Babst Calland recently named Benjamin W. Milleville, Elena L. Rorabaugh and Nikolas E. Tysiak shareholders in the Firm.
Benjamin W. Milleville, a member of the Firm’s Corporate and Commercial Group, advises businesses and nonprofit organizations on corporate and transactional matters, including mergers and acquisitions, reorganizations, joint ventures, commercial contracts, governance matters, compliance, and real estate transactions. Mr. Milleville advises businesses of varying size and complexity, and at various points in their lifecycles. In his role as outsourced corporate counsel to a multinational public company, he counsels senior management in the U.S. and abroad on a broad range of legal matters. Mr. Milleville also advises entrepreneurs and startup businesses on the legal issues faced by emerging companies, including business structuring and protection of intellectual property. In his nonprofit practice, Mr. Milleville counsels clients, including charitable organizations and trade associations, on obtaining and maintaining tax-exempt status, nonprofit governance, and nonprofit mergers and strategic alliances.
Mr. Milleville is a 2008 graduate of the University of Pittsburgh School of Law.
Elena L. Rorabaugh, a member of the Firm’s Energy and Natural Resources Group, is experienced in assisting oil and gas companies navigate the legal obstacles involved with exploration and production. Her practice focuses on energy, oil, gas and mineral-related transaction matters, including title examination and title curative work. Ms. Rorabaugh also counsels clients with respect to the acquisition and disposition of oil and gas properties and has experience in all aspects of title due diligence. Ms. Rorabaugh also has experience representing E&P, midstream and other energy companies in mergers and acquisitions, and she counsels clients on a variety of business and corporate transactional matters.
Ms. Rorabaugh is a 2009 graduate of Duquesne University School of Law.
Nikolas E. Tysiak, a member of the Firm’s Energy and Natural Resources Group, practices in the areas of energy and real estate law, with a primary focus on transactions and ownership involving oil and gas, where he has extensive experience identifying and curing novel real estate title issues in West Virginia, Ohio and Pennsylvania.
Mr. Tysiak also maintains a general real estate practice, with experience conducting foreclosure proceedings, drafting complex retail and commercial leasing agreements, drafting deeds and other documents necessary to effectuate property transactions, conducting real estate closings, researching and writing title insurance policies and overseeing curative measures to finalize property transactions.
Mr. Tysiak is a 2005 graduate of Washington College of Law at American University.
Zephyr Currents
(by Meredith Odato Graham)
Draft permit review is an important part of the air permitting process. Careful evaluation of the draft permit enables the permittee to head off possible compliance issues and otherwise refine the permit before it becomes final. As the permittee, you will typically have at least two chances to comment on a draft permit—once on a pre-draft version and again during the official public comment period. Take advantage of these opportunities to craft an air permit that best suits your facility, and keep in mind the following tips as you prepare written comments for submission to the agency.
Establish an Internal Schedule: The very first thing you should do upon receiving the draft permit is confirm how much time is available for the review. Double check the comment deadline and plan to meet it. You’ll need ample time to review the relevant documents, gather internal input and prepare written comments. Make time to get feedback from the facility personnel who will actually implement the permit on a day-to-day basis. Mark the calendar and establish interim deadlines to keep the ball rolling. It may become necessary to request an extension, in which case you’ll want to show that a good faith effort was made to meet the original deadline.
Request the Draft Permit in a Writeable Format: Ideally, your submission will include a “marked up” or redlined version of the draft permit which clearly shows the changes you are requesting. This is much easier to do when the agency can provide the draft permit in a writeable format such as Microsoft Word. In situations where an existing permit is in effect, it will be helpful to make a comparison document showing the differences between the existing permit and the draft permit. Ask the permit writer to provide a list of the changes he or she made to the permit, but don’t relyon him or her to point out small changes that could have a big impact. Do your own side-by-side comparison of the permits.
Ask for the Review Memo: The permit writer will likely prepare an internal supporting memorandum in conjunction with the draft permit. This document may be referred to as the “review memo” or “Statement of Basis.” It can provide helpful clues about how the permit writer determined what requirements to include in the permit. Surprised by something you see in the permit? Consult the review memo for an explanation and confirm that the agency relied on accurate facts.
Check the Application and Other Permits: The draft permit should conform to the information presented in the application. To the extent that another air permit (e.g., construction approval) is being consolidated with the draft permit, confirm that they were appropriately combined.
Verify Rule Applicability: Federal and state air pollution control rules like New Source Performance Standards will appear in the permit. Some agencies will incorporate by reference only, whereas others will insist on including the relevant text of the regulation in the permit. Are affected facilities such as stationary emergency engines properly characterized in the permit, in terms of regulatory status? Consider documenting exemptions and nonapplicability determinations in the permit to take advantage of a permit shield.
Do a Practice Run: Some air permits (most notably Title V permits) require the permittee to certify compliance with each condition. For this reason, it is recommended that you locate the compliance certification forms you will eventually need to submit and do a practice run using the draft permit. Can you reasonably comply with each condition as written?
Speak with the Permit Writer: For the sake of efficiency, before submitting your written comments, it may be helpful to have a preliminary call with the permit writer to clarify agency intent and focus on the list of issues. Check for Typos: It goes without saying that you should take a hard look at the entire permit. Double check numerical limits, equipment specifications (e.g., throughput ratings), source descriptions and cross-references. Is the right stuff in the right place? All of this will become binding once the permit is finalized, at which point it may be difficult to make changes.
Establish a Basis for Appeal: A permittee generally has the right to appeal any unsatisfactory conditions once the permit is issued as final. You should comment to provide a complete administrative record that will be beneficial to any appeal that may be filed. This calls for vigilant review of the draft permit and a thoughtful presentation of the issues.
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The PIOGA Press
(by Stephen A. Antonelli)
It is officially that time of year again. The weather will soon be frightful, and if your place of employment is anything like mine, the first of many holiday parties is already in the rearview mirror. Please don’t worry, this is not another article about how to behave (or how not to behave) at an office party. No, this article is about a considerably less scandalous topic: whether and how employees and former employees may view their own personnel files. Please try to contain your enthusiasm, and demonstrate a bit of holiday charity by continuing to read.
Many employers use the month of December to wrap up financial matters and to plan for the coming year by preparing goals, budgets, forecasts and strategic plans. Many employers also use this time of year to conduct employee reviews and make determinations about employees’ compensation. Hopefully, most of your employees will receive good or even great reviews. Some may even receive yearend bonuses. (Side note: if paid to non-exempt employees, bonuses should either be (1) discretionary or (2) taken into consideration when calculating the regular rate for overtime purposes, but that is another article for another issue of The PIOGA Press).
Some employees receive a review that is the equivalent of a proverbial lump of coal. As you might imagine, employees who receive such reviews react in a number of different ways. Some react emotionally, others stoically. Some take constructive criticism to heart and address the problematic aspects of their review head-on, in a sincere attempt to improve upon their performance. Others immediately begin to search for a new place of employment. Most react somewhere in between.
Those employees who receive mediocre to problematic reviews may wish to review their personnel files. Pennsylvania employers should be mindful of the fact that the law entitles them to do so—within certain parameters.
Pennsylvania’s Inspection of Employment Records Law, 43 P.S. §§ 1321-24, (the “Personnel Files Act”) entitles employees (or an employee’s designated agent) to view their own personnel records once each calendar year, absent reasonable cause to do so more frequently. The law gives employees this right to review their own files for the purposes of determining “qualifications for employment, promotion, additional compensation, termination or disciplinary action.” As a result, employers must reasonably make the records available during regular business hours.
Employers can (and should) make and enforce rules concerning the manner in which employees can request and review personnel records. For instance, employers can require requesting employees to inspect the records on the employee’s free time, rather than while they are on the clock. Employers can also require requesting employees to fill out a form when requesting access to the files, and they can prohibit employees from removing the records from the employer’s premises. While employers may prohibit employees from copying the records, employers should allow employees to take notes about the content of the records. Moreover, employers should allow employees sufficient time to review the records, commensurate with the size of the file. Finally, employers have the right to protect their records, and therefore they may require employees to inspect the records in the presence of an official designated by the employer.
But what about those individuals who are no longer employees? What rights, if any, do they have to review their own personnel records? Suppose a performance review later this month results in either a termination or a resignation. Is the recently separated former employee entitled to review his or her own personnel file following the end of employment? Does the answer depend upon the length of time between the separation and the request to view the file? Earlier this year, the Pennsylvania Supreme Court clarified this very issue.
Prior to this summer, this area of the law was unclear. In 1996, the Pennsylvania Commonwealth Court held, in dicta, that former employees could review their personnel files if they made the request to do so contemporaneously with termination, or within a reasonable time immediately following termination. Beitman v. Dep’t of Labor & Indus., 675 A.2d 1300, 1302 (Pa. Cmwlth. 1996). Since then, the Pennsylvania Department of Labor and Industry developed a policy of allowing former employees to access their personnel records within a “reasonable” amount of time, which generally meant within 30 days of termination. That changed during the summer of 2017 with a ruling by the Pennsylvania Supreme Court.
In Thomas Jefferson University Hospitals, Inc. v. Pennsylvania Department of Labor and Industry, —- A.3d —— (2017), 2017 WL 2651980, the Pennsylvania Supreme Court overruled Beitman when it held that the plain language of the Personnel Files Act applies only to current employees, including those who have been laid off with re-employment rights, and those who are on leaves of absence. In its opinion, the court characterized the Commonwealth Court’s definition of the term “current” as strained and stated that “the term ‘currently employed’ cannot mean both presently employed and formerly employed. Id. at 6. The court then held that “former employees, who were not laid off with re-employment rights and who are not on a leave of absence, have no right to access their personnel files pursuant to the act, regardless of how quickly following termination they request to do so.” Id. at *8.
