Supreme Court of Pennsylvania Middle District
EQT Production Company v. Commonwealth of Pennsylvania, et. al.
Case No.: 6 MAP 2017
At the request of the Commonwealth of Pennsylvania, CBF filed an amicus brief in support of the Department of Environmental Protection's ("DEP") appeal of an Order from the Commonwealth Court of Pennsylvania. The lower court held that the release of a pollutant from industrial wastewater to groundwater is not a discharge under Section 307 of Pennsylvania's Clean Streams Law, 35 PA. Stat §691.307. The court also held that Pennsylvania's Clean Streams Law does not allow the Commonwealth to recover penalties for continuous water violations. The brief was filed in the Supreme Court of Pennsylvania's Middle District on May 10, 2017.
This case concerns the proper method for calculating penalties for violations associated with the illegal storage and release of flowback water and drilling production waste from unconventional natural gas drilling, known as "fracking." Fracking uses water to fracture shale rock underground where natural gas is found. Flowback fluid cannot be discharged to the ground or surface waters and must be stored, treated or reused. Oftentimes, flowback water is stored in large surface impoundments that are supposed to have impervious liners to prevent leaching of flowback fluid to water resources underground or flowing surface water.
EQT owns and operates natural gas wells in Duncan Township, Pennsylvania. In May, 2012, EQT notified DEP of a leak to one of their impoundments whereby flowback fluid was leaking into the subsurface beneath the impoundment. This discharge caused ongoing harm to nearby vegetation and other living organisms in Rock Run and other tributaries to the Susquehanna River. The Commonwealth Court held that a penalty cannot be assessed for the movement of industrial waste like fracking flowback fluid from one body of water to another. This ruling essentially limits DEP's ability to recover penalties which would severely limit the agency's ability to deter illegal storage operations and is an incorrect interpretation of Pennsylvania's Clean Streams Law.
Potomac Riverkeeper, et al. v. Maryland Department of the Environment
CBF filed an amicus brief in the Maryland Court of Special Appeals on February 19, 2016 in support of the Potomac Riverkeeper. The Riverkeeper appealed the decision of the Circuit Court for Allegheny County affirming the Maryland Department of the Environment's (MDE) decision to issue a National Pollutant Discharge Elimination System ("NPDES") permit to Upper Potomac River Commission wastewater treatment plant ("UPRC") in Luke, Maryland. CBF agrees that the Circuit Court erred by not remanding the NPDES permit to MDE for consideration of Potomac Riverkeeper's objections to the modified effluent limitation contained in UPRC's final NPDES permit. CBF's brief focused on the importance of the mandatory public participation requirements in the NPDES permitting process and how public could not comment on permit terms which were not reasonably ascertainable during the comment period, or arose after the end of the public comment period.
Maryland Department of the Environment v. Anacostia Riverkeeper
222 Md. App. 153, 112 A.3d 979 (2015)
CBF filed an amicus brief in August, 2014 with the Maryland Court of Special Appeals in support of the decision of the Circuit Court for Montgomery County which held that the permit issued to Montgomery County for stormwater discharges from its Municipal Separate Storm Sewer System (“MS4”) must be revised in order to comply with Maryland law, the Clean Water Act, and federal regulations. The Court of Special Appeals affirmed the decision of the Circuit Court because the permit did not afford an appropriate opportunity for public notice and comment, and did not include critical details explaining the County's obligations to manage its stormwater discharges.
In its decision, the Court of Special Appeals quoted directly from CBF's amicus curiae brief regarding the importance of MS4 permits in the context of the Chesapeake Clean Water Blueprint, stating, “'Maryland's ability to comply with the Bay TMDL pollution reduction requirements relies heavily on reducing pollutants from urban stormwater,' and 'the ability to track and confirm progress' on that reduction 'through public participation, monitoring, and setting and using interim benchmarks is of the utmost importance.'” Anacostia Riverkeeper, 222 Md. App. at 162, 112 A.3d at 984.
The Court of Appeals granted the Maryland Department of the Environment's request to be heard on an appeal of the intermediate appellate court's decision in July, 2015. Arguments will be heard by the Court of Appeals on this and a related MS4 permit appeal brought by CBF this November.
Anne Arundel County v. Stephen Bell
442 Md. 539, 113 A.3d 639 (2015)
CBF filed an amicus brief in August, 2014 with the Maryland Court of Appeals in support of a decision rendered by the Court of Special Appeals regarding citizens' rights to challenge a legislative zoning decision of the Anne Arundel County Council. The Court of Special Appeals held that the citizens had standing to challenge the legislative rezoning of parcels near their property because their properties were close enough to the rezoned parcels to be “almost prima facie aggrieved,” and in addition to this proximity, they alleged specific facts to demonstrate how their personal or property rights had been specially and adversely affected by the rezoning in a way different from those of the general public.
The Court of Appeals reversed the intermediate appellate court's judgment, holding that taxpayer standing, not property owner standing, applies to judicial challenges to comprehensive zoning legislation. In applying this standard, the Court of Appeals further held that the citizens did not properly allege facts to support their standing as taxpayers; namely, both (1) an action by a public official or municipal corporation that is illegal or beyond his or her (or its) authority, and (2) that the action may reasonably result in an economic loss to the taxpayer or an increase in taxes.
This decision has a profound impact on Maryland citizens' ability to challenge purely legislative rezoning actions by their local government. It forecloses judicial review of those decisions by all members of a community save those who can meet the very high bar of taxpayer standing.
