15 calendar days of the observation. Upon receipt of a notification by a third party, owners and operators of these facilities would be required to initiate an investigation within five days and report the results of that investigation to EPA within 15 days. EPA plans to publish online the information that EPA receives through the Super Emitter Response Program, which will include an identification of the operator responsible for the super emitter event after giving the operator the opportunity to respond to EPA regarding the event.
• Storage Vessel Applicability Threshold Now Applies to Tank Batteries: EPA has finalized its proposed expansion of its regulation of oil and gas-related storage vessels under both Subparts OOOOb and OOOOc. Currently, Subpart OOOOa storage vessel regulations are limited to VOC emissions and based on a VOC potential to emit (PTE) of 6 tons per year (tpy) for a single storage vessel. Under Subpart OOOOb, EPA includes the same 6 tpy VOC PTE applicability threshold, adds a methane applicability threshold of 20 tpy, and applies these thresholds to a single storage vessel or the aggregate potential emissions from a “tank battery,” i.e., a group of storage vessels that are adjacent and receive fluids from the same operation or are manifolded together. As for storage vessels at existing facilities, EPA will regulate existing tank batteries meeting the 20 tpy methane threshold. For storage vessels meeting these threshold requirements, EPA requires a 95% reduction of VOC and methane by routing emissions through a closed vent system to a control device.
• Fugitive Emissions Monitoring Required at All Well Sites: At 40 CFR § 60.5397a(1), OOOOa currently excludes low-production well sites from fugitive emissions monitoring requirements. The Final Rule, however, requires fugitive emissions monitoring at all well sites, though the frequency and level of monitoring varies by site based on its configuration and the presence, if any, of production equipment. For example, single wellhead-only and small well sites must conduct quarterly audio, visual and olfactory (AVO) inspections, while multi-well-head only well sites must do semiannual OGI inspections in addition to quarterly AVO inspections. Well sites with major production and processing equipment must conduct AVO inspections every other month and quarterly OGI inspections. Compressor stations are required to conduct monthly AVO inspections and quarterly OGI inspections.
• First-time Requirements for Oil Wells with Associated Gas: For the first time, EPA will require that associated gas from new, reconstructed, or modified oil wells be routed directly to a sales line. In situations where gas-producing oil wells do not have access to a sales line, associated gas would need to be used on-site as a fuel source, used for another purpose that a purchased fuel or raw material would service, or be routed to a flare or other control device achieving 95 percent reduction of methane and VOC emissions. The Final Rule separates new associated gas wells into multiple groups based on when construction is commenced to establish a two-year “phase-in” period for the application of the final standards. EPA requires that these same standards apply to existing oil wells with associated gas.
• Well Closure Plans: The Final Rule includes a new suite of well closure requirements. Under these requirements, owners and operators of well sites are required to submit a closure plan to EPA within 30 days of the cessation of production and a notification to EPA 60 days before well closure activities begin. The contents of the well closure plan would need to include the steps necessary to permanently plug all wells, a description of financial requirements and assurance to complete closure, and the schedule for completing closure. Well surveys using OGI are required at the well site following well closure activities.

Additional notable requirements include the use of zero-emission pneumatic controllers and pneumatic pumps, a “no identifiable emissions” standard for closed vent systems, and the use of best management practices aimed to minimize or eliminate VOC or methane emissions during well liquids unloading.

If you have any questions about the applicability of the Final Rule to your operations, please contact Gary E. Steinbauer at (412) 394-6590 or gsteinbauer@babstcalland.com or Christina Puhnaty at (412) 394-6514 or cpuhnaty@babstcalland.com.

To view the PDF, click here.

To view the full article, click here.

Reprinted with permission from the February 2024 issue of The PIOGA Press. All rights reserved.

¹ The Final Rule is 1690 pages, which does not include the Regulatory Impact Analysis and other documents in the rulemaking record. A detailed evaluation of each potentially applicable requirement is warranted, and this Alert provides only a high-level summary of certain provisions

² Specified affected facilities constructed, reconstructed, or modified after August 23, 2011 and on or before September 18, 2015 are regulated under Subpart OOOO.

³ Specified affected facilities constructed, reconstructed, or modified after September 18, 2015 and on or before November 15, 2021 are regulated under Subpart OOOOa.

When Standing Won’t Stand – Pennsylvania Supreme Court Rules that a Grant of Party Status by a Zoning Hearing Board Does Not Automatically Convey Appellate Rights

The Legal Intelligencer

(by Michael Korns and Anna Hosack)

Last spring, the Pennsylvania Supreme Court addressed the question of who is entitled to standing in matters before a municipal zoning hearing board, and more importantly, who has standing to file an appeal from a board decision.  In South Bethlehem Assocs., LP v. Zoning Hearing Bd. of Bethlehem Twp., 294 A.3d 441 (Pa. 2023), the Pennsylvania Supreme Court held in a three-two decision that while the Municipalities Planning Code, 53 P.S. § 10101 et seq., (the “MPC”), allows the Board wide latitude to grant party status, a grant of standing by the Board does not automatically convey appellate rights absent a finding that the party is entitled to judicial review under the Local Agency Law, 2 Pa.C.S. § 105 et seq., only if they qualify under the “aggrieved party” standard, which requires that they had suffered a harm to an interest that the law is intended to protect.  However, this was a narrow decision, and the dissenters would allow any grant of party status by the Board to also grant appellate standing.  The result would be a dramatic relaxation of appellate standing requirements in zoning hearing board cases.

In South Bethlehem Assocs., the Applicant, a hotel owner, applied to the Zoning Hearing Board of Bethlehem Township (“ZHB”) and requested a dimensional variance.  At the public hearing before the ZHB, counsel for a business competitor of the Applicant appeared and claimed party status by signing in on the provided form as an objector.  The Applicant objected to the Objector’s participation because the Objector’s hotel was outside of the four-hundred-foot radius required for formal notice of the hearing.  The Applicant argued that the Objector was only appearing as a business competitor to oppose the construction of a nearby hotel and therefore the Objector lacked standing to oppose the requested variance.

In ruling on the objection, the ZHB relied upon an opinion of its Solicitor claiming that the Objector became a party of record when its counsel entered his appearance on the objector sheet.  Notably, the Solicitor stated that per the MPC, even if the objector’s property was on the other side of the Township, he could still be a party of record if so designated by the Board.  The Objector did not call any witnesses but did cross-examine the Applicant’s witnesses and provide oral argument in opposition to the variance at the close of the hearing.  The ZHB ultimately issued a unanimous written decision granting the requested variance.

Following the grant of the variance, the Objector appealed the decision to the Court of Common Pleas.  The Applicant intervened in the matter and argued that the Objector lacked standing.  The trial court concluded that the Objector had standing to appeal, as it had timely appeared before the ZHB as an objector and opposed the decision of the ZHB.  However, the trial court also affirmed the Board’s decision on the merits.  The Objector appealed to the Commonwealth Court, which affirmed the trial court’s order on the grounds Objector lacked standing, as the only “aggrievement” it could show was that it would suffer business competition.  The Commonwealth Court reasoned that zoning appeals may not be utilized solely as a method to deter free competition.

The Pennsylvania Supreme Court granted allocator and limited its review to whether the Commonwealth Court erred in holding that the Objector lacked standing to seek judicial review.  At the local zoning hearing board level, the MPC grants the board significantly wider latitude for standing than in most legal proceedings.  Section 908(3) of the MPC states: “The parties to the [zoning board] hearing shall be the municipality, any person affected by the application who has made timely appearance of record before the board, and any other person including civic or community organizations permitted to appear by the board.  The board shall have power to require that all persons who wish to be considered parties enter appearances in writing on forms provided by the board for that purpose.” 53 P.S. § 10908(3) (emphasis added).  The majority noted that this “any other person” language is quite broad.  What, if any limitations on the Board’s discretion should be under this standard were not before the Court.  The Court would only decide if the ZHB could grant standing for appellate review.

In finding that the local standard and the appellate standard could differ, the Court reasoned that a policy goal of the broader MPC standard is to allow for a range of views for and against the relief sought without regard to aggrievement, so as to fully inform the board on the merits of the proposed variance.  Alternatively, a policy goal could have been to avoid the need for mini hearings on aggrievement causing delays before local zoning hearing boards.  Either way, the Majority found that there are legitimate rationales for having a local standard that is more lenient than the appellate standard.

However, the Court reasoned that the legislature’s intent could not be to do away with the need for aggrievement as a predicate to an appeal to a court of law, whose jurisprudential interest and procedures are not identical to those of a local administrative body.  The Court noted that standing exists as a jurisprudential doctrine to protect the courts and the public from the burden of plaintiffs who have no legally enforceable interest affected by the matter.  The Court acknowledged that the Objector’s interest in preventing the Applicant’s hotel two blocks away is not an interest the law recognizes as enforceable in court.  Public policy protects market competition, not competitors from said competition.  The Court held that it remains a valid policy objective to prevent the zoning appeals process from being misused for the sole purpose of hindering market competition.

It was undisputed that the Objector’s sole source of impact, and entire motive for its participation in the case, was to oppose a variance that would have allowed a competitor to operate.  Therefore, the majority found that the Objector did not have standing to appeal the ZHB’s decision.

Given that this was a three-two decision, it is notable that the dissent advocates for a radical change in Pennsylvania appellate standing in cases of this type.  Notably, the Dissent authored by Justin Donahue and joined by Justice Wecht asserted that a party sufficiently establishes that they have party standing automatically by grant of party status before a ZHB where the party is aggrieved by an unfavorable ruling by the board.  The dissent argues that the question of standing for judicial review requires only two conditions be met (1) that the Board properly allowed Appellant to appear and participate at the hearing; and (2) Appellant did not prevail before the Board.

Should this position become the majority position, the standard to establish standing for appellate review of zoning hearing board matters will be dramatically decreased.  Not only could this significantly increase costs for municipalities, but it would also frustrate local zoning goals, policies, and initiatives.  Furthermore, a technical reading of the MPC shows that Section 908(3) of the MPC only applies to zoning hearing boards, not Municipal governing bodies, and therefore municipal conditional use hearings, which otherwise apply very similar standards and procedures as ZHB special exception hearings, would provide radically different appellate rights, further adding complexity to local land use policies and incentivizing municipalities to minimize use of their zoning hearing board.

