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Environmental Law Posts

An Independent Environmental Quality Board for Pennsylvania >
August 3, 2018
By: Terry R. Bossert
My colleague Michael Canavan and I recently examined this problem in an article for The Legal Intelligencer's Energy & Environmental Law Supplement ("Environmental Quality Board: Is It Time to Make it Truly Independent?"). There are a variety of issues that keep the EQB from delivering on its assigned power and duties, including the fact that the board has had little or no staff throughout its 50-year history placing many of its presumed duties back on the DEP.
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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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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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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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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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