Pittsburgh Business Times
(by Patty Tascarella)
Pittsburgh’s seventh-largest law firm, best known for its energy and environmental practices, is preparing for a potential surge in work linked to advancements with autonomous vehicles.
Babst Calland is building a foundation through its mobility, transportation and safety practice, capitalizing on emerging technologies and synergies between its downtown headquarters and fast-growing office in Washington, D.C.
For the full article, click here.
The Legal Intelligencer
(by Sean R. Keegan)
The U.S. Supreme Court’s recent decision in Epic Systems v. Lewis is a win for employers who have included or wish to include class action waivers in arbitration agreements that employees are required to sign as a condition of employment. On May 21, the Supreme Court rejected the existing position of the National Labor Relations Board (NLRB), which had held that arbitration agreements waiving the right to pursue class or collective actions violated federal labor law. The Supreme Court overturned the NLRB and held that the Federal Arbitration Act (FAA) requires such mandatory arbitration agreements to be enforced according to their terms. Following this decision, individual arbitration provisions may preclude employees from pursuing class or collective actions to resolve employment disputes.
The Supreme Court held that Congress has instructed in the Federal Arbitration Act that arbitration agreements providing for individualized proceedings must be enforced, and neither the Federal Arbitration Act’s saving clause nor the National Labor Relations Act suggests otherwise. Prior to Epic Systems, the NLRB had interpreted Section 7 of the National Labor Relations Act to encompass the right to bring a class or collective action, as it gives employees the right to organize, bargain collectively and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Consequently, the NLRB’s position was that an employment agreement that required employees to resolve their workplace disputes (such as wage and hour and discrimination claims) by arbitration on an individual basis was an unfair labor practice under Section 8 of the National Labor Relations Act.
Before the Epic Systems decision there was a split in the circuit courts. …
Energy and Natural Resources Alert
(by Blaine A. Lucas and Robert Max Junker)
In Gorsline, Court Declines to Rule on Broader Issue of Compatibility With Uses in Residential and Agricultural Zoning Districts, but Suggests that Municipalities May Permit Unconventional Natural Gas Drilling in any and all Zoning Districts
The Pennsylvania Supreme Court published its long-awaited opinion in Gorsline v. Board of Supervisors of Fairfield Township on June 1, 2018. Although the majority reversed the Commonwealth Court’s decision affirming the granting of a conditional use for an unconventional natural gas well pad, it did so in a narrow holding, finding that Inflection Energy, LLC (Inflection) did not present enough evidence before the Fairfield Township (Township) Board of Supervisors (Board) establishing that its proposed unconventional gas well pad was similar to other uses allowed in the Township’s Residential-Agricultural Zoning District (R-A District). Unlike most zoning ordinances, the Township’s zoning ordinance did not specifically authorize oil and gas wells. Instead, Inflection had relied upon a “savings clause,” which allowed uses “similar to” the other uses specifically allowed in the R-A District.
Despite headlines and press releases touting the Gorsline decision as a wholesale rejection of oil and gas development in residential and agricultural zoning districts, its ruling was much more limited. In fact, language in both the Gorsline majority and dissenting opinions largely rejects the post-Robinson Township assertion of many shale gas opponents that natural gas wells must be relegated to industrial zoning districts and are fundamentally incompatible with residential or agricultural zoning districts.
Background
Babst Calland’s overview of the Commonwealth Court’s September 14, 2015 decision can be found here. …
Energy Alert
(by David W. Ross, Mark A. Lindsay and Erica K. Dausch)
On May 25, 2018, in In re: Sabine Oil & Gas Corporation, 2018 WL 2386902 (2d. Cir. May 25, 2018), the United States Court of Appeals for the Second Circuit affirmed that a bankrupt energy and production company could reject its gas gathering agreements with a midstream company under Section 365 of the Bankruptcy Code because the gas gathering agreements did not create or involve an interest in real property.
Background
Sabine Oil & Gas Corporation (Sabine), an energy and production (E&P) company, filed for Chapter 11 bankruptcy protection in 2015 in the Southern District of New York. Prior to its bankruptcy filing, Sabine entered into gathering agreements (the “Agreements”) with Nordheim Eagle Ford Gathering, LLC (Nordheim), whereby Sabine was required to “dedicate” all of the gas it produced in a designated area to Nordheim, which would then gather and treat the gas. If Sabine could not deliver the minimum required amounts of gas to Nordheim, it was required to make significant deficiency payments.
