November 01, 2018 Feature

Environmental Law Update

Environmental Law Update provides information on developments in environmental law as they apply to property, trust, and estate matters. The editors of Probate & Property welcome information and suggestions from readers.

Pennsylvania: A (Fracking) Battleground State

Recent Pennsylvania Supreme Court decisions relating to hydraulic fracturing confirm the power of that state’s Environmental Rights Amendment to protect public trust resources, and an April 2018 Superior Court decision now headed to the state supreme court nullifies the age-old “rule of capture” traditionally applied to natural resource drilling operations, opening the door to trespass claims against fracking companies.

In 1971 Pennsylvania voters ratified an Environmental Rights Amendment to the state constitution by an almost four-to-one margin. The clause guarantees its citizens “a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment.” Pa. Const. art. 1, § 27. It establishes the state’s natural resources as “the common property of all the people, including future generations” and provides that the Commonwealth as trustee “shall conserve and maintain them for the benefit of all people.” Id.

The Pennsylvania Supreme Court has relied on the amendment in two cases concerning fracking in recent years. In Robinson Township v. Commonwealth of Pennsylvania, 83 A.3d 901 (Pa. 2013), it ruled that the amendment precludes a state statute preempting local governments from enacting zoning addressing hydraulic fracturing (fracking). In 2017 in Pennsylvania Environmental Defense Foundation v. Commonwealth, 161 A.3d 911 (Pa. 2017), the court reaffirmed the public trust doctrine, ruling that the state must use royalties generated from oil and gas leases on state forests for the purpose of restoring and maintaining those trust resources, rather than supplementing the state’s general fund as was occurring. Nearly a dozen other states include environmental protection language in their constitutions, and legislators in at least two northeastern states are considering adopting language similar to Pennsylvania’s Environmental Rights Amendment. For a comprehensive history of the amendment and legislation interpreting it, see Widener University, Commonwealth School of Law’s series at https://johndernbach.com/2017/07/taking-public-trust-seriously-pennsylvania-supreme-courts-landmark-decision-pedf-v-commonwealth/.

This year the Pennsylvania Superior Court allowed a Susquehanna County family to proceed with a trespass claim against Southwestern Energy Production Company for extracting natural gas from beneath their land using wells on the company’s property. Briggs v. Sw. Energy Prod. Co., 184 A.3d 153 (Pa. Super. Ct. 2018). Traditionally such suits were precluded pursuant to the “rule of capture,” which allows a company to freely extract natural resources such as water, oil, and gas from beneath property it doesn’t own so long as it does not trespass on the plaintiff’s land. The court said that the rule of capture “assumes that oil and gas originate in subsurface reservoirs or pools, and can migrate freely within the reservoir and across property lines, according to changes in pressure.” Id. at 162. In the case of fracking, however, natural gas is trapped in a shale formation, is non-migratory in nature and thus should not be subject to the rule. The case, which has been characterized as a landmark ruling by commentators, has been appealed to the Pennsylvania Supreme Court.

The Latest on “Waters of the United States” (WOTUS) from the Environment, Energy, and Resources Section

It’s hard to imagine a more important issue facing the environmental and property bar than the resolution of the jurisdictional scope of the federal Clean Water Act (CWA). In order to keep practitioners abreast of the latest administrative and legal maneuvers, the ABA’s Section of Environment, Energy, and Resources has established a website titled “WOTUS and the Reach of CWA Jurisdiction,” https://www.americanbar.org/groups/environment_energy_resources/resources/wotus.html, which describes recent developments through summer 2018.

In 2015, under the Obama administration, the US Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) adopted the WOTUS rule to clarify the scope of “waters of the United States.” In February 2018, under the Trump administration, the agencies published a rule suspending the effective date of the WOTUS Rule for two years. In August, the US District Court for the District of South Carolina ruled that the agencies’ promulgation of the suspension violated the Administrative Procedure Act. South Carolina Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959 (D.S.C. 2018). This decision effectively reinstates the WOTUS rule in 26 states; the other 24 states are subject to two other court decisions staying the rule.

In June, the Center for Biological Diversity and others filed suit against EPA and the Corps in the Northern District of California, alleging that the agencies violated the CWA, the Administrative Procedure Act, the National Environmental Policy Act, and the Endangered Species Act (ESA) in issuing both the original WOTUS rule and the rule delaying the effective date. Waterkeeper Alliance, Inc. v. Pruitt, No. 18-cr-3521 (N.D. Cal. June 13, 2018). This case is particularly noteworthy because of the ESA-based claims.

The big news on rulemaking from the Trump administration is that, on June 15, 2018, EPA and the Corps sent a proposal to redefine WOTUS to the White House Office of Information and Regulatory Affairs (OIRA) for review. The proposal has not been made public; OIRA reviews typically take several months. It is widely expected that the replacement rule will define WOTUS more narrowly and in a manner that is consistent with Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006), as directed by President Trump in his February 2017 executive order. Exec. Order No. 13778, 82 Fed. Reg. 12497 (Feb. 28, 2017).

Sentinel Landscape Program Expands Coverage in the Southeast Surrounding Military Installations

The Sentinel Landscapes program continues to grow, with the latest addition being 1.3 million acres in southern Georgia surrounding Fort Stewart, Fort Benning, Townsend Bombing Range, and other military installations. The Sentinel Landscapes program is a partnership of the US Departments of Agriculture, Defense, and Interior established in 2013 to promote conservation and agricultural land uses surrounding military installations to reduce the potential for development that conflicts with military training and testing. The program recognizes and provides incentives to landowners to maintain their land in ways that contribute to the nation’s military readiness. Partner agencies have been successful at providing targeted individual and collective funding to protect these landscapes.

Other designated Sentinel Landscapes span the United States and include Joint Base Lewis-McChord in Washington, Fort Huachuca in Arizona, Patuxent River Naval Air Station in Maryland, Avon Park Air Force Range in Florida, Camp Ripley in Minnesota, and Eastern North Carolina.

Conservation goals for the southern Georgia landscape are to protect working farms and forests and provide habitat corridors for species of concern (including gopher tortoise, red-cockaded woodpecker, and eastern indigo snake). Specific goals are to protect a core of at least 5,000 acres of farmland in four focus areas and more than 136,000 acres of forest and farmland in the Savannah River watershed to protect water quality through tools including conservation easements and voluntary best management practices. Other goals are to increase public access to outdoor recreational opportunities, improve private land management practices, and expand outreach to private landowners. In addition to federal and state agency partners, several private foundations and non-profit organizations are collaborators on the project, including the Savannah River Clean Water Fund, the Conservation Fund, the Georgia-Alabama Land Trust, the Longleaf Alliance, and the Nature Conservancy.

For more information about the program and how to apply for Sentinel Landscape designation, visit https://sentinellandscapes.org/.  

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