Articles, Alerts & Perspectives

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Matthew C. Wood)

At the May 16, 2024, Water Resources Advisory Committee (WRAC) meeting, the Pennsylvania Department of Environmental Protection (PADEP) presented a revised draft proposed rule that would amend and clarify certain existing spill reporting requirements. The regulation, 25 Pa. Code § 91.33 (Existing Rule), governs notification requirements for unauthorized releases of substances into waters of the commonwealth. Specifically, the Existing Rule requires immediate notification to PADEP if the release of a substance “would endanger downstream users of the waters of this Commonwealth, would otherwise result in pollution or create a danger of pollution of the waters, or would damage property.” 25 Pa. Code § 91.33(a). The party responsible for initiating the notification is “the person at the time in charge of the substance or owning or in possession of the premises, facility, vehicle or vessel from or on which the substance is discharged or placed.” Id. Notably, the Existing Rule, which was adopted in 1971, offers no clear guidance on determining whether notification is required.

To address this, PADEP has proposed a revised draft of the regulation that clarifies the requirements for notifying or not notifying the agency of an unauthorized release (Proposed Rule). See Proposed Revisions to 25 P.A. Code § 91.33. Proposed subsection 91.33(a.1) would require reporting for substances listed in 40 C.F.R. § 117.3 when released in amounts equal to or greater than their reportable quantities and subsection 91.33(a.2) states that a person who immediately notifies PADEP in accordance with subsections (a) and (a.1) has satisfied the notification requirements under section 91.33. …

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Matthew C. Wood)

On April 4, 2024, the Pennsylvania Public Utility Commission (PUC), in a 4–1 vote, adopted a joint motion to comprehensively review processing times of certain applications under its purview. See Press Release, PUC, “PUC Launches Comprehensive Review of Application Procedures” (Apr. 4, 2024). Specifically, the PUC proposed to analyze how to make more efficient application processes that do not have applicable regulatory or statutory deadlines (or have deadlines that the PUC has authority to extend). Joint Motion for Chairman Stephen M. De Frank and Commissioner Ralph V. Yanora (Joint Motion), at 2.

The initiative consists of two parts. First, the PUC directed each of its various bureaus that work on these types of applications to review and inventory each applicable proceeding with the following information:

• the methods by which the PUC receives the applicable filings;
• the statutory or regulatory authority underlying issued approvals;
• whether publication of an application is required;
• whether the application has a protest period, and if so, its length; and
• a description of the bureau’s tasks.

Id.

Second, the Office of the Executive Director will analyze the inventory information, examine each bureau’s average application review time and the total average processing time from application filing to a final decision, and evaluate process improvements. Id. The goal of the evaluation is to reduce processing times by at least 15% (subject to revision), while also considering the allocation of necessary resources, legal deadlines, and compliance with applicable legal requirements under the Public Utility Code, PUC Regulations, or PUC Orders.  …

Pittsburgh, PA and Washington, DC

FNREL Mineral and Energy Law Newsletter

Pennsylvania – Mining

(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Christina M. Puhnaty)

On June 1, 2024, the Pennsylvania Department of Environmental Protection (PADEP) issued a request for information (RFI) to anyone interested in submitting concept papers for PADEP’s consideration for the Design, Development, Commercialization and Maintenance of Clean Energy Campus (CEC) Projects on abandoned mine lands (AML) controlled by the Commonwealth. 54 Pa. Bull. 3098 (June 1, 2024) PADEP requests concept papers from project sponsors, namely clean energy project developers, asset owners, financial institutions, and other relevant parties, willing to coinvest with PADEP to transfer AML sites into CECs. PADEP notes in the notice that it owns 13 properties greater than 50 acres in size eligible for conversion.

