Topic: Pennsylvania

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Proposed Delaware River Basin fracking ban sparks legislation

On May 16, 2019, Delaware Governor John Carey, New Jersey Governor Phil Murphy, and Pennsylvania Governor Tom Wolf signed a proclamation in support of a permanent fracking ban in the Delaware River Basin.

The Delaware River Basin is a 330-mile-long river watershed running through four states: New York, Pennsylvania, New Jersey, and Delaware. Since 1961, the Delaware River Basin Commission (“DRBC”), a regional interstate and federal agency, has managed the basin. The governors for the four basin states and the commander of the U.S. Army Corps of Engineers for the North Atlantic Division make up the voting members of the … Continue Reading

Landowners, energy companies file briefs seeking to capture Pennsylvania Supreme Court’s ruling in historic hydraulic fracking case

Over the past few months, new developments have taken place in the historic Pennsylvania Supreme Court case involving landowners’ trespass and conversion claims against an energy company based on hydraulic fracking activities. Back in November 2018, the Supreme Court of Pennsylvania agreed to hear the case to consider whether the rule of capture applies to hydraulic fracking. Since November, both parties, as well as numerous amici curiae, have filed briefs.… Continue Reading

Supreme Court of Pennsylvania set to determine whether rule of capture applies to fracking

On November 20, 2018, the Supreme Court of Pennsylvania issued a one-page order agreeing to consider whether the rule of capture applies to hydraulic fracturing. The Supreme Court of Pennsylvania’s review comes after the Pennsylvania Superior Court overturned decades of precedent and decided the rule of capture did not apply to fracking wells.

The Pennsylvania Supreme Court will consider a single question on appeal: “[d]oes the rule of capture apply to oil and gas produced from wells that were completed using hydraulic fracturing and preclude trespass liability for allegedly draining oil or gas from under nearby property, where the well … Continue Reading

PA Superior Court revives trespass claim against fracking company

Last Monday, a three-judge panel of the Pennsylvania Superior Court revived a trespass claim against a fracking company. The claim, which was previously defeated by summary judgment, could return to the trial court for determination of its merits.

In 2015, plaintiffs filed suit against the fracking company alleging trespass and conversion. Plaintiffs claim the company used hydraulic fracturing to extract natural gas beneath the plaintiffs’ property, where the company did not have a lease, from an adjacent tract on which it had a lease.… Continue Reading

Controversial study attempts to link fracking to poor infant health

Last month, in an article published in the journal Science Advances, economics professors at Princeton University, the University of Chicago, and the University of California, Los Angeles attempted to link fracking to low birth weight. The study is controversial, and has been criticized since its publication.

Over the course of ten years, Janet Currie, Michael Greenstone, and Katherine Meckel, the authors of the study, analyzed 1.1 million births in Pennsylvania, where fracking is common. They concluded that living within 1 kilometer of a fracking well while pregnant increased the odds that one’s baby would be born with a low … Continue Reading

PA federal judge strikes down municipal fracking ban

Late last month, a federal magistrate judge in Pennsylvania struck down a township’s ban on fracking activities. The ban, which prevented the injection of fracking waste into a well underlying the town, was preempted by state and federal law, said the judge.

The judge ruled that the ban was preempted by the federal Safe Drinking Water Act and Pennsylvania’s Act 13, which prevents municipalities from passing ordinances that regulate oil and gas activity except through limited channels, namely the state’s Municipalities Planning Code and Flood Plain Management Act.… Continue Reading

Delaware River Basin Commission to consider fracking ban

On Wednesday, the Delaware River Basin Commission voted to begin the rule making process that could lead to a fracking ban in parts of New York, New Jersey, Pennsylvania, and Delaware. The Commission, which regulates the Delaware River watershed and is comprised of members from each of the above states and a representative from the U.S. Army Corps of Engineers, now has until November 30 to draft its proposal.

The Delaware River watershed encompasses parts of New York, New Jersey, Pennsylvania, and Delaware and provides drinking water to millions of people in the four states. It also encompasses territory rich … Continue Reading

PA federal judge vacates controversial fracking verdict

In a win for industry, a Pennsylvania federal judge on Friday vacated a controversial fracking verdict in the highly publicized case Ely v. Cabot Oil and Gas Corp. The verdict was against the great weight of the evidence and shaded by the plaintiffs’ attorney’s missteps, said the court in its decision.

Last March, a Pennsylvania jury awarded the plaintiffs in the case $4.24 million for loss of the use and enjoyment of their property, namely their water supply, which injury the plaintiffs alleged stemmed from the defendant’s fracking operations in the surrounding area. On Friday, the court set aside … Continue Reading

PA DEP addresses possible link between local earthquakes and fracking

Pennsylvania’s environmental regulators last month addressed a potential link between a string of small local earthquakes and hydraulic fracturing in the Utica Shale. The state’s Department of Environmental Protection (DEP) released a report in February analyzing together four small-scale earthquakes, which occurred in April 2016 in Lawrence County, and fracking operations in the surrounding area.