Michael T. Korns is senior counsel at Babst Calland Clements and Zomnir, P.C. and focuses his practice primarily on municipal permitting, planning, subdivision and land use, and zoning issues.  He is also a member of the firm’s Energy and Natural Resources group.  Contact him at 412-394-6440 or mkorns@babstcalland.com.

Anna R. Hosack is an associate at the firm and focuses her practice primarily on municipal and land use law.  Contact her at 412-394-5406 or ahosack@babstcalland.com.

To view the full article, click here.

Reprinted with permission from the February 12, 2024 edition of The Legal Intelligencer© 2024 ALM Media Properties, LLC. All rights reserved.

Legislative & Regulatory Update

The Wildcatter

(By Nikolas Tysiak)

Happy New Year! After a hiatus, we are back with new laws and cases for your information.

In Nicholson v. Severin POA Group, LLC, 895 S.E.2d 927 (W. Va. I.C.A. 2023), the West Virginia intermediate court of appeals was asked to interpret the meaning of an oil and gas reservation in a Doddridge County deed. The original deed involved a conveyance from F. W. Severin to L. D. Nicholson for 117.55 acres, excepting and reserving “one-sixteenth of all the oil and gas in and under said land.” In 2022, this language gave rise to a dispute as to whether Severin retained a 1/16 interest in oil and gas, or a ½ interest in oil and gas. After reviewing several older cases involving different iterations of oil and gas reservations, most of which involved either fractional splits between oil and gas rights (i.e., 1/16 oil and ½ gas) or referenced royalty as to the oil, gas, or both, the intermediate court determined the language of Severin’s reservation did not include the same factors creating ambiguity, that the Severin reservation was therefore not ambiguous, and concluded that Severin, and his successors in title, only retained an undivided 1/16 interest in oil and gas, based on the unambiguous language of the original deed.

In DD Oil Company v. State ex rel Ward, — S.E.2d —, 2023 WL 8588491 (W. Va. I.C.A.), DD Oil Company had permits to drill several wells in Ritchie County. The West Virginia Department of Environmental Protection (WVDEP) issued violations against DD Oil, which required DD Oil to cease all drilling operations and caused a protracted administrative and judicial review process. More than a year after the initial notice of violation, and after expiration of all the permits issued to DD Oil, WVDEP withdrew its notice of violation. The net effect of these actions was that DD Oil was never able to fulfill the requirements of its permits but was also banned from further action due to the expiration of those same permits. An administrative review of WVDEP’s notices of violation was pending before the West Virginia Environmental Quality Board (“EQB”) which hears administrative appeals on permitting matters, at the time when the notices were withdrawn. The EQB reported being troubled by the actions of WVDEP requested to DD Oil, but ultimately the EQB felt it could not offer relief as the source of the dispute technically no longer existed, and also felt that they could not provide the type of relief request by DD Oil – an extension of the relevant permits to make up for lost time caused by WVDEP’s actions. The West Virginia Intermediate Court disagreed, finding that the EQB was perfectly qualified to offer relief under the circumstances, that the relief requested by DD Oil was reasonable and within EQB’s power to give, and that the withdrawal of the violation notices did not negate the EQB’s authority to give the relief requested. The Court referred the case back to the EQB for further adjudication in accordance with its holdings.

In Lodge v. Hoyt, 2023 WL 8234312 (Pa. Super. 2023), surface owners of a 111-acre tract brough a quiet title action against various parties (the “Hoyt Appellants”). While acknowledging that their interests in the 111-acre tract were subject to a reservation of oil and gas from 1893 benefitting the predecessors to the Hoyt Appellants, Lodge claimed the reservation was void as to their 111 acres. In addition, another party (the “Solomons”) claimed title to the oil and gas under the 111 acres through a Tax Claim Deed from 1981. Lodge further claims that the tax claim deed was void as to the oil and gas under the 111 acres because the tax claim deed reference to effected acreage contained a substantive, typographical error. The Trial Court found that the statute of limitations regarding challenging tax claim deeds had expired, and so the 1981 tax claim deed was beyond challenge, essentially vesting the oil and gas rights with the Solomons. The Superior Court determined that there was a material issue of fact that needed resolution to determine whether the Tax Claim deed to the Solomons mistakenly included mineral rights that had not been assessed and remanded to the trial court for additional findings.

The West Virginia Legislative session started in January and several bills of note have been introduced, but not yet passed. A few critical ones, which do not appear to be favorable to the oil and gas industry, are listed below:

Senate Bill 235 and House Bill 4292 – proposed to introduce a new section to the West Virginia code, providing for a monetary penalty assessable against an operator who fails to pay royalties for mineral production for six months, equal to three times the market of the extracted minerals for which payment was due, plus reasonable fees and costs incurred to enforce the landowners’ rights as W. Va. Code §36-4-9c.

Senate Bill 270 and House Bill 4722 – proposed to create a tax credit against the severance tax relating to mineral production for private taxpayers that make infrastructure investments in roads and bridges. As written, the bills currently do not apply to oil and gas producers.

Several Dormant Mineral Act and/or Marketable Title Act cases arose from Ohio 7th District Court of Appeals as well:

Jeffco Resources, Inc. v. Abrecht, 2023-Ohio-4712 (7th Dist. December 22, 2023) – Surface owners in Harrison County did not exercise reasonable due diligence in determining owners of severed oil and gas interest, as there was sufficient information in probate and other records to extend the search beyond the “record title baseline” search.

Kemp v. Rice Drilling D, LLC, 2023-Ohio-4732 (7th Dist. December 20, 2023) – Surface owners in Belmont County made a claim to a severed ½ oil and gas interest from 1917 under their land via the Marketable Title Act. The root of title deed included language stating, “ALSO RESERVING one-half of the oil and gas royalty as heretofore reserved.” The Court of Appeals decided this reference was not a sufficiently specific identification of a recorded title transaction for the purposes of the Marketable Title Act because it contains an error as to the interest previously reserved. We note that this decision appears to go against the spirit of Erickson v. Morrison, 2021 Ohio-746 (2021), an Ohio Supreme Court case. Consequently, there remains a question as to whether the above case is good law in Ohio.

Crum v. Mooney, 2023-Ohio-4451 (7th Dist. December 6, 2023) – Surface owners in Monroe County made a claim to a severed oil and gas royalty interest from 1898 under their land under the Marketable Title Act. The court found that the Marketable Title Act did not extinguish the severed royalty interest. The court further found that the 1898 severance created a fixed fractional 1/16 royalty interest.

White Revocable Trust v. Kemp, 2023-Ohio-4513 (7th Dist. December 5, 2023) – Surface owners in Belmont Conty made a claim to severed oil and gas interest from a 1930 severance deed reservation. The surface owners’ 1970 root of title deed contained the following language “Said premises also subject to oil and gas lease previously given and also subject to easements for rights of way as previously given and conveyed.” The court found that there was no reference to a specific record title transaction containing an oil and gas severance, and that the reference to the prior lease was not sufficient to give the surface owners notice that there was a severed mineral interest affecting the land. Factually, the parties that granted the lease at issue did not own oil and gas rights, resulting in the lease effectively being unenforceable, and therefore inapplicable as a title transaction for Marketable Title Act purposes.

Crozier v. Pipe Creek Conservancy, LLC, 2023-Ohio-4297 (7th Dist. November 28, 2023) – Surface owners in Belmont County make a Marketable Title Act claim against severed oil and gas mineral rights from 1930 underlying their property. The root of title deed contained a word-for-word repetition of the language used in the original 1930 reservation (excepting and reserving all the oil and gas). Nevertheless, the court found the reference to be a general reference without specific reference to a record title transaction and stated that the Marketable Title Act may serve to divest the severed mineral owners. We note that this decision appears to go against the spirit of Erickson v. Morrison, 2021 Ohio-746 (2021), an Ohio Supreme Court case. Consequently, there remains a question as to whether the above case is good law in Ohio.

As always, if you come across any interesting or applicable laws, court cases or regulations, please forward them on to us friendly folks of the Legislative and Regulatory Committee.

To view the full article, click here.

To view the PDF, click here.

Reprinted with permission from the MLBC February 2024 issue of The Wildcatter. All rights reserved.

Court to rule on WV pooling statute challenge

GO-WV

(by Robert Stonestreet and Austin Rogers)

A federal appeals court has instructed a lower court to resolve a pending suit challenging the constitutionality of West Virginia’s oil and gas pooling and unitization law.  The federal district court previously declined to resolve certain constitutional issues presented in the suit on the grounds that those issues should be decided by a state court instead of a federal court.

In 2022, the West Virginia Legislature enacted Senate Bill 694 to revise West Virginia law governing the pooling and unitization of oil and gas formations associated with horizontal well development.  Pooling and unitization essentially involves combining separately owned properties into a single “unit” through which one or more horizontal wells are drilled.  The oil and gas produced from the horizontal well is then allocated among all the properties in the unit for purposes of calculating production royalties payable to the mineral owners.

Prior to Senate Bill 694 becoming effective on June 7, 2022, formation of a pooled unit for a horizontal well drilled through “shallow” oil and gas formations, which includes the Marcellus Shale, required consent of 100% of the mineral owners for all the properties to be included in the unit.  This 100% consent requirement did not apply to horizontal wells drilled through “deep formations” such as the Utica Shale.  One of the more significant changes made by SB 694 was to allow the West Virginia Oil and Gas Conservation Commission to approve units for shallow formations where at least 75% of the mineral owners consent, provided other requirements are also satisfied.  This means that up to 25% of a unit could potentially include properties for which the mineral owner did not consent to being part of a unit.

Before Senate Bill 694 became effective, a pair of mineral owners (Scott Sonda and Brian Corwin) filed a lawsuit in the federal District Court for the Northern District of West Virginia seeking to preclude the law from taking effect.  Governor Jim Justice was the only defendant named in the case.  In their suit, Sonda and Corwin alleged that the law was illegal for several reasons, including the claim that the law authorizes the unconstitutional taking of private property without just compensation and deprives landowners of due process of law.

Federal Judge John Preston Bailey initially dismissed all of their claims for two reasons.  First, Judge Bailey concluded that Sonda and Corwin lacked standing to bring the challenge because (a) their property had not been pooled into a unit without their consent and no operator had sought approval of a unit to include their property without their consent; and (b) the Commission, not the Governor, has the power to directly enforce Senate Bill 694.

