Federal Court Rules Local Oil and Gas Development Ban Violates 1st and 14th Amendments

Featured Expert Column – Environmental Law and Policy

sboxermanBy Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP

In a twist on the typical case addressing local oil and gas bans, the Western District of Pennsylvania struck down a Grant Township, PA ordinance finding the law impermissibly stripped Pennsylvania General Energy Co. (PGE) of its constitutional rights. The decision, Pennsylvania General Energy Co. v. Grant Township, is an important and unique precedent for the rights of a corporation to conduct a lawful business in the face of local opposition. Continue reading

Federal Court Properly Defers to Oklahoma Oil and Gas Oversight, Rejects Sierra Club Bid for Federal Regulation

Guest Commentary

Robeck_MarkBy Mark R. Robeck, Kelley Drye & Warren LLP. Mr. Robeck is a Partner in the firm’s Washington, DC office and a contributor to its Fracking Insider blog.

In 2016, the Sierra Club filed suit in Oklahoma alleging that use of state-permitted deep wastewater injection wells was causing increased seismic activity—both in frequency and severity.  Sierra Club v. Chesapeake Operating, LLC, et al., Case No. CIV-16-134-F, United States District Court for the Western District of Oklahoma.

In an April 4, 2017 Order the court dismissed the case, declining to exercise jurisdiction because doing so would interfere with the state regulators’ efforts to address the alleged increased seismic activity from wastewater injection. Continue reading

US Food Security and Farmers’ Livelihoods at Stake in “Waters of the US” Rule Rewrite

Lawrence KoganGuest Commentary

By Lawrence A. Kogan*

For decades, federal agencies have incrementally extended their control over agricultural lands by expanding the definition of “waters of the US” (WOTUS) under the Clean Water Act (CWA) and asserting broad legal jurisdiction over WOTUS-adjacent “wetlands.” Those efforts triggered intense legal conflicts, facilitated the CWA’s growth into a “regulatory hydra,” and caused a “reversal of terms [in our unique relationship with government] that is worthy of Alice in Wonderland.”1

President Trump recently issued Executive Order 13778 as the first step aimed at curtailing this government juggernaut.  The order directs the heads of the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (the Corps) to review for substantial revision or rescission their jointly issued 2015 CWA regulation that expanded the definition of “WOTUS.”  Presumably, EPA’s review of this regulation will be undertaken while the October 9, 2015 federal court-issued stay of its implementation remains in place.2 Continue reading

Vigorous Dissent from Fifth Circuit’s Denial of Rehearing Should Help ESA Frog-Habitat Case Leap to Supreme Court

sboxermanFeatured Expert Column – Environmental Law and Policy

By Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP

A fractured US Court of Appeals for the Fifth Circuit rejected a request seeking rehearing en banc of the court’s decision in Markle Interests, LLC, et al v. U.S. Fish and Wildlife Service, et al. The February 13 decision is the latest in the ongoing legal saga regarding the endangered dusky gopher frog and the designation of private property in Louisiana as “critical habitat”—even though this “shy frog” does not reside on the land and the land does not currently feature the characteristics needed to support the frog.

On June 5, 2016, a majority panel for the Fifth Circuit upheld the district court’s opinion that nearly 1,500 acres of private land in Louisiana (“Unit 1”) is critical habitat for the frog and therefore subject to the requirements of the Endangered Species Act.  In order to be designated as critical habitat, land must meet strict criteria: it must contain physical or biological features essential to conservation of the species. The land in question contains only one of three features considered necessary to support the dusky gopher frog—five ephemeral ponds—and more significantly, is covered with closed canopy pine that make the land uninhabitable by the species. Designation of the land as critical habitat comes at a cost of nearly $34 million in economic impact to the landowners. Despite these facts, the majority held that the land was critical habitat and furthermore, that the US Fish and Wildlife Service’s decision not to carve out Unit 1 from the critical-habitat decisions was judicially unreviewable. Continue reading

Update: Colorado Sues Boulder County Over Divergent Oil and Gas Regulation

coloradoagA February 8 post, Kudos to Colorado AG for Rebuking Boulder County on Its Fracking Moratorium, discussed a letter Colorado Attorney General Cynthia H. Coffman sent to the Boulder County Board of County Commissioners warning that the state would file suit if the county did not end its moratorium on new oil and gas development permits by February 10.

After giving the Board four extra days to comply, Attorney General Coffman filed suit against Boulder on February 14. The suit alleges that the moratorium conflicts with the Colorado Oil and Gas Conservation Act. The state supreme court held in a 2016 decision that the Act preempted anti-fracking rules adopted by two other Colorado localities.

The complaint can be viewed here. Upon filing suit, Attorney General Coffman stated:

The Boulder County Commissioners responded [to the Attorney General’s letter] that they needed yet more time to draft regulations and prepare to accept new applications for oil or gas development.  Because five years is more than reasonable time to complete such a project, and because Boulder County continues to operate in clear violation of Colorado law, the Attorney General today is filing suit in Boulder County District Court to compel compliance.  It is not the job of industry to enforce Colorado law; that is the role of the Attorney General on behalf of the People of Colorado.  Regrettably, Boulder County’s open defiance of State law has made legal action the final recourse available to the State.

A Q&A with Federal Regulation Scholar Susan Dudley on Reconsidering Regulations

dudleysusan-2015_crop_webSusan E. Dudley is Director of the George Washington University Regulatory Studies Center, which she founded in 2009, and a distinguished professor of practice in the Trachtenberg School of Public Policy and Public Administration. From 2007 to 2009, she served as the Administrator of the Office of Information and Regulatory Affairs (OIRA) in the U.S. Office of Management and Budget.

WLF Legal Pulse: As promised, Congress and the Administration have quickly gotten to work reconsidering and removing a host of federal regulations while also setting the stage for a much different approach to regulation.  Let’s first talk about what Congress is doing.

Professor Dudley: Under the Congressional Review Act of 1996 (CRA), Congress has 60 legislative days after a regulation is published to vote to disapprove it.  The procedures for disapproval are streamlined (including requiring a simple majority in the Senate) and if a rule is disapproved, the agency cannot issue something substantially similar. Continue reading

Kudos to Colorado AG for Rebuking Boulder County on Its Fracking Moratorium

coloradoagIn the last several years, municipal and county governments have thrust themselves into some of the nation’s most contentious legal-policy debates by imposing regulatory mandates and restrictions on business conduct. New York City famously tried to shrink soda serving sizes. San Francisco has dictated that ads for “sugary drinks” include health warnings. Philadelphia has prohibited businesses from asking job applicants about their salary history. And numerous cities and counties have enacted restrictions or bans on oil and natural gas extraction from shale plays within their borders.

That last type of local regulation has instigated many battles between city or county government and state lawmakers. The latest fight—between the State of Colorado and the County of Boulder—is about to come to a head. In a January 26 letter sent to Boulder County’s three commissioners, Colorado Attorney General Cynthia H. Coffman has given the county until Friday, February 10 to rescind its “moratorium” on accepting new applications for oil and gas development. If the county fails to act, Attorney General Coffman has pledged to file suit. Continue reading