In terms of design, PADEP requests information on the design for land reclamation and remediation to create sites ready for clean energy generation or energy storage sites. PADEP is looking for a sponsor who can provide professional design services, feasibility studies, geophysical investigations, construction oversight, and other technical services as required. Such remediation designs could require action in perpetuity. With respect to development, PADEP is looking for a project sponsor that can manage the remediation and development of the site by completing leases, conducting site preparation, securing permitting, conducting geotechnical investigations, and securing interconnection. PADEP has pointed to EPA’s Revitalization Handbook as guidance for renewable energy development on AML sites, which recommends property purchasers assess whether they should conduct all appropriate inquiries to take advantage of CERCLA liability protections. For commercialization, PADEP seeks sponsors with experience deploying grid-scale clean energy generation and storage projects. …

Pittsburgh, PA

The Legal Intelligencer

(by Max Junker and Anna Hosack)

If sunlight is said to be the best of disinfectants and electric lights the most efficient policeman, then what is said of the darkness of anonymity?  Many agencies have been receiving Right-to-Know Law, 65 P.S. § 67.701, et seq. (“RTKL”) record requests created through “FOIA Buddy” that they suspect are anonymous.  FOIA Buddy is an online service that lists its mission as “simplifying the process of requesting public records.”  After numerous inquiries about anonymous requests, the Pennsylvania Office of Open Records (“OOR”) released a memo confirming that FOIA Buddy is operated by people who have a stated goal of efficiently promoting government transparency and accountability in a cost-effective manner for all involved and that the OOR found no indication that FOIA Buddy is part of a phishing, scraping, or scamming activity.  The memo also stated that the OOR is unable to provide specific legal advice on responding to RTKL requests that are made by or through FOIA Buddy.  However, the OOR recommends that agencies ensure their internal RTKL policies are clear and posted on the agency’s website and easily accessible.  This has provided an opportunity for local agencies to dust off their RTKL policies, which likely have not been reviewed since the enactment of the new RTKL in 2008.

Section 702 of the RTKL provides that “Agencies may fulfill verbal, written or anonymous verbal or written requests under this act.”  Therefore, agencies have discretion as to whether they will answer anonymous requests.  For a request not to be anonymous, the request must have a valid requester with an ascertainable address.  A “requester” is defined by the RTKL as “[a] person that is a legal resident of the United States.”  Section 703 of the RTKL requires that all written requests under the RTKL “shall include the name and address to which the agency should address its response.”  The use of an alias or fake name or the lack of inclusion of a verifiable address on the RTKL form constitutes an anonymous request. …

Harrisburg, PA

The Legal Intelligencer

(by Casey Alan Coyle and Michael Libuser)

Courts have long extolled the benefits of stare decisis, saying that it “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”  Payne v. Tennessee, 501 U.S. 808, 827 (1991).  Indeed, it has been said that, without the doctrine, “we may fairly be said to have no law.”  Commonwealth v. Thompson, 985 A.2d 928, 953–54 (Pa. 2009) (quoting McDowell v. Oyer, 21 Pa. 417, 423 (1853)).  Recently, however, the U.S. Supreme Court has departed from longstanding precedent in several cases—most notably in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022)—leading some members of the High Court to accuse it of making a “laughing-stock” of stare decisis.  Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2295 (2024) (Kagan, J., dissenting, joined by Sotomayor and Jackson, JJ.).

The public’s confidence in the High Court has suffered as a result.  According to a recent Gallup poll, the approval of the U.S. Supreme Court is near a historic low, with only 43% of Americans approving of its performance.  The current approval rate is “statistically similar to its ratings over the past three years since it declined to block a Texas abortion law in 2021 and later overturned Roe v. Wade in the landmark 2022 [Dobbs] decision.”  Megan Brenan, Approval of U.S. Supreme Court Stalled Near Historical Low, Gallup (July 30, 2024).  Thus, there is ostensibly a direct correlation between adherence to precedent and the public’s view of the courts. …

Pittsburgh, PA

TEQ Hub

(by Kristen Petrina)

Artificial Intelligence (AI) is advancing at unprecedented speeds. AI relies on vast amounts of datasets for processing and model training, creating the challenge of balancing the benefits of AI, while protecting data privacy. As a result of improper data processing and usage, organizations are facing harsh penalties including AI usage prohibition, algorithm disgorgement, and multibillion dollar fines. When considering how to introduce AI into any organization, one of the first questions to consider is, “How can AI be utilized to drive innovation without violating privacy and misusing collected data?”