Second, Judge Bailey ruled that, even if Sonda and Corwin established standing, Governor Justice had constitutional immunity from the suit because he had no direct authority to implement Senate Bill 694.  Rather, the Commission has the authority to implement the law.

Instead of dismissing their suit entirely, Judge Bailey granted leave for Sonda and Corwin to amend their complaint to name the Commission as a defendant instead.  Sonda and Corwin did so, and also named as defendants each person who serves on the Commission.  The amended complaint still does not allege that mineral properties owned by Sonda or Corwin were pooled into a unit without their consent.  Instead, the amended complaint attempts to address the standing issue by alleging that Senate Bill 694 effectively eliminates their ability to challenge whether they are being fairly compensated for oil and gas produced from their property that was pooled into a unit with their consent.

The Commission moved to dismiss the amended complaint for various reasons, including Sonda’s and Corwin’s lack of standing to bring the case.  Judge Bailey did not address the standing issue, but agreed with the Commission with respect to three of the five claims asserted by Sonda and Corwin.  Judge Bailey then abstained from addressing the Commission’s arguments for dismissal of the other two claims, which asserted constitutional violations, because he believed that those issues were more appropriate for resolution by a state court instead of a federal court.

The Commission appealed Judge Bailey’s decision to abstain from addressing the arguments for dismissal of the constitutional claims.  By opinion issued on January 31, 2024, the Fourth Circuit Court of Appeals ruled that Judge Bailey should not have abstained.  The appellate court also directed Judge Bailey to first address the standing issue before addressing any other pending issue.  The opinion does not specify a deadline for Judge Bailey to rule on those issues.  If Judge Bailey finds that Sonda and Corwin continue to lack standing to assert their claims, the case will presumably be dismissed on that ground alone.  If Judge Bailey concludes that Sonda and Corwin have established standing, Judge Bailey will likely address the merits of the Commission’s other arguments for dismissal.

If you have questions about this lawsuit or West Virginia law governing pooling and unitization, please contact either of the following attorneys to learn more: Robert Stonestreet at rstonestreet@babstcalland.com or 681.265.1364 or Austin Rogers at arogers@babstcalland.com or 681.265.1368.

Click here, to view the article online in the February issue of Go-WV News.

Forum Non Conveniens – Pennsylvania’s Jurisdiction Jigsaw Puzzle

Legal Intelligencer

(by Carla Castello and Casey Alan Coyle)

Few concepts are more steeped in Pennsylvania law than the doctrine of forum non conveniens.  Memorialized in Pennsylvania Rule of Civil Procedure 1006, the doctrine provides defendants a “necessary counterbalance to a plaintiff’s choice of forum to insure [sic] fairness and practicality.”  Bratic v. Rubendall, 99 A.3d 1, 6 (Pa. 2014) (cleaned up).  Historically, to establish forum non conveniens, a defendant had to show the plaintiff’s chosen forum is either oppressive or vexatious without any particular form of proof.  Through a series of recent decisions, however, the Pennsylvania Superior Court has sown uncertainty in the once-settled area of the law, subjecting some litigants to new, more rigid requirements and others to the traditional, flexible standard that has existed under Pennsylvania law for over a quarter century.  With each new decision, the intermediate appellate court reveals another piece of the puzzle.  But as a fragmented image takes shape, litigants and trial courts are looking to the Pennsylvania Supreme Court to solve the puzzle.

Background

Forum non conveniens was once a reliable tool for defendants to transfer a case to a more appropriate forum in the Commonwealth if litigating in the plaintiff’s chosen forum would be oppressive or vexatious.  In applying the doctrine, the Pennsylvania Supreme Court has consistently emphasized the necessity of a fact-specific assessment, refusing to impose a specific standard of proof and instead focusing on the totality of the circumstances with considerable discretion granted to trial courts.  Bratic, 99 A.3d at 6-8; Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156 (Pa. 1997).

But at least two Superior Court panels have imposed new, more rigid requirements holding defendants to a specific level of proof for a forum non conveniens challenge.  Ehmer v. Maxin Crane Works, L.P., 296 A.3d 1202 (Pa. Super. Ct. 2023); Tranter v. Z&D Tour, Inc., 303 A.3d 1070 (Pa. Super. Ct. 2023).  The heightened standard requires movants to establish that potential witnesses claiming burden or hardship are “key witnesses” possessing testimony “relevant and necessary” to the defense.  Yet, the Superior Court subsequently issued two additional decisions on this subject, both of which fail to acknowledge the purported change in law or to clarify when one standard applies over the other.  See Smith v. CMS W., Inc., 1002 EDA 2022, 2023 WL 7119812 (Pa. Super. Ct. Oct. 30, 2023); Austin v. Amazon.com, Inc., 756 EDA 2023, 2023 WL 7273842 (Pa. Super. Ct. Nov. 3, 2023).  A recent article summarized the issue as a “war of words” in which trial courts are asked to decide whether the plaintiff’s selected forum is vexatious or oppressive, or merely inconvenient to the defendant.  “Forum Selection—Forum Non ‘Convenience’: No Need for ‘Corrective Action,’” The Legal Intelligencer (Dec. 1, 2023).  But without consistency or a clear standard, the bench and the bar are deprived of uniform guidance as to how a case may be transferred out of an oppressive venue.

The Ehmer-Tranter Standard

Parties seeking a change of venue bear a heavy burden to justify the request under the new Ehmer–Tranter standard—a burden which includes the need to demonstrate their claimed hardships on the record when applied.  In Ehmer, for example, the site of the relevant accident, the fact witnesses expected to be called at trial, all records related to the plaintiff’s medical treatment, and the plaintiff himself were all located more than 100 miles from Philadelphia County where the case was filed.  The trial court transferred the case but the Superior Court reversed, finding the trial court erred by not first determining whether the testimony from the affiants and potential witnesses were “relevant and necessary” to the defense.  Ehmer, 296 A.3d at 1207-08.  Without recognizing the novel standard that it announced or its break from precedent, the panel proclaimed that a transfer request based on an allegation of witness hardship must (1) identify the allegedly encumbered witness and (2) make a general statement of what testimony that witness will provide.  “Only after the defendant has placed detailed information on the record establishing that the witness possesses information relevant to its defense should the trial court proceed to consider the alleged hardship posed to the witness,” the panel held.

The Superior Court augmented the new standard further in Tranter.  There, the accident giving rise to the claims occurred over 250 miles from Philadelphia County; none of the plaintiffs reside in or received medical care there; none of the defendants reside or maintain a principal place of business in Philadelphia County; and of the dozens of potential witnesses, including emergency, medical, police, and investigating officers, none work or reside there and many reside no closer than 240 miles from Philadelphia County.  The only arguable connection with Philadelphia is the fact that some of the defendants conduct business there—but that is irrelevant to a forum non conveniens analysis.  The trial court agreed and granted the petitions to transfer to Westmoreland County.

Writing on the heels of Ehmer, the Superior Court panel held that, to satisfy the forum non conveniens standard, a defendant must establish that the potential witness is “‘key’ to the defense.”  The panel then proceeded to apply a de novo standard of review and probe the facts relied upon by the trial court.  The result was the panel vacating the transfer orders and discounting 11 affidavits and 32 statements from potential witnesses who worked and resided 240 or more miles from Philadelphia County, on the basis that the movants failed to establish these witnesses were “key” witnesses whose testimony is “relevant and necessary” to the case.

Ehmer and Tranter mark a clear departure from precedent, which makes clear that no particular form of proof is required to establish that a forum is oppressive under forum non conveniens.  Rather, “[a]ll that is required is that the moving party present sufficient factual basis for the petition.”  Bratic, 99 A.3d at 9.  These holdings also diverge from other Superior Court decisions affirming transfer, including two subsequent decisions (Smith and Austin) that make no attempt to reconcile the inconsistent standards.  Petitions for allowance of appeal are currently pending before the Pennsylvania Supreme Court in both Ehmer and Tranter.

Impact

The notable lack of consistency among recent Superior Court decisions on forum non conveniens leaves litigants to grapple with an unpredictable standard at a time when forum non conveniens has become increasingly vital.  Earlier this year, the U.S. Supreme Court rejected a due-process challenge to Pennsylvania’s consent-by-registration statute in Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023), where a nonresident brought a lawsuit against an out-of-state corporation.  Although other potential challenges to that statute remain pending, as it currently stands, corporate defendants who are not “at home” in Pennsylvania now face the real prospect of suit in the Commonwealth for claims arising in any jurisdiction by a plaintiff with no ties to Pennsylvania.  Then, in Hangey v. Husqvarna Professional Products, 278 A.3d 301 (Pa. 2023), the Pennsylvania Supreme Court held that venue could lie over a defendant who does only 0.005% of its annual business in forum.  Thus, a corporation may be sued in a venue even if they have a de minimis amount of business in the county.  When read together, Mallory and Hangey make forum non conveniens a defendant’s last line of defense (no pun intended) against forum shopping.  But where forum non conveniens once operated as a safety net to protect defendants from oppressive or vexatious forum shopping, the Ehmer–Tranter standard makes it even more likely that Pennsylvania disputes will be adjudicated wherever they are filed—regardless of the burden on the parties and witnesses—exacerbating the Commonwealth’s burgeoning forum-shopping problem.  Mallory, 600 U.S. at 153-54 (Alito, J., concurring in part and concurring in the judgment) (noting that Philadelphia is a venue that is “reputed to be especially favorable to tort plaintiffs”).

The irony of the new, heightened standard is it will harm Pennsylvania’s busiest trial court by causing more cases to remain in the Philadelphia County Court of Common Pleas at a time when it is already overburdened with an influx of cases resulting from the repeal of Pennsylvania’s medical malpractice venue rule.  Caseload issues aside, meeting the “key witness” requirement is practically impossible for litigants.  Forum non conveniens is raised on a petition to transfer at the preliminary stages of litigation—before discovery and before the parties have fully developed their claims and defenses for trial.  Even when venue discovery occurs, inquiry into the lawsuit’s merits is often precluded or limited, so it is difficult if not impossible to establish a witness’s relevance at such a preliminary stage.  It is therefore unreasonable, unworkable, and inefficient to mandate at this early stage that defendants establish certain witnesses (including third-party witnesses) as key witnesses and identify with precision the relevance and necessity of each witness’s testimony for purposes of forum non conveniens.  Indeed, if the defendants in Tranter cannot satisfy the Ehmer–Tranter standard, it is difficult to imagine any set of facts that could, making plaintiff’s chosen forum virtually unassailable.