Whether in the context of upcoming performance reviews or otherwise, employers should be mindful of this recent change in the law.
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The Legal Intelligencer
(by Molly E. Meacham and Sean R. Keegan)
Over the past 20 years, the Equal Employment Opportunity Commission (EEOC) has annually received anywhere between 75,000 and 100,000 charges of discrimination (charges). In Fiscal Year 2016, the EEOC received 91,503 charges, responded to more than 585,000 calls and received more than 160,000 inquiries in field offices. In that same time period, EEOC legal staff filed 86 lawsuits alleging discrimination–less than one-tenth of 1 percent of the total charges received. Those lawsuits included 55 individual suits and 31 suits involving multiple individuals or discriminatory policies. Given the volume of demand for its assistance and the fractional number of lawsuits it pursues, the EEOC issues a multi-year strategic enforcement plan to maximize its use of resources and provide direction to its staff.
In October 2016, the EEOC released its strategic enforcement plan for Fiscal Years 2017-2021, which followed the conclusion of its strategic enforcement plan for Fiscal Years 2012-2016, see U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan, Fiscal Years 2017-2021, available at https://www.eeoc.gov/eeoc/plan/sep-2017.cfm. Both plans list “eliminating barriers in recruitment and hiring” as the first national substantive priority. The 2017-2021 plan continues the EEOC’s focus on discriminatory hiring practices and pledges to “focus on class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.” The 2017-2021 plan names “the growth of the temporary workforce, the increasing use of data-driven selection devices, and the lack of diversity in certain industries and workplaces” as “areas of particular concern,” and notes that this priority “typically involved systemic cases” but may also be included “if it raises a policy, practice or pattern of discrimination.” As the EEOC embarks on its 2017-2021 plan, it is also significantly increasing the number of suits it filed in 2016. In Fiscal Year 2017 the EEOC filed approximately 190 lawsuits, more than 80 of which were filed in the last month of the fiscal year (September 2017). By nearly doubling its lawsuits from the prior year, the EEOC may be signaling a return to its levels of litigation from the early 2000s, when the EEOC typically filed between 200 and 400 lawsuits per year.
The EEOC has recently filed several lawsuits focused on the discriminatory hiring practices prioritized by its strategic enforcement plan, including in Pennsylvania. On Sept. 27, the EEOC filed a discriminatory hiring practices claim against Norfolk Southern Corp. and Norfolk Southern Railway Company (Norfolk Southern) in the U.S. District Court for the Western District of Pennsylvania. EEOC v. Norfolk Southern, No. 17-01251 (W.D. Pa. filed Sept. 27, 2017). The EEOC alleges Norfolk Southern violated the Americans with Disabilities Act of 1990 (ADA) and the Civil Rights Act of 1991 when it failed to hire job applicants or medically disqualified employees from further employment because of their disabilities. According to the EEOC, Norfolk Southern “subjected a class of individuals to unlawful discrimination on the basis of their actual disabilities, records of disability, or because they were regarded as disabled; denied reasonable accommodations to individuals with disabilities, engaged in unlawful disability-related inquiries/examinations, and used qualification standards that screened out or tended to screen out individuals with disabilities.” Norfolk Southern concerns one of the specific discriminatory hiring practices the EEOC expressly intends to target in the near future, namely discriminatory medical policies that apply to a class of job applicants.
In Norfolk Southern, the EEOC attacks Norfolk Southern’s hiring practices in several ways. First, it alleges that a job applicant receiving chemotherapy treatment for lymphoma was denied a conductor position due to Norfolk Southern’s policy of barring job applicants for certain positions who are receiving certain medical treatments, until they have been treatment-free for a particular period of time. According to the EEOC, Norfolk Southern improperly failed to consider how the chemotherapy actually affected the applicant’s ability to safely perform the essential functions of the conductor job or in the alternative, failed to provide reasonable accommodation in the form of an exemption from its blanket policy. Second, the EEOC extends the claim to a class of unidentified job applicants who were allegedly similarly denied employment because they were receiving chemotherapy treatment for cancer. The EEOC brings similar individual and class claims concerning Norfolk’s Southern’s hiring practices of job applicants with diabetes or related elevated glucose levels, arthritis, nonparalytic orthopedic impairments, cardiopulmonary or cardiovascular impairments, and post-traumatic stress disorder.
The EEOC also attacks Norfolk Southern’s policy regarding hiring applicants receiving drug addiction treatment, alleging that Norfolk Southern improperly applied medical standards that barred job applicants and employees from working certain positions if they were taking prescribed medications for drug addiction treatment. Norfolk Southern’s policy barred applicants if at the time of their medical evaluation by Norfolk Southern, it had been less than one year since they last took such medication. Again, the EEOC alleges this was done regardless of the actual effect of such medication or the time period being off such medications had on the individual job applicants’ or employees’ ability to safely perform the essential functions of the jobs at issue. Employers in the commonwealth who have not already examined their policies and practices relating to applicants and employees in drug treatment may want to address these issues pre-emptively, as ADA issues relating to drug addiction and treatment can be particularly complex. The Pennsylvania Department of Health describes the “prescription opioid and heroin overdose epidemic” as “the worst public health crisis in Pennsylvania,” and such a widespread issue is likely to appear in the workforce in proportion to its impact on the general population.
Outside of Pennsylvania, the EEOC also filed a suit on Sept. 25, against Dolgencorp, which conducts business as Dollar General Stores, Inc. (Dollar General), claiming Dollar General violated the ADA, the Genetic Information Non-Discrimination Act of 2008, and the Civil Rights Act of 1991 by rescinding job offers to applicants whose post-offer medical examinations revealed they had disabilities, as in EEOC v. Dolgencorp, No. 17-01649 (N.D. Al. filed Sept. 25). The suit, filed in the U.S. District Court for the Northern District of Alabama, alleges Dollar General discriminated against a job applicant and a class of applicants with vision difficulties when it failed to hire them for warehouse positions. After receiving a job offer, the individual applicant’s offer was rescinded when it was revealed that the applicant had monocular vision. Dollar General disqualified the applicant from the job because its standard required its applicants have at least 20/50 vision in both eyes. The EEOC maintains that Dollar General’s refusal to hire the applicant, and others with vision difficulties, constituted discrimination on the basis of disability since Dollar General’s qualification standards and selection criteria operated as blanket policies that went beyond the essential job functions and unlawfully screened out qualified individuals.
Although the individual job applicant’s medical issue was vision difficulties, in Dolgencorp the EEOC expanded the lawsuit to target some of Dollar General’s other hiring policies related to medical issues and examinations. For example, the EEOC alleges Dollar General unlawfully screened out people whose blood pressure exceeded 160/100. The EEOC charges that this and other standards screened out applicants with a variety of conditions even when those impairments would not prevent the applicant from safely performing the job. In addition, the EEOC also alleges that during the medical examinations, applicants were unlawfully asked to provide detailed information about their family medical history, including answering questions about family incidences of cancer, heart disease and diabetes.
Both Norfolk Southern and Dolgencorp serve as examples of how a complaint to the EEOC that may begin with one individual can develop into a detailed examination of the entirety of an employer’s hiring policies, practices, and decisions. The EEOC’s investigation may expand to encompass policies and hiring decisions unrelated to the original individual’s particular circumstances, leaving an employer to defend multiple employment policies and decisions. Based on the focus of the EEOC’s current strategic enforcement plan and the recent litigation the EEOC has initiated both here in Pennsylvania and in other parts of the country, employers should be mindful of their own hiring policies and practices. In particular, employers should examine any policies or practices that relate to medical issues, physical qualifications, reasonable accommodation, medical examinations or questionnaires, and employees or applicants undergoing treatment for drug addiction. The related hiring policies and actions that are permissible under the ADA are limited and may depend upon an employer’s industry and the specific duties of the job in question. An employer can reduce the potential that it will be the future focus of an EEOC lawsuit or investigation regarding hiring policies, practices or decisions by pre-emptively identifying and mitigating areas of concern, in conjunction with providing related training to all individuals with hiring authority.
*Reprinted with permission from the 11/9/17 issue of The Legal Intelligencer. © 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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The PIOGA Press
(by Keith J. Coyle)
Howard R. Elliott was officially sworn in on October 30 as the new administrator of the Pipeline and Hazardous Materials Safety Administration (PHMSA). Administrator Elliott, who spent four decades in the freight rail industry and received a lifetime achievement award from the Association of American Railroads for hazardous materials transportation safety, is well positioned to lead the federal agency that administers the nation’s hazardous materials transportation safety program. However, his tenure is likely to be defined, at least in the near term, by how he handles two significant pipeline safety rulemaking proceedings that PHMSA initiated during the previous administration.
Pipeline Safety: Safety of Hazardous Liquid Pipelines, PHMSA-2010-0229
In October 2015, PHMSA issued notice of proposed rulemaking (NPRM) that contained significant changes to the hazardous liquid pipeline safety regulations in 49 C.F.R. Part 195. The proposed changes included requiring operators of gravity lines and unregulated rural gathering lines to submit certain reports; requiring inspections of pipelines in areas affected by extreme weather, natural disasters and other similar events; requiring periodic assessment of pipelines not already subject to the integrity management (IM) program regulations; requiring operators to have leak detection systems on non-IM pipelines; establishing more stringent pipeline repair criteria; and requiring operators to make pipelines in high consequence areas (HCAs) capable of accommodating inline inspection tools within 20 years, unless the pipeline’s construction would not permit that accommodation.
PHMSA received more than 100 comments on the NPRM, including from several pipeline industry trade organizations and companies. These industry commenters expressed significant concerns with many aspects of the NPRM. The American Petroleum Institute (API) also submitted a third-party cost-benefit analysis of the proposals, which indicated that the total annualized costs would exceed $600 million, more than 25 times the $22.4 million estimate that PHMSA provided in its preliminary regulator impact analysis.
