Articles, Alerts & Perspectives

Pittsburgh Tribune Review

Seven months of sometimes-contentious meetings by a statewide task force focused on the expanding network of gas pipelines generated a starting point for debate but no binding directives.

“It’s not meant to be the final word but a start of a conversation,” Department of Environmental Protection Secretary John Quigley said Thursday about the final report issued by the Pipeline Infrastructure Task Force he chaired.

The report includes 184 suggestions for streamlining the permit process, improving safety, ensuring environmental protection around pipelines and easing the growing strain between pipeline builders and community leaders. The industry needs additional pipeline as it produces more gas from Marcellus and Utica shale, but a complex permitting process and community opposition are slowing the buildout, Quigley acknowledged.

Seven task force meetings were punctuated by protests, arrests of environmentalists and frustration voiced by some members about how the report would be presented.

Because some of the suggestions faced opposition from within the task force, its 48 members chosen by Gov. Tom Wolf voted on the top 12 recommendations for further consideration. They include encouraging pipeline companies to meet earlier and more often with communities, more training for emergency responders, expanding agency staffing and expanding oversight of smaller gathering lines under the state’s one-call system.

The task force, which delivered its report to Wolf for consideration, said thousands of miles of pipelines are planned. Inadequate infrastructure has contributed to a supply glut in the region that is pushing down prices.

The report identifies appropriate agencies to review each suggestion but requires no action.

The Public Utility Commission, which is seeking to take over operation of the one-call system, and the Pennsylvania Energy Infrastructure Alliance commended the report. …

The Legal Intelligencer

Employment law does not adhere to the biblical injunction that “No servant can serve two masters …” Under many regulatory schemes the law recognizes that two (or more) employers may owe legal duties to a single employee. Many businesses have decreased their direct employee head count by relying upon staffing firms to provide temporary employees, or outsourcing certain functions entirely. The National Labor Relations Board, or NLRB, and the Wage Hour Division, or WHD, of the United States Department of Labor have announced new rules applicable to their review of the joint employment issues created by these changes. These new rules will expand application of traditional labor and employment laws to businesses that do not consider themselves to be the “employer” of temporary or contracted employees.

NLRB’s Treatment of Joint Employers

In Boire v. Greyhound, 376 U.S. 473, 481 (1964), the state Supreme Court held that common law concepts of employment were intended to define the employment relationship under the National Labor Relations Act, and endorsed the NLRB’s theory that two statutory employers could jointly employ a single workforce if both “possessed sufficient control over the work of the employees.” At a later stage of the case, the NLRB held that joint employer status was demonstrated by proof that two separate employers “shared, or codetermined, those matters governing essential terms and conditions of employment ….” The U.S. Court of Appeals for the Third Circuit ultimately endorsed the NLRB’s Greyhound joint employer analysis in NLRB v. Browning-Ferris Industries of Pennsylvania, 691 F.2d 1117 (3d Cir. 1982), enf’g, 259 NLRB 148 (1981). There, the court stated that: The basis of the [joint employer] finding is simply that one employer while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer… Thus, the “joint employer” …

Pittsburgh Tribune Review

The decline in shale gas drilling in Pennsylvania prompted some law firms to dial back practice areas they formed to serve the industry during the past few months.

Downtown-based Babst Calland is instead expanding, opening a Washington office — its sixth location — with two lawyers handling issues involving energy, pipeline safety and hazardous materials.

Managing shareholder Chester R. “Chip” Babst III, one of the lawyers who founded the firm in 1986, said the move fits with its focus on environmental and regulatory law. Babst, 68, a fifth-generation Pittsburgher, spoke with the Tribune-Review about the expertise he and the firm built around an ever-changing regulatory environment.

Read more.

For The Defense

The Payment Card Industry Data Security Standards (PCI DSS), developed by the PCI Security Standards Council, are a set of 12 requirements that are designed to create a minimum level of secure data management practices for banks and vendors that accept and process payments using payment cards. Most retail and hospitality companies process hundreds to thousands of payment card transactions each day, yet many of these companies do not comply with these standards. Even worse, many of the companies that are not compliant do not even realize it.