—————-

Carla Castello is a shareholder at Babst Calland.  She focuses her practice on complex commercial litigation and class actions.  Carla is a former law clerk to the Honorable Nora Barry Fischer of the U.S. District Court for the Western District of Pennsylvania.  Contact her at 412-394-6516 or ccastello@babstcalland.com.

Casey Alan Coyle is a shareholder at Babst Calland and Co-Chair of the firm’s Litigation Group.  He focuses his practice on appellate law and complex commercial litigation.  Casey is a former law clerk to Chief Justice Emeritus Thomas Saylor of the Pennsylvania Supreme Court.  Contact him at 267-939-5832 or ccoyle@babstcalland.com.

To view the full article, click here.

Reprinted with permission from the January 24, 2024 edition of The Legal Intelligencer© 2024 ALM Media Properties, LLC. All rights reserved.

Public Advertising Cheat Sheet: A Local Government Guide to Mandatory Advertising and Posting Requirements

Legal Intelligencer

(by Steve Korbel, Anna Jewart and Anna Hosack)

Last week, thousands of newly elected public officials took office across Pennsylvania and began their duties.  Whether beginning a first or fifth term, those in public office must review their obligations regarding open meetings and public engagement.  Several statutes in Pennsylvania impose open meeting, public comment, and advertising requirements.  This “cheat sheet” will focus on the most common requirements for local governments, and specifically will address two key statutes: the Pennsylvania Sunshine Act, 65 Pa.C.S. § 701–716 (the “Sunshine Act”) and the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq, (the “MPC”), which local government officials are likely to come across in their duties.

The Sunshine Act is the primary “open meetings” law for the Commonwealth of Pennsylvania.  Its intent is to promote the right of the public to be present at all meetings of public agencies and to witness the deliberation, policy formulation, and decision-making of those agencies.  In general, it requires that agencies, including local governing bodies and their committees, take official action at a public meeting.  The MPC is the statute that authorizes local zoning and other land use regulations.  It sets additional requirements for actions involving zoning, subdivision, and land development.

The Sunshine Act and MPC are not the only statutes that regulate how official action is taken.  Municipal enabling legislation such as the Borough Code, 8 Pa.C.S. §101 et seq., First Class Township Code, 53 P.S. §55101 et seq., and Second Class Township Code, 53 P.S. §65101 et seq., impose advertising and other requirements for the approval of ordinances, bidding processes, approval of budgets, and other matters.  Local officials should consult with their solicitor to confirm they have considered all relevant requirements before taking official action on a matter.

A. The Sunshine Act and Regular Public Meeting Requirements.
The following requirements apply to every meeting at which an agency wishes to take official action or deliberation, regardless of the subject matter.

1. 1. 1. Official Action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public unless closed under § 707 of the Sunshine Act.
         With certain limited exceptions, every decision, vote, recommendation, establishment of policy, or action on any motion, proposal, resolution, rule, regulation, ordinance, report, or order must occur at a “public meeting.”  Any discussion of agency business held for the purpose of making a decision must occur at a public meeting.

1. 1. 2. All Public Open Meetings Require Advance Public Notice in a Print Newspaper of General Circulation in the Municipality and Posting of the Municipal Office or Meeting Location.
         For a meeting to be considered an open meeting under the Sunshine Act, the agency must give advance “public notice” of the meeting.  “Public Notice” means publication of a notice of the place, date, and time of the meeting in a newspaper of general circulation in the political subdivision where the meeting will be held, and posting of the notice prominently at the principal office of the agency holding the meeting or at the public building in which the meeting is to be held.

1. 1. 3. Regular Meetings May be Advertised Annually, no less than 3 Days in Advance of the First Meeting.
         The “regular meetings” of an agency are those set annually for the remainder of the year.  The Sunshine Act requires that all agencies give “public notice” of its first regular meeting of each calendar year not less than three (3) days in advance of the meeting as well as public notice of the schedule of its remaining public meetings for that year.

1. 1. 4. Special Meetings and Rescheduled Regular Meetings Must be Advertised no less than 24 Hours in Advance of the Start of the Meeting.
         “Special meetings,” (those scheduled by an agency after its regular schedule of meetings has been established) or changes to the regular schedule must be advertised at least 24 hours in advance of the start of the meeting.

1. 1. 5. An Agenda Listing Every Item on Which the Agency Will Take Official Action Must be Posted on the Agency Website and at the Meeting Location at Least 24 Hours in Advance of the Meeting.
         In 2021, the Sunshine Act was amended to require that in addition to public notice, all agencies are now required to provide notification of agency business to be considered at all open meetings by posting an agenda.  The agenda must list each matter of agency business that will or may be the subject of deliberation or official action at the meeting.  With limited exceptions, agencies cannot take official action on matters not included on the posted agenda.  The agency is required to post its agenda on its public website and at the meeting location no later than 24 hours prior to the start of the meeting.  In addition, agencies must make paper copies of the agenda available to individuals in attendance at the meeting.

1. 1. 6. Adoption of Ordinances, Generally, Require Public Notice at least 7 Days and not more than 60 days Prior to Adoption.
         Ordinances (of a non-zoning nature) typically require additional public notice prior to consideration and adoption.  These requirements are established by the relevant municipal enabling legislation.  Typically, one must publish every proposed ordinance, or a summary prepared by the solicitor, at least once in a newspaper of general circulation no more than 60 days and no less than 7 days prior to enactment.  Depending on the subject matter of the ordinance at issue, additional requirements may apply.

B. The MPC and Requirements for Public Hearings on Zoning Ordinances and Applications.
Municipalities that have adopted, or are considering adopting, zoning ordinances must also consider the requirements of the MPC.  The MPC imposes additional requirements for certain actions of the municipal governing body, planning commission, and zoning hearing board related to zoning, subdivision, and land development within their borders.  These requirements can be complex, but a brief overview of some frequent issues follows.

1. 1. 1. Adoption of Zoning and Subdivision and Land Development Ordinances Requires a Public Hearing Subject to Public Notice Under the MPC.
         When a municipality wants to adopt an ordinance that involves zoning, subdivision, or land development it must also follow requirements established by the MPC.  Adoption of an ordinance that involves these matters requires the municipal governing body to hold a “public hearing” before adoption.  A “public hearing” is a formal meeting held pursuant to “public notice” as defined by the MPC, not the Sunshine Act.  When an MPC ordinance is involved, “public notice” requires notice, stating the time and place of the hearing and the text of the ordinance or a summary, prepared by the solicitor which sets forth all provisions in reasonable detail.  The notice must be published once each week for two successive weeks in a newspaper of general circulation.  The first advertisement must run not more than 30 days prior to the public hearing.  The second advertisement must run not less than 7 days prior to the public hearing.

1. 1. 2. Ordinances Changing the Zoning Map Typically Require that the Impacted Properties be Posted 1 Week in Advance of the Public Hearing and Mailed to the Property Owners 30 days in Advance.
         In addition to the public notice described above, when a proposed zoning ordinance amendment involves a change to the zoning map, notice of the public hearing must be posted conspicuously along the tract at issue at least one week in advance.  The municipality must also mail notices to the addresses to which real estate tax bills are sent for each impacted property at least 30 days before the public hearing.  These requirements do not apply if the changes constitute “comprehensive rezoning.”

1. 1. 3. Public Hearings on Zoning Applications Must be Held Subject to Public Notice, Written Notice Must be Given to the Applicant, and the Property Must be Posted.
         The MPC also requires that a public hearing be held on applications for conditional use approval (heard by the governing body) variances, special exceptions, or appeals of a zoning officer’s determination (heard by the zoning hearing board) as well as certain other matters.  The same MPC “public hearing” advertising requirements utilized for hearings on zoning ordinances apply to these hearings.  The impacted property must also be posted conspicuously at least one week in advance of the public hearing.

While some find these requirements redundant or trivial, they must be carefully reviewed and followed.  Members of an agency who participate in a meeting with the intent of violating the Sunshine Act may be found guilty of a summary offense and sentenced to fines up to $1,000 for a first offense and $2,000 for a second or subsequent offense.  A failure to follow the requirements of the MPC can be challenged in court and, in some instances, can invalidate the action taken by the governing body.

Stephen L. Korbel is a shareholder in the Public Sector Services and Employment and Labor groups of Babst Calland Clements & Zomnir.  Contact him at skorbel@babstcalland.com or 412-394-5627.  Anna S. Jewart is an associate in Babst Calland’s Public Sector Services group and focuses her practice on zoning, subdivision, land development, and general municipal matters.  Contact her at ajewart@babstcalland.com.  Anna R. Hosack is an associate in Babst Calland’s Public Sector Services group and focuses her practice on zoning, subdivision, land development, and general municipal matters.  Contact her at ahosack@babstcalland.com.

To view the full article, click here.

Reprinted with permission from the January 9, 2024 edition of The Legal Intelligencer^© 2024 ALM Media Properties, LLC. All rights reserved.

MindShare: Developments in Data Privacy

TEQ Magazine

(By Ember Holmes)

Earlier this year, Pennsylvania’s Breach of Personal Information Notification Act (BPINA), underwent its first major update since it was signed into law in June 2006.

The Amended BPINA¹,  which went into effect on May 2, 2023, affects all Pennsylvania entities that store information belonging to Pennsylvania residents, but has the most significant impact on state agencies and entities that contract with state agencies.

BPINA was designed to set security parameters and standards for entities that maintain, store or manage computerized data containing the Personal Information (as defined below) of Pennsylvania residents. BPINA sets forth specific requirements for notifying residents of security system breaches. The Amended BPINA creates new definitions for previously undefined terms in BPINA, amends existing term definitions, and bolsters notification and security requirements for state agencies, state agency contractors, counties, public schools, and municipalities.

As a state agency, the Pennsylvania Department of Environmental Protection (PADEP) will be subject to this higher level of scrutiny with regard to its handling of personal information. In addition, any entity that contracts with the PADEP or maintains data on behalf of the PADEP or any other state agency is also subject to these more stringent requirements and should be familiar with the updates as applicable to their notification, reporting and encryption practices.