In February 2016, PHMSA presented the NPRM to the Liquid Pipeline Advisory Committee (LPAC), the federal advisory committee that reviews PHMSA’s rulemaking proposals for hazardous liquid pipelines. The LPAC recommended that PHMSA make certain changes to the NPRM’s proposals. Following the LPAC meeting, PHMSA received additional input from the Office of Management and Budget (OMB) about the lack of supporting data and potential economic impacts of the NPRM.
On January 13, one week before the inauguration of President Donald J. Trump, PHMSA released the pre-publication version of the final rule, which was not yet legally effective. PHMSA did not include all of the NPRM’s proposals in the pre-publication version of the final rule. For example, PHMSA did not require operators of regulated rural gathering lines to conduct periodic pipeline assessments or install leak detection systems, and did not impose more stringent repair criteria and remediation deadlines for non-IM pipelines. PHMSA made these and other changes to address concerns raised by LPAC, OMB and commenters.
On January 20, shortly after President Trump’s inauguration, the White House issued a memo imposing a temporary moratorium on most regulatory actions. The memo indicated that any final rules awaiting publication by the Office of Federal Register (OFR) should be withdrawn and returned to the originating agency for further review. PHMSA’s Part 195 final rule, which had not yet been published by the OFR, was returned to the agency for further review under the terms of that memo.
According to the Department of Transportation’s latest significant rulemaking report, PHMSA expects to resubmit the Part 195 final rule to the secretary of transportation for approval this December. The secretary’s office is expected to complete its review and resubmit the final rule to OMB for approval in January 2018. If these projections hold, publication of the final rule in the Federal Register is expected to occur in late April.
Pipeline Safety: Safety of Gas Transmission and Gathering Pipelines, PHMSA-2011-0023
In April 2016, PHMSA issued an NPRM that proposed extensive changes to the safety standards for gas transmission and gathering lines in 49 C.F.R. Part 192 and the federal reporting requirements in 49 C.F.R. Part 191. To address certain mandates in the 2011 reauthorization of the Pipeline Safety Act and related National Transportation Safety Board safety recommendations, PHMSA proposed new requirements for verifying the maximum allowable operating pressure and materials used in onshore steel gas transmission lines. PHMSA also proposed new requirements for conducting integrity assessments of certain transmission lines in moderate consequence areas; new corrosion control, pipeline repair and recordkeeping requirements; and changes to the integrity management requirements for gas transmission lines in high consequence areas.
In addition to the proposals for gas transmission lines, PHMSA proposed significant changes to the regulations for onshore gas gathering lines as well, primarily to address the growth of new pipeline infrastructure in the nation’s shale plays. The proposed changes included new definitions for determining what qualifies as an onshore gas gathering line, new safety standards for regulated onshore gas gathering lines, which would apply to certain historically exempt onshore gas gathering lines in rural locations, and new reporting requirements for all gas gathering lines, whether regulated or not.
PHMSA received more than 400 comments on the NPRM, including from numerous pipeline industry trade organization and companies. As part of its comments, API submitted a thirdparty cost-benefit analysis of the proposed rules. The analysis found that PHMSA made numerous errors in developing the preliminary regulatory impact analysis for the NPRM, and that the agency overestimated the benefits of the proposed rules by approximately $2.9 billion to $3.1 billion and underestimated the costs by approximately $32.8 billion.
In January, PHMSA held an initial meeting of the Gas Pipeline Advisory Committee (GPAC), the federal advisory committee that reviews its gas pipeline rulemaking proposals, to begin considering the NPRM. PHMSA held another GPAC meeting to continue reviewing the NPRM’s gas transmission line proposals in June and has scheduled a follow-up meeting for December. While not yet announced, PHMSA has indicated that the agency will hold additional GPAC meetings in 2018 to consider the gas gathering proposals and other aspects of the NPRM. According to the Department of Transportation’s latest significant rulemaking report, PHMSA expects to issue a final rule in August 2018. That schedule assumes that PHMSA will present the final rule to the secretary’s office for consideration in March, a timeline that seems very unlikely given the current pace of the GPAC’s review of the NPRM.
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Best Lawyers
(by Joseph K. Reinhart and Meredith Odato Graham)
Government agencies tasked with reviewing energy projects may take a harder look at anticipated greenhouse gas emissions following recent federal court decisions that call for a broader scope of environmental review. In a 2–1 ruling issued August 22, 2017, a panel of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) vacated a decision by the Federal Energy Regulatory Commission (FERC) to approve a major interstate pipeline project, holding that FERC failed to adequately consider the greenhouse gas emissions that will result from burning the natural gas in downstream power plants. (See Sierra Club v. FERC, D.C. Cir., No. 16-1329.) The D.C. Circuit faulted FERC’s project review under the National Environmental Policy Act of 1969 (NEPA), which requires federal agencies to evaluate the environmental and related socioeconomic impacts of proposed actions prior to making decisions. Although FERC addressed climate change in its NEPA review, the agency declined to engage in what it referred to as “speculative analyses” concerning the “relationship between the proposed project and upstream development or downstream end-use.”
In remanding the case to FERC, the D.C. Circuit held that FERC should have either quantified the downstream greenhouse emissions that will result from burning the natural gas being carried by the pipelines or explained in more detail why it could not be done.
Without estimating and quantifying the project’s greenhouse gas emissions and comparing them to regional emission reduction goals; for example, the D.C. Circuit said it would be impossible for FERC and the public to engage in the kind of meaningful review required by NEPA.
A recent decision in the mining context signals that climate change concerns are complicating more than just the pipeline projects. On August 14, 2017, a Montana federal judge ruled that the U.S. Office of Surface Mining (OSM) unreasonably limited the scope of its NEPA review in support of a coal mine expansion project, because OSM failed to sufficiently evaluate the indirect and cumulative effects of coal transportation, coal combustion, and greenhouse gas emissions. (See Montana Elders for a Livable Tomorrow v. OSM, D. Mont., No. 9:15-cv-00106.)
These cases and others like them present a challenging question for energy sector projects: to what extent should climate change be incorporated into environmental reviews? Climate change is a hotly debated topic with global reach and long-term consequences. How far in time and space may or must an agency go when evaluating greenhouse gas emissions? At what point will the inquiry end?
Another key question is: what metric should reviewing agencies use to measure climate impacts? In March of this year, President Donald J. Trump signed an executive order entitled, “Promoting Energy Independence and Economic Growth,” which (among other things) withdrew the Social Cost of Carbon tool used to measure the harm of emissions in dollar amounts. It was deemed “no longer representative of governmental policy.” The executive order likewise disbanded the interagency working group that developed the tool.
A lack of consensus regarding the appropriate standard for agency review creates uncertainty for the energy industry. It also puts permitting agencies in the difficult position of having to develop an administrative record that can withstand judicial scrutiny, a job that can entail multiple years of data collection, consultation, and assessment. Courts are left with significant discretion to decide whether an agency’s environmental review missed the mark. Meanwhile, public interest groups like Sierra Club are increasingly active in challenging permitting decisions based upon greenhouse gas implications of fossil fuel development
Many environmental permitting decisions implicate both federal and state agencies. For example, an energy project that will impact water bodies in Pennsylvania may trigger joint review by the Pennsylvania Department of Environmental Protection and the U.S. Army Corps of Engineers. If climate change is a project risk that must be studied exhaustively, which agency will decide when enough is enough? Given the many uncertainties and variables associated with evaluating the potential impact of greenhouse gas emissions on climate change, energy companies are likely to face daunting challenges in preparing permit applications if reviewing courts continue to apply the standards articulated in the Sierra Club and Montana Elders decisions.
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The PIOGA Press
On June 20, the Pennsylvania Supreme Court issued a decision in Pennsylvania Environmental Defense Foundation v. Commonwealth (PEDF) rejecting the long-standing test for analyzing claims brought under the Environmental Rights Amendment (ERA) contained in Article I, Section 27 of the Pennsylvania Constitution. In its decision, the court set aside the three-part test that was utilized in Payne v. Kassab and replaced it with a standard based on “the text of Article I, Section 27 itself as well as the underlying principles of Pennsylvania trust law in effect at the time of its enactment.” The court did not, however, provide a definitive test to be applied in the permitting context. On August 15, the Pennsylvania Environmental Hearing Board issued its first opinion interpreting and applying the new ERA standard in the permit appeal context. Other matters before the board raise claims under the ERA, the resolution of which will shape the contours of this evolving area of law.
Center for Coalfield Justice and Sierra Club v. DEP
In Center for Coalfield Justice and Sierra Club v. DEP, No. 2014-072-B, the Center for Coalfield Justice (CCJ) and Sierra Club filed third party appeals arguing that, in addition to violating the Clean Streams Law and the Mine Subsidence Act, the Department of Environmental Protection violated the ERA by issuing two longwall mining permit revisions to Consol Pennsylvania Coal Company, LLC. The first permit revision, Revision No. 180, allowed Consol to expand its longwall mining operation into areas adjacent to and underlying Ryerson Station State Park. Revision No. 180 specifically precluded Consol from mining under the Polen Run and Kent Run streams. The second permit revision, Revision No. 189, authorized Consol to conduct longwall mining under Polen Run. CCJ and Sierra Club claimed both revisions violated the ERA because the mining operations would impact the flow of the streams.
