FNREL Mineral and Energy Law Newsletter
Pennsylvania – Mining
(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Christina M. Puhnaty)
The Shapiro administration recently released its Interim Final Environmental Justice Policy (Interim Final Policy) and latest Environmental Justice Mapping and Screening Tool (PennEnviroScreen). The Policy took effect on September 16, 2023, when official notice of the interim final rulemaking was published in the Pennsylvania Bulletin. See 53 Pa. Bull. 5854 (Sept. 16, 2023).
The Commonwealth first adopted an environmental justice policy (EJ Policy) in 2004 to provide citizens in EJ communities enhanced public participation opportunities during certain Pennsylvania Department of Environmental Protection (PADEP) permit application processes. In 2018, PADEP circulated a draft revised policy for public comment, but ultimately withdrew the proposed revisions in 2020 following receipt of public comments. After conducting further outreach in 2021, PADEP proposed an updated policy that would refine and expand the scope of the withdrawn 2018 revisions. On March 12, 2022, PADEP released a draft of the EJ Policy for public comment, and subsequently received more than 1,200 comments during the comment period.
The Interim Final Policy is the latest version of the EJ Policy to have been released by PADEP since the comment period closed last spring. Although PADEP had previously indicated that it was working to prepare a Comment Response Document in tandem with the Interim Final Policy, it has yet to release such a document. The Interim Final Policy will likely have a tangible impact on permitting and enforcement processes for various industries going forward.
The Interim Final Policy requires use of the PennEnviroScreen tool, which will replace PADEP’s current EJ Areas Viewer tool. PennEnviroScreen is currently live and fully accessible to the public. PADEP began using the tool on September 16, 2023, to determine whether facilities are located in EJ areas based on 32 environmental, health, socioeconomic, and demographic indicators. Industry should be aware that PADEP plans to regularly update the criteria used to evaluate areas where the Interim Final Policy applies (EJ areas). To allow for a level of certainty, however, the Interim Final Policy states that “the EJ Areas in effect at the key decision point of the project will follow that project.” Interim Final Policy § III; see also id. at Appendix B, “Environmental Justice Area Criteria.”
PADEP regulated activities that are listed as “Trigger Projects” in Appendix C of the Interim Final Policy automatically require application of the Policy’s provisions. Examples include various mining permits (bituminous and anthracite underground and surface mines), waste permits (landfills, transfer stations, commercial incinerators), and air permits (new major source of hazardous pollutants or criteria pollutants). Id. at Appendix C, “Public Participation Trigger Projects.” While the 2022 Draft Policy had classified oil and gas unconventional well permits as Trigger Projects, the Interim Final Policy does not; however, various types of unconventional oil and gas projects are listed as “Opt-In Projects.” Other Opt-In Projects include resource recovery facilities, scrap metal facilities, and “other projects as identified by the community.” Id. After receiving a request from the community or a PADEP staff member to apply the Interim Final Policy to Opt-In Projects, PADEP may decide to do so using its “discretion and expertise.” Id. § V(A)(2).
PADEP plans to form an Enforcement and Compliance Team to
prioritize inspection and monitoring at sites which have multiple authorizations, multiple on-record complaints, habitual violations sites with high volume generation or unique permit conditions, EJ communities, and sites of significant geographic location and to ensure timely and appropriate responses to violations, implement an efficient criminal referral protocol, and ensure effective collaboration.
Id. § VI(B)(1). The Interim Final Policy also indicates that PADEP interprets impacts to the environment or the public health and safety at an EJ area to be a relevant factor in the calculation of penalties for violations, and may include a dollar figure in the penalty amount for such a violation “provided there is adequate evidence to support a factual finding that the violation caused harm and the penalty amount fits within the statutory limits.” Id. § VI(B)(2).
The Interim Final Policy’s publication date was also the start of a formal public comment period that ran until November 30, 2023. Receipt and review of public comments on the Interim Final Policy will be yet another “critical benchmark towards the final EJ Policy,” which is due from PADEP in 2024.
Copyright © 2023, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
Babst Calland today announced the opening of its office in Harrisburg, Pa., and the addition of two experienced litigation attorneys, Michael Libuser and Stefanie Pitcavage Mekilo.
Led by Shareholder Casey Alan Coyle, who joined the firm in August 2022, the Harrisburg office provides legal counsel for local, regional, and national businesses, industry sectors, and trade associations with focused practices in litigation, energy and natural resources, environmental, and legislative and regulatory affairs, among others.
The Harrisburg team of attorneys offers deep litigation experience in matters pending before state and federal appellate courts, with a particular emphasis on appeals before the Pennsylvania Supreme Court. They also represent clients in disputes pending before the U.S. District Court for the Middle District of Pennsylvania and state trial courts throughout Central Pennsylvania and matters brought before the Pennsylvania Commonwealth Court as part of its original jurisdiction.
“It is an exciting time for Michael and Stefanie to join Babst Calland and open a new office in Harrisburg,” said Mr. Coyle. “The Harrisburg office is uniquely poised to offer its clients the best of both worlds—pairing the service and pricing of a litigation boutique with the deep-bench expertise and resources of a law firm with more than 35 years of experience serving clients ranging from Fortune 100 companies to small and mid-sized businesses nationwide.”
Mr. Libuser represents clients in state and federal trial and appellate courts, with a particular emphasis on cases before the United States District Court for the Middle District of Pennsylvania. He served as a law clerk to the Honorable Yvette Kane, Senior United States District Judge for the Middle District of Pennsylvania, where he drafted opinions for the Third and Ninth Circuit Courts of Appeals and handled a wide range of district court matters involving complex civil litigation, commercial contracts, administrative law, trade secrets, and various statutory claims. Before that, he served as a law clerk to the Honorable Karoline Mehalchick, Chief United States Magistrate Judge for the Middle District of Pennsylvania, and previously served as the Principal Law Clerk to the Honorable Jeanette Rodriguez-Morick, an Acting Supreme Court Justice and Judge of the New York State Court of Claims.
