Articles Posted in Energy, Oil & Gas Law

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Sierra Club filed suit against Dominion under the citizen-suit provision of the Clean Water Act, alleging that Dominion was violating 33 U.S.C. 1311(a), which prohibits the unauthorized "discharge of any pollutant" into navigable waters. The Fourth Circuit held that the landfill and settling ponds on the Chesapeake site of a coal-fired power plant did not constitute "point sources" as that term was defined in the Clean Water Act, and thus reversed the district court's ruling that Dominion was liable under section 1311(a). The court held, however, that Dominion's discharge permit did not regulate the groundwater contamination at issue and affirmed as to those claims. View "Sierra Club v. Virginia Electric & Power Co." on Justia Law

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The Fourth Circuit affirmed the district court's dismissal of plaintiffs' action against Mountain Valley Pipeline, FERC, and the Acting Chairman of FERC, challenging the constitutionality of various provisions of the Natural Gas Act. The court held that it need not reach the merits of the challenges because the claims must be dismissed for lack of subject matter jurisdiction. The court explained that, under the two-step analysis in Bennett v. SEC, 844 F.3d 174 (4th Cir. 2016), Congress intended to divest district courts of jurisdiction to hear the claims pursued by plaintiffs and instead intended those claims to be brought under the statutory review scheme established by the Natural Gas Act. View "Berkley v. Mountain Valley Pipeline, LLC" on Justia Law

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Virginia Uranium filed suit seeking a declaration that the ban on mining the Coles Hill uranium deposit was preempted by federal law and an injunction compelling the Commonwealth to grant uranium mining permits. The district court granted the Commonwealth's motion to dismiss. On appeal, Virginia Uranium maintains that the Atomic Energy Act preempts Virginia's ban on uranium mining. The court concluded that the district court correctly held that Virginia's ban on conventional uranium mining is not preempted. The court explained that, because conventional uranium mining outside of federal lands is beyond the regulatory ambit of the Nuclear Regulatory Commission, it is not an "activity" under section 2021(k) of the Act. The court rejected Virginia Uranium's contention that uranium-ore milling and tailings storage are activities under section 2021(k) of the Act, and concluded that the Commonwealth’s mining ban does not purport to regulate an activity within the Act's reach. Finally, the court concluded that the district court properly dismissed the case where Congress's purposes and objectives in passing the Act are not materially affected by the Commonwealth's ban on conventional uranium mining. Accordingly, the court affirmed the judgment. View "Virginia Uranium v. Warren" on Justia Law

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Plaintiff filed this diversity action alleging that he owned fractional working interests in four Ritchie County mining partnerships, which owned six oil and gas wells, and demanding an accounting of the four partnerships. Defendant counterclaimed for the cumulative operating expenses attributable to Plaintiff’s asserted working interests in the partnerships. The district court awarded summary judgment to Defendant, concluding that Plaintiff’s assertion of interests in the four mining partnerships failed because he could not produce a writing that evidenced his co-ownership of the subject leases or wells in conformance with the Statute of Frauds. The Supreme Court of West Virginia accepted the Fourth Circuit’s certified question of law and answered (1) if a person contends he owns an interest in a common-law mining partnership, the Statute of Frauds requires the person to prove he is a partner of the mining partnership through a written conveyance; and (2) if the partnership is a general partnership and the partnership owns oil and gas leases, the Statute of Frauds does not require a person to produce a written instrument to prove he is a partner in the general partnership. Having adopted the West Virginia Supreme Court’s opinion answering the Court’s certified question of law, the Fourth Circuit vacated the judgment of the district court and remanded. View "Valentine v. Sugar Rock, Inc." on Justia Law

