Articles, Alerts & Perspectives

The PIOGA Press

(By Jim Curry and Chris Kuhman)

On November 15, 2021, President Biden signed the bipartisan $1.2 trillion Infrastructure Investment and Jobs Act (H.R. 3684). This Alert reviews the key provisions related to hydrogen and carbon capture, utilization, and storage (CCUS).

Hydrogen

Regional Clean Hydrogen Hubs (Sec. 40314): In perhaps the most impactful provision, the Bill authorizes an $8 billion program to support the development of at least four regional clean hydrogen hubs to network hydrogen producers, storage, offtakers and transport infrastructure. DOE must solicit proposals for regional clean hydrogen hubs by May 15, 2022, and select the four hubs by May 15, 2023. DOE will solicit at least one hub proposal for each of the following hydrogen production technologies: fossil fuels, renewables or nuclear. And, DOE will solicit at least one hub to provide hydrogen to each of the following sectors: power generation, industrial, residential and commercial heating, and transportation.

Clean hydrogen definition and production qualifications (Secs. 40312 & 40315): Defines “clean hydrogen” and “hydrogen” in a technology neutral way, and requires DOE and EPA to develop an initial carbon standard for projects to qualify as clean hydrogen production, eligible for the variety of incentives throughout the Bill. Clean hydrogen means “hydrogen produced with a carbon intensity equal to or less than 2 kilograms of carbon dioxide (CO2)-equivalent produced at the site of production per kilogram of hydrogen produced.” The standard must consider technological and economic feasibility and allow production from fossil fuels with CCUS, hydrogen carrier fuels, renewables, nuclear and other methods that DOE determines are appropriate.

Research and development program and national clean hydrogen strategy and roadmap (Secs. …

Babst Calland recently named Katrina N. Bowers a shareholder in the Firm.

Katrina Bowers is a member of the Corporate and Commercial, Litigation, and Energy and Natural Resources groups. Ms. Bowers currently serves as General Counsel to the West Virginia International Yeager Airport, and as general counsel and advisor to airports in West Virginia, on day-to-day legal and business matters, such as compliance with West Virginia and federal law, employment and litigation matters, corporate governance, and contract negotiations.

Ms. Bowers’ practice also includes representing oil and gas companies in litigation concerning a variety of matters including trespass, negligence, property damage, royalty payments, toxic torts, title disputes, breach of contract, preliminary and permanent injunctions, and fraud as well as advising them regarding proposed, pending, and enacted safety, health, and environmental regulations. Ms. Bowers has also represented coal operators in cases alleging adverse treatment, deliberate intent, and wrongful termination. Further, she has represented clients against civil penalties and violations issued by the Mine Safety and Health Administration and the Occupational Safety and Health Administration.

Ms. Bowers is a 2013 graduate of West Virginia University College of Law.

GO-WV News

(Keith Coyle, Ashleigh Krick and Chris Kuhman)

On November 15, 2021, the Pipeline and Hazardous Materials Safety Administration (PHMSA) released a final rule for onshore gas gathering lines. The final rule, which represents the culmination of a decade-long rulemaking process, amends 49 C.F.R. Parts 191 and 192 by establishing new safety standards and reporting requirements for previously unregulated onshore gas gathering lines. Building on PHMSA’s existing two-tiered, risk-based regime for regulated on-shore gas gathering lines (Type A and Type B), the final rule creates:

• A new category of onshore gas gathering lines that are only subject to incident and annual reporting requirements (Type R); and
• Another new category of regulated onshore gas gathering lines in rural, Class 1 locations that are subject to certain Part 191 reporting and registration requirements and Part 192 safety standards (Type C).

The final rule largely retains PHMSA’s existing definitions for onshore gas gathering lines but imposes a 10-mile limitation on the use of the incidental gathering provision. The final rule also creates a process for authorizing the use of composite materials in Type C lines and prescribes compliance deadlines for Type R and Type C lines. Additional information about these requirements is provided below.

Type R Lines:  The final rule creates a new category of reporting-only regulated gathering lines. These gathering lines, known as Type R lines, include any onshore gas gathering lines in Class 1 or Class 2 locations that do not meet the definition of a Type A, Type B, or Type C line.  Operators of Type R lines must comply with the certain incident and annual reporting requirements in Part 191. …

Babst Calland recently named Mary H. Binker, Michael E. Fink, Jennifer L. Malik and Cary M. Snyder shareholders in the Firm.

Mary Binker is a member of the Corporate and Commercial, Energy and Natural Resources, and Real Estate groups. Her practice focuses primarily on corporate and transactional matters, including negotiation of commercial contracts and real estate transactions. Ms. Binker advises businesses of various sizes and complexity, in a broad range of industries including chemical, energy and real estate development, in their corporate contracting needs. She counsels clients on their day-to-day contracting needs such as procurement and service agreements. Ms. Binker also has experience assisting real estate clients in acquisitions, leasing, and management agreements. She is a 2010 graduate of the University of Pittsburgh School of Law.