Mr. Libuser earned his J.D. from Benjamin N. Cardozo School of Law in 2012. He graduated with honors from Stony Brook University in 2006.
Ms. Mekilo is a civil litigator who concentrates her practice in state and federal trial courts, with particular emphasis on cases before the U.S. District Court for the Middle District of Pennsylvania. Ms. Mekilo draws on more than a decade of trial-court experience in the federal judiciary to guide clients through all aspects of the litigation process. She focuses her practice on complex commercial disputes involving theft of trade secrets; breach of noncompete and nonsolicitation agreements and other restrictive covenants; breach of fiduciary duties, tortious interference, and related business tort claims; labor and employment; and emergency injunction litigation. Ms. Mekilo also has experience in antitrust, environmental, securities, trademark infringement, product liability, class action, and multidistrict litigation. Prior to joining Babst Calland, Ms. Mekilo served as a judicial law clerk in the United States District Court for the Middle District of Pennsylvania for 12 years—first as a term law clerk to Judge John E. Jones III, then as the managing law clerk to Judge Christopher C. Conner.
Ms. Mekilo received her J.D. from Widener University Commonwealth Law School in 2011, graduating summa cum laude at the top of her class. She earned her B.A. in Business Administration from Bloomsburg University of Pennsylvania in 2008. Ms. Mekilo is an active member of the greater Harrisburg community. She currently serves as Secretary of the Middle District Chapter of the Federal Bar Association, as well as Vice President and President-Elect of the Junior Board of the YWCA of Greater Harrisburg.
Commenting on these moves and the opening of the Harrisburg office, Managing Shareholder Donald C. Bluedorn II said, “We are very pleased to welcome this fine team of attorneys to Babst Calland and are thrilled to open a new office in Harrisburg to work collaboratively across our other offices to serve the needs of existing and new clients in the region.”
Pretrial Practice & Discovery
American Bar Association Litigation Section
(by Joseph Schaeffer)
Whether attorneys have encountered an inadvertently produced privileged document in their own practice, it is a common enough occurrence that the procedure is well established: Suspend further review, sequester the document, and notify opposing counsel. What is not well-established is what attorneys should do when they encounter inadvertently produced non-privileged documents. A New York trial court recently dealt with this situation in a case of first impression.
In Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC et al., No. 615070/2022 (N.Y. Sup. Ct. Oct. 4, 2023), the plaintiff’s financial consultant had responded to a subpoena from the defendants by producing multiple emails with a Dropbox link in the message body. As the defendants discovered early in their review, the Dropbox link not only was “live,” it provided access to a bevy of the plaintiff’s sensitive internal files—including folders named “Legal,” “Tax,” and “Financial.” Rather than immediately notify plaintiff’s counsel, though, the defendants reviewed the Dropbox (with the exception of the “Legal” folder) and sent the plaintiff a letter about a week later that referenced the internal documents as part of a demand for voluntary dismissal of the litigation. The plaintiff responded by moving the trial court to order the defendants to show cause why they should not be sanctioned for accessing the Dropbox files.
The trial court granted the plaintiff’s motion and entered a sanction against the defendants of nearly $156,000, representing the plaintiff’s costs in bringing the motion. Though acknowledging the absence of directly applicable authority, the trial court found guidance in Rule 4.4 of the New York Rules of Professional Conduct. That rule imposes a notification obligation on New York attorneys who receive documents, writings, or electronically stored information that they reasonably should know to have been inadvertently produced—notably without providing for any limitation to privileged documents. The trial court found that the defendants should reasonably have known that the plaintiff could not have intended to provide access to its internal file system through a Dropbox link contained in email messages found by a third party. From there, the trial court concluded fairly easily that the defendants had failed to properly notify the plaintiff of the inadvertent production and, in fact, exacerbated matters by leveraging the inadvertent production as the basis for demanding voluntary dismissal of the litigation.
There are several lessons to be drawn from this case. One lesson is that the entire matter could have been avoided had the plaintiff implemented stronger security measures from the outset. Indeed, the plaintiff’s maintenance of internal files on an “open” Dropbox, which it then shared with third parties using non-expiring links, seems nothing short of negligent. But another lesson is that attorneys have a duty to notify opposing parties of documents that reasonably appear to have been inadvertently produced—no matter how negligent the inadvertent production. The parties’ failure to follow those respective lessons here led to an expensive (and embarrassing) series of events that they now surely wish to have avoided.
Joseph Schaeffer is a shareholder at Babst Calland in Pittsburgh, Pennsylvania.
To view the article published online by the American Bar Association Litigation Section, click here.
© 2023. A Quick Lesson on Responding to (and Avoiding) Inadvertent Document Productions, Pretrial Practice & Discovery, American Bar Association Litigation Section, October 31, 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Pretrial Practice & Discovery
American Bar Association Litigation Section
(by Andy DeGory)
The process of researching and identifying an expert witness can be a daunting task in a complex commercial litigation setting. However, securing the appropriate expert tailored to your needs can be a critical component of a successful litigation strategy. While there is no exact formula for expert witness selection, the following pointers can help lead your team towards the right witness and a favorable outcome:
- Utilize your colleagues and network. When starting your search for an expert witness, polling your colleagues and other connections in the legal field can instantly provide you with multiple favorable candidates. Furthermore, your network may be able to significantly narrow your search down to a few options that will fit the needs of your case. This option is also particularly helpful for lesser-experienced attorneys who might be starting an expert search for the very first time.
- Google is your friend. Litigation attorneys may joke about relying on Google for legal research, however, an expert-witness search is actually an appropriate opportunity to fire up the search engine. Google (or another search engine) allows you to cast a wide net to build your list of expert candidates prior to a more formal vetting of your options.
- Vet your candidates with Westlaw or Lexis. Once you have narrowed your search down to your favorite expert candidates, Westlaw and Lexis provide excellent tools for vetting your candidates’ background and history serving as an expert witness. In particular, these legal databases allow you to examine past cases in which the candidate has provided expert testimony, prior expert reports submitted in those cases, deposition transcripts (if available), and any motions in limine/to exclude the candidate’s testimony.
