Articles, Alerts & Perspectives

The PIOGA Press

( by Megan Mariani and Nicholas Habursky)

The modern oil and gas industry is a complex and multifaceted operation involving significant upstream, midstream and downstream infrastructure. Well pads located on the surface are necessary to extract the oil and gas from the subsurface. A constantly expanding network of pipelines are required to transport the produced oil and gas from the well pad to places of market or refinement. This complexity requires a constant balance of property rights between surface owners and mineral owners and operators. One mechanism by which the parties balance property rights is through the use of easements. Easements can be created in several different ways, including through an implied easement by necessity which was recently addressed by the Supreme Court of Pennsylvania in Bartkowski v. Ramondo, No. 60 MAP 2018, 2019 Pa. LEXIS 6100 (October 31, 2019).

Implied easement by necessity

Before discussing Bartkowski, it is helpful to understand the elements of an implied easement by necessity. In Pennsylvania, for an implied easement by necessity to exist, three elements must be met:

1. Title to the dominant and servient properties were once held by one person;
2. This unity of title must have been severed by a conveyance of one of the tracts; and
3. The easement must be necessary for the dominant owner to use the land, with the necessity existing both at the time of the severance of title and at the time of the exercise of the easement. An easement by necessity is always of strict necessity and not a mere matter of convenience.

Claiming an easement by necessity involves inherent risks. …

Emerging Technologies Alert

(by Justine Kasznica, Ashleigh Krick and Boyd Stephenson)

On January 8, 2020, the Trump administration, in collaboration with the U.S. Department of Transportation (US DOT), issued Automated Vehicles 4.0: Ensuring American Leadership in Automated Vehicle Technologies. This is the federal government’s fourth iteration of its voluntary guidance on autonomous vehicles (AVs). So far, the US DOT’s hands-off approach to AV regulation has allowed for technological innovation while allowing industry participants and states to explore different avenues for testing AV technologies on public roads.  AV 4.0 does not disturb this approach, and instead focuses on explaining the research and development happening across the federal government and the opportunities for stakeholders to become involved.

Background

In September 2016, the National Highway Traffic Safety Administration (NHTSA) issued its first guidance on AVs called the Federal Automated Vehicles Policy.  The Policy provided a model state policy framework, explained NHTSA’s current regulatory tools to address AVs, and described potential new tools and authorities that NHTSA could use in addressing AVs.  NHTSA also provided vehicle performance guidance to AV manufacturers and developers for designing, testing, and deploying AVs.

NHTSA replaced this guidance in September 2017 with Automated Driving Systems 2.0 (ADS 2.0).  ADS 2.0 established a “Voluntary Safety Self-Assessment”, recommending that entities engaged in the testing and deployment of AV technologies voluntarily submit an assessment of how they address safety to establish public trust and confidence in the technology. AV 2.0 outlined 12 safety elements (including system safety, operational design domain, crashworthiness and others).  By the end of 2019, only a small fraction (under 25 percent) of AV testers published such assessments.  ADS 2.0 also provided guidance to state legislatures on potential legislation and best practices for regulatory bodies charged with ensuring roadway safety. …

(by Mychal Sommer Schulz)

The West Virginia Supreme Court of Appeals recently signaled that it would treat arbitration issues under the West Virginia Revised Uniform Arbitration Act, W. Va. Code § 55-10-8, et. al. (the “Act”), exactly the same as arbitration issues that arise under the Federal Arbitration Act (FAA).

In Golden Eagle Resources II, L.L.C. v. Willow Run Energy, L.L.C., No. 19-0384 (Nov. 19, 2019), the Court addressed a written contract by which Willow Run conveyed mineral interests in property to Golden Eagle. The written contract contained an arbitration provision by which the parties agreed that any “disagreement between the Parties concerning this Agreement or performance thereunder” would be submitted to arbitration. A dispute arose about whether a cloud on title existed on the mineral interests conveyed, which led Golden Eagle to withhold payment for those interests, after which Willow Run filed a breach of contract civil action in the Circuit Court of Pleasants County.

Golden Eagle sought to dismiss the civil action and have the dispute referred to arbitration. After the circuit court agreed to allow Willow Run to amend its complaint to include a declaratory judgment claim against additional defendants who allegedly may have created the cloud on title, the circuit court refused to refer Golden Eagle’s claims to arbitration because it found that (1) W. Va. Code § 51-2-2(d) (2017) grants circuit courts jurisdiction “to remove any cloud on the title to real property, or any part of the cloud, or any estate, right or interest in the real property[,]” and (2) the additional parties in the amended complaint, who were not signatories to the arbitration agreement, were necessary parties to the dispute as they allegedly may have cause the cloud on the title to the mineral interests conveyed to Golden Eagle. …

Attorney Richard S. Wiedman Joins Firm

PITTSBURGH, PA – Babst Calland announced today the addition of veteran environmental attorney, Richard S. Wiedman, who joined as a shareholder at the Firm’s Pittsburgh headquarters.

Mr. Wiedman is joining Babst Calland’s team of highly-focused environmental attorneys in providing senior-level legal and regulatory counsel, particularly in the areas of environmental, permitting, environmental business counseling, and environmental litigation.

