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Environmental Law Posts

Use Caution When Giving Legal Advice in the Presence of Consultants >
April 10, 2018
By: Terry R. Bossert
The Pennsylvania Supreme Court is about to address the question of whether sharing legal advice with outside consultants engaged by the client results in a waiver of the attorney-client privilege or attorney work product privilege. The Superior Court has already partially addressed this question. Last summer in Bousamra v. Excela Health, 167 A.3rd 728 (Pa. Super. 2017), the Superior Court ruled that both the attorney-client privilege and the attorney work-product privilege were waived when an email from outside counsel was shared with an outside consultant. The Supreme Court has granted allocator (Bousamra v. Excela Health, 5 WAP 2018) and the initial briefs in the Supreme Court are due this week.
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PA Supreme Court Rules Against PADEP “Mere Presence” and “Water-to-Water” Discharge Theories >
April 2, 2018
By: Terry R. Bossert and Aaron S. Mapes
In a 5-2 decision, the Pennsylvania Supreme Court decided last week that the Pennsylvania Department of Environmental Protection cannot assess daily penalties under the Clean Streams Law on the basis that contaminants released to groundwater, or other “Waters of the Commonwealth,” remain in those “waters” or have migrated from one “water” to another. The Court struck down the so-called “mere presence” and “water-to-water” discharge theories, put forth by PADEP in opposition to a declaratory judgment action filed by EQT Production Company. PADEP had used these theories of liability to support, in part, an over $4.5 million civil penalty lodged against EQT for a release of hydraulic fracturing “flow-back” water from a lined impoundment.
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EPA's Latest Attempt to Supercharge Superfund Cleanups >
March 15, 2018
By: Michael P. Canavan
Scott Pruitt, the fourteenth Administrator of the United States Environmental Protection Agency (EPA), recently appeared on The New York Times' The Daily podcast, where he outlined his vision for the EPA, discussed his view of its societal role, and answered questions about specific goals he sought to accomplish during his time at the helm of the EPA.
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Testing Uncertainty: Beware the False Positive >
March 15, 2018
By: Paul R. McIntyre
We were reminded recently of the inherent limitations on the accuracy of asbestos sampling. The lessons learned (again) were: (1) that the appropriate scope of pre-acquisition environmental diligence should be carefully considered, and (2) that laboratory analysis should not automatically be accepted as accurate.
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Commonwealth Court Affirms PUC's Exclusive Jurisdiction over the Siting of Intrastate Pipeline Facilities >
February 26, 2018
By: Devin T. Ryan
On February 20, 2018, the Commonwealth Court affirmed the dismissal of the Delaware Riverkeeper Network and others' challenge to Sunoco Pipeline, L.P's construction of the Mariner East 2 pipeline in West Goshen Township. In so doing, the Court reiterated the Pennsylvania Public Utility Commission's exclusive jurisdiction over public utility facilities, including the ME2 pipeline, and rejected the attempt of West Goshen Township to regulate the construction of the ME2 pipeline through its zoning powers.
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SCOTUS Issues Three Critical Environmental Rulings >
January 30, 2018
By: Paul M. Schmidt
Often, decisions of the Supreme Court of the United States (SCOTUS) only impact a narrow range of entities and circumstances. However, several recent and pending cases related to environmental issues and land use will instead impact a wide-range of property owners. 
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The Commonwealth Court's Stripper Well Decision - Does it Warrant the Angst? >
April 24, 2017
By: Terry R. Bossert
On March 29, 2017, the Commonwealth Court issued its decision in Snyder Brothers, Inc. v. Pennsylvania Public Utility Commission (1043 C.D. 2015). The decision appears to be a simple legal interpretation of the statutory definition of "stripper well" in a manner beneficial to Snyder Brothers and potentially generally beneficial to the unconventional natural gas industry. However, media attention and political reactions have far outstripped the Court's basic legal analysis. The decision has been cited as a harbinger of diminished impact fee revenue; as a reason to amend Act 13; and, not unexpectedly, as a justification for a new severance tax. The reactions, while not unexpected, are perhaps overstated.
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Pennsylvania Supreme Court to Determine the Scope of Monetary Penalties Allowed Under the Clean Streams Law >
February 22, 2017
By: Terry R. Bossert and Aaron S. Mapes
The Pennsylvania Department of Environmental Protection (“PADEP”) has appealed to the Pennsylvania Supreme Court an order of the Commonwealth Court which significantly limits the amount of monetary penalties PADEP can assess under the Pennsylvania Clean Streams Law (“CSL”). Although it is still early in the proceedings, it appears likely that the Supreme Court's decision could provide important precedent regarding the extent to which PADEP can assess civil penalties under the CSL, especially if the Court accepts and addresses all of the issues PADEP has asserted are implicated by the Commonwealth Court's decision.
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PA DEP Evaluates Itself >
January 19, 2017
By: Terry R. Bossert
Recently, the Pennsylvania Department of Environmental Protection (DEP) issued a press release announcing its internal review of the expedited review process for the Erosion and Sediment Control General Permit (ESCGP-2). At the same time, DEP made available an Internal Review document discussing its audit of the expedited review process.
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DEP Issues New Stormwater General Permit Requirements for Industrial Activity >
October 26, 2016
By: Terry R. Bossert and Lindsay A. Berkstresser
The Pennsylvania Department of Environmental Protection (DEP) has reissued the National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges of Stormwater Associated with Industrial Activity (PAG-03). The reissued PAG-03 contains significant new responsibilities for permit holders including additional best management practices (BMPs) and stormwater sampling obligations that were not required under the previous version of PAG-03. Additional changes to the reissued PAG-03 involve eligibility for a General Permit; self-monitoring, reporting and recordkeeping; and site inspections.
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Pennsylvania Supreme Court Rules on Remaining Act 13 Issues >
October 3, 2016
By: Terry R. Bossert and Lindsay A. Berkstresser
On September 28, 2016, the Pennsylvania Supreme Court issued an opinion striking down additional provisions of Act 13 of Feb. 14, 2012, P.L. 87 (“Act 13”) in Robinson Township v. Commonwealth of Pennsylvania. The decision impacts key aspects of oil and gas operations and presents further challenges to the industry's development throughout the Commonwealth.
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Feds Say All Proposed Federal Actions, No Matter What Size, Should Quantify Expected Greenhouse Gas Emissions >
August 10, 2016
By: Aaron S. Mapes and Stephen C. Jones
Last week, in its latest action to combat climate change, the Obama Administration finalized guidance directing federal agencies to perform quantitative analyses of greenhouse gas emissions in connection with all actions that may impact the environment. The guidance, issued by the White House Council of Environmental Quality, sets forth procedures for federal agencies to comply with the National Environmental Policy Act as they evaluate GHG emissions associated with “proposed federal actions."
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