Articles, Alerts & Perspectives

Pittsburgh, PA

The Legal Intelligencer

(by Steve Antonelli and Alex Farone)

Changes in the world of non-competition agreements (“non-competes”) have been particularly prevalent in recent weeks, most notably including court activity barring the Federal Trade Commission’s new non-compete ban and Pennsylvania’s new law restricting the use of certain non-competes for healthcare practitioners.

In May of this year, the Federal Trade Commission (FTC) published a final rule that would ban nearly all new non-competes with employees, independent contractors, and volunteers nationwide, with the exception of non-competes entered into pursuant to certain business sales, on the basis that non-competes are an unfair method of competition and therefore a violation of Section 5 of the FTC Act.

The final rule would also void all pre-existing non-competes except (1) those made with senior executives earning more than $151,164 annually who are in a policy-making position, and (2) those that have been breached and for which a cause of action accrued prior to the final rule’s effective date of September 4, 2024.

The final rule would additionally require employers to provide “clear and conspicuous notice” to all current and former workers, other than senior executives, with existing non-competes by September 4 stating that the non-compete will not be, and cannot legally be, enforced. Immediately after the final rule was published, legal challenges to the ban were quickly filed in various federal courts across the country. As the September 4 deadline approached without a decisive ruling from any of these courts, employers wondered whether the non-compete ban would be ultimately enforceable and began to make strategic plans on whether to proactively change their non-compete practices.

Two weeks before the ban went into effect, on August 20, 2024, the U.S. …

Washington, DC

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Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Matthew C. Wood)

On June 29, 2024, the Pennsylvania Department of Environmental Protection (PADEP) published notice in the Pennsylvania Bulletin that the proposed 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) was available for public comment. 54 Pa. Bull. 3717 (June 29, 2024). The current ESCGP-3 is scheduled to expire on January 6, 2025. PADEP issues ESCGPs under the authority of the Pennsylvania Clean Streams Law, 35 Pa. Stat. §§ 691.1—.1001.

In the Pennsylvania Bulletin notice, PADEP stated that it was not proposing “significant changes” to the ESCGP-4 as compared to the ESCGP-3, but there are several noteworthy differences between the two permits. First, as a threshold matter, the ESCGP-4 contains a requirement that in discharges approved under the ESCGP-4 that exhibit a condition rendering it ineligible for coverage, “the permittee promptly shall take action to restore eligibility, to notify the Department in writing of the condition, and, if eligibility cannot be restored, to submit an individual erosion and sediment control permit (Individual E&S Permit) application to the Department.”

Next, the ESCGP-4 proposes to now require operators to submit a notice of intent (NOI) for coverage under the ESCGP-4 at least 60 days prior to the planned date for commencing any new discharge. The ESCGP-3 did not contain an NOI submission deadline. Further, PADEP has removed the expedited review option that was available under the ESCGP-4 for projects meeting specific criteria. …

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Matthew C. Wood)

At the May 16, 2024, Water Resources Advisory Committee (WRAC) meeting, the Pennsylvania Department of Environmental Protection (PADEP) presented a revised draft proposed rule that would amend and clarify certain existing spill reporting requirements. The regulation, 25 Pa. Code § 91.33 (Existing Rule), governs notification requirements for unauthorized releases of substances into waters of the commonwealth. Specifically, the Existing Rule requires immediate notification to PADEP if the release of a substance “would endanger downstream users of the waters of this Commonwealth, would otherwise result in pollution or create a danger of pollution of the waters, or would damage property.” 25 Pa. Code § 91.33(a). The party responsible for initiating the notification is “the person at the time in charge of the substance or owning or in possession of the premises, facility, vehicle or vessel from or on which the substance is discharged or placed.” Id. Notably, the Existing Rule, which was adopted in 1971, offers no clear guidance on determining whether notification is required.