Retail and Hospitality Organizations Are Attractive Targets

Retail and hospitality companies are extremely attractive, data-rich targets for cyber-criminals, and it is important that their leaders and lawyers know why. Hospitality and retail companies are now, more than ever, providing interactive guest experiences. As technology advances facilitate an increase in interaction, there is a corresponding increase in entry points to and vulnerability among these companies. By their nature, these companies have a higher transaction frequency than companies in many other industries. High transaction turnover is valuable because of the increase in opportunity. Payment card data collected in transit is active and more likely to be valid and more valuable to cyber-criminals than older stored data. Another point to consider when weighing the value of these industries’ data is that hospitality and retail companies process expendable income transactions more often than other industries.

Read more.

The PIOGA Press

The Pennsylvania Department of Environmental Protection announced in the December 19 Pennsylvania Bulletin additional meetings of the Conventional Oil and Gas Advisory Committee (COGAC) and the Oil and Gas Technical Advisory Board (TAB) on December 22. The purpose of these meetings, which were held as conference calls, were for the two advisory groups to consider comments to be submitted to the Environmental Quality Board regarding the final rulemaking amending 25 Pa. Code Chapter 78 (for conventional wells) and Chapter 78a (for unconventional wells) pertaining to environmental protection performance standards at oil and gas well sites.

Read more.

The Legal Intelligencer

Pittsburgh-based Babst Calland has opened an office in Washington, D.C., the firm announced Monday, bringing a new niche to its energy and natural resources practice.

Babst Calland is bringing on two attorneys as shareholders in the new office. James Curry and Keith Coyle have focused their practices on pipeline safety and hazardous materials transportation, according to the firm.

Both attorneys come from Van Ness Feldman, a Washington-based law firm with practices in energy, environment, real estate and land use, and government relations and policy. They both previously represented the Pipeline and Hazardous Materials Safety Administration, a federal agency that oversees gas and hazardous liquids pipelines.

Between stints in the public sector and at Van Ness, Coyle worked in Babst Calland’s Pittsburgh office. Pipeline and hazardous-materials transportation is a subarea of energy law where many of Babst Calland’s existing clients need service, said managing ­shareholder Chester R. Babst. Previously, his firm had referred much of that work to Van Ness because of the connection to Coyle. About a year ago, Coyle started speaking with Babst about returning to his former firm. “This gives us an area where we felt there was a terrific need and it’s not a need that’s being serviced by any of our competitors in the Appalachian Basin,” Babst said.

Curry estimated that nationwide, about 15 attorneys in the private sector have ­experience in pipeline and hazardous-materials work. Hiring outside counsel for that service has become more common among energy companies, he said.

“I think that recent significant accidents have sort of sensitized general counsel and company CEOs to the issue that this is a risk area,” Curry said.

Coyle said he sees the move for Babst Calland as a step toward becoming more of a national firm. …

Pittsburgh Business Times

One of Pittsburgh’s largest law firms on Monday opened a Washington, D.C., office.

Babst Calland Managing Shareholder Chester “Chip” Babst III confirmed exclusively to the Business Times that two key hires enabled Pittsburgh’s seventh-largest law firm to set up shop in the nation’s capital, and add complementary expertise.

Read more.

Pipeline & Gas Journal 

2015 has been a busy year of new challenges and issues facing the Appalachian oil and gas industry whose rig count in the Appalachian Basin and elsewhere is down substantially compared to the previous two years. A significant challenge ahead for shale developers in a lower price environment is to continue to be productive and active in finding land, drilling wells, and getting the natural resource to market. The following is a summary of our most recent report (published in May) on the issues and challenges facing midstream operators in the Appalachian Basin.

The Legal Intelligencer

The Pennsylvania Supreme Court recently rendered a decision in Reading Area Water Authority v. Schuylkill River Greenway Association, 100 A.3d 572 (Pa. 2014), further narrowing the definition of what constitutes a “public purpose” for a taking by eminent domain in Pennsylvania. The Reading opinion is significant, as it constitutes yet another Pennsylvania decision favoring the protection of private property rights from seizure by the government. The decision is particularly noteworthy in the context of the U.S. Supreme Court’s controversial expansive view of the eminent domain power in Kelo v. City of New London, 454 U.S. 469, from 2005.

Kelo involved a city’s use of its eminent domain power to take privately owned property to enable its redevelopment by a private developer, who proposed a higher-yielding economic use for the property. In Kelo, the Supreme Court held in a divided 5-4 opinion that such economic development projects can qualify as a “public purpose” under the “public use” provision of the takings clause of the Fifth Amendment of the U.S. Constitution, even where private enterprise drives the development-state and local governments can, for the purpose of improving the community, seize private property via eminent domain to enable private development.