In a decision authored by Judge Steven Beckman, the board discussed the PEDF decision and applied a two-prong test based on the Pennsylvania Supreme Court’s opinion. Under the first prong, the board considered whether the department’s action protected the rights granted to Pennsylvania citizens under the ERA. The ERA provides for: (i) the right to clean air and pure water, and to the preservation of natural, scenic, historic and aesthetic values of the environment; and (ii) common ownership by the people, including future generations, of Pennsylvania’s public natural resources. To determine whether the rights were adequately protected, the board analyzed whether the department considered the potential environmental effects of its permitting action and whether that action was likely to cause, or in fact did cause, unreasonable degradation or deterioration of the protected environmental resource. Where a potential impact was identified, the board then considered whether the impact was unreasonable. Under the second prong, the board considered whether the department complied with its trustee duties by prohibiting an unreasonable degradation, diminution and depletion of Pennsylvania’s public natural resources and by acting affirmatively to protect the environment.
The board first held that Revision No. 189 violated the ERA because the revision did not comply with the Clean Streams Law and the Mine Subsidence Act, stating “at a minimum, a Department permitting action that is not lawful under the statutes and regulations in place to protect the waters of the Common wealth, cannot be said to meet the Department’s trustee responsibility under Article I, Section 27 and is clearly a state action taken contrary to the rights of citizens to pure water.” Applying the foregoing test, the board held that the Revision No. 180 issuance did not violate the ERA. Specifically, the board held that the department sufficiently considered the potential impact of Consol’s longwall mining operations, as evidenced by the multiple permit revisions, public hearing and comment period, and preclusion of mining under certain streams. The board further held that a temporary interruption of streamflow resulting from the mining permitted by Revision No. 180 was not unreasonable because those impacts were temporary and limited as compared to the benefits of the longwall mining industry on the general welfare and prosperity of Pennsylvania citizens. Finally, the board held that the department satisfied its trustee duties by acting to conserve and maintain the two streams under which it precluded Consol from mining. Consol appealed the decision to the Commonwealth Court on September 14, but the briefing has not yet begun.
Siri Lawson v. DEP and Hydro Transport LLC
On July 6, Warren County resident Siri Lawson appealed the department’s approval of Hydro Transport LLC’s plan to spread production or treated brine from conventional oil and gas operations for dust management on roads in Sugar Grove and Farm – ington townships in Warren County. She claims the department violated the ERA because the brine spreading approval omits operating requirements that are reasonably likely to protect the waters or the air of the Commonwealth. This appeal is pending with the board, with discovery to be completed by November 6. The case is docketed at 2017-051-B.
Delaware Riverkeeper Network v. DEP
On October 13, 2014, Delaware Riverkeeper Network, Clean Air Council, David Denk, Jennifer Chomicki, Anthony Lapina and Joann Groman appealed six unconventional drilling permits that were issued to R.E. Gas Development in Middlesex Township, Butler County. Appellants claimed the issuance of the permits violated the ERA because: (i) the wells were to be sited within a residential-agricultural zone that is an unsuitable area for natural gas development; and (ii) they authorized a nuisance. The board heard the case in December 2016. Post-hearing briefing closed in April 2017. On July 21, the board ordered the parties to submit supplemental post-hearing briefs discussing the new ERA standard under PEDF. In their post-hearing brief, appellants argued that PEDF requires the board to apply strict scrutiny to determine whether: (i) there is an intrusion of a fundamental right; (ii) if there is an intrusion, whether the department has a compelling interest in the intrusion; (iii) whether the department used the least restrictive means to achieve its purpose; and (iv) whether the department’s purpose is consistent with the ERA. The department argued that the PEDF decision did not change the burden of proof and, under PEDF, the board must determine: (i) whether the issuance of the permits unreasonably impaired the appellants’ rights under the ERA; and (ii) whether the issuance of the permits caused unreasonable degradation, diminution, and depletion of Pennsylvania’s public natural resources. The appeal is docketed at 2014-142-B.
Friends of Lackawanna v. DEP and Keystone Sanitary Landfill
On May 7, 2015, appellant Friends of Lackawanna appealed an operating permit renewal issued to Keystone Sanitary Landfill, arguing that the renewal violated the ERA because it would impact groundwater and surface water. The hearing was held in January 2017. On June 27, the board allowed the parties to submit supplemental post-hearing briefs discussing the PEDF decision. In its supplemental brief, the appellant argued that the board must apply strict scrutiny and consider the following factors in assessing whether the department complied with the ERA: (i) whether degradation will occur; (ii) whether “some individuals benefit at the expense of others’ right to a healthy place to live;” (iii) whether the action will increase the “inequity of environmental burdens” encountered by the community; and (iv) whether there is sufficient information to determine the impacts. The department argued that the board must assess whether the department’s actions “unreasonably impaired” the rights granted under the ERA. The case is docketed at 2015-063- L.
What’s next?
The Center for Coalfield Justice & Sierra Club v. DEP appeal will be the first opportunity for the Commonwealth Court to review the board’s application of the PEDF decision, in this case to a permitting decision by the department. While that appeal remains pending, the board’s opinion will serve as the framework by which the cases summarized above and others will be adjudicated.
For more information regarding interpretation of the ERA in matters before the Environmental Hearing Board, contact Jean M. Mosites at 412-394-6468 or jmosites@babstcalland.com or Shannon DeHarde at 412-394-5432 or sdeharde@babstcalland.com.
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The Legal Intelligencer
On July 6, the Pennsylvania Commonwealth Court rendered a decision in Board of Commissioners of Cheltenham Township v. Hansen-Lloyd, 166 A.3d 496 (Pa Commw. Ct. 2017), addressing several significant land use issues, most notably that the submittal of a mandatory sketch plan creates a vested right to develop the subject property pursuant to the ordinance provisions in effect at the time the plan is submitted. The Commonwealth Court also ruled that absent ordinance language to the contrary, a municipal boundary line is not considered the property line for setback purposes, and although zoning hearing boards may not provide advisory opinions in the abstract, they may interpret a zoning ordinance in direct connection with an application for zoning relief.
Hansen-Lloyd owned a 43-acre property, with 10 acres being located in Cheltenham Township and the remaining acreage being located in neighboring Springfield Township. In 2008, Hansen-Lloyd submitted a mandatory “tentative sketch plan” under the township’s zoning ordinance proposing to construct an age-restricted housing development on the 10-acre portion. The township’s zoning ordinance in effect at that time permitted age-restricted housing developments on the property by special exception.
After reviewing the sketch plan, the county planning agency and the township advised Hansen-Lloyd that in addition to special exception approval it would need to obtain variances from the township’s setback regulations because the municipal boundary line dissecting its property constituted an imputed property line.
With its sketch plan actively pending before the township, from 2009 until 2015 Hansen-Lloyd attempted to negotiate a zoning ordinance text amendment with the township and neighboring Springfield Township to permit a single-family development on the property. If both the township and Springfield Township agreed to the amendment, Hansen-Lloyd would withdraw its plan for age-restricted housing and pursue a single-family development instead.
While negotiations with Hansen-Lloyd were ongoing, the township repealed the provisions of its zoning ordinance permitting age-restricted housing developments on the property, but reinstated them in 2012. However, the 2012 amendment imposed more stringent dimensional criteria on such developments.
In early 2015, the township agreed to amend its zoning ordinance to permit single-family developments; however, Springfield Township did not. Consequently, Hansen-Lloyd abandoned its single-family development proposal and decided to move forward with its originally proposed age-restricted housing development.
Based on the county’s and the township’s advice, in May 2015 Hansen-Lloyd submitted an application to the township’s zoning hearing board requesting special exception approval to construct the age-restricted housing development, and an interpretation that the municipal boundary line dissecting the subject property did not constitute a property line for purposes of calculating setbacks or, in the alternative, a variance from those setback requirements. Hansen-Lloyd sought its relief under the township’s 2008 zoning ordinance (i.e., the zoning ordinance in effect at the time of its original sketch plan).
The board held a public hearing on Hansen-Lloyd’s application, during which the parties disputed which version of the township zoning ordinance governed the application. Hansen-Lloyd argued the less stringent 2008 version controlled because it was the ordinance in effect when it submitted the mandatory sketch plan. Conversely, the township argued the more stringent 2012 version controlled because it was the ordinance in effect when Hansen-Lloyd submitted its zoning application.
Agreeing with Hansen-Lloyd, the board granted the requested relief. The board, relying on Section 508(4) of the Pennsylvania Municipalities Planning Code, 53 P.S. Section 10508(4) (MPC), concluded that Hansen-Lloyd’s zoning application was protected against ordinance changes enacted after submittal of its sketch plan and therefore the less stringent 2008 zoning ordinance governed. The board also concluded that the municipal boundary line dissecting the subject property did not constitute a property line from which setbacks must be calculated.
The township appealed to the trial court, which affirmed. The township then appealed to the Commonwealth Court. Before the Commonwealth Court, the township advanced three arguments.
First, the township asserted that although the 2008 zoning ordinance controlled the processing of Hansen-Lloyd’s sketch plan, the 2012 zoning ordinance controlled the processing of its zoning application. In support of this position, the township argued Section 508(4) of the MPC only shielded Hansen-Lloyd’s sketch plan submittal, not its subsequently filed zoning application, from adverse changes in the township’s zoning ordinance. The township asserted that to interpret Section 508(4) otherwise would render Section 917 of the MPC, 53 P.S. Section 10917, as mere surplusage.
Section 508(4) is located in Article V of the MPC, which is titled “Subdivision and Land Development.” That section reads in pertinent part as follows:
Changes in the ordinance shall affect plats as follows: From the time an application for approval of a plat, whether preliminary or final, is duly filed as provided in the subdivision and land development ordinance, and while such application is pending approval or disapproval, no change or amendment of the zoning, subdivision or other governing ordinance or plan shall affect the decision on such application adversely to the applicant and the applicant shall be entitled to a decision in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed …
Section 917 is located in Article IX of the MPC, which is titled “Zoning Hearing Board and Other Administrative Proceedings.” That section reads in pertinent part as follows:
When an application for either a special exception or a conditional use has been filed with either the zoning hearing board or governing body … and the subject matter of such application would ultimately constitute either a land development … or a subdivision … no change or amendment of the zoning, subdivision or other governing ordinance or plans shall affect the decision on such application adversely to the applicant, and the applicant shall be entitled to a decision in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed.