Michael Fink is a member of the Corporate and Commercial and Emerging Technologies groups. Mr. Fink focuses his practice on assisting high-tech start-up ventures with both fundraising and general corporate or governance matters. He also counsels clients with technology transactions and licensing, and he works on both the buy-side and the sell-side in mergers and acquisitions in the technology, real estate, energy, and healthcare sectors. Entity selection and formation, preparation and programming of capitalization tables and distribution models, and corporate governance counseling are additional services Mr. Fink routinely provides clients. He is a 2011 graduate of the University of Pittsburgh School of Law.

Jenn Malik is a member of the Public Sector and Energy and Natural Resources groups. Ms. Malik’s practice focuses primarily on municipal and land use law, with an emphasis on zoning, subdivision and land development, and municipal ordinance construction and enforcement. She represents the Firm’s municipal clients on a wide array of local government issues, including developing and implementing zoning and land development ordinances, reviewing and overseeing the processing of Pennsylvania Municipalities Planning Code applications, such as applications for conditional uses and special exceptions, analyzing and responding to Pennsylvania Right-to-Know Law record requests, navigating public bidding procedures, assisting to identify and enforce property maintenance and zoning violations, and counseling clients to ensure compliance with both the Pennsylvania Sunshine Act and the Pennsylvania Public Official and Employee Ethics Act. …

Babst Calland today announced the lateral move of Harley Stone, who recently joined the Firm’s Pittsburgh office.

A shareholder in Babst Calland’s Public Sector and Energy and Natural Resources groups, Attorney Stone provides senior-level counsel in municipal, land use, environmental and energy law. He represents municipal governments, authorities and private developers in municipal permitting, planning, land use, and zoning. A seasoned trial lawyer, he also has many years of experience as a litigator in the areas of municipal law, employment law, and tax assessment appeals.

Commenting about Harlan’s lateral move to the Firm, Babst Calland Managing Shareholder Donald C. Bluedorn II said, “We are very pleased to welcome Harlan to our Firm. He is a natural fit for us as he shares our values, experience and philosophy in serving clients. Harlan is a highly-regarded attorney and supports our strategy to expand Babst Calland’s legal counseling team and capabilities to serve the needs of existing and new clients in the region.”

With significant experience in municipal, land use and zoning law, Mr. Stone will be joining forces with Babst Calland’s well-established and respected Public Sector team.

“Much deliberation went into my decision to join Babst Calland after practicing with various law firms over my 40+ year career,” said Mr. Stone. “Ultimately, I became convinced that Babst Calland represented the perfect fit for me and my practice.”

Mr. Stone is admitted to practice in Pennsylvania and before the Supreme Court of Pennsylvania, Supreme Court of the United States, United States Court of Appeals for the Third Circuit, and United States District Court for the Western District of Pennsylvania. He is a member of the Allegheny County Bar Association, Allegheny County & Western Pennsylvania Association of Township Commissioners (AC&WPTAC), Association of Municipal and School Solicitors, and the Local Government Academy. …

Smart Business

(by Sue Ostrowski featuring Molly Meacham)

Running a business presents a multitude of challenges, but the pandemic has added another layer of complexity as leaders struggle to stay compliant with ever-evolving laws and regulations regarding COVID-19.

“The biggest issues now facing employers are COVID-related — and not just operations and physical safety but complying with a host of local, state and federal laws and regulations,” says Molly Meacham, co-chair, Litigation Group, at Babst Calland. “Strategic planning is more important than ever, and you need to have a good grasp on the issues that may impact your business and be prepared to deal with them.”

Smart Business spoke with Meacham about issues impacting employers and the steps they can take to ensure compliance.

How can employers ensure compliance with local, state and federal regulations?

It can be a significant burden to monitor COVID-related local, state and federal government actions and court decisions. Employers have always had significant regulatory burdens, but they previously had more lead time to plan for compliance and implementation. COVID requires businesses to adapt, act quickly and be flexible. Unfortunately, COVID-related compliance can be expensive, with new laws requiring employers to provide items like additional paid leave, job-protected unpaid leave and regular COVID testing.

