Articles, Alerts & Perspectives

Charleston, WV

GO-WV 

(by Kip Power)

The federal Environmental Protection Agency (EPA) recently proposed to approve the application of the State of West Virginia (through its Department of Environmental Protection (WVDEP)) to obtain primary authority (a.k.a., “primacy”) over the issuance of permits for Class VI underground injection wells located within its borders. 89 Fed. Reg. 93538 (Nov. 27, 2024). The federal rulemaking proposal may be found here.  Comments on the proposed approval are due on or before December 30, 2024. On the same day, EPA will hold a public hearing on the proposal at the Charleston Marriott Town Center, 200 Lee Street East, in Charleston, West Virginia. Details regarding public participation in the rulemaking may be found here.

Class VI underground injection control (UIC) wells are those wells used for injecting carbon dioxide for the purpose of permanent geologic storage or “sequestration.” WVDEP’s rules for such permits are largely modeled on EPA’s detailed “Class VI” UIC regulations promulgated under the federal Safe Drinking Water Act.  If approved, West Virginia will be just the fourth state to receive primacy over the Class VI UIC permitting program (joining North Dakota, Wyoming and Louisiana).

Should it be granted primacy over Class VI well permitting, the WVDEP will be able to issue such permits without following the lengthy (and oftentimes litigated) procedures required under the federal National Environmental Policy Act that applies to EPA-issued UIC permits. The WVDEP would also be in a better position to coordinate the issuance of such Class VI UIC wells with other West Virginia regulatory requirements for carbon dioxide injection projects, including the West Virginia Underground Carbon Dioxide Sequestration and Storage Act (W.Va. …

Pittsburgh, PA

Pittsburgh Technology Council

(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)

As discussed in our previous Alert, the U.S. District Court for the Eastern District of Texas granted a nationwide preliminary injunction in Texas Top Cop Shop, Inc., et al. v. Garland, et al., temporarily halting enforcement of the Corporate Transparency Act (CTA) and its beneficial ownership information (BOI) reporting requirements, including the January 1, 2025, filing deadline. The ruling provided temporary relief to affected businesses, but a pending Department of Justice (DOJ) emergency motion to stay the injunction pending appeal has created further uncertainty.

On December 11 and December 13, 2024, the DOJ filed emergency motions with the District Court and the United States Court of Appeals for the Fifth Circuit respectively, requesting a stay of the District Court’s nationwide injunction. In its motion to the Court of Appeals, the government proposed an expedited briefing schedule, requesting “a ruling on this motion as soon as possible, but in any event no later than December 27, 2024, to ensure that regulated entities can be made aware of their obligation to comply before January 1, 2025.”

On December 17, 2024, the District Court denied the government’s motion, while the Court of Appeals decision remains pending and could be issued as early as December 20, 2024. If the Fifth Circuit grants the stay or narrows the scope of the injunction, the CTA’s reporting requirements, including the January 1, 2025 filing deadline, could be reinstated (unless the court or the Financial Crimes Enforcement Network (FinCEN) issues a deadline extension). FinCEN has already clarified that businesses are not required to file BOI reports while the injunction is in effect, but that they may voluntarily submit reports during this time. …

Pittsburgh, PA

PIOGA Press

(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)

On December 3, 2024, the U.S. District Court for the Eastern District of Texas granted a nationwide preliminary injunction temporarily halting enforcement of the Corporate Transparency Act (CTA). With less than a month to go before the January 1, 2025 compliance deadline for entities formed prior to 2024, this ruling blocks the U.S. Department of Treasury from enforcing the requirements of the Beneficial Ownership Information Reporting Rule (the “Rule”) issued by the Financial Crimes Enforcement Network (FinCEN).

The Court’s opinion in Texas Top Cop Shop, Inc., et al. v. Garland, et al. raises significant questions about the constitutionality of the CTA and its potential negative impact on small businesses. The CTA, part of broader anti-money laundering efforts, requires companies to disclose personal information about their “beneficial owners” (individuals who ultimately own or control a company) to a federal database maintained by FinCEN. In his Memorandum Opinion and Order, United States District Judge Amos L. Mazzant concluded that the CTA and Rule are likely unconstitutional as they exceed the scope of Congress’s power. The Court held that CTA does not regulate interstate commerce and that it is further not authorized by the Necessary and Proper clause of the Constitution.

The nationwide injunction affects most business entities in the U.S., as the CTA and Rule apply to approximately 32.6 million companies. Per the Court’s order, “reporting companies need not comply with the CTA’s January 1, 2025, BOI reporting deadline pending further order of the Court.”