Expanded Definition of “Personal Information” and Related Notification Requirements

• The original BPINA definition of “Personal Information” included: (i) Social Security numbers; (ii) driver’s license numbers or state identification card numbers issued in lieu of driver’s licenses; and (iii) financial account numbers and credit or debit card numbers, in combination with any required access codes or passwords that would permit access to an individual’s account.
• The Amended BPINA expands “Personal Information” to include medical information, health insurance information, and username or email address information in combination with a password or security question. This change applies to all entities that collect and store information of Pennsylvania residents and will most significantly impact companies that contract with third-party vendors to provide services such as online payments, health portals and banking. These services almost always involve use of a username and password, and exposure of this information will now trigger response and notification protocols.
• The Amended BPINA also added “electronic notice” as a valid means of notifying individuals that their information may have been materially compromised. This can be accomplished by directing the individual to promptly change their password and security question or take any other steps that may be appropriate to protect their information.

Notification and Security Requirements for State Agencies, State Agency Contractors, Counties, Public Schools and Municipalities

• With regard to state agencies, state agency contractors, counties, public schools and municipalities, the Amended BPINA redefines the scope of notification requirements and imposes a variety of heightened, new notification requirements on these entities.  The term “State Agency Contractor” is defined for the first time as “a person, business, subcontractor, or third-party subcontractor that has a contract with a state agency for goods or services that require access to personal information for the fulfillment of a contract.”
• Under the Amended BPINA, entities that maintain, store or manage computerized data containing Personal Information on behalf of the Commonwealth are required to utilize encryption or other adequate security measures to protect Personal Information from view or access by an unauthorized party. These entities must also maintain a policy governing encryption or other security measures, and a policy relating to data storage and retention.

Federal Regulation Compliance

The Amended BPINA provides a “safe harbor” for entities, state agencies, and state agency contractors that comply with federal notification requirements imposed by a functional federal regulator – such entities are deemed to comply with BPINA. For example, any entity that is subject to and in compliance with the privacy and security standards under the Health Insurance Portability and Accountability Act of 1996²  (HIPAA) or the Health Information Technology for Economic and Clinical Health Act³  (HITECH) are deemed to comply with the Amended BPINA.

The Amended BPINA also provides that any entity that complies with the notification requirements or procedures pursuant to the rules, regulations, procedures, or guidelines established by the entity’s primary state or functional federal regulator is deemed to comply with the Amended BPINA. Entities that are not currently in compliance with any such federal requirement must actively ensure compliance with the BPINA.

Next Steps

All entities that do business in Pennsylvania, maintain data belonging to Pennsylvania residents, or do business with the Commonwealth or its agencies should familiarize themselves with the new requirements, and should review their data-related policies, practices and incident response plans to ensure compliance with the Amended BPINA.

¹ Breach of Personal Information Notification Act-Omnibus Amendments, Act of Nov. 3, 2022, P.L. 2139, No. 151.

² Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191 (Aug. 21, 1996).

³ Health Information Technology for Economic and Clinical Health Act, Pub. L. 111-5, Title XIII (Feb. 17, 2009).

To view the article, click here.

A Methane Mixed Bag: EPA Finalizes Methane Rule for New and Existing Oil and Gas Facilities

PIOGA eWeekly

(By Gary Steinbauer and Christina Puhnaty)

On December 2, 2023, the U.S. Environmental Protection Agency (EPA) released a pre-publication version of its final Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review (Final Rule). The Final Rule comes more than two years after EPA published its initial proposal on November 15, 2021 (Initial Proposal) and a supplemental proposal on December 6, 2022 (Supplemental Proposal) (collectively, the “Proposals”). According to EPA, the agency received over one million comments on the Proposals.  For information on the Proposals, please see our November 11, 2021 and December 12, 2022 articles. This Alert focuses on critical aspects of the Final Rule, including key changes that EPA made since issuing the Proposals.¹

Brief Overview of Methane Rule

The Methane Rule is comprised of four separate actions proposed under sections 111(b) and 111(d) of the Clean Air Act. EPA currently regulates emissions of volatile organic compounds (VOCs) and methane from oil and natural gas facilities under 40 C.F.R Part 60 Subparts OOOO² and OOOOa.³ First, through this Final Rule, EPA will regulate oil and natural gas facilities constructed, modified, or reconstructed after December 6, 2022, under a new Subpart OOOOb.  The requirements in OOOOb will apply to affected facilities 60 days after the rule is published in the federal register.  Second, under a new Subpart OOOOc, EPA finalized emissions guidelines that are intended to inform states in the development, submittal, and implementation of state plans to establish standards of performance for greenhouse gases (in the form of limitations on methane) from sources existing on or before December 6, 2022.  Under the Final Rule, states and tribes are required to submit plans to EPA for review within 24 months of the publication of the Final Rule in the Federal Register, with a compliance deadline for existing sources that is no later than 36 months after the deadline to submit the plan to EPA.  Third, the Final Rule amends OOOOa in response to Congress’ June 2021 revocation of regulatory amendments made by EPA under the Trump administration. Fourth, the Final Rule also includes “Appendix K,” a protocol for determining leaks using Optical Gas Imaging (OGI) that EPA now requires at natural gas processing plants regulated by OOOOb or OOOOc.

Key Requirements of Methane Rule

Significant changes from the existing OOOO and OOOOa regulatory frameworks include:

• Super Emitter Program: The Final Rule will allow certified third parties to monitor well sites, centralized production facilities, and compressor stations regulated by OOOO, OOOOa, OOOOb, or OOOOc using specific remote detection technologies for “super-emitter emission events,” which are defined as emission events resulting in 100 kilograms (220.5 pounds) per hour or more of methane. These third parties are required to submit notifications of super emitter events to EPA’s Super Emitter Program Portal within 15 calendar days of the observation. Upon receipt of a notification by a third party, owners and operators of these facilities would be required to initiate an investigation within five days and report the results of that investigation to EPA within 15 days. EPA plans to publish online the information that EPA receives through the Super Emitter Response Program, which will include an identification of the operator responsible for the super emitter event after giving the operator the opportunity to respond to EPA regarding the event.
• Storage Vessel Applicability Threshold Now Applies to Tank Batteries: EPA has finalized its proposed expansion of its regulation of oil and gas-related storage vessels under both Subparts OOOOb and OOOOc. Currently, Subpart OOOOa storage vessel regulations are limited to VOC emissions and based on a VOC potential to emit (PTE) of 6 tons per year (tpy) for a single storage vessel. Under Subpart OOOOb, EPA includes the same 6 tpy VOC PTE applicability threshold, adds a methane applicability threshold of 20 tpy, and applies these thresholds to a single storage vessel or the aggregate potential emissions from a “tank battery,” i.e., a group of storage vessels that are adjacent and receive fluids from the same operation or are manifolded together. As for storage vessels at existing facilities, EPA will regulate existing tank batteries meeting the 20 tpy methane threshold. For storage vessels meeting these threshold requirements, EPA requires a 95% reduction of VOC and methane by routing emissions through a closed vent system to a control device.
• Fugitive Emissions Monitoring Required at All Well Sites: At 40 CFR § 60.5397a(1), OOOOa currently excludes low-production well sites from fugitive emissions monitoring requirements. The Final Rule, however, requires fugitive emissions monitoring at all well sites, though the frequency and level of monitoring varies by site based on its configuration and the presence, if any, of production equipment. For example, single wellhead-only and small well sites must conduct quarterly audio, visual and olfactory (AVO) inspections, while multi-wellhead only well sites must do semiannual OGI inspections in addition to quarterly AVO inspections. Well sites with major production and processing equipment must conduct AVO inspections every other month and quarterly OGI inspections. Compressor stations are required to conduct monthly AVO inspections and quarterly OGI inspections.
• First-time Requirements for Oil Wells with Associated Gas: For the first time, EPA will require that associated gas from new, reconstructed, or modified oil wells be routed directly to a sales line. In situations where gas-producing oil wells do not have access to a sales line, associated gas would need to be used on-site as a fuel source, used for another purpose that a purchased fuel or raw material would service, or be routed to a flare or other control device achieving 95 percent reduction of methane and VOC emissions. The Final Rule separates new associated gas wells into multiple groups based on when construction is commenced to establish a two-year “phase-in” period for the application of the final standards. EPA requires that these same standards apply to existing oil wells with associated gas.
• Well Closure Plans: The Final Rule includes a new suite of well closure requirements. Under these requirements, owners and operators of well sites are required to submit a closure plan to EPA within 30 days of the cessation of production and a notification to EPA 60 days before well closure activities begin. The contents of the well closure plan would need to include the steps necessary to permanently plug all wells, a description of financial requirements and assurance to complete closure, and the schedule for completing closure. Well surveys using OGI are required at the well site following well closure activities.

Additional notable requirements include the use of zero-emission pneumatic controllers and pneumatic pumps, a “no identifiable emissions” standard for closed vent systems, and the use of best management practices aimed to minimize or eliminate VOC or methane emissions during well liquids unloading.

If you have any questions about the applicability of the Final Rule to your operations, please contact Gary E. Steinbauer at (412) 394-6590 or gsteinbauer@babstcalland.com or Christina Puhnaty at (412) 394-6514 or cpuhnaty@babstcalland.com.

1 The Final Rule is 1690 pages, which does not include the Regulatory Impact Analysis and other documents in the rulemaking record. A detailed evaluation of each potentially applicable requirement is warranted, and this Alert provides only a high-level summary of certain provisions.

2  Specified affected facilities constructed, reconstructed, or modified after August 23, 2011 and on or before September 18, 2015 are regulated under Subpart OOOO.

3 Specified affected facilities constructed, reconstructed, or modified after September 18, 2015 and on or before November 15, 2021 are regulated under Subpart OOOOa.

To view the full article, click here.

To view the PDF, click here.

