Pennsylvania Supreme Court Restores “Rule of Capture” to Hydraulic Fracturing, But Trespass Claims Could Continue

In a split 3-2 decision, the Pennsylvania Supreme Court decided that the centuries-old rule of capture applies to hydraulic fracturing operations within the commonwealth, ending multi-year litigation where this critical concept received widespread scrutiny across the energy industry. See Briggs v. Southwestern Energy Production Co. This decision overturns Pennsylvania’s intermediary appellate court’s ruling, which had rejected the application of the rule of capture to fracking, as we reported.  

​Pennsylvania’s rule of capture allows drillers to drain a natural resource, including oil, gas, or water, from beneath property they do not own so long as …

Continue Reading

Principles of Interpretation and Separation of Powers: Federal Court’s PFAS Ruling a Short Study in Both

Our readers are well aware of the ongoing debate on whether perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) (commonly known, together, as PFAS) should be designated as hazardous substances. Despite the constant attention these compounds receive, they are yet to be designated. There is a recent case out of the U.S. District Court for the Eastern District of Pennsylvania that highlights the legal significance while employing some basic principles. 

In Giovanni, et al. v. United States Dep’t of the Navy, individual plaintiffs discovered that PFAS chemicals from nearby Navy facilities had infiltrated …

Continue Reading

Pennsylvania Launches $4 Million Investigation Into Whether Fracking Causes Rare Form of Cancer in Children

Throughout the past decade, the human health effects that may be caused by hydraulic fracturing have been widely scrutinized by a variety of individuals, institutions, and experts. Allegations of health problems ranging from respiratory complications, birth defects, blood disorders, cancers, nervous system issues, and other ailments have attempted to be linked to fracking operations in some capacity, many with a low degree of scientific certainty. In response to public outcry concerning a unique situation unfolding in western Pennsylvania, Gov. Tom Wolf recently announced that his …

Continue Reading

Third Circuit Court of Appeals Delivers Knockout Punch to PennEast Natural Gas Pipeline, Eminent Domain Squashed

Previously, we reported that that the United States District Courts for the Middle District of Pennsylvania and the District of New Jersey granted a consortium of natural gas companies the right of eminent domain to take steps toward building the PennEast pipeline to connect natural gas sources in Pennsylvania to parts of New Jersey. We then reported that the Third Circuit Court of Appeals issued a stay to temporarily stop any physical construction from beginning on the pipeline in New Jersey until the appeal was decided. 

​Now, in the next …

Continue Reading

Pennsylvania Appellate Court Splits the Difference on Oil & Gas Regulations

As hydraulic fracturing continues to be a hot topic among Pennsylvania’s Appellate Courts, the Commonwealth Court (PA’s intermediary appellate division), recently released an opinion addressing a multitude of state-level regulations concerning oil and gas operations, helping to define the rules by which drillers must abide within the state.

At issue in Marcellus Shale Coalition v. Department of Environmental Protection of the Commonwealth of Pennsylvania, were several provisions within Chapter 78(a) of the Pennsylvania Code, which governs unconventional oil and gas well operations. Roughly three years …

Continue Reading

Don’t Go Taking My Land: Did SCOTUS Find a Serious Hurdle for State Limitations on Energy Development?

What does a private graveyard have to do with environmental regulation? Potentially a lot. The United States Supreme Court recently ruled that property owners can forgo state court to assert claims that the government unconstitutionally allowed a “taking” of their land. Most are familiar with the takings clause of the U.S. Constitution’s Fifth Amendment: “[N]or shall private property be taken for public use, without just compensation.” That is, governments are not permitted to take private property without providing fair value.

The decision, Knick v. Township

Continue Reading

Third Circuit Court of Appeals Halts Construction of PennEast Natural Gas Pipeline, Must Decide Issue of Eminent Domain

Recently, we reported that the United States District Courts for the Middle District of Pennsylvania and the District of New Jersey granted a consortium of natural gas companies the right of eminent domain to take steps towards building the PennEast pipeline to connect natural gas sources in Pennsylvania to parts of New Jersey.

As the next development in this project’s complicated legal track, the Third Circuit Court of Appeals issued a stay to temporarily stop any physical construction from beginning on the pipeline in New …

Continue Reading

Pennsylvania Appellate Court Grants Landowners New Path to Recover Natural Gas Royalties

In a case of first impression, a Pennsylvania Appellate Court has granted an interlocutory appeal permitting the state’s Attorney General to pursue restitution claims on behalf of landowners who claim that natural gas companies violated the terms of their subsurface mineral lease agreements by improperly withholding royalty payments.

In Anadarko Petroleum Corp., et. al. v. Commonwealth of Pennsylvania, the Commonwealth Court recently ruled that the Pennsylvania Attorney General’s office can bring royalty claims on behalf of landowners against natural gas companies under the state’s …

Continue Reading

Pennsylvania Lawmakers Push Nuclear Power Bailout, Further Define Alternative Energy Initiative

Pennsylvania legislators have proposed a new law that would preserve the existence of nuclear power by funding operations via large-scale government subsidies. Lawmakers recently proposed “Keep Powering Pennsylvania” House Bill (HB) 11, which, if passed, would re-classify nuclear power as a qualifying energy resource under Pennsylvania’s Alternative Energy Portfolio Standards (AEPS) and effectively subsidize the entire industry within the state. 

As part of Pennsylvania’s larger alternative energy initiative, AEPS was enacted to provide economic development opportunities by increasing the mix of alternative energy generation. The

Continue Reading

Yet Another One Bites the Dust – Latest Climate Change Lawsuit Dismissed in Pennsylvania

In what definitely is becoming a pattern, yet another climate change lawsuit has been dismissed. On February 19, 2019, the United States District Court for the Eastern District of Pennsylvania dismissed the case Clean Air Council, et al. v. United States of America, Civ. No. 17-4977. With this dismissal, six significant climate change lawsuits, and several more questionable suits, now have been rejected by different US courts around the country: [in addition to Clean Air Council, what can be considered significant suits filed by …

Continue Reading