While businesses are temporarily relieved of compliance obligations, the final resolution of the matter remains uncertain.   …

Pittsburgh, PA

The Legal Intelligencer

(by Michael Korns and Anna Hosack)

In Crawford v. Commonwealth, No. 19-EAP-2022 (Pa. Nov. 20, 2024), the Pennsylvania Supreme Court unanimously upheld the constitutionality of state preemptive firearm laws that prohibit municipalities from passing local gun regulations.  Advocates for stricter gun laws filed a petition for review under the Commonwealth Court’s original jurisdiction, asking the Court to declare as unconstitutional or otherwise unlawful two statutory provisions that prohibit the enactment of local legislation on the subject: (i) Section 6120 of the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.C.S. § 6120, and (ii) Section 2962(g) of the Home Rule Charter and Optional Plans Law, 53 Pa.C.S. § 2962(g).  Generally, these provisions prohibit local governments from enacting or enforcing ordinances that regulate the ownership, transportation, possession, or transfer of firearms.

Crawford was heard en banc at the Commonwealth Court, and ultimately the Court sustained preliminary objections in a plurality decision and dismissed the petition for failure to state claims upon which relief could be granted (demurrer).  Petitioners filed an appeal seeking review of the Commonwealth Court’s decision from the Pennsylvania Supreme Court.  The City of Pittsburgh, the City of Scranton, and several other Pennsylvania local governments and officials submitted amici curiae briefs in support of the appeal.

The Pennsylvania Supreme Court addressed not only the delineation of power between the legislative and judicial branches of the state government but also the interplay between state and municipal governance.  First, the decision emphasized the basic fact that municipalities in Pennsylvania are creatures of the state, created by state legislation and having no inherent powers of their own not granted or delegated by the Commonwealth.   …

Pittsburgh, PA

Pittsburgh Technology Council

(by Chris Farmakis, Susanna Bagdasarova, Kate Cooper, and Dane Fennell)

On December 3, 2024, the U.S. District Court for the Eastern District of Texas granted a nationwide preliminary injunction temporarily halting enforcement of the Corporate Transparency Act (CTA). With less than a month to go before the January 1, 2025 compliance deadline for entities formed prior to 2024, this ruling blocks the U.S. Department of Treasury from enforcing the requirements of the Beneficial Ownership Information Reporting Rule (the “Rule”) issued by the Financial Crimes Enforcement Network (FinCEN).

The Court’s opinion in Texas Top Cop Shop, Inc., et al. v. Garland, et al. raises significant questions about the constitutionality of the CTA and its potential negative impact on small businesses. The CTA, part of broader anti-money laundering efforts, requires companies to disclose personal information about their “beneficial owners” (individuals who ultimately own or control a company) to a federal database maintained by FinCEN. In his Memorandum Opinion and Order, United States District Judge Amos L. Mazzant concluded that the CTA and Rule are likely unconstitutional as they exceed the scope of Congress’s power. The Court held that CTA does not regulate interstate commerce and that it is further not authorized by the Necessary and Proper clause of the Constitution.

The nationwide injunction affects most business entities in the U.S., as the CTA and Rule apply to approximately 32.6 million companies. Per the Court’s order, “reporting companies need not comply with the CTA’s January 1, 2025, BOI reporting deadline pending further order of the Court.”

While businesses are temporarily relieved of compliance obligations, the final resolution of the matter remains uncertain.   …

Harrisburg, PA

The Legal Intelligencer

(by Casey Alan Coyle and Michael Libuser)

Over 100,000 cases have been brought against Monsanto Corporation nationwide, claiming its Roundup™ weed-killer contains a carcinogenic active ingredient, namely, glyphosate.  Hundreds of such cases are pending in Pennsylvania alone.  But for over 30 years, the U.S. Environmental Protection Agency (“EPA”) has found evidence of glyphosate’s non-carcinogenicity for humans, and in 2015, the EPA determined “that glyphosate is not likely to be carcinogenic to humans.”  EPA, “Glyphosate,” https://www.epa.gov/ingredients-used-pesticide-products/glyphosate.

This long-held conclusion regarding the non-carcinogenicity of glyphosate informed the EPA’s decision to approve a label for Roundup that omitted any cancer warning.  By approving (and reapproving, over decades) Roundup’s label—pursuant to its authority under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et seq. (“FIFRA”)—the EPA effectively foreclosed litigants from asserting state-law product liability claims against Monsanto based on a purported duty to warn for failing to include a cancer warning on Roundup’s label.  This is so because, as the U.S. Court of Appeals for the Third Circuit recently held in Schaffner v. Monsanto Corp., 113 F.4th 364 (3d Cir. 2024), FIFRA expressly preempts any such claims.