Understanding the current legal challenges and evaluating how they impact your business is key. And it’s not just local activity. COVID issues are developing quickly on the national stage. For example, a federal court in Georgia issued a stay effective across the country regarding the executive order requiring federal contractor employees to be vaccinated. Another court stayed the OSHA vaccinate-or-test requirement for companies with more than 100 employees, and yet another stayed the federal requirement for certain health care workers to be vaccinated. …

The Legal Intelligencer

(By Anna Jewart and Blaine Lucas)

Under the U.S. and Pennsylvania Constitutions, private property may not be taken for public use without payment of just compensation to the owners, see U.S. Const. amend. V; Pa. Const., art. I Section 10. This conversion of private property for a public purpose is interchangeably known as a “condemnation” or a “taking.” In Pennsylvania, the Eminent Domain Code, 26 Pa.C.S. Section 101 et seq., provides “a complete and exclusive procedure and law to govern all condemnations.” This includes de jure condemnations initiated by condemning bodies in compliance with statutory requirements, as well as de facto condemnations, initiated by property owners when entities cloaked with eminent domain powers substantially deprive them of the beneficial use and enjoyment of their properties without initiating and following the procedures set forth under the Eminent Domain Code.

Under the Eminent Domain Code, a property owner asserting that a de facto taking of property has occurred is authorized to bring an “inverse condemnation” action against the condemnor in order to receive adequate compensation for the loss. Generally, courts considering an allegation that a de facto taking occurred place a heavy burden on the property owner to show that:

• The condemnor had the power to condemn the land under eminent domain procedures;
• The property owner was substantially deprived of the use and enjoyment of the property through exceptional circumstances; and
• The damages sustained were an immediate, necessary, and unavoidable consequence of the condemnor’s exercise of its eminent domain power.

Therefore, courts have required evidence that the taking resulted from the actions of an entity “clothed with the power of eminent domain.” Both public, and “quasi-public” entities, such as corporations or public utilities to whom special governmental powers have been delegated, may hold such a power. …

The Wildcatter

(By Nikolas Tysiak)

Hello MLBC friends, family and colleagues! This time around, you get a DOUBLE dose of statutes, regulations and cases because your friendly, neighborhood Legislative and Regulatory Committee Chair was too busy to get an article finalized for the last issue of the Wildcatter. Luckily for us, there has not been a lot of activity to report on, so hopefully this article will fill in the gap in your life with fascinating legal and legislative developments.

PENNSYLVANIA
In Pennsylvania Environmental Defense Foundation v. Commonwealth (255 A.3d 289 (Pa. 2021)), the Pennsylvania Supreme Court was asked to determine if allocations of bonuses, yearly rentals and interest penalties for late payments under oil and gas leases on state forest and game lands were improperly allocated to the Commonwealth General Fund under the Environmental Rights Amendment (“ERA”) to the Pennsylvania Constitution (Art. I, Sec. 27). In a prior decision, the Supreme Court had determined that the ERA created a public trust subject to private trust principles, and that royalty revenue streams generated by the sale of gas extracted from Commonwealth lands represented the sale of trust assets that had to be returned to trust fund principal.

In that prior decision, it was determined that not enough information existed in the record to determine whether the bonuses, rentals and interest penalties were also improperly allocated. The issue regarding the non-royalty payments had been remanded to the Commonwealth Court, which decided these non-royalty revenue streams did not constitute the sale of trust assets and were instead “income” and were not required to be returned to the trust fund principal. The Supreme Court relied on contract principles to determine that the non-royalty payments were not compensation for trust assets (oil and gas in the ground), and therefore did not have to be returned to the trust fund principal in kind. …

PIOGA Press

(By Keith Coyle, Ashleigh Krick and Chris Kuhman)

On November 15, the Pipeline and Hazardous Materials Safety Administration (PHMSA) released a final rule (tinyurl.com/phmsa-gathering-rule) for onshore gas gathering lines. The final rule, which represents the culmination of a decade-long rule-making process, amends 49 C.F.R. Parts 191 and 192 by establishing new safety standards and reporting requirements for previously unregulated onshore gas gathering lines. Building on PHMSA’s existing two-tiered, risk-based regime for regulated onshore gas gathering lines (Type A and Type B), the final rule creates:

• A new category of onshore gas gathering lines that are only subject to incident and annual reporting requirements (Type R); and
• Another new category of regulated onshore gas gathering lines in rural, Class 1 locations that are subject to certain Part 191 reporting and registration requirements and Part 192 safety standards (Type C).

The final rule largely retains PHMSA’s existing definitions for onshore gas gathering lines but imposes a 10-mile limitation on the use of the incidental gathering provision. The final rule also creates a process for authorizing the use of composite materials in Type C lines and prescribes compliance deadlines for Type R and Type C lines. Additional information about these requirements is provided below.