AI governance analysis should be under a privacy lens, as personal data is at the core of many opportunities that come with AI development. Privacy risks may result in societal and ethical impacts on individuals which speaks to the heart of responsible AI usage. Incorporating responsible AI practices is user specific to each organization and it is possible to protect privacy and drive innovation. In order to achieve both goals, organizations should consider data protection preventative measures before implementing AI into its processes.

• Data privacy should be addressed at the onset of AI implementation. Organizations should conduct risk assessments and consider data enablement through AI from the beginning before it becomes an issue. Generative AI in particular is self-learning, the more data fed into the model, the harder it will be to unwind or remove data if improperly used.
• AI and data privacy governance teams must work together from the beginning to address any risks that may arise. Organizations may consider forming an ethical AI committee engaging diversified team members to reduce potential bias in the development and design.
• Contemplate data inputs by asking questions such as what the existing and potential future data sources may be, what data will be collected, what are in the datasets, how to categorize the types of data, will the data modeling receive personal or sensitive data, should those things be included.

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Pittsburgh, PA, Charleston, WV, and Washington, DC

Babst Calland is pleased to announce that two lawyers were selected as 2025 Best Lawyers in America® “Lawyer of the Year” in Pittsburgh, Pa. and Charleston, W. Va. (by BL Rankings). Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant.

Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, professionalism, and integrity. Those named to the 2025 Best Lawyers in America® “Lawyer of the Year” include:

Blaine A. Lucas, Litigation – Land Use and Zoning “Lawyer of the Year” in Pittsburgh, Pa.

Timothy M. Miller, Litigation – Environmental “Lawyer of the Year” in Charleston, W. Va.

View the award recipients here.

In addition, 40 Babst Calland lawyers were selected for inclusion in the 2025 edition of The Best Lawyers in America®, the most respected peer-reviewed publications in the legal profession:

• Chester R. Babst III – Environmental Law, Litigation – Environmental
• Donald C. Bluedorn II – Environmental Law, Litigation – Environmental, Water Law
• Lisa Bruderly – Environmental Law
• Joseph G. Bunn – Banking and Finance Law, Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law, Business Organizations (including LLCs and Partnerships), Commercial Transactions / UCC Law, Corporate Law, Mergers and Acquisitions Law, Mining Law
• Dean A. Calland – Environmental Law
• Matthew S.

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Pittsburgh, PA and Washington, DC

PIOGA Press

(by Kevin Garber, Gina Falaschi Buchman, and Sean McGovern)

On July 17, 2024, Governor Josh Shapiro signed the Carbon Capture and Sequestration Act into law, effective immediately.  This comprehensive new statute positions Pennsylvania to join a growing list of states, including North Dakota, Wyoming, Indiana, and West Virginia, that promote underground storage of carbon dioxide.

The Act authorizes the underground injection and sequestration of CO2; confirms that the surface owner of real property owns the subsurface pore space; gives the Pennsylvania Department of Environmental Protection statutory authority to obtain primacy to issue injection permits; transfers title to stored carbon dioxide to the Commonwealth fifty years after injection ends; and establishes the Carbon Dioxide Storage Facility Fund to defray the Commonwealth’s long-term monitoring and management costs.

The Act has three key aspects – pore space ownership, permitting and operating an injection and storage facility, and liability and long-term responsibility for sequestered CO2.

Pore Space Ownership.  The Act provides that the owner of the surface property interest owns the pore space beneath surface lands and waters of Pennsylvania.  “Pore space” means subsurface strata, formations, cavities, or voids, whether natural or artificially created, that can be used to store CO2.  Conveying surface ownership also conveys the pore space unless it is (or has been) excepted and reserved, similar to the conveyancing of oil, gas, and minerals.  The Act does not change Pennsylvania law regarding dominance of the mineral estate.  A notice regarding pore space, like the coal notice, is now required in property deeds.