To many, Schaffner appeared to provide the last word on the subject.  But some Pennsylvania state courts have declined to adhere to FIFRA-preemption in the wake of the decision.  Last month, for example, the Philadelphia Court of Common Pleas concluded a trial—involving, in part, the same state-law failure-to-warn claim deemed preempted in Schaffner—resulting in a $78 million verdict for the plaintiffs.  Melissen v. Monsanto Co., No. 210602578 (Phila. Cnty. C.C.P. Oct. 10, 2024).  To borrow from Dickens, there appears to be a Tale of Two Courts within Pennsylvania—federal courts (where FIFRA-preemption applies), and state courts (where it does not)—resulting in, among other problems, discord, non-uniformity, confusion, and incentivization of forum-shopping. …

Pittsburgh, PA and Washington, DC

FNREL Water Law Newsletter

(by Lisa M. Bruderly, Jessica Deyoe and Mackenzie M. Moyer)

On October 5, 2024, the Pennsylvania Department of Environmental Protection (PADEP) published notice of the final Erosion and Sediment Control General Permit for Earth Disturbance Associated with Oil and Gas Exploration, Production, Processing, or Treatment Operations or Transmission Facilities (ESCGP-4). See 54 Pa. Bull. 6341 (Oct. 5, 2024). ESCGP-4 became effective October 5, 2024, and will expire on October 5, 2029. The current ESCGP-3 is scheduled to expire on January 6, 2025, following an administrative extension from October 6, 2023. PADEP will continue to accept applications for ESCGP-3 until October 11, 2024.

There are several notable differences between ESCGP-3 and ESCGP-4. ESCGP-4 requires that if a discharge approved for coverage under ESCGP-4 subsequently exhibits a condition rendering it ineligible for coverage under the permit, ESCGP-4 requires the permittee to promptly take action to restore eligibility, notify PADEP in writing of the condition, and submit an individual erosion and sediment control permit application to PADEP if eligibility cannot be restored. ESCGP-3 had no such requirement for discharges that became ineligible after approval under the permit.

Under ESCGP-3, weekly inspections of controls were required, as well as inspections following stormwater events. ESCGP-4 adds an inspection requirement following “snowmelt sufficient to cause a discharge” and requires that inspections be documented using PADEP’s Chapter 102 Visual Site Inspection Report form (No. 3800-FM-BCW0271d) or a similar form that contains the same information. ESCGP-4 also requires that “qualified personnel, trained and experienced in erosion and sediment control and post-construction stormwater management” complete the required inspections and outlines requirements for such qualifications. Further, ESCGP-4 requires the initiation of repair or replacement of a best management practice or stormwater control measure (SCM) within 24 hours of discovery of an issue, if there is no likelihood of a pollutional incident. …

Pittsburgh, PA

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(by Joe Reinhart, Sean McGovern, Matt Wood and Alexandra Graf)

On October 10, 2024, the Pennsylvania Department of Environmental Protection (PADEP) presented an update on and summary of OOOOc Rulemaking to the Bureau of Air Quality’s Air Quality Technical Advisory Committee (AQTAC). See PowerPoint Presentation, PADEP, “Emissions Guidelines (EGs) for Greenhouse Gas (GHG) Emissions from Existing Crude Oil & Natural Gas Facilities (40 CFR Part 60 Subpart OOOOc)” (Oct. 10, 2024). On March 8, 2024, the U.S. Environmental Protection Agency (EPA) finalized its rule targeting methane emissions from the oil and natural gas sector (the Methane Rule), which established new source performance standards (NSPS) for facilities built, modified, or reconstructed after December 6, 2022 (OOOOb), as well as emissions guidelines (EG) for states to follow in designing and executing state plans for existing sources (OOOOc). See Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review, 89 Fed. Reg. 16,820 (Mar. 8, 2024) (to be codified at 40 C.F.R. pt. 60). The Methane Rule applies to oil and gas facilities involved in production and processing (including equipment and processes at well sites, storage tank batteries, gathering and boosting compressor stations, and natural gas processing plants) and natural gas transmission and storage (including compressor stations and storage tank batteries). The Rule requires frequent monitoring and repair of methane leaks at well sites, centralized production facilities, and compressor stations using established inspection technologies or, at an operator’s selection, novel advanced detection technologies. …

Pittsburgh, PA

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(by Joe Reinhart, Sean McGovern, Matt Wood and Alexandra Graf)