Based on the foregoing language, the township argued the logical interpretation of both sections was to apply Section 508(4) only to plats (i.e., subdivisions and land development applications, and not later-filed application seeking zoning relief that relate to the plats), and to apply Section 917 to all applications seeking zoning relief.
The township also challenged the board’s determination that the municipal boundary line dissecting the subject property was not a property line for purposes of measuring setbacks and its authority to provide an “advisory opinion” that no setback relief was necessary absent a request for specific zoning relief.
Finding all three of the township’s arguments unpersuasive, the Commonwealth Court affirmed the trial court’s decision. In doing so, the Commonwealth Court first explained that where a mandatory step in a municipality’s land development process is the submittal of a sketch plan, the date that an applicant submits such a plan is the date on which the applicant obtains a vested right to develop its property in accordance with the municipality’s ordinances in effect at that time.
Moreover, the court found that the clear and unambiguous language of Section 508(4), which provides protection against adverse ordinance changes enacted post-submittal of a plan, extends to applications for zoning relief when such relief is necessary to effectuate the proposed development. The court explained that both Sections 508(4) and 917 can be reasonably and consistently interpreted depending on which application (i.e., subdivision and land development or zoning) is filed first. “If an applicant first files a subdivision or land development application, Section 508(4) applies; if an applicant first files an application for zoning relief, Section 917 applies.” Based on the foregoing, the court found that because Hansen-Lloyd first submitted its mandatory sketch plan, and the requested zoning relief is necessary to effectuate that plan, Section 508(4) applied. Accordingly, Hansen-Lloyd obtained a vested right in the development of its property under the township’s less stringent 2008 zoning ordinance.
With respect to the township’s second and third arguments, the Commonwealth Court ruled that “absent an ordinance provision or definition to the contrary, a municipal boundary line does not constitute a property line for purposes of setbacks ” and although the Board may not provide an advisory opinion in the abstract, it was within its authority to interpret the zoning ordinance in direct connection with Hansen-Lloyd’s application for zoning relief.
Blaine A. Lucas is a shareholder and Alyssa E. Golfieri an associate in the Public Sector Services and Energy and Natural Resources Groups of the Pittsburgh law firm of Babst, Calland, Clements & Zomnir. In these capacities, Lucas coordinates the firm’s representation of energy clients on land use and other local regulatory matters. He also teaches land use law at the University of Pittsburgh School of Law. Golfieri focuses her practice on zoning, subdivision, land development, code enforcement and public bidding matters. Contact them at blucas@babstcalland.com and agolfieri@babstcalland.com.
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The Department of Commerce should balance the Trump administration’s goal of expanding American manufacturing with the administration’s priority of strengthening US energy infrastructure, explains Johanna H. Jochum. Esq., Babst Calland, USA.
On 24 January 2017, US President Donald Trump signed a presidential memorandum on the use of American steel in domestic pipeline projects, which could have far reaching consequences for the global energy market. While not imposing any immediate legal requirements, the Construction of American Pipelines Memorandum (Memorandum) directed the Secretary of the United States Department of Commerce to develop a plan that would require all new, retrofitted, repaired or expanded pipelines in the US to use materials and equipment produced in the US to the “maximum extent possible and to the extent permitted by law.” The Memorandum imposed a six month deadline for the Secretary to submit the plan to the President. To date, the Department of Commerce has not released the plan the public.
Unlike the more discussed ‘Buy American and Hire American’ Executive Order No. 13788 that was issued several months afterwards, the Memorandum was specific in its application to pipelines. The pipeline industry immediately expressed significant concerns with several aspects of the Memorandum to the Administration. On 16 March 2017, the Department of Commerce issued a request for comments on the Memorandum and provided additional clarity to certain critical aspects of the proposal.
In response, the Department of Commerce received more than 90 comments from a variety of stakeholders during the three week comment period: pipeline operators, steel manufacturers, trade organisations and foreign governments. The comments ranged from enthusiastic support to complete dismissal, but nearly all commenters shared some amount of skepticism that such a proposal could be achieved.
Manufacturing capacity
One of the primary concerns identified by industry commenters was manufacturing capacity. In its request for comments, the Department of Commerce defined a pipeline as “any conduit of pipe used for conveyance of gases, liquids or other products … [including] pipes, valves, fittings, connectors and other iron and steel assemblies or apparatus attached to the pipe.” In short, a highly inclusive definition. But according to a May 2017 ICF study, 77% of the steel used in line pipe in the US in recent years was imported in finished or semi-finished form. Therefore, domestic manufacturers would have to more than double their production output in the case of a ‘Buy American’ mandate discussed in the Memorandum.
In response to the Memorandum, energy companies stated that it would be impossible for steelmakers to increase their production capacity to meet such a demand
in the near future, especially with regards to specialty piping. For instance, one pipeline operator noted that there was only one US pipe mill capable of supplying grade X70 thick walled piping needed to address the design requirements for pipelines in the Arctic. Another operator stated that its three domestic pipeline projects had effectively “consumed the entire domestic capacity” of US steel production that year, and the only “viable suppliers” for many pipeline projects were located outside of the US. Nearly all operators commented that implementing a ‘Buy American’ steel pipeline mandate would not be possible, at least not in its current form.
On the other hand, most domestic manufacturers and their associations expressed at least tentative support for the Memorandum, noting that the potential for meeting the demand exists. According to Coalition for a Prosperous America, the US produced 137 million tpy of steel at its peak, but the current annual output is only 87 million t. In that same vein, the steel industry is currently operating below 75% capacity and the American steel workforce has been reduced by 14 000 in the last two years. Some steelmakers noted that although they had cut back capacity due to reduced demand for domestic steel, they would be able to ramp up production to meet increased demand under a ‘Buy American’ mandate.
Semi-finished steel
The Memorandum stated that semi-finished imported steel or iron would not be considered as “produced in the US” as far as pipeline production was concerned. This provision generated mixed reactions from stakeholders. Many commenters saw the provision as closing a significant loophole in steel imports; one company touted the provision as providing “certainty” for investors. On the other hand, steel mills strongly disagreed with that part of the Memorandum’s proposal. One steel mill described the mandate as “devastating,” noting that it would “virtually eliminate” its steel mill (and many other steel mills) from the pipeline market. Manufacturers and trade organisations expressed similar concerns.
Some commenters suggested that the Administration borrow certain practices from other US federal ‘Buy American’ programmes, which require steel to be ‘substantially transformed’ in the US rather than smelted. Others suggested replicating the portions of the Federal Highway Administration ‘Buy America’ programme for highways constructed using federal funds – particularly the waiver and notice and comment opportunity provisions – to allow some leeway for steelmakers to use semi-finished steel.
Economic considerations
The Memorandum’s mandate has the potential to create significant ripples in the US economy and beyond. The May 2017 ICF study predicted that the price of pipelines would increase by nearly 25%, resulting in additional costs of up to US$76 million. According to the study, “an immediate implementation of stringent domestic content requirement for line pipe, fittings and valves would mean that most oil and gas pipeline construction projects would be delayed or stalled.” Many commenters echoed these concerns, urging the Department of Commerce to consider the potential ‘domino effect’ that could occur if pipeline operators could not procure their materials and equipment internationally.
As far as current pipeline projects go, many operators noted that they had already purchased foreign-made steel for planned projects and repairs, and a mandate to buy American-made steel for pipelines would hurt their investments. For instance, one company commented that it currently has more than 1.5 million ft of pipe in storage for its upcoming pipeline projects. On the other hand, in a widely covered decision, the Administration determined that the Keystone pipeline would not be required to comply with any rules or regulations issued as a result of the Memorandum because it was not a “new” or “retrofitted” pipeline, but a pipeline currently “under construction.”
The mandate would likely have international economic consequences as well. Some domestic commenters dismissed this concern as a step towards US energy independence. On the other hand, the US Chamber of Commerce stated that “imposing broad tariffs or other barriers against steel imports would undermine the competitiveness of US manufacturers, incentivise offshoring and endanger more American jobs than it would protect.” Many commenters, both domestic and international, agreed. In particular, the Canadian and Mexican governments stressed their trading partnerships with the US and their desire to continue steel production as a unit in North America. Similarly, several US and Canadian manufacturing companies attempted to distinguish the economic consequences of banning low priced non-Canadian steel from disrupting an integrated US-Canada steel supply chain – one commenter even suggested modifying the definition of ‘produced in the US’ to include both US and Canadian mills. Others expressed concern about whether domestic distributors could determine the place of origin of the pipe if the distributor did not produce the pipeline, which could create a loophole in the distribution system.
Legal considerations
It is unclear if the US could legally require private parties to buy only American-made steel for pipelines. While the Administration acknowledged in the Memorandum that there may be legal limits to the Memorandum’s goal (“to the extent permitted by law”), it likely did not expect that its goal could not be legally implemented at all. Yet, such a possibility exists.