To address this, PADEP has proposed a revised draft of the regulation that clarifies the requirements for notifying or not notifying the agency of an unauthorized release (Proposed Rule). See Proposed Revisions to 25 P.A. Code § 91.33. Proposed subsection 91.33(a.1) would require reporting for substances listed in 40 C.F.R. § 117.3 when released in amounts equal to or greater than their reportable quantities and subsection 91.33(a.2) states that a person who immediately notifies PADEP in accordance with subsections (a) and (a.1) has satisfied the notification requirements under section 91.33. …

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Matthew C. Wood)

On April 4, 2024, the Pennsylvania Public Utility Commission (PUC), in a 4–1 vote, adopted a joint motion to comprehensively review processing times of certain applications under its purview. See Press Release, PUC, “PUC Launches Comprehensive Review of Application Procedures” (Apr. 4, 2024). Specifically, the PUC proposed to analyze how to make more efficient application processes that do not have applicable regulatory or statutory deadlines (or have deadlines that the PUC has authority to extend). Joint Motion for Chairman Stephen M. De Frank and Commissioner Ralph V. Yanora (Joint Motion), at 2.

The initiative consists of two parts. First, the PUC directed each of its various bureaus that work on these types of applications to review and inventory each applicable proceeding with the following information:

• the methods by which the PUC receives the applicable filings;
• the statutory or regulatory authority underlying issued approvals;
• whether publication of an application is required;
• whether the application has a protest period, and if so, its length; and
• a description of the bureau’s tasks.

Id.

Second, the Office of the Executive Director will analyze the inventory information, examine each bureau’s average application review time and the total average processing time from application filing to a final decision, and evaluate process improvements. Id. The goal of the evaluation is to reduce processing times by at least 15% (subject to revision), while also considering the allocation of necessary resources, legal deadlines, and compliance with applicable legal requirements under the Public Utility Code, PUC Regulations, or PUC Orders.  …

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Mining

(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Christina M. Puhnaty)

On June 1, 2024, the Pennsylvania Department of Environmental Protection (PADEP) issued a request for information (RFI) to anyone interested in submitting concept papers for PADEP’s consideration for the Design, Development, Commercialization and Maintenance of Clean Energy Campus (CEC) Projects on abandoned mine lands (AML) controlled by the Commonwealth. 54 Pa. Bull. 3098 (June 1, 2024) PADEP requests concept papers from project sponsors, namely clean energy project developers, asset owners, financial institutions, and other relevant parties, willing to coinvest with PADEP to transfer AML sites into CECs. PADEP notes in the notice that it owns 13 properties greater than 50 acres in size eligible for conversion.

In terms of design, PADEP requests information on the design for land reclamation and remediation to create sites ready for clean energy generation or energy storage sites. PADEP is looking for a sponsor who can provide professional design services, feasibility studies, geophysical investigations, construction oversight, and other technical services as required. Such remediation designs could require action in perpetuity. With respect to development, PADEP is looking for a project sponsor that can manage the remediation and development of the site by completing leases, conducting site preparation, securing permitting, conducting geotechnical investigations, and securing interconnection. PADEP has pointed to EPA’s Revitalization Handbook as guidance for renewable energy development on AML sites, which recommends property purchasers assess whether they should conduct all appropriate inquiries to take advantage of CERCLA liability protections. For commercialization, PADEP seeks sponsors with experience deploying grid-scale clean energy generation and storage projects. …

Pittsburgh, PA

The Legal Intelligencer

(by Max Junker and Anna Hosack)

If sunlight is said to be the best of disinfectants and electric lights the most efficient policeman, then what is said of the darkness of anonymity?  Many agencies have been receiving Right-to-Know Law, 65 P.S. § 67.701, et seq. (“RTKL”) record requests created through “FOIA Buddy” that they suspect are anonymous.  FOIA Buddy is an online service that lists its mission as “simplifying the process of requesting public records.”  After numerous inquiries about anonymous requests, the Pennsylvania Office of Open Records (“OOR”) released a memo confirming that FOIA Buddy is operated by people who have a stated goal of efficiently promoting government transparency and accountability in a cost-effective manner for all involved and that the OOR found no indication that FOIA Buddy is part of a phishing, scraping, or scamming activity.  The memo also stated that the OOR is unable to provide specific legal advice on responding to RTKL requests that are made by or through FOIA Buddy.  However, the OOR recommends that agencies ensure their internal RTKL policies are clear and posted on the agency’s website and easily accessible.  This has provided an opportunity for local agencies to dust off their RTKL policies, which likely have not been reviewed since the enactment of the new RTKL in 2008.