On September 14, 2024, the Pennsylvania Public Utility Commission (PUC) published its Rulemaking Regarding Hazardous Liquid Public Utility Safety Standards at 52 Pa. Code Chapter 59 in the Pennsylvania Bulletin, the purpose of which is to “establish State public utility safety standards addressing localized concerns for hazardous liquid public utilities constructing, operating, and maintaining pipeline facilities.” 54 Pa. Bull. 5729 (Sept. 14, 2024). The rulemaking specifically applies to public utility intrastate hazardous liquid pipelines and facilities. It does not apply to Act 127 of 2011 (the Gas and Hazardous Liquids Pipelines Act), 58 Pa. Stat. §§ 801.101—.1101, pipelines or solely interstate hazardous liquid pipelines. The rule primarily establishes new standards for governing hazardous liquid public utilities (HLPUs) and related activities, such as constructing new pipelines; converting, relocating, or replacing existing pipelines; and reporting requirements. It also includes requirements for operations and maintenance, qualifications for pipeline personnel and land agents, and corrosion control standards for all HLPUs. Currently, there are only two certified HLPUs in Pennsylvania. In addition, the PUC made minor revisions to regulations applicable to gas service.

Among other things, the rulemaking includes requirements for conducting geological and environmental impact studies related to pipeline construction and conducting inspections and maintenance of depth of cover for pipes transporting hazardous liquids, construction, and clearance between pipes and underground structures. The rule also prevents constructing, relocating, or converting pipelines under existing buildings and establishes requirements for girth weld testing. More broadly, the rule is intended to improve communications between stakeholders, including the utilities, the public, local government entities, and others. …

Pittsburgh, PA

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(by Joe Reinhart, Sean McGovern, Matt Wood and Alexandra Graf)

On October 9, 2024, the Pennsylvania Department of Environmental Protection (PADEP) began accepting applications for grants to plug abandoned oil and gas wells. See Press Release, PADEP, “Shapiro Administration Launches New Program in Pennsylvania to Plug Orphan Oil and Gas Wells, Creating Jobs and Cutting Methane Emissions in the Commonwealth” (Oct. 2, 2024). PADEP said that this new program is intended to reduce greenhouse gas emissions from orphaned wells that have the potential to leak methane, while also supporting job growth in the energy sector. An orphaned well is defined by section 3202 of the Pennsylvania Oil and Gas Act as “a well abandoned prior to April 18, 1985, that has not been affected or operated by the present owner or operator and from which the present owner, operator or lessee has received no economic benefit other than as a landowner or recipient of a royalty interest from the well.” According to PADEP, Pennsylvania has more than 350,000 orphaned and abandoned wells, which contribute to approximately 8% of the state’s total methane emissions.

The total amount of available funding is $16.8 million, and applicants can apply to plug up to five wells per application, with subawards based on well depths. A maximum of $40,000 will be awarded for each well that is 3,000 feet or less, and a maximum of $70,000 will be awarded for wells greater than 3,000 feet. The grants are available to Qualified Well Pluggers, defined as a “person who demonstrates access to equipment, materials, resources and services to plug wells in accordance with statutory and regulatory requirements.” An applicant may apply to plug additional wells once the last well under its current application is adequately plugged, PADEP issues a plugging certificate, and all terms and conditions of the grant agreement have been satisfied. …

Pittsburgh, PA

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(by Joe Reinhart, Sean McGovern, Matt Wood and Alexandra Graf)

On October 5, 2024, the Pennsylvania Department of Environmental Protection (PADEP) issued a notice publishing the final Erosion and Sediment Control General Permit-4 (ESCGP-4) for Earth Disturbance Associated with Oil and Gas Exploration, Production, Processing, or Treatment Operations or Transmission Facilities. 54 Pa. Bull. 6341 (Oct. 5, 2024). In September 2024, PADEP published a Comment Response Document to comments it received during the comment period from June 29, 2024, to July 29, 2024, and incorporated those comments into ESCGP-4. See PADEP, Comment Response Document (Sept. 2024). In response to comments, PADEP did not eliminate the expedited review process for the ESCGP-4 permit, and noted that there are minimal differences between ESCGP-3 and ESCGP-4.

However, there are several notable changes and additions in ESCGP-4, including (1) where an approved discharge later becomes ineligible for coverage, the permittee must promptly act to restore eligibility and notify PADEP, or apply for an individual erosion and sediment control permit if eligibility cannot be restored; (2) the imposition of a new 60-day deadline to submit the notice of intent (NOI) before the planned date for initiating any new discharge; (3) a weekly inspection requirement after “snowmelt sufficient to cause a discharge” occurs, which must be completed by qualified personnel who meet the enumerated requirements under the permit; (4) that repair or replacement actions be implemented within 24 hours of discovery of an issue, where ESCGP-3 required immediate action; and (5) for any stormwater control measure that is not authorized by PADEP manuals, the permittee must receive PADEP approval and comply with related requirements. …