If, through negotiations with pore space owners, a prospective operator obtains at least 75% of the ownership interest in pore space for a storage facility, the Environmental Hearing Board may include the remaining 25% in the proposed facility by issuing a “collective storage order” if the EHB finds that the operator satisfied the notice and other provisions of the Act.  …

Charleston, WV

The Wildcatter

(by Nikolas Tysiak)

July 2024 Legislative and Regulatory Article for MLBC

There are not a lot of relevant cases to report this period. Here are what the courts have been up to this month:

The West Virginia Intermediate Court of Appeals handled another important case regarding tax sales of oil and gas interests recently. In Northeast Natural Energy, LLC v. LT Realty Unlimited, LLC (— S.E.2d —; 2024 WL 338948 (July 12, 2024). The case arises from competing claims of title to oil and gas rights under approximately 119 acres of land in Clay District, Monongalia County. George Tennant owned interests in the Surface, Sewickley Coal, and the oil and gas associated with the 119 acres when he died in 1938. Two assessments were entered from 1938 through 1941 – the first covering 3/8 of the surface oil and gas under the land, and the second covering the Sewickley Coal interests under the land. In 1940, the lands of George Tennant were partitioned, as part of which all oil and gas and coal rights were reserved to the estate. The assessments for the surface dropped the oil and gas label, and only described “SUR” or surface as being the interest being assessed, entered in the name of the surface purchaser. George Tennant and his heirs continued to be assessed for the Sewickley Coal interests.

The Sewickley Coal rights and Oil and Gas rights descended to various heirs of George Tennant, but only the Sewickley Coal rights were separately assessed. Eventually, the successors to George Tennant executed deeds and leases with Northeast Natural Energy LLC and other parties, in 2015. However, in 1992, Shuman Inc. acquired a tax deed for the Sewickley Coal assessment for non-payment of taxes. …

Pittsburgh, PA

Pittsburgh Business Times

(by Kevin Douglass, Carla Castello, Stephen Antonelli)

Today’s businesses are subject to increasing workplace scrutiny concerning possible misconduct of their owners, officers, management, and personnel. When faced with an allegation that can potentially expose the company to legal, financial and reputational harm, it is critical that the company promptly investigate the facts and assess the business risk in order to make an informed decision on the best course of action.

Is an Internal Company Investigation Warranted?

Employee complaints, or even allegations from third parties, concerning improper workplace conduct should always be taken seriously. Whether the claims involve an entry level employee, a manager, a corporate officer, or anyone in between, the company should assess whether the allegations, if true, would constitute violations of law or company policies, or otherwise materially impact the company’s finances, culture, reputation, or workforce.

Workplace investigations are often sensitive. Employees may be reluctant to step forward and become the center of an investigation. They may also fear backlash from the individual(s) being investigated, particularly if they carry significant clout within the company. The company can assuage those concerns by reminding employees involved in the investigation of the company’s obligation to comply with applicable anti-retaliation laws and company policies. The company should also explain that it will perform the investigation with impartiality and (as much as possible) confidentiality, and that it will comply with the organization’s policies and procedures while minimizing business disruption.

Planning for and Conducting the Investigation

At the outset, the company must define the scope and purpose of the investigation (i.e. identify the allegations and the reasons for undertaking the investigation), select an investigation team, and determine a timeline for the investigation. …

Harrisburg, PA

Pretrial Practice & Discovery

American Bar Association Litigation Section

(by Michael Libuser)

“Discovery sanctions serve the objectives of discovery by correcting for the adverse effects of discovery violations and deterring future discovery violations from occurring.” Taylor v. Illinois, 484 U.S. 400, 425 (1988) (Brennan, J., dissenting). Serving these objectives is important given the common refrain that “practitioners, judges, and academics . . . perceive discovery abuse . . . as a major, if not the major contributor to the growing cost and delay of litigation and to the dissatisfaction with our court systems in resolving civil disputes.” Earl C. Dudley, Jr., “Discovery Abuse Revisited: Some Specific Proposals to Amend the Federal Rules of Civil Procedure,” 26 U.S.F. L. Rev. 189, 190 (1992). Still, many litigators write off motions for sanctions as noncredible threats that rarely gain traction. See, e.g., William T. Gallagher, “IP Legal Ethics in the Everyday Practice of Law: An Empirical Perspective on Patent Litigators,” 10 J. Marshall Rev. Intell. Prop. L. 309, 341 (2011). And some judges have outspokenly decried them. A federal judge recently commented, “There are few things that I truly despise. The short list includes meatloaf, the Ohio State Buckeyes, and hangovers. It also includes motions for sanctions. It is no exaggeration to say that I hate, hate, hate motions for sanctions.” Boshears v. Polaris Eng’g, Inc., 2023 WL 2572204, at *1 (S.D. Tex. Mar. 20, 2023) (per Edison, J.). One form of discovery sanction—awards of expenses—is rarely imposed. Why that is so, and, more specifically, the extent to which state procedural rules authorize those awards, is the impetus for this practice point.Majority Rule