Shapiro Administration Appeals Commonwealth Court Invalidation of RGGI

PIOGA Press

(By Kevin Garber and Jessica Deyoe)

On November 21, 2023, the Shapiro administration appealed, to the Pennsylvania Supreme Court, the Commonwealth Court’s November 1 ruling that the Regional Greenhouse Gas Initiative (RGGI) is an unconstitutional tax, and therefore is void and unenforceable. See Bowfin KeyCon Holdings, LLC et al v. Pennsylvania Department of Environmental Protection and Pennsylvania Environmental Quality Board (No. 247 M.D. 2022). The Commonwealth Court concluded that, to pass constitutional muster, Pennsylvania’s participation in RGGI “may only be achieved through legislation duly enacted by the Pennsylvania General Assembly” and not merely through the rulemaking promulgated by the Environmental Quality Board and the Department of Environmental Protection.

The Shapiro administration said it is appealing the decision because the “Commonwealth Court’s decision on RGGI—put in place by the prior administration—was limited to questions of executive authority, and our Administration must appeal in order to protect the important authority for this Administration and all future governors.”

The Governor’s decision to appeal the Commonwealth Court’s decision does not necessarily mean he supports RGGI, put in place by the previous Wolf administration. Even if the Shapiro administration wins on the appeal, it is unclear whether the Governor will enforce the regulation. In fact, the administration did not oppose the Bowfin KeyCon industry petitioners’ application to vacate the automatic stay that arises by law when the Commonwealth appeals a case. That means the RGGI regulation will continue to be ineffective and unenforceable while the appeal is pending.

The Shapiro administration is urging lawmakers to develop an alternative plan, stating in a press release that “should legislative leaders choose to engage in constructive dialogue, the Governor is confident we can agree on a stronger alternative to RGGI.” The Governor’s spokesperson Manual Bonder indicated that Governor Shapiro “stands ready and willing to implement the recommendations of the RGGI Working Group and he would sign legislation replacing RGGI with a Pennsylvania-based or PJM-wide cap-and-invest program, as they proposed.”

Shortly after taking office, Shapiro formed the RGGI Working Group consisting of a mix of labor, business, energy, and environmental leaders to determine whether RGGI would “protect and create energy jobs,” “take real action to address climate change,” and “ensure reliable, affordable power for consumers in the long-term.” The Working Group never endorsed RGGI. Rather, it stated in a September 23, 2023 press release announcing the availability of its Working Group Memorandum that it “reached broad consensus that reducing greenhouse gas emissions in Pennsylvania is both necessary and inevitable . . . [and] that any cap-and-invest program should include policy levers and investment strategies which help avoid any potential emissions leakage, higher localized pollution, increased energy costs, and job loss.”

To view the full article, click here.

To view the PDF, click here.

Reprinted with permission from the December 2023 issue of The PIOGA Press. All rights reserved.

EPA Finalizes New Suite of Clean Air Act Regulations for Oil and Gas Industry

Legal Intelligencer

(by Gary Steinbauer and Christina Puhnaty)

Pennsylvania oil and gas producers and midstream operators are faced with yet another suite of federal air regulations following the U.S. Environmental Protection Agency’s recent finalization of its far-reaching Methane Rule. On December 2, 2023, EPA released a 1690-page, pre-publication version of the Methane Rule or the Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review. The Methane Rule is aimed at strengthening existing and adding new regulations limiting emissions of methane and volatile organic compounds (VOCs) from the Crude Oil and Natural Gas industrial source category. These federal Clean Air Act (CAA) regulations will apply to a host of new and existing emission sources and activities within the oil and natural gas industry. With Pennsylvania producing more natural gas than any other state except Texas, oil and gas producers and midstream operators must contend with another slate of new, more stringent federal air requirements.

The Methane Rule will become effective within 60 days of publication in the Federal Register. While EPA released it in a single package, the Methane Rule is comprised of four related regulatory actions: (1) updated new source performance standards regulating VOC and methane emission sources for certain emission sources and activities constructed, reconstructed, or modified after December 6, 2022, which will be promulgated at 40 CFR Part 60, Subpart OOOOb; (2) a set of emission guidelines for states to follow when adopting performance standards to limit methane emissions from specified existing air emission sources within the oil and gas industry, which will be promulgated at 40 CFR Part 60, Subpart OOOOc; (3) revisions to previously promulgated requirements codified at 40 CFR Part 60, Subpart OOOOa, stemming from Congress’ disapproval of changes that were made in 2022; and (4) a final protocol for performing optical gas imaging (OGI) inspections to detect leaks from equipment used in the oil and gas industry. This article focuses on the first two components of the Methane Rule, which include new VOC and methane emission and performance standards for oil and gas producers and midstream operators.

The Methane Rule is rich with detail and demands close review and analysis by potentially impacted oil and gas operations and companies. A summary of the new and likely more stringent requirements in the Methane Rule is provided below:

• Super-Emitter Program: For the first time in a Clean Air Act regulation, EPA has established a regulatory mechanism that allows third parties to use EPA-approved remote sensing technologies to monitor emissions from affected facilities under OOOO, OOOOa, OOOOb, and OOOOc, report this monitoring data to EPA, and force action by owner or operator for measured “super emission events” (i.e., methane emission events of 100 kilograms per hour or more). EPA gave itself a heightened role under this Program in the final rule. Under the final rule, EPA will certify third-parties, receive and evaluate the third-party monitoring data, and notify owners and operators when data qualifies as a super-emissions event. Notified owners and operators will then need to investigate and determine the source of the super-emissions, take timely and appropriate corrective actions including repairing any leaks, and report the results of the investigation to EPA. EPA will make information from the Program available publicly. It remains to be seen whether states will be allowed to develop different and more stringent notification procedures in their OOOOc plans.
• Fugitive Emissions Monitoring at Well Sites and Compressor Stations: For well sites, the Methane Rule will require fugitive emissions monitoring, commonly known as leak detection and repair (LDAR) requirements, at all well sites regardless of production. The frequency and type of fugitive emissions monitoring will depend on the configuration and number of wells at a site. Single wellhead only and small sites will be subject to quarterly audio, visual, and olfactory monitoring. Multi-wellhead only sites will be subject to quarterly AVO monitoring and semi-annual instrument- or camera-based monitoring. Well sites and centralized production facilities that contain major production and processing equipment will be subject to bi-monthly AVO monitoring and quarterly instrument- or camera-based monitoring. Fugitive emissions monitoring at all well sites, regardless of configuration, will need to continue until the site or facility is permanently closed in accordance with a newly required well closure plan. Lastly, compressor stations will be subject to monthly AVO monitoring and quarterly instrument- or camera-based monitoring.
• Storage Vessel Emissions Capture and Control Requirements: EPA’s Methane Rule will expand the scope of regulated storage vessels, as compared to the current federal CAA oil and gas regulations. Applicability continues to be based on the “potential to emit” or PTE from storage vessels, but the PTE-based applicability threshold now applies to a single storage vessel or a “tank battery,” which is defined as a group of storage vessels that are adjacent and receive fluids from the same operation or are manifolded together. Therefore, storage vessels within a “tank battery” may be regulated despite having PTEs below the 6 tons per year (tpy) VOC threshold under OOOOb or the 20 tpy of methane threshold under both OOOOb and OOOOc. Owners and operators will have the compliance option of maintaining actual emissions of VOC or methane below certain thresholds. When actual emissions of VOC and methane cannot be maintained below the applicable actual emission thresholds, emissions from storage vessels must be routed to a control device through a closed vent system that is designed and operated with “no identifiable emissions.” Control devices used for storage vessel emissions must reduce VOC and methane emissions by 95 percent.
• Process Controller Emission Standards: EPA has adopted a new term “process controller,” rather than the previously used term “pneumatic controller.” The substantive requirements for process controllers in the Methane Rule, however, continue to be the same – a zero-emission standard with limited exceptions. Owners and operators of process controllers that are subject to the OOOOb requirements will have one year following promulgation to meet the new zero-emission standards for OOOOb-affected process controllers.
• Centrifugal and Reciprocating Compressor Emission Standards: Under OOOOb and OOOOc, centrifugal and reciprocating compressors will be subject to new emissions control requirements. Centrifugal compressors using wet seals must control VOC and methane emissions from the wet seal fluid degassing systems by 95 percent through the use of a control device that is connected to the compressor through a regulated closed vent system or route the collected gas to a process using a regulated closed vent system. Affected reciprocating compressors will be subject to new requirements for collecting and controlling methane and VOC emissions from rod packing. Under OOOOb and OOOOc, dry seal compressors, which currently are not regulated under EPA emission standards, will be subject to flow rate restrictions.
• Requirements for Oil Wells with Associated Gas and Well Liquids Unloading: In another set of first-time requirements for the industry, EPA has finalized emissions control and performance standards for associated gas from oil well and well liquids unloading from gas wells. Owners and operators of affected oil wells will be required to route associated gas directly to a sales line, or if a sales line is inaccessible, to use such gas on-site as a fuel source, as a substitute for purchased fuel or raw material, or route such gas to a flare that reduces methane and VOC emissions by 95 percent. The Methane Rule provides a two-year “phase-in” period for these new associated gas requirements. Well liquids unloading, which is a common and often necessary practice within the industry, will be subject to new OOOOb and OOOOc standards requiring best management practices for minimizing or eliminating methane and VOC emissions.

Impacted oil and gas facilities and activities that may not be regulated under OOOOb will soon be subject to State plans developed to implement the OOOOc provisions, which in many respects mirror those established in OOOOb. States, like Pennsylvania, will have 24 months to develop and submit plans implementing the OOOOc provisions to EPA. According to the Methane Rule, these State OOOOc plans must require affected sources and activities to comply no later than 36 months following the deadline to submit the plans to EPA. In other words, existing oil and gas sources that are not otherwise subject to the new OOOOb requirements will have no longer than five years after EPA publishes the Methane Rule in the Federal Register to meet new state-implemented, OOOOc-based methane emission standards.

EPA has devoted significant resources towards regulating VOC and methane emission from the oil and gas industry. The Methane Rule is yet another suite of new, more stringent regulations for an industry that, in the last decade, has been the subject of several significant federal Clean Air Rule rulemakings establishing VOC and methane emission standards and requiring reporting of greenhouse gas emissions. It is imperative that Pennsylvania oil and gas operators fully evaluate the potential impact of the Methane Rule on their facilities and operations.

Gary Steinbauer is a shareholder and Christina Puhnaty is an associate in Babst, Calland, Clements and Zomnir’s environmental group. Their practices focus largely on matters arising under the Clean Air Act, analogous state clean air laws, and their implementing regulations. Contact them at gsteinbauer@babstcalland.com and cpuhnaty@babstcalland.com.