Section 702 of the RTKL provides that “Agencies may fulfill verbal, written or anonymous verbal or written requests under this act.”  Therefore, agencies have discretion as to whether they will answer anonymous requests.  For a request not to be anonymous, the request must have a valid requester with an ascertainable address.  A “requester” is defined by the RTKL as “[a] person that is a legal resident of the United States.”  Section 703 of the RTKL requires that all written requests under the RTKL “shall include the name and address to which the agency should address its response.”  The use of an alias or fake name or the lack of inclusion of a verifiable address on the RTKL form constitutes an anonymous request. …

Harrisburg, PA

The Legal Intelligencer

(by Casey Alan Coyle and Michael Libuser)

Courts have long extolled the benefits of stare decisis, saying that it “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”  Payne v. Tennessee, 501 U.S. 808, 827 (1991).  Indeed, it has been said that, without the doctrine, “we may fairly be said to have no law.”  Commonwealth v. Thompson, 985 A.2d 928, 953–54 (Pa. 2009) (quoting McDowell v. Oyer, 21 Pa. 417, 423 (1853)).  Recently, however, the U.S. Supreme Court has departed from longstanding precedent in several cases—most notably in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022)—leading some members of the High Court to accuse it of making a “laughing-stock” of stare decisis.  Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2295 (2024) (Kagan, J., dissenting, joined by Sotomayor and Jackson, JJ.).

The public’s confidence in the High Court has suffered as a result.  According to a recent Gallup poll, the approval of the U.S. Supreme Court is near a historic low, with only 43% of Americans approving of its performance.  The current approval rate is “statistically similar to its ratings over the past three years since it declined to block a Texas abortion law in 2021 and later overturned Roe v. Wade in the landmark 2022 [Dobbs] decision.”  Megan Brenan, Approval of U.S. Supreme Court Stalled Near Historical Low, Gallup (July 30, 2024).  Thus, there is ostensibly a direct correlation between adherence to precedent and the public’s view of the courts. …

Pittsburgh, PA

TEQ Hub

(by Kristen Petrina)

Artificial Intelligence (AI) is advancing at unprecedented speeds. AI relies on vast amounts of datasets for processing and model training, creating the challenge of balancing the benefits of AI, while protecting data privacy. As a result of improper data processing and usage, organizations are facing harsh penalties including AI usage prohibition, algorithm disgorgement, and multibillion dollar fines. When considering how to introduce AI into any organization, one of the first questions to consider is, “How can AI be utilized to drive innovation without violating privacy and misusing collected data?”

AI governance analysis should be under a privacy lens, as personal data is at the core of many opportunities that come with AI development. Privacy risks may result in societal and ethical impacts on individuals which speaks to the heart of responsible AI usage. Incorporating responsible AI practices is user specific to each organization and it is possible to protect privacy and drive innovation. In order to achieve both goals, organizations should consider data protection preventative measures before implementing AI into its processes.

• Data privacy should be addressed at the onset of AI implementation. Organizations should conduct risk assessments and consider data enablement through AI from the beginning before it becomes an issue. Generative AI in particular is self-learning, the more data fed into the model, the harder it will be to unwind or remove data if improperly used.
• AI and data privacy governance teams must work together from the beginning to address any risks that may arise. Organizations may consider forming an ethical AI committee engaging diversified team members to reduce potential bias in the development and design.
• Contemplate data inputs by asking questions such as what the existing and potential future data sources may be, what data will be collected, what are in the datasets, how to categorize the types of data, will the data modeling receive personal or sensitive data, should those things be included.

…

Pittsburgh, PA, Charleston, WV, and Washington, DC

Babst Calland is pleased to announce that two lawyers were selected as 2025 Best Lawyers in America® “Lawyer of the Year” in Pittsburgh, Pa. and Charleston, W. Va. (by BL Rankings). Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant.

Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, professionalism, and integrity. Those named to the 2025 Best Lawyers in America® “Lawyer of the Year” include:

Blaine A. Lucas, Litigation – Land Use and Zoning “Lawyer of the Year” in Pittsburgh, Pa.

