Articles, Alerts & Perspectives

Pittsburgh, PA

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(By Joseph Reinhart, Sean McGovern, Matthew Wood and Christina Puhnaty)

On December 6, 2025, the Pennsylvania Department of Environmental Protection (PADEP) published for public comment a draft revised policy for erosion and sediment (E&S) control and stormwater management for earth disturbance associated with oil and gas exploration, production, processing, or treatment operations or transmission facilities (Draft Guidance). 55 Pa. Bull. 8318 (Dec, 6, 2025). The Draft Guidance applies to both unconventional and conventional operators.

The draft policy would replace the existing 2012 version and includes permitting process requirements for general and individual erosion and sediment control permits. It also outlines regulatory requirements for erosion and sediment control, post construction stormwater management, stabilization, and restoration, co-permittees, and pre-construction meetings.

Regarding revisions to the existing policy, PADEP said at the September 2025 Oil and Gas Technical Advisory Board meeting it is not a “radical departure” from the way the program is currently being administered; that many of the changes are organizational. Oil and Gas TAB Meeting (Sept. 11, 2025). Specific substantive changes include increasing the distance by which support facilities, e.g., impoundments, staging areas, tank farms, auxiliary roads, parking lots, or borrow areas, are considered substantially connected and part of a project from 900 feet to 1,320 feet.

PADEP also adds details concerning filing deed instruments for stormwater control measures after a project is completed. For projects that do not require a well permit under the 2012 Oil and Gas Act, for any property containing a post-construction stormwater management plan with stormwater control measures (PCSM SCM), the E&S permittee or co-permittee must record an instrument with the County Recorder of Deeds Office. …

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Mining

(by Joe Reinhart, Sean McGovern, Gina Buchman, and Christina Puhnaty)

The Pennsylvania Department of Environmental Protection (PADEP) has reissued BMP GP-104, its General NPDES Permit for Stormwater Discharges Associated with Mining Activities, for a new five-year term with an effective date of March 28, 2026, and an expiration date of March 27, 2031. Pursuant to 25 Pa. Code § 92a.32, a National Pollutant Discharge Elimination System (NPDES) permit is required for stormwater associated with mining activity. BMP GP-104 is intended to provide NPDES permit coverage for eligible coal and noncoal mining and reclamation authorizations to address stormwater associated with mining activities. Both bituminous and anthracite coal mining operations are eligible for coverage under BMP GP-104. Discharges that do not qualify for coverage under BMP GP-104 include discharges from non-stormwater sources, discharges to high quality or exceptional value designated waters, and discharges to exceptional value wetlands. PADEP’s District Mining Offices retain authority to require individual NPDES permits for any other discharges deemed to be more suitably controlled under an individual NPDES permit because of water quality concerns and specific effluent limits that must be applied.

In this renewal of BMP GP-104, PADEP clarified an oversight in the prior version of the general permit that PADEP admits in its 2026 Renewal Fact Sheet likely caused some sites to be overdesigned with respect to erosion and sedimentation controls. The prior BMP GP-104 arguably required all facilities subject to the general permit to meet the 10-year, 24-hour design standard for erosion and sedimentation controls, a more onerous requirement only required by regulation for coal mining and large noncoal permits. …

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Mining

(by Joe Reinhart, Sean McGovern, Gina Buchman, and Christina Puhnaty)

On January 3, 2026, the Pennsylvania Department of Environmental Protection (PADEP) published its final revised Environmental Justice Policy, as well as updates to the Pennsylvania Environmental Justice Mapping and Screening Tool (PennEnviroScreen) Methodology Documentation. See 56 Pa. Bull. 81 (Jan. 3, 2026); 56 Pa. Bull. 83 (Jan. 3, 2026). The final Environmental Justice Policy (TGD No. 015-0501-002) is now in effect. PADEP had been operating under its Interim-Final Environmental Justice Policy since 2023 while soliciting comments on the policy from the public, as reported in Vol. 40, No. 4 (2023) of this Newsletter. PADEP reported that it received over 700 comments during the comment period and published a Comment Response Document alongside the final policy.

The final policy uses PennEnviroScreen to determine whether facilities are in environmental justice areas based on 32 environmental, health, socioeconomic, and demographic indicators, as explained in the PennEnviroScreen Methodology Documentation (TGD No. 015-0501-003). Environmental effects indicators include proximity to coal mines, abandoned mine lands, land remediation projects, oil and gas wells, and railroads. The data sets contained within PennEnviroScreen are updated on a rolling basis. The Environmental Justice Policy also identifies permit types that require enhanced public participation. “Trigger Projects” that are automatically subject to the policy include various mining permits, including those for bituminous and anthracite underground and surface mines, large industrial mineral surface and underground mines, coal refuse disposal and processing, large coal preparation facilities, and the use of biosolids for reclamation. National Pollutant Discharge Elimination System permits for industrial wastewater facilities discharging at or above 50,000 gallons per day and air permits for new, major sources of hazardous air pollutants or criteria pollutants are also considered trigger projects. …

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Mining

(by Joe Reinhart, Sean McGovern, Gina Buchman, and Christina Puhnaty)

House Bill 416 was signed into law by Governor Josh Shapiro on November 12, 2025. This bill is part of the Pennsylvania budget package for Fiscal Year 2025–26. This bill includes several significant changes to industry regulations, including expedited permitting processes for certain air and water permits, measures to ensure grid reliability, and the repeal of the Regional Greenhouse Gas Initiative (RGGI) regulations.