To view the full article, click here.

Reprinted with permission from the December 14, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved.

Global Connectivity

Pittsburgh Business Times

(By Daniel Bates featuring Nadya Kessler and Susanna Bagdasarova)

Peace on earth – perhaps wishful thinking during this holiday season in the midst of such extreme global turmoil. But not for the likes of the ever-optimistic GlobalPittsburgh and its local business supporters.

Together, they’re working hard these days to foster international peace and stability by bringing countries and cultures together right here in Pittsburgh, “one handshake at a time,” according to Nadya Kessler, director of GlobalPittsburgh, a nonprofit that has been serving the Pittsburgh community since 1959.

“For almost 65 years, GlobalPittsburgh has been developing and fostering educational, cultural, and business relationships between the Greater Pittsburgh community and international citizens,” said Kessler, a one-time attorney who emigrated from Russia in 2009 and has been leading the nonprofit for the past year. “GlobalPittsburgh is very important to the local business community because it creates long-lasting relationships between local and international community members, giving an opportunity for local businesses and academic institutions to meet international leaders whom they might have never had a chance to meet otherwise.”

Kessler shared the mission of GlobalPittsburgh, alongside Susanna Bagdasarova, an attorney with Pittsburgh-based law firm Babst Calland who serves on GlobalPittsburgh’s board of directors, during a recent interview with the Pittsburgh Business Times.

At ‘the same table’

The organization’s mission, Kessler said, couldn’t prove timelier today, as it “reaches across divides to bring people of diverse backgrounds and perspectives to the same table, forging opportunities for both the international and Pittsburgh communities to learn from and inspire each other.”

GlobalPittsburgh was founded in 1959 as the Pittsburgh Council for International Visitors. Early on, the United States Department of State designated the nonprofit as a regional liaison for the State Department’s International Visitor Leadership Program. With that designation came grant funding that continues to fund the organization today, along with support from local businesses and other local community members, as well as event sponsorships, according to Kessler.

In 2022 alone, GlobalPittsburgh hosted 344 representatives from 91 countries and brought them together with 460 local professionals for what the organization calls “Global Intersector events.” The topics of the visits range from entrepreneurship and economic development to cybersecurity to energy issues to higher education and much more.

Babst Calland’s Susanna Bagdasarova said that mission – and those Intersector events – are what drew her, an attorney focusing on emerging technologies, to the organization in the first place.

“GlobalPittsburgh does these really fantastic informal networking events where they have their delegates from other countries who are government cabinet members and executives come and essentially provide an opportunity for local businesspeople to meet and greet and just chat and connect over our similarities and our differences,” said Bagdasarova, who herself emigrated to the United States from Armenia as a small child with her family.

“It’s just a fantastic organization,” she added, “and I’m very excited as it moves into the future here.”

Cultural diversity

Bagdasarova was quick to note that Babst Calland was drawn to the organization because of the diversity of its own clients, which includes international clients as well as domestic clients with international business lines or affiliates.

“I think it’s very important both from a cultural and personal perspective to be well versed in communicating with the folks outside of the United States and to really be able to understand global trends in the law,” Bagdasarova said. “We’re in an ever more-connected society, and it’s only going to become more and more connected. Having that diversity of thought really allows you to have a different perspective on legal solutions and become more proactive in the kinds of legal services you can provide to your clients.”

Generally, though, Bagdasarova suggested that Pittsburghers should “look outside the region of Western Pennsylvania and really see how we can fit Pittsburgh into a greater global context. All of this is going to require more and more collaboration on a global scale.”

Citizen diplomacy

At the core of GlobalPittsburgh’s altruistic philosophy is what Kessler refers to as citizen diplomacy. It’s a concept that, when official relationships between countries are hard to foster, every citizen – every average individual – has the right and responsibility to be a representative of their country and help shape U.S. foreign relationships, as we like to say, one handshake at a time.

“Citizen diplomacy can be a vital tool of crafting those relationships, and anybody could be a citizen diplomat,” she continued. “It doesn’t mean that two parties have to negotiate directly. It could be a hosted meal. It could be attending a gathering and networking event, as well as having professional interactions. Bringing countries and cultures together contributes to peace and stability in the world and connects us all as a global community.”

Choosing delegations

Kessler also pointed out that local businesses can work with GlobalPittsburgh in ways that allow the organization to identify the right matches with regard to foreign delegations.

Our goal is not only to showcase Pittsburgh to visiting delegations, but we also have a way to select delegations that we bring to Pittsburgh,” Kessler said. “We would like to learn more about the needs and interests of local businesses. This way, we can help them meet their needs. We have these delegations already coming to Pittsburgh, so why don’t we do all the work for you, which doesn’t cost you anything to bring those emerging and established world leaders right to your doorstep? If anyone has any questions, I’m more than happy to talk more about it.”

Business Insights is presented by Babst Calland and the Pittsburgh Business Times.

To view the PDF, click here.

To view the full article and video, click here.

Compelling Arbitration: Slam Dunk or Blocked Shot?

Pretrial Practice & Discovery

American Bar Association Litigation Section

(by Jess Barnes)

Making a List, Checking it Twice: When Employees Resign, Employers Should Be Prepared

Legal Intelligencer

(by Steve Silverman and Steve Antonelli)

For many employers, it is also performance review season that is often accompanied by announcements concerning employees’ compensation for next year. As a result, this time of year can sometimes cause employees to consider a change of scenery. Employers should therefore be prepared for the possibility that an employee will voluntarily resign their employment and move on to another opportunity.

With the Holiday Season in full swing, many of us are busier than normal. We have parties to attend, shopping to finish (or in my case, start and finish), and year-end goals to accomplish, in addition to our “regular” work duties. This is also the time of year that many employers begin to wrap up financial matters and plan for the coming year by preparing goals, budgets, forecasts, and strategic plans. For many employers, it is also performance review season which is often accompanied by announcements concerning employees’ compensation for next year. As a result, this time of year can sometimes cause employees to consider a change of scenery. Employers should therefore be prepared for the possibility that an employee will voluntarily resign their employment and move on to another opportunity. Accordingly, employers should consider the following checklist if and when an employee announces their resignation:

• Employers should compile an inventory of the departing employee’s contractual obligations. If a departing employee is bound, for instance, by an enforceable restrictive covenant, employers should assess the potential for harm in the event of a violation. While the ever-broadening attempts to limit the use of post-employment, non-competition agreements have been well documented in the past year, reasonable restrictive covenants remain enforceable in Pennsylvania. Employers should have a full understanding of which employees are covered by such agreements as well as a full understanding of the terms of those agreements.
• Employers should determine whether the departing employee has access to trade secrets or other sensitive, proprietary information. If the employee does have access to such confidential information, the employer should ensure that appropriate steps are taken to protect the information. In many instances employers should suspend the departing employee’s continued access to sensitive information by prohibiting the employee’s access to the employer’s electronic files or computer system.
• Employers may also consider whether the departing employee’s continued access to sensitive information warrants continuing to pay the departing employee throughout the notice period contained in a restrictive covenant, even if the employee has already separated from the employer.
• If the departing employee has already misappropriated trade secrets or other confidential information, the employer should call its attorney, who will formulate a strategy for retrieving the information and any potential damages caused by the departing employee.
• Counsel will also help to determine whether the departing employee’s new employer should be contacted to inform them of the departing employee’s post-employment obligations and their obligation to preserve evidence, including metadata.
• In some circumstances, employers may decide to conduct a forensic review of the electronic devices and network access of the departing employee to confirm the misappropriation or the extent of the misappropriation. While not inexpensive, forensic evaluation often provides important evidence that can be pivotal in litigation.
• Employers should also determine whether, when, and how customers or other third parties should be notified of the employee’s departure and send appropriate notice to them. When doing so, employers should remain mindful of the fact that the departing employer may have developed personal relationships with these customers and third parties.
• Employers should compile an inventory of any other property that belongs to the employer but may be in the possession, custody, or control of the departing employee, whether inadvertently or intentionally. Employers should determine the location of the property—whether electronic devices, keys, equipment, tools, or passwords—and develop a plan to ensure its return.
• Employers should schedule (and follow through with actually conducting) an exit interview with the departing employee to:
  • Determine whether the departing employee has secured a new job and learn any pertinent details about the new position;
  • Remind the departing employee of any post-employment legal or contractual obligations related to trade secrets, confidentiality, non-competition, or non-solicitation of customers or former colleagues;
  • Arrange for the return of company property, including passwords to accounts or computer systems that may only be easily accessed by the departing employee;
  • Coordinate a plan for the departing employee to potentially assist the employer with transitioning the departing employee’s duties and responsibilities to a replacement;
  • Clarify the employer’s expectations of the departing employee prior to the departing employee’s last day of employment; and
  • Obtain constructive feedback from the departing employee regarding the employer, its management, policies, practices, and procedures.

This checklist is certainly not meant to imply that every resigning employee does so with ill intent. To be clear, that is not the case the vast majority of the time. Instead, this checklist is to help ensure that employers are not caught off guard by those rare situations in which a departing employee plans to retain information that does not belong to them. To the extent an employer is ever unsure about the motives of their departing employee, it should consult its attorney.

Steve Silverman is a shareholder in the Litigation and Employment and Labor groups of Babst Calland. Mr. Silverman devotes a significant amount of his practice to the defense and prosecution of theft of trade secret and non-compete suits. Contact him at 412-253-8818 or ssilverman@babstcalland.com.

Stephen A. Antonelli is a shareholder in the Employment and Labor and Litigation groups of Babst Calland. His practice includes representing employers in all phases of labor and employment law, from complex class and collective actions and fast-paced cases involving the interpretation of restrictive covenants, to single-plaintiff discrimination claims and day-to-day human resources counseling. Contact him at 412-394-5668 or santonelli@babstcalland.com.

To view the full article, click here.

Reprinted with permission from the December 2, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved.