Many international commenters, such as the governments of Canada, Mexico and Australia, noted that the Memorandum’s intent to discriminate against foreign produced steel would directly violate several of the US’ international law trade obligations. For example, under the World Trade Organisation’s (WTO) General Agreement on Tariffs and Trade (GATT) Article III.4, any WTO member – including the US – may not “accord non-discriminatory treatment to all like products,” regardless of whether the origin of the products is domestic or imported. This obligation was successfully upheld in a 2006 case where the WTO Appellate Body found that China’s less favourable treatment of imported auto parts than similar domestic parts violated that GATT Article III.4 provision. As stated in an Appellate Body Report in a case involving Korean beef, to find an Article III.4 violation, “three elements must be satisfied: that the imported and domestic products at issue are ‘like products’; that the measure at issue is a ‘law, regulation, or requirement affecting their internal sale, offering for sale, purchase, transportation, distribution or use’; and that the imported products are accorded ‘less favourable’ treatment than that accorded to like domestic products.” Unlike other ‘Buy American’ mandates in US Government programmes, which fall within the Article III.8 exception of government agency procurement of products for governmental purposes, the Memorandum’s proposed mandate would apply to private and commercial purchases, and thus be subject to this test.
Whether the Department of Commerce can create a vehicle to implement the Presidential Memorandum that meets the WTO GATT Article III.4 test, as well as the US’ other legal obligations, remains to be seen. Of course, as one commenter suggested, the US could withdraw from their international agreements that present legal hurdles. However, that approach would likely carry significant consequences of its own.
Looking ahead
Given the range and content of the comments, it is unlikely that the Department of Commerce could create a plan that would accommodate the concerns of all stakeholders. In developing the required plan, the Department of Commerce should balance the Memorandum’s goal of expanding American manufacturing with the Administration’s priority of strengthening US energy infrastructure. The Department of Commerce should also ensure the plan complies with US’ legal obligations under international trade agreements, keeping in mind the plan’s potential effects on the global market.
For additional information about developments in this article, contact law firm Babst Calland’s Washington D.C office.
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StateCollege.com
If you’re ready to learn about everything Centre County has to offer, visit the fourth annual Super Fair of Centre County Resources on Saturday for a showcase of all the available services the county provides its residents.
The fair, which runs from 10 a.m. to 2 p.m., is held at the Nittany Mall. It gives Centre County’s community the opportunity to learn about human service agencies available to them. Hosted by the Centre County Council for Human Resources, it will feature more than 100 agencies residents can call on for help.
The fair began as a way to create a one-stop shop for information and to highlight the importance of community resources and volunteering.
“Celebrating its fourth year, this one-of-a-kind event allows human service agencies and other exhibitors a chance to promote their products and services, and to get the word out about available volunteer opportunities,” the event’s press release reads.
Some of the services available through Centre County being highlighted at the fair include aging and disability resources, mental health resources, housing services and transportation services. The American Red Cross, Habitat for Humanity and the Mid-State Literacy Council are a few of the vendors scheduled to attend.
The Super Fair is sponsored by the CCCHS, AmeriServ Bank, CATA, the Centre County Gazette, Coventry Health Care, Home Nursing Agency, PA Link to Aging and Disability Resources and Wynwood House. For more information, visit www.theccchs.org.
PROGRAM:
■ 10-10:30 a.m. — “Veterans Benefits” Participants will hear from Brian Querry, director of Centre County Veterans Affairs, about the benefits available to those who have served in the armed forces. They will also learn who is eligible for which services and what is considered a service connected condition.
■ 10:30-11 a.m. — “Medicare 101” Presented by Jane Taylor of the Centre County Office of Aging, this event will explain the basic principles behind Medicare, how to choose a drug plan and what help is available. It will also explain the differences between Medicare Advantage and Medigap.
■ 11-11:30 a.m. — “Centre Volunteers in Medicine — Free Health Care Services Available” Clinical services director for Centre Volunteers in Medicine, Kristi Mattzela, will give this talk about what services beyond medicine the health care system can provide residents with in Centre County.
■ 11:30-noon — “Estate Planning” This seminar is presented by Betsy Dupuis, an attorney with Babst Calland in State College. Her practice focuses on real estate law and she has been practicing since 1997. This part of the day will help educate people on the ways they can prepare to protect their estates as they get older and what is the best option for their unique situations.
■ Noon-1 p.m. — “Understanding Medication Assisted Treatment for Opioid Use Disorders: What, Who, When and Why” Sponsored by the Heroin and Opioid Education and Prevention Initiative, or HOPE, this talk will focus on the largest drug abuse problem in decades that has been hitting closer and closer to home. Presented by Karlene Shugars, program specialist at the Centre County Drug and Alcohol Office, it will help people better understand the use of medicine and drugs in the treatment of opioid addictions.
■ 1-2 p.m. — “Healthy Cooking and Living Our Senior Years” Presented by the Geriatric Interest Network and Jane Wilson, an educator and facilitator with the group, this last piece of the day will show elderly residents how to live healthy and enjoy their lives as they age.
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Automotive News
By: Eric Kulisch
WASHINGTON — From a regulatory standpoint, September has been a good month so far for U.S. automakers and tech companies racing to develop autonomous vehicles.
The House of Representatives passed the SELF DRIVE Act, the Senate Commerce Committee floated a draft bill that soon will become an official proposal, and the Department of Transportation issued revised industry guidance on how the federal government will treat safety compliance in the brave new world of driverless cars.
The three efforts reflect the politically conservative tendencies of the Trump administration and Congress in projecting a hands-off approach to establishing a legal and regulatory framework for self-driving vehicles, and they promise to deliver much of the regulatory certainty and consistency sought by the industry.
Safety groups complain that the proposals give the industry too much leeway to ignore risks, but some experts say the government approach recognizes that private-sector competition will drive safety improvements faster than regulators who might overlook potential solutions when prescribing rules.
“You’re seeing a light regulatory touch to encourage innovation and prevent the government from picking winners and losers,” said Tim Goodman, a transportation safety attorney at Babst Calland. He also was assistant chief counsel for enforcement at the National Highway Traffic Safety Administration until April 2016.
“Pursuing a market-based approach allows companies to take advantage of efficiencies” and promote safety, he added.
For the full article, click here.
American College of Environmental Lawyers
By: Dean A. Calland
David Van Slyke recently posted an excellent discussion about the slow progress of EPA’s efforts to implement its RCRA 2020 initiative goals under the Government Performance Results Act and looming budget cuts that would slow the pace even more. However, a trend appears to be emerging that may help counter this RCRA corrective inaction.
The current statistics on remedial progress at RCRA corrective action sites are disappointing. EPA estimates that the average RCRA Facility Investigation (RFI) takes 10 years, with some taking up to 19 years. The RFI process usually constitutes up to 80 percent of the time in a given cleanup, and remedy selections are taking an average of 6 years, and may take as long as 8 years, according to information from Region 3, Region 7 and RCRAInfo analysis. RCRA Facilities Investigation Remedy Selection Track: A Toolbox for Corrective Action. However, we have witnessed a positive trend over the past several years that may assist site remediators in recovering some of the time lost due to the continued reduction in resources for this program.
There appears to be an emerging willingness by several EPA regions and delegated states to incorporate RCRA FIRST principles into corrective action consent orders that can save significant time and money compared with the traditional approach. RCRA FIRST is the acronym for “Resource Conservation and Recovery Act Facilities Investigation Remedy Selection Track.” As Barnes Johnson, Director of the Office of Resource Conservation and Recovery recently wrote, RCRA FIRST was designed to use increases in efficiency and effectiveness to “reduce the planning time [of RCRA corrective action cleanups] by as much as 50-75%, resulting in faster cleanup decisions and facilitating the redevelopment of corrective action facilities.” RCRA FIRST was an effort to address the root causes of delay such as unclear or non-specific investigation or cleanup objectives and the lack of specific processes to elevate differences among stakeholders early in the project. As part of this effort, EPA has published a Toolbox for Corrective Action which is designed to arm both respondents and the agencies with practical recommendations to help achieve more efficient investigation decision-making and remedy selection.
The willingness of EPA regions and delegated states to discuss these approaches varies considerably; however, one of the specific reasons that caused EPA to get serious about corrective action reforms was their recognition that agency manpower is likely to continue to shrink over time, and that the traditional approach was wasteful of agency resources. Some specific examples of how RCRA FIRST has been used to forge consensus on difficult issues are listed below.
- Up front establishment of a Corrective Action Framework (CAF) that describes the parties’ understandings regarding future investigation and remediation work at the facility borne out of an on-site meeting with agency site managers and their superiors. CAF Meeting Agenda; CAF Template. The CAF is not a formal agreement but it can be referenced and attached to the consent order for both parties to build upon during the subsequent work;
- Willingness to eschew the traditional RFI study at sites with older data sets in favor of a limited scope RFI that solely addresses identified and agreed upon data gaps;
- Allowance for the respondent to by-pass the RFI Workplan and instead roll the existing characterization data and some limited additional sampling results directly into the RFI Report;
- In appropriate circumstances, elimination of the Current Conditions Report and Preliminary Conceptual Site Model steps in the process;
- In certain limited instances, an agreement to skip the obligation to submit a Corrective Measures Study (CMS) altogether, in favor of moving directly to the Statement of Basis, thereby saving considerable time and money. This is more likely to happen when a presumptive remedy is being sought by the Respondent or when there is an identified reuse for the property that will bring new uses and jobs to the site;
- Agreement to the submission of a limited Corrective Measure Study that only addresses potential corrective measures that are demonstrated, cost-effective or presumptively applicable.
- Placing pressure on all participants to use quarterly team meetings and pre-discussed decisional criteria for decision-making in place of the extremely time consuming “redo loop” of written comment and response on technical reports and to bring impasses to the attention of decision-makers earlier (the Evaluation Process);
- Willingness to terminate older consent orders and unilateral orders and consolidate all applicable requirements into one operative corrective action instrument;
- An agreement that EPA managers coordinate with state agencies where both have ongoing jurisdiction (e.g., when EPA has responsibility for corrective action and the state has responsibility under their UST program) to avoid duplication of effort and cost for the Respondent;
- A formal acknowledgement by EPA that Respondent may request a written determination that Respondent has met the consent order’s requirements for just a portion of the facility, particularly if necessary or helpful for a sale or innovative reuse of the subject parcel.