A majority of states follow Federal Rule of Civil Procedure 37(a)(5). …

Pittsburgh, PA

Pittsburgh Technology Council

Firm Announces Strategic Partnership with Former PIT General Counsel Jeff Immel

Law firm Babst Calland announced today its plan to expand the firm’s capabilities in its Aerospace, Aviation and Airports practice through a strategic partnership with Jeff Immel, former general counsel of the Allegheny County Airport Authority (ACAA), the operator of Pittsburgh International Airport and Allegheny County Airport, and experienced aviation and aerospace attorney.

Prior to joining ACAA, Immel served as the head of U.S. aviation regulatory and legal affairs for Zipline International Inc. where he provided legal counsel in obtaining and maintaining all federal approvals necessary to begin unmanned aircraft systems (UAS) commercial package delivery operations in the U.S. He also served as the primary legal and regulatory counsel to Amazon Prime Air and Amazon Air and was an associate attorney for Jenner & Block and Jones Day where he advised clients on various aspects of aviation regulation and emerging technologies law. Prior to attending to law school, Immel served in the United States Navy as a combat fighter pilot, where he achieved the rank of Lieutenant Commander.

Led by Justine Kasznica, Babst Calland currently actively supports the mission and vision of the growing space industry in the region, and currently serves as general counsel for various aerospace contractors and suppliers and non-profit space organizations. Babst Calland is also in partnership with the Department of Defense and U.S. Space Force’s AFWERX/SpaceWERX hub in Pittsburgh, and is a founding member of the Pittsburgh-based Keystone Space Collaborative and the Moonshot Museum,

“We look forward to partnering with Jeff on many new endeavors as we forge new pathways in the aerospace, aviation and airport industries and helping our existing clients in these sectors to grow and expand,” said Justine Kasznica, shareholder, and chair of Babst Calland’s Emerging Technologies practice. …

Pittsburgh, PA

The Current (PA Chamber Business Blog)

(by Christina Manfredi McKinley)

On July 31, 2024, the Pennsylvania Chamber will offer a free webinar addressing the effect on the business community of three significant administrative law cases from the Supreme Court’s recently concluded term: Loper Bright, Corner Post, and Ohio v. EPA.

Moderated by the Chamber’s General Counsel and Vice President of Government Affairs Megan Martin, this experienced panel will discuss and debate some of the likely consequences for Pennsylvania’s business community in this new frontier of administrative law. Whether individually or collectively, the import of these cases on the existing administrative state cannot be understated. Particularly for businesses, which nearly always are subject to federal regulations in some capacity, these cases create both significant opportunities and corresponding risks.

The United States is, in part, governed federally by what has come to be known as “the administrative state.” That term refers to the network of administrative agencies—operating under the direction of the Executive Branch—that frequently write, interpret, and enforce their own rules, which, in turn, apply to the communities they regulate. The administrative state is expansive and includes agencies touching on nearly every facet of American life, from tax to immigration, the environment to government land, and labor to finance.

This past term, the United States Supreme Court (“SCOTUS”) handed down a number of decisions, which, individually and collectively, have the potential to reshape the administrative state as we know it:

• In Loper Bright v. Raimondo, SCOTUS overruled its 1984 decision in Chevron USA, Inc. v. Natural Resources Defense Council. That decision was the seminal case creating what had long been known as Chevron.

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