House Bill 416 repeals the regulation promulgated by the Pennsylvania Department of Environmental Protection (PADEP) for a carbon cap-and-invest program linked to RGGI regulations found in 25 Pa. Code ch. 145, subch. E. PADEP promulgated this regulation in 2022, but it was never implemented due to various legal challenges. For a summary of Pennsylvania’s RGGI rule, see Vol. 39, No. 2 (2022) of this Newsletter. The Pennsylvania Commonwealth Court ruled that the regulation constituted an unconstitutional tax in 2023, which the litigants appealed to the Pennsylvania Supreme Court. For a summary of the commonwealth court’s decision, see Vol. 40, No. 4 (2023) of this Newsletter. Upon the passage of House Bill 416, the Commonwealth filed applications to discontinue its appeal given the legislative abrogation of the regulation at issue. On January 6, 2026, the Pennsylvania Supreme Court issued a per curiam order granting PADEP’s application to discontinue the appeal in light of House Bill 416. See Bowfin v. Dep’t of Env’t Prot., Nos. 106 MAP 2023, 107 MAP 2023, 2025 WL 3854118 (Pa. …

Harrisburg, PA and Pittsburgh, PA

The Legal Intelligencer

(by Casey Alan Coyle and Ryan McCann)

Lee Corso was a fixture in college football for over 60 years, first as a coach and then as an analyst on ESPN’s College GameDay program.  Coach Corso is known to many casual sports fans for his headgear segment, where he would put on the head of the mascot of the team he picked to win the signature game of the week—a feat he accomplished 431 times throughout his illustrious broadcasting career.  But for diehard College GameDay fans, Coach Corso is synonymous with his catchphrase “Not so fast, my friend!,” which he often employed (with glee) when disagreeing with a pick from another analyst.  While the college football season does not kick off for another six months, Coach Corso’s catchphrase is apropos because the reprieve from the heightened standard to enforce online arbitration agreements in Pennsylvania may be short lived.

Chilutti v. Uber

The story begins in 2016, when a woman registered for an Uber rider account.  As part of the registration process, the woman agreed to Uber’s hyperlinked terms and conditions, which, in turn, contained an arbitration agreement.  Such agreements are commonly referred to as “browsewrap” agreements.  In contrast, “clickwrap” agreements are where a website presents users with specified contractual terms on a pop-up screen and users must check a box explicitly stating “I agree” in order to proceed.  Three years later, the woman was injured while riding in an Uber.  She and her husband subsequently filed a negligence suit against the company and its subsidiaries.  The defendants filed a petition to compel arbitration, arguing that the terms and conditions of Uber’s app required the couple to arbitrate their claims.   …

Pittsburgh, PA and Washington, DC

PIOGA Press

(by Gary Steinbauer, Gina Falaschi Buchman, and Christina Puhnaty)

In response to President Trump’s Executive Order 14179, “Removing Barriers to American Leadership in Artificial Intelligence (AI),” EPA announced this week a new EPA webpage dedicated to compiling agency resources related to the Clean Air Act requirements potentially applicable to the development of data centers and AI facilities across the United States. The webpage, Clean Air Act Resources for Data Centers, is intended to promote transparency by aiding developers and other interested parties in locating various agency resources, including Clean Air Act regulations, interpretative guidance, and technical tools, that may assist with Clean Air Act permitting and air quality modeling during project development.

In addition to linking to potentially applicable EPA regulations, the webpage provides in one place various historical EPA guidance documents relating to the federal New Source Review (“NSR”) and Title V permitting programs. These guidance documents include interpretation letters and memoranda related to calculating and limiting a source’s potential to emit, assessing whether multiple projects must be aggregated for purposes of determining major NSR applicability, and determining when an operator may initiate construction activities of a major NSR source prior to obtaining a construction permit. The webpage also includes a News and Updates section that houses recent EPA announcements relating to data center and AI facility development.