Section 365 of the Bankruptcy Code permits a debtor to reject pre-petition executory contracts and unexpired leases that the debtor deems to be burdensome, thereby relieving the debtor of the obligation to perform moving forward. Agreements that involve the conveyance or creation of interests in real property (other than unexpired leases) are generally not subject to rejection under Section 365.
Sabine sought to reject the Agreements under Section 365 because Sabine deemed the terms of the Agreements, including the requirement to make significant deficiency payments, overly burdensome. Nordheim argued that the “dedications” contained in the Agreements were “covenants that run with the land” and thereby constituted interests in real property that were not subject to rejection under Section 365. …
The PIOGA Press
(by Kevin Garber, Jean Mosites and Esther Mignanelli)
In a case of first impression, the Pennsylvania Supreme Court rejected the Department of Environmental Protection’s untested legal theory that penalty liability under the Clean Streams Law continues as long as any constituents of a release remain in waters of the Commonwealth—days, months and years after the release has been stopped.
On March 28, the Supreme Court held “[t]he mere presence of a contaminant in a water of the Common – wealth or a part thereof does not establish a violation of Section 301, 307, or 401 of the Clean Streams Law, since movement of a contaminant into water is a predicate to violations.” EQT Prod. Co. v. Com., Dep’t of Envtl. Prot., 6 MAP 2017, slip op. at *37 (Pa. Mar. 28, 2018) (emphasis in original). In other words, a violation of these sections of the Clean Streams Law is based on the initial entry of pollutants into waters of the Commonwealth, not the presence or movement of constituents within such waters.
The Supreme Court’s opinion provides necessary clarification concerning the scope of liability for penal – ties under the Clean Streams Law for all persons, entities, businesses and industries that are responsible for remediation, those who would redevelop brownfield properties for reuse under Act 2, as well as any property owner with an historic contamination in groundwater that it did not cause. The decision reaffirms that penalty liability is distinct from cleanup liability and recognizes that penalties are neither appropriate nor effective in altering the time that may be necessary for full remediation.
The parallel proceedings between EQT and the department
The court’s statutory construction stemmed from a controversy between EQT Production Company and DEP regarding the liability and penalties that could be imposed for a release from an onsite pit at a Marcellus Shale well pad in Tioga County in 2012. …
Environmental Alert
(by Kevin J. Garber and Jean M. Mosites)
On May 11, 2018, in The Delaware Riverkeeper, et. al. v. DEP and R.E. Gas Development, LLC., the Pennsylvania Environmental Hearing Board issued an opinion upholding well permits and renewals issued by the Department of Environmental Protection in an appeal based in part on Article I, Section 27 of the Pennsylvania Constitution, commonly known as the Environmental Rights Amendment (ERA). EHB Dkt. No. 2014-142-B (consolidated with 2015-157-B) (May 11, 2018).
The ERA provides:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.
The Board previously addressed the ERA in Friends of Lackawanna v. DEP and Keystone Sanitary Landfill, EHB Dkt. No. 2015-063-L (November 10, 2017) (FOL) and Center for Coalfield Justice and Sierra Club v. DEP, EHB Dkt. No. 2014-072-B (August 15, 2017) (CCJ). In another matter involving the Center for Coalfield Justice and DEP permitting action with respect to proposed mining operations, the Board also analyzed the ERA in a decision denying a petition for supersedeas. Center for Coalfield Justice and Sierra Club v. DEP, EHB Dkt. No. 2018-028-R (April 24, 2018). All of these cases analyze Department permitting decisions in light of the Pennsylvania Supreme Court’s June 20, 2017 decision in Pennsylvania Environmental Defense Foundation v. …
Attorney Tim Goodman will be presenting a pre-conference workshop “Automated/Autonomous Driving Systems (ADS) Innovation Boot Camp for Automotive Product Liability Litigators” at the American Conference Institute’s Automotive Product Liability Conference, July 18-20, 2018.