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In the early 1980s, Georgia Power Company sold a number of its used electrical transformers to Ward Transformer Company (Ward). Because the electrical transformers contained toxic compounds that have been banned since 1979, Ward repaired and rebuilt the transformers for resale to meet third-party customers’ specifications. In the process, one of Ward’s facilities in Raleigh, North Carolina (the Ward Site) became contaminated. In the 2000s, the EPA initiated a costly removal action at the Ward Site. Consolidated Coal Company and PCS Phosphate Company, Inc. each paid more than $17 million in cleanup costs related to the Ward Site. In 2008 and 2009, they filed complaints under the Comprehensive Environmental Response, Compensation, and Liability Act against Georgia Power alleging that, as supplier of some of the transformers to Ward, Georgia Power should be liable for a contribution to those costs. The district court granted summary judgment for Georgia Power. The Fourth Circuit affirmed, holding that the circumstances of the transformer sales did not indicate Georgia Power’s intent to dispose of the toxic compounds and therefore did not support arranger liability. View "Consolidation Coal Co. v. Georgia Power Co." on Justia Law

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Power Fuels, operator of a facility that receives, blends, stores, and delivers coals for a power plant located across the road, petitioned for review of the Commission's final order, challenging the Secretary's assignment of jurisdiction to the MSHA, rather than to the nonspecialized OSHA. The court held that the Secretary permissibly concluded that a facility that blends coal for a nearby power plant was subject to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 802(h)(1)(C), (i). Therefore, the MSHA's assertion of jurisdiction was proper because the Mine Act covers this kind of activity. Accordingly, the court denied the petition for review. View "Power Fuels, LLC v. Federal Mine Safety & Health" on Justia Law

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Plaintiffs filed suit challenging a Maryland program subsidizing the participation of a new power plant in the federal wholesale energy market. Maryland's plan was ultimately formalized in the Generation Order. The district court agreed with plaintiffs' contention that the Maryland scheme was preempted under the Federal Power Act's (FPA), 16 U.S.C. 824(b)(1), authorizing provisions, which grant exclusive authority over interstate rates to FERC. The court concluded that the Generation Order is field preempted because it seeks to regulate a field that the FPA has occupied. The court also concluded that the Generation Order is conflict preempted because it conflicts with the auction rates approved by FERC and conflicts with PJM's new entry price adjustment (NEPA). Accordingly, the court held that the Generation Order was preempted under federal law and affirmed the judgment of the district court.View "PPL EnergyPlus, LLC v. Nazarian" on Justia Law

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A&G owns and operates the Kelly Branch Surface Mine in Virginia. Plaintiff filed suit against A&G for declaratory and injunctive relief and civil penalties, contending that A&G was violating the Clean Water Act (CWA), 33 U.S.C. 1251 et seq., by discharging selenium from Kelly Branch without authorization to do so. The court held that A&G could not assert a "permit shield" defense for discharges of selenium when it failed to disclose the presence of this pollutant during the permit application process. Accordingly, the court affirmed the district court's grant of summary judgment to plaintiff. View "Southern Appalachian Mountain v. A & G Coal Corp." on Justia Law

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Plaintiff filed suit alleging that he was the owner of certain fractional work interests in four Ritchie County mining partnerships. The court certified the following question to the Supreme Court of Appeals of West Virginia: Whether the proponent of his own working interest in a mineral lease may prove his entitlement thereto and enforce his rights thereunder by demonstrating his inclusion within a mining partnership or partnership in mining, without resort to proof that the lease interest has been conveyed to him by deed or will or otherwise in strict conformance with the Statute of Frauds. View "Valentine v. Sugar Rock, Inc." on Justia Law

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NCUC challenged incentives granted by FERC to VEPCO to encourage investment in transmission infrastructure projects. The court held that FERC properly exercised its broad discretion in declining to apply the 2010 policy change in its Rehearing Order and in evaluating VEPCO's application for incentives. Accordingly, the court granted FERC's grant of incentives to VEPCO under section 219 of the Federal Power Act (FPA), 16 U.S.C. 824s(c). View "North Carolina Utilities Comm'n v. FERC" on Justia Law