- Interview your top choices. An in-person or web-conference interview is the last critical step in selecting your top choice to serve as an expert witness. The interview provides you with an opportunity to explain the case in deeper detail, as well as ask the candidate key questions to evaluate their understanding of the subject matter and ability to handle the particular issue for which expert testimony is required. Additionally, the interview allows you to evaluate the witness’s presentation skills, speaking style, and poise when answering questions. Ultimately, you will want your candidate to excel in each of these categories if you need to call them to the stand to testify at trial.
Sometimes an expert witness search may begin with only a handful of candidates, and other times you may need to narrow the list down from several dozen options. The foregoing tools should provide practitioners with a good template for conducting a thorough and effective expert witness search when preparing for success in their next big case.
Andy DeGory is an associate at Babst Calland in Pittsburgh, Pennsylvania.
To view the full article, click here.
To view the PDF, click here.
© 2023. Quick Tips for Selecting an Expert Witness, Pretrial Practice & Discovery, American Bar Association Litigation Section, October 31, 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Smart Business
(By Adam Burroughs featuring Michael Fink)
A company’s capitalization table, simply put, details who has what ownership within a company. That’s straightforward when the company has a single owner. But as other equityholders are introduced, it can become much more complicated.
While an accurate cap table is crucial for determining who gets paid what when a company is sold, it’s also important every day of the company’s life.
“Companies should start dealing with their cap table from day one and will need to stay on top of it throughout the entire life of the enterprise,” says Michael E. Fink, a shareholder at Babst Calland. “An orderly, up-to-date cap table is central to well-informed business decisions.”
Smart Business spoke with Fink about the role of the cap table and how failing to accurately maintain it can be costly.
How are cap tables used?
Cap tables are critical when a company seeks new investment, such as via a private placement of preferred stock. That’s because every investor — both new ones as well as current investors, who typically need to approve new investment — needs to know its position on the cap table post-investment and what impact a contemplated investment would have on its position.
As companies get new funding and prior owners see their positions diluted, a cap table tracks who has how much equity and what type. Introducing multiple equity series often imposes multiple voting thresholds, so the cap table allows management and stakeholders to see what sort of voting blocs serve to approve any corporate action. Such actions can range from mundane to fundamental, such as approving a merger or replacing somebody on the board of directors.
What issues arise with cap tables?
One of the biggest challenges regarding the cap table is simply maintaining it. Any action impacting the company’s capitalization needs to be memorialized correctly. The cap table is supposed to be a factual reflection on the state of affairs; without an accurate record of the facts, it can’t be used to make informed decisions. It also makes policy discussions and other issues regarding the direction of the company — taking on more debt, issuing more shares, or bringing new investors into the fold — difficult. Unfortunately, poorly maintained cap tables are more common than many would expect.
Frequently, issues discovered in a cap table are used as leverage when negotiating — by a dissatisfied investor, for example, or by a potential acquirer who may, if the problems are significant, walk away from a deal. Occasionally, actual legal disputes can arise from missteps with a cap table. For instance, an investor may believe that it did not receive the return on investment from the company that it should have, and press for a legal resolution.
How might companies address these issues?
Often the problem of a poorly maintained cap table stems from having either too many people making changes, or no one at all. Especially with startups, management may not be aware of the level of diligence needed to maintain their cap table. It’s of utmost importance that companies take steps to prevent errors from creeping in and compounding in the cap table.
Every company should appoint someone to be the ultimate authority on its cap table — one person with the final authority for maintaining and signing off. Ideally, they’d have a business or legal background. If that expertise doesn’t exist within an organization, it could work with an external partner who stays in communication with the company, ensuring that timely and correct updates are made. In any case, the executive officers need to understand who has that authority and when they need to inform that person of any changes.
Cap tables must be maintained accurately and in a timely manner. Those who aren’t familiar with cap tables shouldn’t try to wing it. A half-hour phone call with a knowledgeable attorney can save weeks of aggravation down the road.
To view the PDF, click here.
To view the full article, click here.
FNREL Water Law Newsletter
(Lisa M. Bruderly, Mackenzie M. Moyer and Jessica Deyoe)
On January 28, 2023, the Pennsylvania Department of Environmental Protection (PADEP) released an updated draft of the Pennsylvania Post-Construction Stormwater Management Manual (Manual or PCSM Manual). This Manual is intended to establish guidance standards for the management of stormwater through the implementation of stormwater control measures (SCMs) and other measures to comply with the regulatory requirements under 25 Pa. Code ch. 102.
This Manual was developed to update and replace the Pennsylvania Stormwater Best Management Practices Manual that PADEP published in December 2006 in order to reflect and incorporate the advancements in stormwater processes since that time. The Manual now extends beyond the avoidance and minimization of historic stormwater problems to include mitigation through the regulation of municipal separate storm sewer systems and combined sewer systems. It also includes an increased focus on the resilience and maintenance of SCMs.
In the Manual, SCMs are synonymous with “best management practices” (BMPs) as defined in 25 Pa. Code § 102.1. This term is intended to reflect the improved understanding of stormwater management. The use of the term SCM is also intended to clarify the functions of stormwater BMPs, consistent with a national trend to do so.
Ultimately, the objective of the PCSM Manual remains the same as the 2006 Stormwater BMP Manual: “to protect, maintain, reclaim and restore water quality and the existing and designated uses of the waters of the Commonwealth.” Similar to other guidance documents, this Manual serves as a supplement to federal and state regulations, providing numerous examples of SCMs that can be employed to meet regulatory requirements. It is intended to be used as a technical reference for planning concepts and design standards that will satisfy Pennsylvania’s regulatory requirements and stormwater management policies. Alternative SCMs not listed in the Manual may also be used to satisfy regulatory requirements if they provide the same or a greater level of protection. Permittees whose activities and PCSM plans were authorized under Chapter 102 prior to the effective date of the Manual are not required to modify their PCSM plan to conform to the procedures and standards in the Manual.