Automotive experts forecast that within the next five years, we will be sharing the road with automated/autonomous vehicles on a daily basis. In theory, vehicular automation is intended to increase safety by eliminating the human error component that causes most accidents. However, in practice, the prospect of every OEM developing an autonomous vehicle does not come without concerns, especially relative to automotive product liability. Despite the intended consequences of autonomous vehicles, there are certain outcomes that are leaving members of the legal community scratching their heads. Join attorneys and technical specialists who are helping shape ADS policy in the mobility, transport and safety space.
This workshop will provide insights into this technology, along with the legal and regulatory ramifications. Points of discussion, among other things, will include:
For more information about the conference and this pre-conference workshop, click here.
The PIOGA Press
(by Jean M. Mosites and Abigail F. Jones)
On June 28, 2016, the U.S. Environmental Protection Agency (EPA) published a rule entitled “Effluent Limitation Guidelines and Standards for the Oil and Gas Extraction Point Source Category,” which prohibits the discharge of unconventional wastewater to publicly owned treatment works (POTWs). The rule went into effect on August 29, 2016.
The prohibition, now codified in 40 C.F.R. §§ 435.33 and 435.34, applies to “wastewater pollutants associated with production, field exploration, drilling, well completion or well treatment for unconventional oil and gas extraction.” The phrase “unconventional oil and gas extraction” (UOG) is defined in the rule to mean oil and natural gas produced from “a shale and/or tight formation (including, but not limited to, shale gas, shale oil, tight gas, tight oil).”
Subsequently, the rule was challenged in court and has been remanded to EPA for review and possible revision. The legal challenge to the rule, described in detail below, relates to its applicability to Pennsylvania-defined “conventional” oil and gas operators. However, EPA’s administrative review of the rule could affect oil and gas wastewater disposal options for both conventional and unconventional operators in Pennsylvania.
Implementation deadline extension
In the preamble to the publication of the final rule, EPA stated that no operators subject to the rule were currently discharging to POTWs. Based on this understanding, the rule was to go into effect within 60 days of publication. Following promulgation of the rule, EPA received letters indicating that there were facilities likely discharging UOG wastewater to POTWs in Pennsylvania. As a result, EPA issued a final rule on December 7, 2016, to extend the implementation deadline for existing sources that were lawfully discharging wastewater to POTWs between April 17, 2015, and June 28, 2016. …
Pittsburgh Post-Gazette
(by Patricia Sheridan)
The atmosphere was festive, the participants enthusiastic and the sun was shinning Sunday for the second annual UNcathlon at the Oval Sportsplex in Schenley Park.
The competitive event for athletes with intellectual disabilities supports and is presented by the Special Olympics of Pennsylvania.
For the full article, click here.
The Legal Intelligencer
(by Blaine Lucas and Alyssa Golfieri)
Preservation of the commonwealth’s historically significant natural, scenic, cultural, and architectural features and resources is a rising priority among local municipalities—and for good reason. Historic preservation not only helps cultivate an aesthetically pleasing environment for residents and business owners to live, work, and play, but it can increase property values, generate new tourism/economic development opportunities, and encourage future development with high-quality site design and architectural patterns. Municipalities are vested with several options when it comes to historic preservation. The two most common are the utilization of their authority under the Pennsylvania Historic District Act, 53 P.S. Section 8001 et seq., (Historic District Act) and the Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101 et seq., (MPC).