“We are very pleased to welcome Rick to our Firm and to our established team in Pittsburgh. I have known Rick for over 30 years and he is a natural fit for us as he shares our values, experience, and philosophy in serving clients, some with whom we already have existing relationships,” said Donald C. Bluedorn II, Managing Shareholder of Babst Calland. “Rick is a great addition as we continue to expand Babst Calland’s team and capabilities to serve the needs of existing and new clients across the country.”

Since 1980, Mr. Wiedman has represented clients before federal and state environmental agencies, and counseled clients on regulatory compliance issues and environmental considerations in a variety of business transactions. He also devotes significant time to the negotiation and prosecution of environmental permit and regulatory challenges, the defense of federal and state enforcement actions, and the representation of clients in remedial action/corrective action and cost recovery matters under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), the Resource Conservation and Recovery Act (RCRA), and their state counterparts.

His experience reflects the interrelationship of the major regulatory programs as they pertain to industrial activities. Many of the projects with which he is involved require the coordination of multidisciplinary efforts where creative engineering and technical approaches are often critical to the development and success of legal and regulatory strategy. …

Employment and Labor Alert

(by Stephen Antonelli and Alexandra Farone)

The City of Pittsburgh recently announced that the Paid Sick Days Act is slated to take effect on March 15, 2020. This Act requires employers to provide their employees with paid sick leave based on hours worked. The Act will apply differently to employers of different sizes:

• For employers with 15 or more employees, eligible workers must be provided one hour of paid leave for every 35 hours worked, up to a maximum of 40 hours of paid leave per year.
• For employers with less than 15 employees, eligible workers must be provided one hour of unpaid leave for every 35 hours worked, up to a maximum of 24 hours of paid during the first year of enforcement. After one year from the effective date of the Act, these small employers must provide one hour of paid leave for every 35 hours worked, up to a maximum of 24 hours of paid leave per year.
• Employers based outside of Pittsburgh must begin offering leave under the Act for any of its employees that spend at least 35 hours working inside city limits.

Eligible employees include full- and part-time employees who work within the geographical limits of the City of Pittsburgh. The following types of workers are not eligible for leave under the Act: federal and state employees, independent contractors, construction workers in a collective bargaining unit, and seasonal employees as defined by the Act. Accrued leave may be carried over to the following calendar year unless the employer opts to “frontload” the maximum amount of leave at the beginning of each year. Sick time under the Act may only be used for the employee’s illness, injury, or health care; …

The Legal Intelligencer

(by Blaine A. Lucas and Alyssa E. Golfieri)

Now is the optimal time for municipalities to take a fresh look at their zoning ordinances to ensure they not only comply with state law, but that they are positioned to handle the influx of new and currently trending land uses.

As 2019 comes to a close and a new wave of elected local officials get ready to take their seats, now is the optimal time for municipalities to take a fresh look at their zoning ordinances to ensure they not only comply with state law, but that they are positioned to handle the influx of new and currently trending land uses.

Municipalities derive most of their authority to regulate the use of land from the Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101 et seq., (the MPC). The MPC was first enacted in 1968 and expressly authorizes municipalities to enact zoning ordinances to permit, prohibit, regulate and determine uses of land; the size, height, bulk, location, erection, construction repair, maintenance, alteration, razing, removal and use of structures; the area and dimensions of land to be occupied by uses and structures; the density of populations and intensity of uses; methods for protecting and preserving natural and historic resources; and methods for protecting and preserving prime agricultural lands and activities, see Section 603(b) of the MPC, 53 P.S. Section 10603(b).

Since the adoption of the MPC and the enactment of hundreds of local zoning ordinances pursuant to the same, land use types and development patterns have continued to change and evolve. Some of these changes have prompted the General Assembly to implement legislative solutions, while others are left for navigation at the local level and ultimately in the courts. …

Attorney Ben Clapp Joins Firm

Babst Calland announced today the lateral move of Ben Clapp, who joined as associate in the firm’s Washington, D.C. office in the Environmental, Energy and Natural Resources, and Emerging Technologies practice groups.

For the past decade, Ben Clapp has advised clients on environmental and transactional matters across a wide range of industries including the upstream, midstream, and downstream oil and gas sectors, renewable energy, real estate, utilities, chemicals, manufacturing, mining, pharmaceuticals, pulp and paper, and food and beverage.

“Ben’s move to Babst Calland further represents the firm’s commitment to continue to meet the environmental and regulatory needs of our clients,” said James Curry, Managing Shareholder of the D.C. office.  “Ben Clapp is well-known in industry and among key regulators. We’re very pleased that he has joined our team.”

Mr. Clapp has significant experience advising clients on the environmental components of complex transactions, including identifying and analyzing significant environmental liability and compliance issues arising in connection with mergers and acquisitions, asset sales, securities offerings, project financings, and corporate restructurings.  He works to manage, allocate or mitigate these environmental risks in the client’s best interest.

Mr. Clapp also advises project developers and investors as they encounter state and federal environmental review, facility siting, and permitting requirements, with a particular focus on providing advice on National Environmental Policy Act requirements to clients seeking government agency approvals for large-scale energy and infrastructure projects.

Mr. Clapp earned his J.D., cum laude, from American University Washington College of Law in 2008 and B.A. from the University of Richmond in 1996.