Copyright © 2022, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
Legal Intelligencer
(by Blaine Lucas and Anna Hosack)
A frequent, if folksy, recitation of the purpose behind zoning and land use restrictions is to prevent problems caused by the “pig in the parlor instead of the barnyard.” In other words zoning regulations recognize sometimes a nuisance can be caused by putting the right thing in the wrong place. Therefore, zoning ordinances attempt to keep more “offensive uses” away from more sensitive uses. However, prohibiting a use on paper is one thing, ensuring ordinance compliance is another. The Commonwealth Court in Township of Cranberry v. Randy J. Spencer, Nos. 568, 569, and 570-CD-2022 (Pa. Cmwlth. Aug. 30, 2023) (Spencer II)[1] recently considered one municipality’s decades long battle over operation of a junkyard in violation of its zoning ordinance. A review of the history of this case provides the opportunity to consider the pros and cons of different enforcement options available to municipalities when faced with ongoing violations.
In Spencer, the owner of six parcels located in Cranberry Township, Butler County had been storing a multitude of junk vehicles (117 cars, 11 box trailers, 7 motorhomes, and 8 travel trailers) on his properties in violation of the Township zoning ordinance. The Township had been trying for over a quarter century to induce the property owner to remove the junk vehicles, and he had even paid fines related to the same in the past – yet he never removed the vehicles. In 2019, as authorized by Section 616.1 of the Pennsylvania Municipalities Planning Code, 53 P.S. §616.1 (“MPC”) the Township served five “enforcement notices” (referred to herein as “notices of violation” or “NOVs”) against five of the properties for the unlawful operation of a junk yard in the Township’s A-1 Conservation District. The NOVs ordered the removal of the vehicles and notified him of his right to appeal. In addition, a sixth NOV was issued for one property located in a different district, which asserted that the property owner was in violation of the Township property maintenance code’s (“PMC”) limit on the number of abandoned or junk vehicles allowed on a property. The Second Class Township Code authorizes the Township to enact a PMC to regulate the upkeep of the exterior of properties and structures. 53 P.S. §66704-A.
The property owner did not avail himself of his right to appeal the NOVs to the Township Zoning Hearing Board as authorized by Section 616.1 of the MPC, 53 P.S. §10616.1, or to the Township Uniform Construction Code Appeals Board as authorized by the PMC. Consequently, the Township filed six civil complaints with the local Magisterial District Judge (“MDJ”) as authorized by Section 617.2 of the MPC, 53 P.S. §10617.2. While the violation of most ordinances, including a PMC, is subject to summary criminal penalties and typically will be brought to the MDJ as a “non-traffic citation,” the MPC contains no authority for the imposition of criminal penalties for a zoning violation and matters are brought before the MDJ as a “civil enforcement complaint.” The property owner’s failure in Spencer to appeal the notices to the appropriate boards rendered the violations “unassailable” under both zoning and property maintenance jurisprudence, and the MDJ was not permitted to consider whether or not the property owner was guilty of the violations, but could only impose sanctions – up to the statutory limits of $500 per day under Section 617.2 of the MPC, 53 P.S. §10617.2, for the zoning violations, and up to $1,000 per day under the Second Class Township Code, 53 P.S. §66601, for the PMC violation. In addition to the limits imposed by the MPC and relevant municipal enabling statutes, the Judicial Code, 42 Pa.C.S. § 1515(a)(3), limits the MDJ’s jurisdiction in civil matters to disputes not exceeding $12,000. The MDJ entered six judgments in the amount of $609.25 each in the Township’s favor. The property owner appealed each separately to Common Pleas Court. The lower court adjusted the aggregate award in penalties imposed by the MDJ to $2,437.00.
The property owner’s further appeal led to the Commonwealth Court’s decision in Spencer I, which predominantly addressed the procedural issue surrounding the property owner’s failure to file a separate appeal from each MDJ docket. Ultimately, in Spencer I the Commonwealth Court concluded it could only review the appeal for one single docket concerning one of the six properties. Specifically noting the property owner’s lack of cooperation in resolving the violations, the Court affirmed the lower court order, noting once the Township offered evidence of the property owner’s failure to appeal the NOV, the trial court only possessed discretion to determine the amount of civil penalties.
Despite the finality of the Court’s decision in Spencer I, the property owner persisted in failing or refusing to remove the junk vehicles from his properties. Consequently, in 2021, the Township filed three new civil enforcement actions with the MDJ seeking to collect additional civil penalties for the period following the Spencer I decision. The MDJ entered a judgment in his jurisdictional maximum of $12,000, plus costs in each case. The property owner again appealed to the lower court, which determined it was not subject to the magisterial jurisdictional limit of 42 Pa.C.S. § 1515(a)(3), and imposed the maximum civil penalties allowed by the MPC: $500 per day per violation, which amounted to $92,500 in each case, for a total of $277,500. The property owner appealed again to the Commonwealth Court, resulting in Spencer II, where the Court reviewed the timeliness of the property owner’s appeal (finding it was), as well as his allegations of bias by the lower court judge (rejecting this contention) and affirming the lower court’s judgment in its entirety.
Although the Township ultimately prevailed on the merits, Spencer I and Spencer II offer a clear example of something most municipal solicitors and zoning officers already know – even when a municipality takes aggressive action against a violative use, an obstinate property owner can draw out the enforcement process for a long period of time. While the typical enforcement path outlined in the MPC – (1) issuance of a notice of violation, (2) if no appeal is filed, issuance of citation before the MDJ, and, ultimately, (3) the MDJ’s assessment of civil penalties and costs – may result in compliance in some instances, it often can take years and still may not result in correction of the violation.