The Historic District Act was enacted in 1961 and confers upon counties, third class cities—First and second class cities (i.e., Philadelphia and Pittsburgh) are expressly excluded from the Historic District Act’s grant of authority—boroughs, incorporated towns, and townships the authority to designate historic districts within their geographical limits. In order to create a historic district, a municipality must do two things. First, it must adopt an ordinance. While the Historic District Act does not command in great detail what content or subject matters the ordinance must cover, it should, at a minimum, express the municipality’s intent to create a historic district pursuant to the Historic District Act, delineate the historic district’s boundaries, establish a historical architectural review board (HARB), enumerate the powers and duties of the HARB, and set forth guidelines and the approval process applicable to the issuance of a certificate of appropriateness (COA). Next, the municipality must provide the Pennsylvania Historical and Museum Commission written notice of the ordinance’s enactment. …
Environmental Alert
(by Lisa M. Bruderly and Gary E. Steinbauer)
On April 12, 2018, the U.S. Court of Appeals for the Fourth Circuit in Upstate Forever v. Kinder Morgan Energy Partners, L.P., No 17-1640, held that the Clean Water Act (CWA) regulates point source discharges that reach “navigable waters” through groundwater with a “direct hydrologic connection” to the surface water. With this decision, the Fourth Circuit (which includes Maryland, North Carolina, South Carolina, Virginia and West Virginia) has joined the Ninth Circuit in recognizing the so-called groundwater “conduit theory” of liability under the CWA, a theory environmental groups are relying upon in several CWA citizen suits across the country. Under the groundwater “conduit theory,” separately regulated and permitted wastewater collection basins, impoundments, wells, and/or pipelines that result in groundwater contamination could be the targets for CWA liability, even though it is widely accepted that the CWA does not regulate discharges to groundwater itself. These cases have broad implications for many industries, including steelmaking, pipelines, mining, chemical manufacturing, oil and gas development, and utilities.
Background and District Court Decision
The Upstate Forever case dates back to 2016, when two environmental organizations filed a lawsuit alleging CWA violations stemming from a 2014 pipeline leak. According to the complaint, 369,000 gallons of petroleum products leaked from an underground pipeline. The plaintiffs alleged that the pipeline contents seeped into groundwater and later into two nearby creeks and their adjacent wetlands downgradient from the leak. The leak was fixed within a few days of discovery and approximately 209,000 gallons of petroleum products were recovered through remediation efforts overseen by a state environmental regulatory agency. The plaintiffs, however, alleged that a plume of petroleum contaminants continued to migrate from groundwater to surface water several years after the leak was fixed. …
Environmental Legal Perspective
(by Christopher B. (Kip) Power)
In a decision with potential ramifications for challengers of many different types of environmental permits and approvals, the U.S. District Court for the Southern District of West Virginia (the “Court”) recently dismissed a lawsuit filed by the Sanitary Board of the City of Charleston (the “CSB”) seeking to overturn a decision of the Environmental Protection Agency (EPA) regarding the permissible concentrations of copper in discharges from the CSB’s wastewater treatment plant to the Kanawha River. Sanitary Board of the City of Charleston, West Virginia v. Scott Pruitt, et al., Civil Action No. 2:16-cv-03060 (March 29, 2018 Memorandum Opinion and Order) (Goodwin, J.). After two years of litigation (and more than four years of administrative proceedings prior to that), the Court determined that the decision of the West Virginia Department of Environmental Protection (WVDEP) to omit any limit on discharges of copper in the CSB’s most recent National Pollutant Discharge Elimination System (NPDES) permit rendered the CSB’s challenge to EPA’s action “either hypothetical or [lacking in] imminence.” As a result, the Court ruled there was no longer a justiciable “case or controversy” between the parties, depriving it of subject matter jurisdiction over the dispute.
The case centered on the WVDEP’s promulgation of statewide limits on allowable levels of copper in streams, acting pursuant to its delegated authority under the federal Clean Water Act (CWA). Using the general formula provided in its rules, the WVDEP translated these in-stream standards into specific effluent limits for copper when it issued a NPDES permit to the CSB in 2012. Recognizing that it could not operate in compliance with the assigned copper effluent limits, the CSB developed the necessary factual information and scientific rationale to support development of an alternative, facility-specific water quality standard (using a procedure known as a “water effects ratio” analysis) that would have allowed it to discharge copper in concentrations approximately five times higher than EPA’s nationally recommended criteria without harming the aquatic life the standard is designed to protect. …
The American Oil & Gas Reporter
(by Kevin Garber, Blaine Lucas, Keith J. Coyle, and Jay Hammond)
PITTSBURGH, PA.–Driven by demand growth in the industrial and electric generation sectors as well as expanding pipeline and liquefied natural gas export volumes, U.S. natural gas consumption is expected to reach record levels this year. However, production also is forecast to soar to new heights, partly as a result of increasing associated gas production in tight oil resource plays.