Notably, the webpage explains that in an effort to advance cooperative federalism, EPA’s Office of Air and Radiation (“OAR”) staff are “available to consult with permit reviewing authorities and individual sources on a case-by-case basis to identify existing data, models, and tools to demonstrate compliance and, as appropriate, exercise discretion and flexibilities in the permitting processes.” The webpage encourages both permitting authorities and permit applicants to contact their EPA Regional Offices and EPA’s Data Centers Team to engage OAR staff members on projects. …

Pittsburgh, PA

TEQ Hub

(by Jenn Malik and Peter Zittel)

Most companies would never allow an unknown third party to sit in on executive level strategy sessions, legal consultations, or sensitive personnel discussions.  Yet AI meeting assistants now perform a functional equivalent of that role, often without formal approval, policy guidance, or executive awareness.  What may at first appear to be a simple productivity tool can, in practice, create significant legal and financial exposure.  These AI meeting assistants are increasingly transforming ordinary business conversations into permanent, searchable data sets, in turn raising issues of privilege waiver, regulatory compliance, and potential litigation cost that many organizations have not yet confronted.

For business leaders, this realization raises an uncomfortable reality: what was assumed to be a confidential internal discussion may now exist as a permanent data record outside the organization’s control.

In August 2025, similar circumstances gave rise to a nationwide class action lawsuit alleging that an AI meeting assistant unlawfully intercepted and recorded private video-conference meetings without obtaining consent from all participants.  The plaintiffs in Brewer v. Otter.ai claim the AI tool joined meetings as an autonomous participant, transmitted conversations to third-party servers for transcription, recorded individuals who were not account holders, provided limited or unclear notice, and placed the burden of obtaining consent on meeting hosts.  The lawsuit further alleges that recordings were retained indefinitely and used to train AI models, including the voices of individuals who were unaware they were being recorded.  While the legal claims are still unfolding, the case underscores a broader and more immediate concern for business owners: AI meeting assistants can quietly convert everyday business conversations into legally consequential data assets, creating exposure well beyond what most organizations anticipate. …

Pittsburgh, PA

The Legal Intelligencer

(by Max Junker and Anna Jewart)

In general, Pennsylvania municipalities have broad discretion over land-use regulations. Typically, so long as a municipality acts within the parameters of the Pennsylvania Municipalities Planning Code, 53 P.S. §10101 et seq. (“MPC”), it is relatively free to regulate where any given land use can operate within its boundaries.  At times, the courts may step in where a regulation is unreasonable, arbitrary, or confiscatory, but the legislature has been reluctant to interfere with local control over land use and development.  One rare exception to the rule is farming, where the legislature has stepped in to protect “normal agricultural operations” from unreasonable local regulation.  The Right to Farm Act, 3 P.S. §§ 951-958 (“RTFA”) was adopted to limit “the circumstances under which agricultural operations may be subject matter of nuisance suits and ordinances”. The RTFA works in tandem with the Agricultural Communities and Rural Environment Act (“ACRE”), 3 Pa.C.S. § 101 et seq.  As described by the Pennsylvania Farm Bureau, ACRE provides a means for farmers burdened by ordinances that illegally inhibit farming practices to initiate a process to challenge and invalidate the ordinance.

Both ACRE and the RTFA only protect “normal agricultural operations”, a statutory definition under Section 2 of the RTFA which includes the “activities, practices, equipment and procedures that farmers adopt, use or engage in the production and preparation for market of poultry, livestock and their products and in the production, harvesting and preparation for market or use of agricultural, agronomic, horticultural, silvicultural and aquacultural crops and commodities. . .” 3 P.S. §952. The activity must not be less than 10 contiguous acres, or in the alternative, have a yearly gross income of at least $10,000.   …

Pittsburgh, PA

The Wildcatter

(by Nik Tysiak)

Just a few cases to report this time.

Property Tax Assessment and Pipeline Valuation
The West Virginia Intermediate Court of Appeals in Lemley v. MarkWest Liberty Midstream & Resources, LLC, — S.E.2d —-(2025) established significant precedent for oil and gas transportation infrastructure taxation. The court affirmed the Office of Tax Appeals’ application of a 35% reduction in assessed value for 20-inch natural gas liquid pipelines due to economic obsolescence. The court held that external market forces beyond an operator’s control, including COVID-19 pandemic impacts, can justify substantial economic obsolescence adjustments when pipelines operate significantly below design capacity.

The decision recognized that beginning in 2018, MarkWest installed 20-inch NGL lines anticipating increased production that never materialized due to market conditions that lessened demand for NGLs and led to scaling back of planned natural gas processing facilities. The court found that calculations showing pipeline utilization at only 28%, 36%, and 47% of design capacity demonstrated that economic obsolescence was necessary to fairly value the pipelines. This represents a significant shift in how underutilized oil and gas transportation infrastructure may be assessed for property tax purposes.

The court also confirmed important procedural changes affecting oil and gas operators challenging property tax assessments. Effective January 1, 2023, the West Virginia Legislature transferred jurisdiction over contested property tax matters from county commissions to the Office of Tax Appeals, establishing OTA as an independent quasi-judicial agency with de novo hearing authority. Most significantly, the Legislature reduced the burden of proof for taxpayers from “clear and convincing evidence” to a “preponderance of the evidence” standard, representing a substantial reduction in the evidentiary burden for oil and gas operators disputing tax assessments. …