In this era of ever-shrinking agency resources, it is incumbent on all stakeholders at RCRA corrective action sites to seriously consider these new techniques that can make the RCRA corrective action process more time efficient and less costly.
For the full article, click here.
PA Business Central
A recent report indicates that the natural gas industry should expect continued economic gains despite remaining disapproval from local community and regulatory organizations.
Written by multiple energy and natural resource attorneys from law firm Babst Calland, the report is entitled “Upstream, Midstream and Downstream: Resurgence of the Appalachian Shale Industry; Legal and Regulatory Perspective for Producers and Midstream Operators” and focuses “on issues, challenges, opportunities and recent developments in the Appalachian Basin and beyond relevant to producers and operators,” according to a press release from the firm.
The report is split up into six sections: Business issues, the changing regulatory landscape, pipeline safety legislative and regulatory developments, litigation trends, challenges and debate spawned by local laws and regulations and downstream opportunities.
“This year’s Babst Calland Report is published at an exciting time for energy in the northeastern United States. The Appalachian Basin has re-emerged to become a leading producer, prices have stabilized, pipeline projects are coming online, and the future of downstream markets is beginning to come into view. Yet, dynamism remains a big part of the story with significant acreage and assets changing hands, new entrants to the upstream and midstream markets, the evolution of energy markets and fuel mixes, and the seemingly never-ending new requirements from the federal, state and local levels of government,” said Kathryn Z. Klaber, The Klaber Group, in her preface to the report.
Production and prices
Although natural gas producers saw record low prices in 2016, the end of the year indicated a positive trend upwards that has continued into 2017.
The report predicts that “modest price stability may be achieved given the prospect of both increased pipeline capacity out of producing regions like Appalachia, as well as some national export capacity. However, it appears that relatively low prices are likely to persist for some period of time with levels of U.S. dry gas production near all-time highs through December 2017.”
According to the report, the best tactic to adapt is to continue to reduce costs and improve efficiency, while continuing to recognize and seize market opportunities when they are made available.
Despite annual natural gas production falling in the rest of the country due to low prices in 2016, last year saw increases in drilling efficiency and production in the Marcellus and Utica regions.
The past year saw a record number of bankruptcies in the industry.
According to the report, “In the 2016 calendar year, primarily due to low commodity prices, 70 North American oil and gas exploration and production companies filed for bankruptcy protection. This was a significant increase from the 44 companies that filed for bankruptcy protection in 2015. Midstream companies also succumbed to the pressure of falling prices, with 13 filing for bankruptcy protection in 2016, compared to just four filings in 2015.”
The region also experienced a large amount of mergers and acquisitions in 2016, but the report indicates that there is still opportunity for more activity for players in the region who have the finances to manage it as the past year of financial instability combined with increased efficiencies has made companies both lean and looking for a buyer.
“Deep pocket” players may continue to have opportunities to purchase assets from bankruptcy sales. Some oil and gas companies that have survived the volatile markets over the last two years have been forced to significantly cut their operating expenses, pay off debt and increase cash flow to survive market conditions. Some companies, now leaner and more productive, may be more attractive for corporate mergers and acquisitions.”
Regulatory environment
As always, the industry is caught in a regulatory flux on the local, state and federal levels.
The change from former-President Obama’s climate policies to Trump’s pro- industry stance has oil and gas firms cautiously optimistic for a future with less oversight and easier permitting, but every action has an equal and opposite reaction.
“Following the election of President Trump, numerous environmental organizations publicly stated they have seen increases in funding and are increasing personnel to oppose actions expected to be taken by the Trump administration. Environmental organizations have followed through with promises to fight the administration.”
The state regulatory climate is also keeping the industry from feeling the effects of a federally deregulated industry.
The report cites Governor Wolf’s methane rule as one example of state regulation holding strong.
“Despite the recent trend at the federal level, Pennsylvania continues to implement the methane reduction strategy launched by Governor Tom Wolf in early 2016. On February 4, 2017, DEP announced the beginning of a public comment period for an air permitting proposal that, if finalized, would result in significant changes to the status quo for oil and gas industry sources. Among other things, the proposal would narrow the scope of a longstanding air permitting exemption known as Exemption 38, such that it would not apply to new or modified unconventional well sites. Instead, unconventional operators would be required to obtain an air permit prior to constructing, modifying, or operating a well site.”
Locally, the report also indicates that communities have grown bolder as multiple studies circulate regarding natural gases ill health effects. The authors find the studies suspect, stating “none of this material is based on data of actual air emissions from unconventional natural gas development. A casual review of the material could lead to the erroneous conclusion that air emissions have not been tested; this is not, however, the case. The air quality data collected by a variety of objective parties using established monitoring and testing protocols around shale development in northeastern United States over the last six years demonstrate that shale operations are safe.”
The report does not mention the effects climate change might be having on the public’s perception of the industry. Natural gas production contributes to carbon pollution when burned and releases methane during drilling and transportation. According to the EPA, methane is more efficient at trapping radiation than carbon dioxide and has comparative impact that is more than 25 times greater over a 100-year period.
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The PIOGA Press
Federal agencies tasked with reviewing energy projects will likely take a harder look at climate change following a recent decision by the U.S. Court of Appeals for the District of Columbia Circuit. In a 2-1 ruling issued August 22, a D.C. Circuit panel vacated a decision by the Federal Energy Regulatory Commission (FERC) to approve a major interstate pipeline project, holding that FERC failed to adequately consider the greenhouse gas emissions that will result from burning the natural gas being carried by the pipelines. See Sierra Club v. FERC, D.C. Cir., No. 16-1329. The court faulted FERC’s project review under the National Environmental Policy Act of 1969 (NEPA) in a decision that has the potential to delay pipeline development across the country.
What NEPA requires
As the first major environmental law in the United States, NEPA established a broad national framework for protecting the environment. NEPA requires federal agencies to evaluate the environmental and related social and economic impacts of proposed actions prior to making decisions. It requires agencies to follow certain procedures, gather public input and take a “hard look” at various factors, but it does not require a particular outcome. NEPA can apply to a wide range of federal actions, including but not limited to permit approvals. Private companies frequently become involved in the NEPA process when they need a permit issued by a federal agency, such as FERC or the U.S. Army Corps of Engineers.
Depending on the circumstances of a project, the reviewing agency may be required to prepare a decision document known as an environmental impact statement (EIS). NEPA requires preparation of an EIS for each “major Federal action[] significantly affecting the quality of the human environment.” See 42 U.S.C. § 4332(2)(C). Decades of case law have developed around the meaning of this statutory obligation. It presents an ongoing challenge for agencies as they seek to define the scope of information that must be considered when evaluating a proposed project.
Challengers criticize FERC’s NEPA review
Pursuant to Section 7 of the Natural Gas Act, a pipeline developer must obtain a certificate of public convenience and necessity (also known as a Section 7 certificate) from FERC prior to constructing and operating an interstate natural gas pipe – line. See 15 U.S.C. § 717f. On February 2, 2016, FERC issued the Section 7 certificates for the Southeast Market Pipelines Project. Scheduled for completion in 2021, the project consists of three separate but connected natural gas transmission pipe – lines in Alabama, Florida and Georgia. One of these pipelines, Sabal Trail, is a 515-mile interstate pipeline transporting natural gas to Southeast markets, including natural gas-fired power generators in Florida.
Environmental groups and landowners opposed to the project asked FERC for a rehearing with respect to the Section 7 certificates as well as a stay of construction. FERC denied the stay and project construction began in August 2016. Shortly thereafter, on September 7, 2016, FERC denied the request for rehearing.
The landowners and environmental groups, led by the Sierra Club, petitioned the D.C. Circuit for review of FERC’s decision to approve the Southeast Market Pipelines Project. The Sierra Club argued that the NEPA analysis performed by FERC was deficient. In relevant part, the Sierra Club alleged that FERC should have considered the effects of greenhouse gas emissions from natural gas-fired power plants downstream in Florida. Although FERC discussed climate change in the EIS associated with the project, the agency declined to engage in “speculative analyses” concerning the “relationship between the proposed project and upstream development or downstream end-use.” Overall, FERC concluded in the EIS that the project “would not result in a significant impact on the environment.
The court’s decision
The court agreed with the Sierra Club, finding that “FERC’s environmental impact statement did not contain enough information on the greenhouse-gas emissions that will result from burning the gas that the pipelines will carry.” The court determined that the greenhouse gas emissions from the power plants “are an indirect effect of authorizing this project, which FERC could reasonably foresee, and which the agency has legal authority to mitigate.” Without quantifying the project’s greenhouse gas emissions and making comparisons to regional emission reduction goals, for example, the court said it would be impossible for FERC and the public to engage in the kind of informed review that is required by NEPA.
Although the court ruled in favor of FERC on all other issues presented, it ultimately vacated the Section 7 certificates and remanded the case to FERC for preparation of a new EIS. FERC must estimate the quantity of power plant emissions that will be made possible by the pipelines, or explain in more detail why such quantification cannot be done. The court also directed FERC to explain the agency’s current position on the use of a “Social Cost of Carbon” tool developed by an interagency working group to measure the harm of emissions in dollar amounts.
Judge Janice Rogers Brown authored the lone dissent, stating that FERC was not obligated under NEPA to include a discussion of downstream greenhouse gas emissions where the agency has no legal authority to prevent those environmental effects. Power plants downstream of the pipeline project are regulated by state agencies. In Judge Brown’s view, “FERC has no control over whether the power plants that will emit these greenhouse gases will come into existence or remain in operation.” If an agency lacks the authority to act on the information collected during the NEPA process, then the same agency is not required to analyze that effect in its NEPA review.