According to U.S. Energy Information Administration projections, dry natural gas production will increase by 6.7 billion cubic feet a day in 2018, outpacing estimated year over-year demand growth. Expecting surging supplies to likely translate into relatively low dry natural gas prices for some time, Appalachian Basin natural gas producers continue to work to reduce costs and improve efficiency, while taking advantage of attractive opportunities.
From a business perspective, oil field services remain a primary point of focus for Marcellus and Utica operators in their efforts to reduce costs and improve efficiency, with service providers delivering innovative products to make more productive wells at a lower cost per unit of production. Furthermore, shale gas producers remain focused on consolidating their activities geographically, including selling noncore assets to smaller (often largely debt-financed) operators looking for particular assets less attractive to larger operators (including shallow oil and, in certain circumstances, liquids from shale).
Consolidation continues apace in the shallow conventional natural gas production industry as well. Apart from joint ventures, acreage swaps and other traditional transactions, shale gas producers in the Appalachian region also are pursuing more novel operational strategies to reduce costs and increase profits despite relatively steady natural gas prices. …
PA Business Central
Family leave, sexual harassment, sexual orientation discrimination, overtime salary threshold and duties tests, employer health care insurance and related tax reporting requirements, mandatory drug testing, executive compensation, disability benefits claims procedure, contraceptive coverage, legal marijuana use, the proper classification of workers as independent contractors or employees, salaried or hourly, paid or unpaid interns: all are among the labor and employment issues that employers have long been grappling with.
Discrimination based on sexual orientation and gender identity
The latest change in employment law came on March 7 when The Sixth Circuit Court of Appeals in Cincinnati, Ohio, which covers Kentucky, Michigan, Ohio and Tennessee, held that discrimination against transgender/LBGTQ employees is discrimination based on sex, and therefore, it violates Title VII of the Civil Rights Act of 1964. The court held the opinion in the case EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. of Detroit, Michigan.
When the plaintiff, Aimee Stephens, began working as a funeral director, he presented himself as a male and was named Anthony Stephens. Stephens was fired after she informed the funeral home that she would no longer be presenting as a male but would transition and dress as a female. The funeral home argued that Stephens’ continued employment would negatively impact its business clients, and the change in sexual orientation violated the Christian values of the funeral home’s owner. The three-judge panel concluded that the funeral home could not use the Religious Freedom Restoration Act to justify such discrimination, and decided in favor of Stephens.
Two weeks earlier, in a 10-3 decision, the Second Circuit Court of Appeals in NYC, whose territory covers Connecticut, New York and Vermont, ruled that Title VII of the Civil Rights Act of 1964 covered sexual orientation discrimination. …
Pipeline & Gas Journal
(by Keith Coyle)
Having recently filled the two most important political appointments at the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA), the Trump administration appears ready to take further action on two rulemaking proceedings that could reshape the nation’s federal safety standards for hazardous liquid and natural gas pipelines.
Howard R. Elliott was recently sworn in as PHMSA’s administrator. Elliot brings more than four decades of experience in the freight rail industry to his new leadership position, including expertise in the areas of hazardous material safety and security.
He previously received the Association of American Railroads (AAR) Holden-Proefrock Award for lifetime achievement for hazardous materials safety, served on AAR’s Risk Management Working Committee and Security Committee, and is a member of the American Society of Industrial Security and the FBI-DHS Domestic Security Alliance Council. Administrator Elliot’s background and experience suggests that he is well-positioned to lead PHMSA, the federal agency responsible for ensuring the safe transportation of energy products by truck, rail, vessel or pipeline.
The same can be said of Elliot’s new deputy, Drue Pearce, who became PHMSA’s newly appointed deputy administrator. Pearce previously served as the federal coordinator for Alaskan Natural Gas Transportation Projects and as an official in the Department of Interior during the George W. Bush administration.
She also served as a member of PHMSA’s Technical Pipeline Safety Standards Committee, the federal advisory committee that reviews PHMSA’s proposed pipeline safety regulations, and as a member of the Alaska House of Representatives and Alaska State Senate. Pearce’s prior public service and familiarity with the pipeline industry leaves her well-prepared to assume a significant role at PHMSA, particularly on pipeline safety matters. …