Municipalities struggling with persistent offenders who will not comply with MDJ orders requiring the payment of civil penalties, who will not remediate the violations, and/or who will file repeated appeals, should consider filing equitable actions directly with Common Pleas Court. In addition to the authority to seek civil penalties from the MDJ under Section 617.2 of the MPC, Section 617 authorizes the municipality to “institute any appropriate action or proceeding to prevent, restrain, correct or abate” the offending use. 53 P.S. §10617. Similar provisions are found in most municipal enabling statutes, including the Second Class Township Code, 53 P.S. §66601(c.1)(1), and can be used for violations of a property maintenance or other municipal ordinances. Courts routinely find that the violation of a municipal ordinance constitutes irreparable harm entitling the municipality to an injunction, even a preliminary one, mandating correction of the violation. See, e.g., Pa Cent. Realty Invest. v. Middlesex, 566 A.2d 931, 934 (Pa. Cmwlth. 1989). This method also allows the municipality to seek its costs associated with the enforcement matter. This avenue works particularly well when a property owner does not appeal the initial NOV to the municipality’s zoning hearing board. A failure to do so renders an ordinance violation determination “unassailable.” Johnston v. Upper Macungie Twp., 638 A.2d 408, 412 (Pa. Cmwlth. 1994).
In addition, when a property owner fails to comply with a property maintenance ordinance, a municipality can complete the work necessary to effectuate compliance and then file a municipal lien with the Common Pleas Court. See, e.g., Borough of Walnutport v. Dennis, 13 A.3d 541 (Pa. Cmwlth. 2010) (Borough entitled to attorney fees and reimbursement for the cost of work associated with cutting down trees and removing tree stumps to bring a property into compliance). However, this option does not guarantee that the municipality will successfully recoup the funds expended and should generally be used when the benefit of remedying the violation outweighs the financial cost.
In summary, in many instances, pursuit of civil penalties under the MPC and fines under other statutes and ordinances may result in ordinance compliance. However, in other situations other alternatives may be necessary such as filing an equitable action or opting for self-help options under a property maintenance code.
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[1] Spencer II is the culmination of a procedurally complicated saga, originally considered by the Commonwealth Court in Township of Cranberry v. Spencer, 249 A.3d 9 (Pa. Cmwlth. 2021)(“Spencer I”) from which certain facts addressed in this article have been drawn.
Blaine A. Lucas is a Shareholder in the Public Sector Services and Energy and Natural Resources groups of the Pittsburgh law firm of Babst, Calland, Clements & Zomnir. 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.
To view the full article, click here.
Reprinted with permission from the October 12, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved.
Former transportation executive and veteran regulatory and environmental attorney, James C. Chen, has joined Babst Calland as a Shareholder in the Emerging Technologies practice in the law firm’s growing Washington, D.C. office.
Mr. Chen brings his deep experience in strategic planning and managing legal, policy and regulatory affairs for public and private companies with a focus on emerging technologies in the transportation sector, particularly electrification and sustainable energy.
“A revolution is occurring in the transportation and energy industries – from how we generate and store energy to power various modes of transportation to how those modes are operated with autonomous and artificial intelligence systems to the way we source, process and recycle the minerals needed to enable those modes,” said Mr. Chen. “Moreover, the challenge facing this revolution is not just figuring out how to best power new transportation technology, it’s also about how to best operate the factories that manufacture them.”
For the past decade, in his executive leadership roles for several new transportation technology companies, Mr. Chen was instrumental in the commercialization of modern electric vehicles and the way they are distributed and sold. Most recently, he was Vice President of Public Policy & Chief Regulatory Counsel for Rivian Automotive, LLC and previously, was Vice President of Regulatory Affairs & Deputy General Counsel at Tesla, Inc.
“We are delighted that Jim Chen is now a part of our firm and our Washington, D.C. office,” said Babst Calland Managing Shareholder Donald C. Bluedorn II. “Jim is a great person, and he has an outstanding reputation and track record as a leader in the electric transportation and sustainable energy space. His industry experience and focused approach to providing strategic and creative solutions utilizing new technologies will be a tremendous resource for our clients.”
In addition to managing his own private practice, Mr. Chen previously held other corporate executive positions and was a prominent Washington D.C. attorney in environmental and natural resources law for two different law firms. During his private firm sector tenure of nearly 15 years, he represented a number of established automobile and truck manufacturers, as well as various industry suppliers on environmental and safety regulatory and policy issues affecting the transportation sector. He started his career as an attorney-advisor in the U.S. Environmental Protection Agency’s Office of Regulatory Enforcement.
James Chen is admitted to practice in New York and the District of Columbia. He earned his Juris Doctorate from Case Western University and a Bachelor of Arts in Psychology from the State University of New York at Buffalo.
Allegheny County Bar Association- Lawyers Journal
(By Peter Schnore)
The “Common Level Ratio” (CLR) is a figure calculated by a state administrative body every year for every county. It is calculated upon data that each county’s assessment office is to regularly provide to the state. It is expressed as a percentage – “ratio” is a misnomer.
The CLR is very significant in Pennsylvania tax assessment appeals, because Pennsylvania counties rely on irregularly-conducted “base year” assessments. By statute, the CLR is applied to a Board of Assessment or Court’s determination of current fair market value of a property at issue on appeal to set its assessment, with the intention that by doing so, the assessment will be sufficiently uniform with that county’s base year assessments.
Attention has been drawn to Allegheny County’s most recent CLRs following a challenge to how it was calculated for Tax Year 2022. The details of that case are very interesting, but are not germane to this article. This challenge ultimately resulted in a significant drop in that CLR, from 81.1% to 63.5%. The implications of this were significant: A property fairly assessed for 2022 based on the original CLR was suddenly more than 27% over-assessed (.811/.635 = 1.277). Allegheny County Council afforded property owners a second opportunity to appeal based on this development, and as one might expect, many property owners (those who were informed, and who had sufficient money at stake to make it worthwhile to appeal) took advantage of that opportunity. It is noted that the CLR applicable to Tax Year 2024 is 54.5%, further increasing the possibility that a given property is over-assessed.
Below are four observations regarding the Common Level Ratios. The first relates to Allegheny County, the others are points applicable statewide.
- A similar challenge remains pending for Tax Year 2023. A case quite similar to the 2022 challenge is pending in relation to the CLR to be used to set assessments in tax year 2023 appeals. It remains to be decided. If this attorney were betting on the outcome, he would bet upon a reduction of this CLR, and that this will lead to a re-opening of the opportunity to file Tax Year 2023 appeals.