Type R lines
The final rule creates a new category of reporting-only regulated gathering lines. These gathering lines, known as Type R lines, include any onshore gas gathering lines in Class 1 or Class 2 locations that do not meet the definition of a Type A, Type B, or Type C line. Operators of Type R lines must comply with the certain incident and annual reporting requirements in Part 191. …

Field Guide

(By Jenn Malik and Robert (Max) Junker)

HIGHLIGHTS

1. Covered service providers must disclose, in writing, any and all direct and indirect compensation in excess of $1,000.00 they receive for providing services to the plan.
2. Covered service providers include brokers and consultants which provide services ranging from third party administration, pharmacy benefits management, plan design, to recordkeeping services.
3. Responsible plan fiduciaries must review Section 202 disclosures for reasonableness.
4. Section 202 disclosures are applicable to all contracts, renewals, and/or extensions with covered service providers entered into on or after December 27, 2021.

Introduction

If you sponsor a group health plan, do you know how your broker will be compensated if you follow their recommendation for a new program for your members? Although these types of disclosures are commonplace for pension and retirement plans, these questions were largely unanswerable in the healthcare benefits industry until this year.

The Consolidated Appropriations Act, 2021 (CAA), enacted by Congress in December 2020, defines a compendium of transparency, disclosure, and reporting requirements that group health plans and plan sponsors must navigate to fulfill their fiduciary responsibilities to plan beneficiaries. Prior to the enactment of the CAA, group health plans were often limited by healthcare industry practices preventing the disclosure of claims and pricing data necessary to effectively design and administer health plans. Congress’s enactment of the CAA seeks to improve the market by placing the onus on group health plans and plan sponsors to avoid contracting with entities and health benefits issuers whose business practices prevent plan sponsors from making prudent decisions in the administration of health plans. …

The Legal Intelligencer and Martindale-Hubbell®, the company that has long set the standard for lawyer ratings, have announced the Pennsylvania Top Rated Lawyers®.  To view the list of Babst Calland lawyers who have achieved an AV® Preeminent™ Peer Review Rating, click here.

Smart Business

(by Sue Ostrowski featuring Dane Fennell and Chris Farmakis)

Artificial intelligence is revolutionizing the way attorneys approach due diligence, saving clients money, speeding up the review process and creating budget certainty.

“For a long time, AI was an alternative method to the usual approach of manually reviewing documents during an M&A transaction,” says W. Dane Fennell, an associate in the Corporate & Commercial Group at Babst Calland. “But now, clients expect ever-more efficient, accurate and speedy diligence results. To deliver, AI has become a critical tool in the due diligence process for deals of all sizes.”

Smart Business spoke with Fennell and Christian A. Farmakis, shareholder and chairman of the board at Babst Calland, about how AI is transforming due diligence in the legal marketplace.

What are some benefits of implementing AI in due diligence?

The amount of available data is growing at an exponential rate, creating pressure on those leading the M&A team. Just a few years ago, attorneys had months to work on a due diligence project, combing through what could be thousands of documents to gather and analyze data. The review timeframe has been drastically condensed as buyers and sellers both push to close deals faster.

Several years ago, we assisted with an acquisition that required three months of pre-closing diligence, and 18 months of post-closing confirmatory diligence. With a similar project earlier this year, we did the same work and reviewed the same number of documents in three weeks. Our AI tools allowed us to provide more cost-effective, accurate results in weeks instead of months, and oftentimes at a fraction of the price of a manual review. …

Pretrial Practice & Discovery

American Bar Association Litigation Section by the American Bar Association

(By Jessica L. Altobelli)

A reminder to attorneys to take their discovery obligations seriously and not let things get out of hand.

While I haven’t polled all ABA members, I think it’s safe to assume that obtaining default judgment during discovery isn’t a regular case-winning strategy of most litigators. And while Rule 37 of the Federal Rules of Civil Procedure does include default as a potential remedy for a party’s failure to cooperate during discovery, it is undoubtedly an extreme measure. Where a party is engaged in extreme or egregious discovery misconduct, however, default judgment may be a court’s last-resort remedy.

In spring 2021, for example, a Tennessee court entered a default judgment against the pharmaceutical company Endo after determining that Endo and its counsel engaged in a “coordinated strategy” to interfere with the administration of justice. Staubus v. Purdue Pharma L.P., No. C-41916 (Tenn. Cir. Ct. Apr. 6, 2021). As detailed in the court’s April 6, 2021, order granting the default judgment, counsel for Endo made numerous false statements during court proceedings throughout the pendency of the matter, and improperly withheld thousands of documents during discovery. Documents that were provided by Endo, in some cases, contradicted testimony of Endo’s own executives. Upon entry of the default, the judge acknowledged the harshness of the penalty, but stated that anything less than default in the circumstances at hand “would make a mockery of the attorneys who play by the rules and the legal system.”

A recent opinion out of the Southern District of Alabama reveals that courts may take the dramatic step of entering a default judgment for discovery misconduct in any variety of matters.  …