Timothy M. Miller, Litigation – Environmental “Lawyer of the Year” in Charleston, W. Va.

View the award recipients here.

In addition, 40 Babst Calland lawyers were selected for inclusion in the 2025 edition of The Best Lawyers in America®, the most respected peer-reviewed publications in the legal profession:

• Chester R. Babst III – Environmental Law, Litigation – Environmental
• Donald C. Bluedorn II – Environmental Law, Litigation – Environmental, Water Law
• Lisa Bruderly – Environmental Law
• Joseph G. Bunn – Banking and Finance Law, Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law, Business Organizations (including LLCs and Partnerships), Commercial Transactions / UCC Law, Corporate Law, Mergers and Acquisitions Law, Mining Law
• Dean A. Calland – Environmental Law
• Matthew S.

…

Pittsburgh, PA and Washington, DC

PIOGA Press

(by Kevin Garber, Gina Falaschi Buchman, and Sean McGovern)

On July 17, 2024, Governor Josh Shapiro signed the Carbon Capture and Sequestration Act into law, effective immediately.  This comprehensive new statute positions Pennsylvania to join a growing list of states, including North Dakota, Wyoming, Indiana, and West Virginia, that promote underground storage of carbon dioxide.

The Act authorizes the underground injection and sequestration of CO2; confirms that the surface owner of real property owns the subsurface pore space; gives the Pennsylvania Department of Environmental Protection statutory authority to obtain primacy to issue injection permits; transfers title to stored carbon dioxide to the Commonwealth fifty years after injection ends; and establishes the Carbon Dioxide Storage Facility Fund to defray the Commonwealth’s long-term monitoring and management costs.

The Act has three key aspects – pore space ownership, permitting and operating an injection and storage facility, and liability and long-term responsibility for sequestered CO2.

Pore Space Ownership.  The Act provides that the owner of the surface property interest owns the pore space beneath surface lands and waters of Pennsylvania.  “Pore space” means subsurface strata, formations, cavities, or voids, whether natural or artificially created, that can be used to store CO2.  Conveying surface ownership also conveys the pore space unless it is (or has been) excepted and reserved, similar to the conveyancing of oil, gas, and minerals.  The Act does not change Pennsylvania law regarding dominance of the mineral estate.  A notice regarding pore space, like the coal notice, is now required in property deeds.

If, through negotiations with pore space owners, a prospective operator obtains at least 75% of the ownership interest in pore space for a storage facility, the Environmental Hearing Board may include the remaining 25% in the proposed facility by issuing a “collective storage order” if the EHB finds that the operator satisfied the notice and other provisions of the Act.  …

Charleston, WV

The Wildcatter

(by Nikolas Tysiak)

July 2024 Legislative and Regulatory Article for MLBC

There are not a lot of relevant cases to report this period. Here are what the courts have been up to this month:

The West Virginia Intermediate Court of Appeals handled another important case regarding tax sales of oil and gas interests recently. In Northeast Natural Energy, LLC v. LT Realty Unlimited, LLC (— S.E.2d —; 2024 WL 338948 (July 12, 2024). The case arises from competing claims of title to oil and gas rights under approximately 119 acres of land in Clay District, Monongalia County. George Tennant owned interests in the Surface, Sewickley Coal, and the oil and gas associated with the 119 acres when he died in 1938. Two assessments were entered from 1938 through 1941 – the first covering 3/8 of the surface oil and gas under the land, and the second covering the Sewickley Coal interests under the land. In 1940, the lands of George Tennant were partitioned, as part of which all oil and gas and coal rights were reserved to the estate. The assessments for the surface dropped the oil and gas label, and only described “SUR” or surface as being the interest being assessed, entered in the name of the surface purchaser. George Tennant and his heirs continued to be assessed for the Sewickley Coal interests.

The Sewickley Coal rights and Oil and Gas rights descended to various heirs of George Tennant, but only the Sewickley Coal rights were separately assessed. Eventually, the successors to George Tennant executed deeds and leases with Northeast Natural Energy LLC and other parties, in 2015. However, in 1992, Shuman Inc. acquired a tax deed for the Sewickley Coal assessment for non-payment of taxes. …