- The CLR is well behind current market conditions. The CLR is calculated upon data from the calendar year two years prior to the Tax Year at issue. As an example, the “2020 CLRs” are based on data gathered upon sales occurring in 2020, calculated and published by the state by mid-2021, and used in connection with Tax Year 2022 appeals. Inflation or deflation of a county’s recent market activity will not be “picked up” by the CLR in use for tax assessments for close to a year at best. In Allegheny County, where we have retrospective assessment appeals (i.e., Board of Assessment appeals being filed and disposed of during, rather than before, the given Tax Year), the sales data behind the applicable CLR is well more than a year old at the time of the Board hearing.
- The CLR is not precisely the mathematical reciprocal of the Common Level Ratio Real Estate Valuation Factors. Transactional real estate attorneys are familiar with the Common Level Ratio Real Estate Valuation Factors (the CLR Factor), published by the PA Department of Revenue each year, as they are used to calculate realty transfer taxes in certain circumstances. As an example, the CLR Factor for Allegheny County in place for July 1, 2023, to June 30, 2024, is “1.84.” It is the counterpart to the CLR to be used in Allegheny County tax appeals for Tax Year 2024 of 54.5%. While the Department of Revenue declares that the CLR Factors “are the mathematical reciprocals of the actual common level ratios,” they are not truly reciprocals due to rounding differences. (E.g., 1/1.84 = .54645, or 54.645%.) In an assessment appeal, do not rely on the CLR Factor. Rather, find and apply the applicable CLR as required by the assessment statutes.
- The uniformity that the CLR provides is very, very rough. Every state assesses real estate property taxes, and every state’s constitution contains a uniformity clause applicable to the collection of these taxes. However, the particulars of the protections that are offered to preserve uniformity vary considerably from state to state. As an example, in Pennsylvania, all property must be treated as the same class, and as such, under judicial law, it is a violation of the Commonwealth’s uniformity clause to assess different property types at different tax rates. Many states’ interpretations of their uniformity clauses do not require this, and permit taxing jurisdictions to assess different tax rates for commercial vs. residential property.
Another area where Pennsylvania’s assessment system attempts to achieve uniformity across all property types is through blanket use of one equalization ratio – the CLR – for all property in a county, regardless of whether it is residential or commercial; office or industrial; and whether it is in a desirable or undesirable neighborhood. In other words, the sole applicable CLR is applied in an appeal regardless of whether the property type at issue is faring well or poorly relative to other property types since the base year values went into effect.
To be sure, residential property values have fared significantly better than downtown office complexes over the course of the last three years. But the law affords property owners use of one CLR calculated on all arm’s length sales in the county in a given year, giving equal weight to each of those sales, despite its calculation upon property types and locations often faring much better or worse. Pennsylvania’s appellate courts have observed that property owners are not entitled to perfect uniformity in assessments, but rather rough uniformity. The use of the CLR as the primary mechanism to establish uniform assessments through the appeals process is very, very rough.
Ultimately, despite being the primary way to unify assessments under the law, it is a poor mechanism to maintain uniformity both for individual properties, and countywide.
To view the PDF, click here.
Reprinted with permission from the October 6, 2023 Allegheny County Bar Association’s Lawyers Journal.
Case Western Reserve University – School of Law
(featuring Jim Chen)
On Sept. 28-29, two dozen of the foremost experts in climate change and international law gathered at Woodland Hall at the Cleveland Botanical Garden to debate how to respond to the increasing threat of global climate change. The event was organized by Case Western Reserve University School of Law’s Cox International Law Center and the school’s Burke Center for Environmental Law, and co-sponsored by the American Branch of the International Law Association.
Pictured above, alumnus Jim Chen (LAW ‘91), former vice president and counsel of Tesla and Rivian Motors, kicked things off as the Thursday evening dinner speaker with remarks about the need to safeguard human rights in the production of electric car batteries. Chen discussed a number of possible approaches to incentivize electric automobile manufacturers to adopt standards to protect the environment and human rights in their supply chain.
In his Friday morning welcome address, co-dean Michael Scharf set the stage by discussing how 2023 has seen some of the worst environmental disasters in our lifetime. “From continental-wide forest fires in Canada to floods of biblical dimension in Libya, climate change has been a daily fixture in the news this year,” he said. “In this context, I am pleased that CWRU School of Law was able to assemble such a prestigious group of experts to debate some of the most important questions facing international law: How should the international community enforce the newly recognized human right to a healthy environment? Is “ecocide” a viable international crime? Are environmental migrants entitled to refugee status? And can corporations be sued for climate change?”
John Knox, history’s first UN Special Rapporteur for Human Rights and the Environment, delivered the morning keynote address on Friday. He provided an insider’s view on how the new UN Resolution on the Human Right to a Healthy Environment came about, evolved during negotiations and ultimately gained the unanimous support of the General Assembly.
Following Knox’s remarks, a panel of experts explored how the international community can implement and enforce the new UN Resolution, including using tax laws to incentivize compliance.
The second panel explored the possible prosecution of the crime of ecocide at the national and international level. Milena Sterio of Cleveland State described the fifty year history of attempts to recognize ecocide as a separate international crime. While environmental destruction can be prosecuted as a war crime, Leila Sadat, the former Special Advisor to the ICC Prosecutor, opined that peacetime ecocide is a phenomenon, not a crime. The experts then debated whether attacks against the environment resulting in human casualties during peacetime could be prosecuted as a crime against humanity under existing law.
Expanding on that discussion, the Honorable Chile Eboe-Osuji, former President of the International Criminal Court, provided the Friday luncheon speech about the individual right to peace and its relation to attacks against the environment during an act of aggression.
The third panel focused on the evolving law relating to climate displacement. With sea levels rising and countries subject to increased draughts, fires and floods, so called “climate refugees” have been pouring across borders. The panelists discussed whether “refugee” is the right term, what triggers protection of such displaced individuals, does international human rights law or international environmental law take precedence and what is the role for domestic law.