Pa. Court’s Venue Ruling Is Likely To Worsen Forum Shopping

Law360

(by Stefanie Pitcavage Mekilo and Joseph Schaeffer)

On Nov. 22, the Pennsylvania Supreme Court issued its much-anticipated decision in Hangey v. Husqvarna Professional Products Inc. The majority opinion in Hangey claims to be a narrow one, providing clarification only regarding the standard for evaluating whether venue in any given Pennsylvania county is proper.[1]

That characterization is accurate so far as the legal principle goes: The court held as a matter of law that the percentage of a corporate defendant’s national revenue derived from a forum county alone is not sufficient to support a finding that the defendant does not “regularly conduct business” there for purposes of Pennsylvania’s venue rules.

But the court’s application of that principle to the facts before it — and its holding that the defendant’s de minimis sales in Philadelphia County were sufficient to establish proper venue there — has potential far-reaching consequences for corporate defendants sued in the commonwealth. Indeed, the plaintiffs’ lawyers in Hangey are already cheering the ruling as “one of if not the most impactful venue decisions in the last 20 years.”[2]

The facts of Hangey are uncomplicated. Ronald and Rosemary Hangey, residents of Wayne County, bought a Husqvarna-brand lawnmower from Trumbauer’s Lawn and Recreation Inc., in Bucks County.

Ronald Hangey suffered severe injuries when he was thrown off the lawnmower while operating it on his property in Wayne County. The Hangeys then sued Trumbauer’s, Husqvarna Professional Products Inc. and a handful of Husqvarna affiliates on various tort claims.

But rather than sue in Bucks County or Wayne County, the Hangeys sued in Philadelphia County — a venue with no connection to the underlying incident. Discovery in fact revealed that Husqvarna sold products through just two authorized dealers in Philadelphia County and derived only 0.005% of its national revenue from those business activities.

Husqvarna challenged the venue as improper under Pennsylvania Rule of Civil Procedure 2179(a), which provides that a suit against a corporation may be brought in, among other places, “a county where … the corporation or similar entity regularly conducts business.”[3]

The trial court applied Pennsylvania’s two-pronged “quality-quantity” test for evaluating whether a defendant was regularly conducting business in a county as required by Rule 2179(a). Under this test, the quality prong is met when a defendant’s activities in the forum directly further or are essential to the defendant’s business objectives, while the quantity prong is satisfied by activities that are “so continuous and sufficient to be general or habitual.”[4]

The trial court held that the quality prong was satisfied because Husqvarna’s placement of its products on the shelves of two authorized dealers in Philadelphia County furthered its business objectives.

On the quantity prong, however, the court held that the 0.005% of national revenue Husqvarna derived from Philadelphia County was de minimis, and not indicative of general and habitual contact, and so it transferred the case to Bucks County.

The Hangeys appealed, and the Pennsylvania Superior Court, sitting en banc, reversed. The Superior Court sided with the Hangeys and held that the trial court had abused its discretion in relying almost exclusively on the percentage of revenue in its analysis of the quantity prong.[5] The court further concluded that the record before the trial court established that venue was proper in Philadelphia County.

Husqvarna petitioned the Pennsylvania Supreme Court for review, and the Supreme Court granted the petition. The parties’ briefs and arguments before the Supreme Court centered solely on the trial court’s quantity analysis; no party disputed the quality analysis.

The Supreme Court held that the trial court abused its discretion in focusing its quantity analysis exclusively on the percentage of national revenue Husqvarna derived from the Hangeys’ chosen venue. According to the court, the percentage of revenue alone does not control the quantity inquiry. Rather, it is but one of the data points the court may consider — if it deems the percentage relevant on the facts before it — in its broader assessment of how regular a defendant’s business activities are in the forum.[6]

The court identified potential nonrevenue data points, including the number of “days out of the year a business is open to the public, … units of product sold, [and] … hours billed by employees.”[7]

Importantly, however, the Supreme Court did not remand the case to the trial court for further review in light of its clarification of the law. Instead, the court evaluated the record evidence de novo, and determined Husqvarna’s contacts with Philadelphia County were sufficient to establish proper venue as a matter of law.

The court’s analysis makes no mention of the percentage of revenue, nor any of the other quantitative metrics it identified as potential data points. In holding venue was proper, the court noted only that Husqvarna’s marginal sales to its two authorized dealers in Philadelphia County had been consistent and without interruption during the relevant two-year period, and that, even if Husqvarna was not succeeding, it was “at least trying to make sales in Philadelphia, regularly and continuously.”[8]

The court concluded that so long as “a company maintains a constant physical presence in the forum county” to perform acts in furtherance of its business objectives — even if only through an authorized dealer and even if without much success — venue will be appropriate in that county as a matter of law.[9]

The Hangey decision significantly dilutes the quantity prong of Pennsylvania’s quality-quantity test and seems to write typical quantitative metrics out of the venue analysis entirely. Indeed, under the majority’s reasoning, it is hard to imagine a scenario in which quantity will not follow quality in lockstep.

Pennsylvania Supreme Court Justice Kevin Brobson suggested as much in his dissenting opinion: He agreed with the majority that percentage of revenue alone should not control the outcome in any case, but expressed concern that the majority opinion “could be construed as holding that, as a matter of law, a corporation’s mere presence in a county is sufficient to establish that venue is proper in that county.”[10]

The majority’s response to Justice Brobson — that its holding is limited to only those cases in which a defendant’s physical presence is constant — is unsatisfying given how minimal Husqvarna’s activities in Philadelphia County otherwise were.

The Supreme Court notably also gave no consideration to the consequences of its decision for Husqvarna’s codefendants. There was no evidence that Trumbauer’s, which sold the Hangeys the allegedly defective lawnmower, transacted any business in Philadelphia County. But because Pennsylvania law requires plaintiffs to satisfy venue only for a single defendant, Trumbauer’s must now defend itself in a forum with which it has no connection.

The decision is all the more concerning when considered alongside litigation patterns in the commonwealth — namely, the plaintiffs’ strategic channeling of lawsuits to notoriously plaintiff-friendly venues like Philadelphia and Allegheny County, and their success in achieving, and seeing appellate courts affirm, nuclear and thermonuclear verdicts returned in those venues.[11]

Also concerning are judicial trends winnowing available off ramps for corporate defendants hauled into Pennsylvania courts with little connection to the parties or the claims.

In its recent decision in Mallory v. Norfolk Southern Railway Co., the U.S. Supreme Court rejected a due-process challenge to Pennsylvania’s consent-by-registration statute, which requires out-of-state corporations to consent to general jurisdiction in the commonwealth as a condition of doing business. The court held that the statute broadly gives Pennsylvania personal jurisdiction over out-of-state corporations in suits brought by plaintiffs with no ties to Pennsylvania, for conduct occurring beyond the commonwealth’s borders.[12]

And while the doctrine of forum non conveniens once provided a reliable safety valve for defendants sued in forum-shopped venues, recent decisions from the Pennsylvania Superior Court have sown uncertainty into the once-settled doctrine, with some decisions appearing to increase the burden on defendants seeking transfer out of what they may consider oppressive and vexatious forums.[13]

Nonetheless, the final word has not yet been said on many of these jurisprudential shifts. Other potential challenges to the consent-by-jurisdiction statute, for example, remain pending: Litigants recently filed petitions for permission to appeal in the Pennsylvania Superior Court, raising a dormant commerce clause challenge to the consent-by-jurisdiction statute.

Appeals seeking clarity — and reaffirmance of the long-settled status quo — regarding forum non conveniens are making their way to Pennsylvania appellate courts. And it is too early to predict how Pennsylvania’s trial and intermediate appellate courts will read and apply Hangey. Although the majority did not factor the percentage of revenue into its own analysis, it authorized other courts to do so in appropriate cases, and it remains to be seen what lower courts will do, if anything, with that invitation.

In the immediate future, however, the Hangey decision will likely only exacerbate the forum-shopping problem already plaguing corporate defendants sued in Pennsylvania and overburdening Pennsylvania’s busiest trial courts. As a result, all businesses — and small businesses in particular — should proceed with caution in considering whether the potential revenue stream to be derived from placing products in Pennsylvania’s most plaintiff-friendly counties is worth the attendant litigation risk.

_____________

[1] Hangey v. Husqvarna Prof’l Prods. Inc. , No. 14 EAP 2022, slip op. at 44 n.23 (Pa. 2023).

[2] Aleeza Furman, Pa. High Court Rejects ‘Percentage of Revenue’ Venue Defense, The Legal Intelligencer (Nov. 22, 2023), https://www.law.com/thelegalintelligencer/2023/11/22/pa-high-court-rejects-percentage-of-revenue-venue-defense/.

[3] Pa. R. Civ. P. 2179(a)(2).

[4] Purcell v. Bryn Mawr Hosp. , 579 A.2d 1282, 1285 (Pa. 1990) (quoting Shambe v. Del. & Hudson R.R. CO. , 135 A. 755, 757 (Pa. 1927)).

[5] Hangey v. Husqvarna Prof’l Prods. Inc. , 247 A.3d 1136, 1143 (Pa. Super. Ct. 2021) (en banc).

[6] Hangey, slip op. at 39.

[7] Id.

[8] Id. at 45.

[9] Id. at 44.

[10] Hangey, slip op. at 4 & n.2 (Brobson, J., dissenting).

[11] See, e.g., Amagasu v. Mitsubishi Motors N. Am., No. 181102406 (Phila. Cnty. Ct. Com. Pl.) ($908 million Philadelphia jury verdict); Caranci v. Monsanto, No. 210602213 (Phila. Cnty. Ct. Com. Pl.) ($175 million Philadelphia verdict); see also Nuclear Verdicts Trends, Causes, and Solutions, U.S. Chamber of Com. Inst. for Legal Reform (Sept. 2022) (noting “[m]ore than half” of commonwealth’s nuclear verdicts are returned in Philadelphia County).

[12] For a more comprehensive discussion of Mallory and its potential implications, see Christina Manfredi McKinley & Joseph Schaeffer, Where Can a Corporation Be Sued for, Well, Anything? (An Evolving Test), Babst Calland Litigation Alert (July 18, 2023), https://www.babstcalland.com/news-article/where-can-a-corporation-be-sued-for-well-anything-an-evolving-test/.

[13] See, e.g., Ehmer v. Maxin Crane Works, L.P.,  296 A.3d 1202 (Pa. Super. Ct. 2023); Tranter v. Z&D Tour Inc., ___ A.3d ___, 2023 WL 6613731 (Pa. Super. Ct. 2023).

For the full article, click here.

Reproduced with permission. The article was first published on Law360, December 4, 2023.