Implications for future permitting
Unless FERC seeks en banc review or an appeal of the decision, the agency is now tasked with preparing a revised EIS for the Southeast Market Pipelines Project. Interestingly, the court did not require Sabal Trail (Phase 1) to cease operation. Phase 1 of Sabal Trail began full commercial service in July 2017.
It remains to be seen how this decision may affect other pipeline projects, but it is likely that federal agencies may take an even broader approach to NEPA reviews and devote additional attention to greenhouse gas emissions. Applicants may be asked to submit more expansive and detailed information to support an agency’s analysis. Even in situations where it is not feasible to quantify indirect greenhouse gas emissions, the D.C. Circuit’s decision suggests that the agency must provide a satisfactory explanation for its feasibility determination. Finally, it is not clear if the downstream environmental effects of gas transported by a pipeline for other end uses would also be considered reasonably foreseeable.
This decision could potentially have an impact on applications for state permits as well. The State of New York has already cited the Sierra Club v. FERC decision in support of its conditional denial of water quality permits for the Valley Lateral Project, a seven-mile pipeline segment that would supply gas to a power plant. In denying the permits, the New York State Department of Environmental Conservation (NYSDEC) stated that FERC failed to account for the downstream greenhouse gas emissions in its NEPA review for the Valley Lateral Project. NYSDEC cited the Sierra Club v. FERC decision and appeared to make the denial contingent on whether FERC reopened its NEPA process for the Valley Lateral Project.
The Sierra Club v. FERC decision could also influence the broader discussion (beyond the NEPA context) about how climate change concerns play into agency decision making. The D.C. Circuit decision will likely continue to bolster environmental groups seeking to challenge industrial and commercial development in general. Unfortunately, the court did not address a growing concern in the regulated community about how far in time and space an agency may or must go when evaluating greenhouse gas emissions. Climate change is generally considered a global issue with long-term consequences. At what point will the inquiry end?
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The American Oil & Gas Reporter
HARRISBURG, PA.–The Pennsylvania Supreme Court’s decision in Pennsylvania Environmental Defense Foundation (PEDF) v. Commonwealth has upended a longstanding interpretation of an environmental provision in the state’s constitution, but oil and gas representatives indicate no one is certain yet of the implications of the June 20 ruling, particularly regarding development of privately-held oil and gas resources.
The Pennsylvania Independent Oil & Gas Association reports that another pending Supreme Court case, Gorsline v. Board of Supervisors of Fairfield Township, ultimately may give a clearer sense of the court’s intentions.
In the meantime, though, the new construal of the constitution already is being employed to challenge oil and gas activity, PIOGA warns.
ERA Interpretation
At issue in the PEDF case was Pennsylvania’s Oil and Gas Lease Fund, which holds all rents and royalties from oil and gas leases on state-owned land. By law, the fund is to be used by the Department of Conservation and Natural Resources exclusively for conservation, recreation, dams or flood control, Babst Calland attorneys Kevin Garber and Blaine Lucas explain in PIOGA’s newsletter. Beginning in 2009 as part of the state budget process, the Pennsylvania General Assembly made changes to Sections 1602-E and 1603-E of the Pennsylvania Fiscal Code, transferring control over royalties from oil and gas leases from DCNR to the legislature and requiring that there could be no expenditures of royalties from the lease fund unless the general assembly transferred that money to the general fund.
In 2012, the attorneys recount, PEDF filed a challenge in Pennsylvania Commonwealth Court to § 1602-E and 1603-E and the appropriation of money from the leases, among other things. The basis of the legal action was the Pennsylvania Supreme Court’s December 2013 plurality opinion in Robinson Township v. Commonwealth, particularly its reading of Article I, § 27 of the Pennsylvania Constitution, commonly known as the Environmental Rights Amendment (ERA), which states: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the commonwealth shall conserve and maintain them for the benefit of all the people.”
The Commonwealth Court determined that the plurality opinion was not controlling and found that neither the fiscal code provisions nor the appropriations by the general assembly violated the ERA, and PEDF appealed to the Pennsylvania Supreme Court. The high court heard oral arguments on two issues: the proper standards for judicial review of government action and legislation under the ERA; and the constitutionality of § 1602-E and 1063-E and the general assembly’s transfers and appropriations from the lease fund under the ERA.
According to the Babst Calland authors, since 1973, courts have used a three-part balancing test, set out by the Commonwealth Court in Payne v. Kassab, to analyze constitutional challenges brought under the ERA. That view began to change with the challenge to Pennsylvania’s updated oil and gas law, Act 13 of 2012, in Robinson Township.
In the 2013 decision commonly referred to as Robinson II, three Supreme Court justices “strongly criticized the three-part Payne v. Kassab balancing test,” Garber and Lucas explain. “However, the Robinson II opinion was a plurality, and courts have subsequently treated the plurality opinion as persuasive only, including the Commonwealth Court in PEDF.”
Commonwealth Duties
A majority opinion in PEDF adopted the Robinson II plurality view and rejected the Payne v. Kassab test as the standard for analyzing challenges under the ERA, finding that “the proper standard of judicial review lies in the text of Article I, § 27 itself as well as the underlying principles of Pennsylvania trust law in effect at the time of its enactment.” The Supreme Court went on to more fully develop a new standard in the context of PEDF’s challenge to legislative action, Garber and Lucas explain, and in doing so relied on the three-justice plurality decision in Robinson II. A new majority of the court this time found that the text of the ERA grants citizens of the commonwealth two separate rights:
• “Clean air and pure water, and to the preservation of natural, scenic, historic and esthetic values of the environment;” and
• “Common ownership by the people, including future generations, of Pennsylvania’s public natural resources.”
In its discussion of the second right granted under the ERA, the Supreme Court also found that the ERA established a public trust, with Pennsylvania’s natural resources as the corpus of that trust and the commonwealth as the trustee. The trustee obligation is vested in “all agencies and entities of commonwealth government, both statewide and local,” and the people are the named beneficiaries of the trust.
According to Garber and Lucas, relying again on the Robinson II plurality, the court reiterated that this trust requires the government to “conserve and maintain the corpus of the trust” and that as trustee, the commonwealth–that is, through “all agencies and entities of commonwealth government, both statewide and local,”– has duty to act “with prudence, loyalty and impartiality” toward the corpus of the trust. The court found that the trust places on basic duties on the commonwealth, to:
• “Prohibit the degradation, diminution, and depletion” of public natural resources; and
• “Act affirmatively via legislation to protect the environment.”
What Happens Now?
According to PIOGA Vice President & General Counsel Kevin Moody, the Supreme Court held that any revenues–specifically royalties–derived from the sale of public natural resources, such as the natural gas underlying state-owned lands leased for production, are held in trust and may be expended only to conserve and maintain Pennsylvania’s public natural resources. The court held that §1602-E and 1603-E of the 2009 fiscal code amendments and the general assembly’s transfers/ appropriations from the Oil and Gas Lease Fund were unconstitutional.
The court also remanded the case to the Commonwealth Court for a determination whether the rental and bonus payments constitute revenues from the sale of the Pennsylvania’s natural gas and thus remain part of the so-called public trust.
“That determination will, in my opinion, be secondary to what the Commonwealth Court determines constitutes ‘conserving and maintaining Pennsylvania’s public natural resources,’” Moody continues, “because about two weeks after the decision, PEDF asked the Commonwealth Court to determine that the $65 million appropriations in the 2017-18 budget bill the governor allowed to become effective without his signature from the lease fund to DCNR for state park and forest are unconstitutional by reason of the PEDF decision.”
Moody opines that the full consequences of the decision “will be uncertain and unknown for quite some time, but one thing is certain–the consequences will be far-reaching.”
Already, he observes, the decision is being used in a variety of circumstances. For example, the ERA was cited in an appeal filed with the Pennsylvania Environmental Hearing Board of the routine issuance of a permit by the Department of Environmental Protection for spreading brine from conventional wells as a dust suppressant on municipal dirt roads.
Additionally, published reports indicate, the environmental group PennFuture has asked Allegheny County how it intends to spend the estimated $450 million in royalties expected to be paid over two decades for leasing natural gas rights under Pittsburgh International Airport and Allegheny County Airport and the more than $50 million anticipated from leasing beneath a county park. Officials previously have indicated the money will be used to promote economic development, reducing airline fees, upgrading park facilities and funding capital projects, but PennFuture wants assurances the funds will go only toward protecting public natural resources.
Private Resources
Although PEDF is ostensibly about the use of money from publicly owned natural resources, Moody expresses concern about what may be in store for the development of private oil and gas reserves. He observes that the majority opinion included a discussion of the ERA’s legislative history, and despite the limitation of the text of the ERA to “public” natural resources, the court noted that the principal drafter of the amendment “opined that the trust nevertheless applied to ‘resources owned by the commonwealth and also to those resources not owned by the commonwealth, which involve a public interest.’”
“We can only wait and see what ‘all agencies and entities of commonwealth government, both statewide and local,” will do with this expanded, nontextual scope of the ERA and how courts will analyze state and local regulation of private property under this approach,” Moody acknowledges.
Garber and Lucas write that some of the issues surrounding application of the ERA may be resolved, or at least clarified, in Gorsline v. Board of Supervisors of Fairfield Township, which is pending before the Pennsylvania Supreme Court.
A local zoning board in Gorsline granted a conditional-use permit for a well in a residential-agricultural district, but a Lycoming County judge reversed that decision, relying on the Robinson Township case, published reports indicate. In September 2015, the Commonwealth Court reversed that ruling and determined that the record did not support the trial court’s conclusion that the proposed use was incompatible with uses in an R-A district or that such uses would cause environmental harm. The Commonwealth Court noted that the operator’s evidence before the board showing compatibility was uncontradicted. The Supreme Court heard oral arguments in March.
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