For litigators, the high point of the conference was the fourth panel on climate change litigation against corporations. To date, there have been 300 cases brought against companies for climate change around the world. Almost all of them have failed. Obstacles include standing, the Political Question Doctrine, Forum Non Conveniens, the First Amendment and causation. But the panelists acknowledged that the recent Dutch Shell case decided by the Hague District Court could be a game-changer, paving the way for successful global warming suits across the world.
The Court ordered Shell to reduce its worldwide CO2 emissions by 45 percent by 2030. All eyes are on the Dutch courts as they consider the appeal of the case.
Closing remarks were delivered by alum Austin Fragomen (LAW ‘68), Chairman of the Business Advisory Group on Migration of the Global Forum on Migration and Development. Fragomen, the founder of the Case Western Reserve Journal of International Law, told the participants that the World Bank estimates that 216 million people will be displaced by climate change by 2050. “Vulnerable populations need a comprehensive solution that spells out the rights and benefits of climate migrants,” he said. As a positive first step, Fragomen described how the non-binding Global Compact on Migration calls on countries to set goals concerning immigration pathways for climate migrants, and to report on progress on various aspects of climate migration.
Articles by the conference speakers will be published in Volume 56 of the Case Western Reserve Journal of International Law in May 2024. The archived videotape of the conference is available for viewing anytime.
To read the full article, click here.
Reprinted with permission from Case Western Reserve University – School of Law.
The Foundation Water Law Newsletter
(Lisa M. Bruderly, Mackenzie M. Moyer and Jessica Deyoe)
On January 31, 2023, during his first month in office, Pennsylvania Governor Josh Shapiro signed Executive Order 2023-07, “Building Efficiency in the Commonwealth’s Permitting and Licensing Processes,” to improve licensing, permitting, and certification throughout the commonwealth. Pennsylvania’s agencies issue hundreds of licenses and permits each year. The Pennsylvania Department of Environmental Protection alone issues hundreds of permits each year, including National Pollutant Discharge Elimination System permits, erosion and sediment control permits, and water quality management permits. According to Governor Shapiro, Pennsylvanians “deserve a government that works efficiently and effectively to get them answers.” Press Release, Gov’r Josh Shapiro, “Governor Shapiro Signs Executive Order to Improve Commonwealth Licensing, Permitting, and Certification Processes by Establishing Standard Response Times and Money-Back Guarantee” (Jan. 31, 2023). The executive order aims to eliminate unpredictability and long wait times for businesses in the permitting process. Id.
Under the executive order, agencies had until May 1, 2023, which was 90 days from the signing, to compile a catalog of the licenses, certificates, and permits they issue, the statutory authority governing the length of time in which agencies must process applications, and the application fee charged by each agency. The Governor’s Office then began a review to establish efficient application processing times based on specific agency recommendations. Once these timeframes are established, if an agency fails to respond to an applicant within the identified timeframe, the agency must refund the application fee. See Press Release, Gov’r Josh Shapiro, “Shapiro Administration Announces All Commonwealth Agencies Take Critical Step in Improving Licensing, Permitting, and Certification Processes” (May 5, 2023).
The executive order also requires the Governor’s Office to review the digital application systems that businesses use to apply for licenses and permits, aiming to modernize and streamline application processes. Many of the current digital systems used for permit applications are believed to be outdated, slow, cumbersome, and confusing.
In early May 2023, Governor Shapiro announced that the Governor’s Office was working on its recommendations. Id. It is unclear when the recommendations are expected to be published, but once published, they are expected to provide transparency to the permitting process and establish deadlines by which agencies must respond to applications. Shortly after this announcement, approximately 60 businesses throughout the commonwealth sent a letter to the Governor urging him to expedite the permitting reform process. The letter requested the Governor and the Pennsylvania General Assembly to work together to promptly and efficiently address a “dysfunctional” and “unpredictable” permitting system.
Copyright © 2022, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
FNREL Mineral and Energy Law Newsletter
Pennsylvania – Oil & Gas
(Joseph K. Reinhart, Sean M. McGovern, Matthew C. Wood and Gina F. Buchman)
On July 8, 2023, the Pennsylvania Department of Environmental Protection (PADEP) published a notice of availability of a new draft technical guidance document (TGD) entitled “Guidelines for the Development and Implementation of Oil and Gas Well Site Integrated Contingency Plans for Unconventional Well Sites,” TGD No. 800-2200-001 (July 6, 2023). See 53 Pa. Bull. 3649 (July 8, 2023). The draft TGD is intended to provide direction to unconventional gas operators regarding expected and useful information to include in unconventional well site emergency response plans and preparedness, prevention, and contingency plans.
PADEP hopes that the document will provide operators with a practical and consolidated approach to meeting requirements under multiple state regulations for emergency or contingency planning. PADEP also hopes that utilizing a “one-plan” approach will minimize duplicating effort and standardize the format of emergency response information. Plans prepared in accordance with this TGD are intended to satisfy the requirements of seven different PADEP regulations and guidance documents.
The draft TGD includes a plan template divided into sections to facilitate field use: (1) a plan introduction, with pertinent site contact information and administrative obligations, and “quick sheets,” providing critical information and maps for first responders and site personnel; (2) a two-part section containing site-specific information and the purpose of the plan and the procedures and actions operators, their agents, and responders will utilize to respond to an emergency at the site; (3) a section focusing on preparedness, prevention, and contingency planning as required across multiple regulations to reduce redundant information already incorporated into other sections of the plan; (4) a section outlining the training and exercise the operator will conduct to ensure that the responding agencies are familiar with the plan and properly trained in the event of an emergency; (5) appendices with references, checklists, incident command system definitions, and forms; and (6) a regulation and guidance matrix referencing applicable state regulation and guidance requirements.