The relevant well pad, the report states, is located within five miles of most of the reported epicenters of the earthquakes. Fracking began at the pad almost a month before seismic activity was recorded in nearby townships.

Says the DEP in the report, “There is … Continue Reading

PA Department of Environmental Protection’s negotiating power fracked

Pennsylvania Department of Environmental Protection (DEP) may see new challenges in negotiating settlements with purported violators of Pennsylvania’s Clean Stream Law.  A recent Pennsylvania appellate court ruled that ongoing penalties are impermissible for a single waterway leak from fracking activities under the state’s Clean Streams Law.  The Clean Stream Law punishes violators for pollution released into state waters.

In EQT Production Co. v. DEP, a natural gas production company sued the DEP for interpreting the Clean Stream Law to allow the DEP the ability to impose a minimum $1.2 million penalty for a leak from a gas well pad that … Continue Reading

Legislative Activity Update – Three Pennsylvania Bills

The following bill, which had been introduced previously, has been acted upon by the General Assembly since the last Legislative Activity Update:

PA House Bill 1704 – Amendments to Engineer, Land Surveyor and Geologist Registration Law

Sponsor: Mark Mustio (Republican – part of Allegheny County [outside Pittsburgh])
Overview: Provides for use of current term “Engineer Intern” for predecessor title of “Engineer-in-Training.”

Allows for distance learning to complete continuing professional competency requirements so long as course relates to professional practice and units awarded are verifiable and measurable by actual hours of instruction.

Amendments: Printer’s Number 2972:

Minor typographical changes.

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Legislative Activity Update – Two Pennsylvania Bills

The following bill, which had been introduced previously, has been acted upon by the General Assembly since the last Legislative Activity Update:

PA House Bill 1327 – Amendments to Fiscal Code

Sponsor: Michael Peifer (Republican – parts of Pike and Wayne Counties [northeast Pennsylvania])

Original bill

(Printer’s Number 1788) was unrelated to oil and gas.


House Bill 1327 became the vehicle to implement provisions of General Fund budget, most of which are unrelated to oil and gas development or regulation.  Provisions relevant to oil and gas development in each of the bill’s subsequent amended versions are

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Legislative Activity Update – 7 Pennsylvania Bills and 1 Resolution

The following two bills, which had been introduced previously, have been acted upon by the General Assembly since the last Legislative Activity Update:

PA House Bill 1325 – Amendments to Second Class Township Code Regarding Storm Water Facilities

Sponsor: Mark Mustio (Republican – part of Allegheny County [Pittsburgh])
Overview: Allows board of supervisors to enact and enforce ordinances to govern and regulate the planning, management, implementation, construction, and maintenance of storm water facilities.

Allows township to assess fees based in whole or in part on the characteristics of the subject property.

Amendments: Printer’s Number 2554:
Changes provision relating to
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Legislative Activity Update – Three Pennsylvania Bills

Pennsylvania Senate Bill 748 was signed into law as Act 55 on October 30, 2015, by Governor Tom Wolf.  In the House of Representatives, two new bills were introduced.

PA Senate Bill 748 – Certified Escort Vehicles for “Super Loads”

Sponsor: David G. Argall (Republican – Schuylkill County and part of Berks County [outside Reading])
Overview: Eliminates mandatory escort of “super load” by Pennsylvania State Police.

Directs Pennsylvania Department of Transportation (“PennDOT”) to establish criteria for certified escort vehicles and certification and licensing of drivers of same.Allows for permitting of movement of “super load” escorted by one certified escort vehicle,

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Legislative Activity Update – Two Pennsylvania Bills

The following two already-introduced bills have been acted upon by the General Assembly since our last Update:

PA House Bill 965 – Amendments to Regulatory Review Act

Sponsor: Robert W. Godshall (Republican – part of Montgomery County [outside Philadelphia])
Overview: Amends Regulatory Review Act (Act of Jun. 25, 1982, P.L. 633, No. 181) to require that Committee Chairs provide a copy of any proposed regulation, as well as stakeholder comments and any comments from the Independent Regulatory Review Commission (“IRRC”), to committee members by paper or electronic copy within five (5) days of receipt.Authorizes Committee Chairs to hold
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Yale study in PA calms fears about contamination of water resources from hydraulic-fracturing activities

A recent Yale study debunked fears about contamination of Pennsylvania’s water resources by hydraulic fracking. The three-year-long study revealed that hydraulic fracturing is not the cause of contaminated drinking water in the Marcellus Shale. Instead, the study traced the contamination to above-surface activities.

Published in the Proceedings of the National Academy of Science, Yale researchers analyzed 64 samples of groundwater gathered from private residences located in northeastern Pennsylvania. This research covered about 2,800 square miles of the Marcellus Shale. Researchers discovered that the groundwater-contamination samples were most likely affected by the gas-extraction operations above the ground surface, not migration … Continue Reading

Quarterly Legislative Action Update: Marcellus and Utica Shale Region

Our Norton Rose Fulbright Pittsburgh-Southpointe practice tracks legislative activity that we believe may impact oil and gas development within the Marcellus and Utica shale regions (Pennsylvania, West Virginia and Ohio). This Quarterly Update contains all of the relevant legislative activity occurring in Pennsylvania, West Virginia, and Ohio during the third quarter of 2015.