In the wake of the Kelo decision, several states, including Pennsylvania, passed legislation restricting the use of eminent domain for private business. Specifically, on May 4, 2006, the Pennsylvania General Assembly enacted the Property Rights Protection Act, which amended Title 26 (eminent domain) of the Pennsylvania Consolidated Statutes by adding a new Chapter 2, titled “Limitations on Use of Eminent Domain.” In pertinent part, Section 204(a) of the Property Rights Protection Act expressly prohibits, with only a few limited exceptions, state and local governments from condemning private property for use by private entities. …

The PIOGA Press

Wastewater management remains a significant challenge for conventional and unconventional oil and natural gas producers in the Commonwealth. The recent slow-down in the pace of new drilling is reducing opportunities for beneficial reuse of produced fluid from operating wells. According to the Pennsylvania Department of Environmental Protection’s oil and gas reporting website, exploration and production companies reported producing 45 million barrels of flowback and produced fluid in 2014, an increase of nearly 5 million barrels from the amount reported in 2013. The increase in wastewater created by extraction highlights the importance of several state and federal regulatory efforts that could affect the handling and disposal of such material in 2016.

Read more.

The Legal Intelligencer

On Oct. 29, the Pennsylvania Supreme Court rendered a decision in Scott v. City of Philadelphia, 2015 Pa. LEXIS 2510 (Pa. 2015), clarifying the difference in the law related to standing before a zoning hearing board governed by the Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101 et seq., (MPC) and standing before a zoning board of adjustment governed by the Pennsylvania First Class City (i.e., Philadelphia) Home Rule Act, 53 P.S. Section 13131.1, (“Home Rule Act). Attention to the intricacies of the law governing standing is critical because a failure to challenge an objector’s standing at the appropriate stage of a proceeding can result in the use of an applicant’s property being interrupted or prevented by an objector who may not be directly impacted by that use.

The law regulating standing to appear before, present evidence to, and thereafter appeal a decision from a zoning hearing board governed by the MPC differs at each stage of a proceeding. First, standing to initiate an appeal to a zoning hearing board is limited by Section 913.3 of the MPC to: (1) affected landowners; (2) officers or agencies of the municipality; and (3) persons aggrieved. Once an appeal is filed, standing to appear before the board (i.e., standing to respond to and present evidence, advance arguments and cross-examine adverse witnesses on all relevant issues) is limited by Section 908(3) of the MPC to “parties,” which are defined as: the municipality; any person affected by the application who has made timely appearances of record before the zoning hearing board; and any other person, including civic or community organizations, permitted to appear before the board. Once a person becomes a party before a zoning hearing board without objection by the applicant, the person is considered “necessarily aggrieved” …

The Bureau of National Affairs, Inc. (BNA) Expert Evidence Report®

A growing number of courts have addressed the applicability of methodologies that attempt to predict the impact of alleged contamination on property values through models that are not based on actual sales in the relevant market, attorney Kathy K. Condo and economist Louis L. Wilde say.

The authors discuss this trend, and examine in depth a July ruling by the Western District of Oklahoma that rejected an expert’s proposed meta-analysis—a process that ‘‘attempts systematically to integrate the results of various published and unpublished studies on a specific research topic.’’ That exclusion was correct, the authors say, because the rejected models didn’t fit the facts of the case and weren’t based on the relevant market.

The American Oil & Gas Reporter

In less than two months, courts in three Pennsylvania jurisdictions rendered decisions addressing the appropriate scope and application of local government ordinances to the oil and gas industry. All three were decided in favor of the energy industry. The first reversed a controversial lower court decision that had invalidated a local government’s approval of an unconventional natural gas well pad development.

The second declared invalid a “community bill of rights ordinance” that banned underground injection wells and in all likelihood any unconventional well development. The last case, conversely, rejected a substantive validity challenge to a local zoning ordinance that authorized oil and gas wells in all zoning districts.

Read more.

The Environmental Law360 100 showcases the 100 U.S.-based firms with the most environmental partners globally. Read the full article (subscription required) “The 100 Law Firms With the Most Environmental Partners” (Law360, New York (November 18, 2015).

Read more.