Copyright © 2023, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
FNREL Mineral and Energy Law Newsletter
Pennsylvania – Oil & Gas
(Joseph K. Reinhart, Sean M. McGovern, Matthew C. Wood and Gina F. Buchman)
On June 29, 2023, the Pennsylvania House of Representatives passed House Resolution 131, a resolution directing the Legislative Budget and Finance Committee (LBFC) to study the revenue of Pennsylvania’s oil and natural gas industry. Since the enactment of Act 13 of 2012, producers in Pennsylvania have paid an impact fee based on production and pricing for unconventional gas wells. This differs from other states, including Texas, where producers pay a severance tax—a tax on the extraction of oil and natural gas.
The resolution, which was introduced by Representative Mandy Steele, directs the LBFC to conduct a study to determine the revenue Pennsylvania may have collected since the enactment of Act 13 if a severance tax had been implemented. The bill also directs the LBFC to report its findings and severance taxes, impact fees, or other oil or gas related taxes paid by producers in other states for natural gas production by June 2024.
The LBFC is a bipartisan legislative service agency consisting of 12 members of the General Assembly. The LBFC conducts studies and makes recommendations regarding the elimination of unnecessary expenditures, promotion of economy in government, and assurance that commonwealth expenditures are made in accordance with their legislative intent. The staff of the LBFC has experience in business administration, business analytics, economics, environmental science, public administration, law, and supply chain management. They have assisted the LBFC in a variety of public policy and state program areas, including emergency preparedness, community and economic development, education, environmental protection, game and fisheries, health and welfare, law enforcement, liquor control, local government, rural affairs, transportation, and veteran’s affairs.
Proposals to levy a severance tax on oil and gas production have been common in recent years. Former Pennsylvania Governor Tom Wolf proposed a severance tax during each of his eight years in office. These efforts met significant opposition from Republican lawmakers and the oil and gas industry. Current Governor Josh Shapiro did not propose a severance tax during his campaign or in his current budget plan.
House Resolution 131 will be submitted to the Pennsylvania Senate for consideration. If the resolution passes, a report may be expected in the second quarter of 2024.
Copyright © 2023, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
FNREL Mineral and Energy Law Newsletter
Pennsylvania – Oil & Gas
(Joseph K. Reinhart, Sean M. McGovern, Matthew C. Wood and Gina F. Buchman)
On July 22, 2023, the Pennsylvania Department of Environmental Protection (PADEP) published its semi-annual Regulatory Update, which summarizes the current status of regulations under development or consideration (and includes recently completed regulations). See 53 Pa. Bull. 3905 (July 22, 2023). The Regulatory Update highlighted agency progress on two proposed rulemakings to amend 25 Pa. Code ch. 78, the regulations governing conventional oil and gas well operations, that have been in development since 2020.
The first proposed rulemaking, “Environmental Protection Performance Standards for Conventional Oil and Gas Operators” (#7-539), proposes to amend 25 Pa. Code ch. 78 to update the environmental protection performance standards for surface activities at conventional oil and gas well sites. Among other things, it would amend the chapter 78 regulations to update well reporting requirements and protection and replacement of public or private water supply regulations to align them with Act 13 of 2012 (which amended Pennsylvania’s Oil and Gas Act, 58 Pa. Cons. Stat. §§ 2301–3504). The proposed rule would also amend bonding requirements to align with Act 57 of 1997 (which amended the Administrative Code of 1929) and amends the regulations regarding well inactive status designations. See Proposed Chapter 78 Annex A Rulemaking (Aug. 19, 2021). This proposed rulemaking was most recently presented at the December 16, 2021, Pennsylvania Grade Crude Development Advisory Council (CDAC) meeting and the proposed date of promulgation is Q4 2023. See 53 Pa. Bull. 3905 (July 22, 2023).
The second proposed rulemaking, “Waste Management and Related Issues at Conventional Oil and Gas Well Sites” (#7-540), addressed the proper management of waste at conventional oil and gas well sites. This rulemaking would amend chapter 78 to require operators to establish an area of review prior to initiating operations to identify any wells within certain distances of the planned operations, would require operators to develop preparedness, prevention, and contingency plans, and addresses proper handling, storage, processing, and disposal of waste generated by conventional oil and gas operations. See Proposed Chapter 78 Annex A Rulemaking (Aug. 19, 2021). This proposed rulemaking was most recently presented at the February 16, 2023, CDAC meeting and the proposed date of promulgation is the first quarter of 2024.
As noted, PADEP’s Regulatory Update also highlighted completed regulations. Those included “Control of Emissions from Conventional Oil and Natural Gas Sources” (#7-580), a rulemaking to amend 25 Pa. Code ch. 129 to establish emissions limitations and reasonably available control technology requirements for volatile organic compounds and other pollutants applicable to existing conventional oil and natural gas operations. Pennsylvania’s Independent Regulatory Review Commission (IRRC) approved this rule on April 20, 2023. See IRRC, Approval Order, Regulation No. 7-580 (Apr. 20, 2023).
Copyright © 2023, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
FNREL Mineral and Energy Law Newsletter
Pennsylvania – Mining
(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Christina M. Puhnaty)
In May 2023, Governor Shapiro awarded $7.8 million resulting from the federal Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, 135 Stat. 429 (2021), to fund projects for the reclamation of abandoned mine land, abatement of acid mine drainage through reclamation, or treatment of acid mine drainage through the construction, operation, or maintenance of an acid mine drainage treatment facility. See Press Release, Pa. Dep’t of Env’t Prot. (PADEP), “The Shapiro Administration Awards $7.8 Million Dollars in Grants for Environmental Restoration Projects” (May 26, 2023). As a result of the award, PADEP’s Bureau of Abandoned Mine Reclamation announced 16 projects across 12 Pennsylvania counties that PADEP will soon initiate. See id.; see also Guidance, PADEP, “2023 Abandoned Mine Land and Acid Mine Drainage Grant Program,” https://files.dep.state.pa.us/Mining/Abandoned%20Mine%20Reclamation/AbandonedMinePortalFiles/AML_AMD_GRANT_PROGRAM_GUIDANCE.pdf.
Copyright © 2023, The Foundation for Natural Resources and Energy Law, Westminster, Colorado