The next issue of the Quarterly Update will be published in early January 2016 and will contain all of the legislative activity occurring through the fourth quarter of 2015, highlighting changes occurring during that quarter. New legislative activity occurring after publication of this Update will be posted … Continue Reading

Pennsylvania judge dismisses tortious interference suit against environmental companies and local residents

A Pennsylvania state court judge recently dismissed a Butler County fracking lawsuit. In a unique twist, the landowning plaintiffs in this case brought suit against two environmental groups–the Delaware Riverkeeper Network and Clean Air Council–and local residents. Plaintiffs in this case are a Butler County developer and various local landowners who have oil and gas royalty interests. They assert claims for tortious interference with contracts, tortious interference with contractual relations, and civil conspiracy.

In 2014, Defendants petitioned the local government to overturn an ordinance that allowed fracking and related activities in Middlesex Township. As a result of this 2014 lawsuit, … Continue Reading

Legislative Activity Update: Four Pennsylvania Bills

The following two already-introduced bills have been acted upon by the General Assembly since our last Update:

PA Senate Bill 875 – Treated Mine Water Act

Sponsor: Camera Bartolotta (Greene County and parts of Beaver and Washington counties [southwestern Pennsylvania])
Overview: Provides immunity from liability to mine operators for use of treated mine water used in oil or gas well development.

Provides immunity from liability for treatment or abatement of mine drainage or mine pool water to persons who acquire treated mine water for use in oil or gas development.

Does not remove liability for unlawful spills or releases.Treated mine

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Legislative Activity Update: Six Pennsylvania Bills, Including One New Severance Tax Bill

PA Senate Bill 307 – Provides for independent counsel for the Environmental Quality Board
Sponsor: John T. Yudichak (Democrat – Carbon County and part of Luzerne County [northeast Pennsylvania])
Overview: Requires the Department of Environmental Protection to appoint independent counsel for the benefit of the Environmental Quality Board (“EQB”).Independent counsel shall assist EQB on all matters, “including, but not limited to, the review of rulemaking petitions submitted to the [EQB], the drafting and development of amendments to proposed and final rulemaking and advice relating to procedural matters.”

Provides that discussions between independent counsel and EQB are privileged.

Amendments: Printer’s Number
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Legislative Activity Update – Three Pennsylvania Bills

The following bills were introduced in the Pennsylvania General Assembly:

PA Senate Bill 415 – Natural Gas Severance Tax
Sponsor: Arthur L. Haywood III (Democrat – Philadelphia and part of Montgomery County)
Overview: Extensive severance tax bill, with rate of “8% of the gross value of units severed at the wellhead during a reporting period.”Repeals sunset provision of Oil & Gas Act that would have terminated the impact fee upon passage of a severance tax, allowing imposition of both an impact fee and severance tax.
Current Status: Referred to Senate Committee on Environmental Resources and Energy on April 6, 2015.
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Federal court in Pennsylvania grants summary judgment in favor of exploration and production company on claims of strict liability, nuisance, and negligence

On March 25, 2015, the United States District Court for the Middle District of Pennsylvania entered summary judgment in favor of an exploration and production company on claims of strict liability, nuisance, and negligence, by a Tioga County landowner related to drilling activity near his property.  Chief Magistrate Judge Carlson found that the uncontroverted evidence offered by the E&P company demonstrated that “defendants are entitled to summary judgment in their favor on the merits.”  The case is Kamuck v. Shell Energy Holdings GP, LLC, No. 4:11-CV-1425, 2015 U.S. Dist. LEXIS 37538 (M.D. Pa. Mar. 25, 2015).
A crucial factor … Continue Reading

Study concludes that fracking does not increase methane levels in drinking water

Over the past couple of years, the number of studies related to the alleged environmental impact from hydraulic fracturing have increased dramatically. In fact, some of these studies have contradicted each other. That said, lately, multiple studies have concluded that hydraulic fracturing does not have the detrimental impact on the environment that several environmental groups have alleged. The latest study to examine hydraulic fracturing has concluded that fracking does not cause methane contamination of drinking water in Pennsylvania.

The study concluded that the methane present in drinking water did not result from hydraulic fracturing operations in the area. This latest … Continue Reading

Middle District of Pennsylvania finds separate natural gas compressor stations are not a “single source”

On February 23, 2015, the US District Court for the Middle District of Pennsylvania granted Ultra Resources, Inc.’s motion for summary judgment, holding as a matter of law that eight compressor stations owned and operated by Ultra Resources, Inc. (“Ultra”) were not a “single source” for air quality permitting purposes. See Citizens for Pennsylvania’s Future v. Ultra Res., Inc., No. 4:11CV01360, 2015 US Dist. LEXIS 21357 (M.D. Pa. Feb. 23, 2015). This post provides a brief summary of the Ultra Resources decision. Check back to this web site soon for our more in-depth analysis of the Ultra ResourcesContinue Reading