Precon Development (Federal Case)
Precon Development is the developer of a 658 acre tract planned unit development known as Edinburgh that is located in Chesapeake, Virginia. In 2006, Precon decided to proceed with the development of 10 residential building lots in Edinburgh and filed a request with the U.S. Army Corps of Engineers for a jurisdictional determination and an application for a permit, if necessary, to destroy wetlands located within the site. The Corps' determined that, under the Clean Water Act, the wetlands were waters of the United States under their jurisdiction and denied a permit to impact the wetlands.
Precon appealed the determinations to the U.S. District Court for the Eastern District of Virginia. The district court granted summary judgment to the Corps on September 4, 2009 and upheld both its jurisdictional determination and its permit denial. An appeal to the U.S. Court of Appeals for the Fourth Circuit followed where Precon challenged only the Corps' jurisdictional determination. Because of our long history of involvement with the Clean Water Act and the protection of our Nation's waters, including those in Virginia, CBF chose to get involved in this case and submitted an amicus curiae brief to the Fourth Circuit in support of the Corps' decision.
In January of 2011 the Fourth Circuit vacated the district court's decision and remanded the case back to the Corps for reconsideration of its determinations. The appeals court found the administrative record inadequate to support the Corps' conclusion that it had jurisdiction over Precon's wetlands.
Duke Energy (Federal Case)
In April 2, 2007, the United States Supreme Court issued an opinion in Environmental Defense v. Duke Energy, and clarified the Clean Air Act's New Source Review provisions concerning the requirements for permitting coal-fired electric utilities that emit thousands of tons of pollutants into our air and ultimately into the Chesapeake Bay. CBF, while not a party to the case, submitted an amicus curiae brief supporting the position of the environmental petitioners and, ultimately, the U. S. Environmental Protection Agency (EPA). CBF provided detailed information to the court on how air pollution harms the Bay.
The New Source Review provisions require operators of large stationary sources of air pollution, such as coal-fired power plants, to get a permit and install the best available control technologies when they make a "modification" or structural change in the plant that increases pollution. In the Duke case, and several other similar pending cases brought by the U. S. Department of Justice on behalf of EPA, one of the pollutants sought to be controlled was nitrogen oxides, a pollutant harmful to the Bay. The court was asked to decide how to determine if a modernization project increased the amount of pollution emitted, and ultimately if the modifications triggered the requirement to install pollution controls. Duke Energy argued that the proper test was an hourly rate of emissions. The environmental petitioners argued that the proper test was an annual rate.
The Supreme Court overturned the ruling by the lower appeals court that construed EPA's regulations to require a permit only when a modernization project increases the maximum hourly rate at which a source is capable of emitting. The Court ruled that EPA may also consider an increase in the annual rate of pollution.
This was the first time in decades that the Supreme Court took a case at the behest of an environmental advocacy organization despite opposition by the federal government. This case serves as an example that an advocacy group's decision to intervene to support strict governmental enforcement of environmental regulation can have a significant impact on pollution control. It is for this reason that CBF is committed to and will continue to take on and join these types of cases where it suits our overall mission.
Supreme Court Wetlands Case (Federal Case)
In January 2006, CBF filed an amicus curiae brief with the United States Supreme Court supporting the U. S. Army Corps of Engineers' jurisdiction over non-tidal wetlands and headwater streams in two cases: U.S. v. Carabell and U.S. v. Rapanos. The court's decision had the potential to significantly affect federal Clean Water Act jurisdiction over permitting construction in these kinds of wetlands. CBF's brief focused on how the loss of such jurisdiction could severely impact the Chesapeake Bay and its tributaries.
On June 19, 2006, the court issued a split decision with some justices voting to severely limit Corps jurisdiction and others voting for continued federal jurisdiction over permitting. The court described several different standards for how Corps jurisdiction should be determined but no clear standard was provided.
Ultimately, the cases were sent back to the trial court for development of additional facts. Given the split in reasoning, the Supreme Court decision will likely create confusion and add further burden to the Corps and states that implement the Clean Water Act. In an attempt to explain the decision and its potential impact on Bay resources, CBF Vice President of Litigation Jon Mueller submitted an article to the Bureau of National Affairs that was published in March 2007.
In June of 2007, the U.S. Environmental Protection Agency and the Corps announced agency guidance to ensure that all actions being conducted under the Clean Water Act are consistent with the Rapanos decision. CBF staff sttorney Amy McDonnell submitted comments on behalf of CBF objecting to the guidance and urging that the Act's definition of "waters of the United States" be amended to resolve the confusion caused by the Supreme Court decision.
Mirant Ash (Maryland)
On April 2, 2008, five individual Maryland citizens, along with the Environmental Integrity Project ("EIP"), and the Potomac Riverkeeper ("PRK") (collectively "Petitioners") provided GenOn Mid-Atlantic, LLC, GenOn Maryland Ash Management, LLC (collectively "Respondent"), and MDE with notice of their intent to sue Respondent in federal court for violating Maryland's water pollution control laws and regulations. In response to Petitioners' notice of intent to sue, MDE filed suit against Respondent in circuit court on May 8, 2008, seeking injunctive relief and civil penalties, and alleging many of the same violations that Petitioners claimed in their notice.
On August 21, 2008, Petitioners moved to intervene in MDE's suit, both permissively and as a matter of right. The circuit court denied Petitioners' motion on September 23, 2008. Petitioners appealed to the Court of Special Appeals, which affirmed the circuit court's decision. This appeal followed.
Patuxent Riverkeeper (Maryland)
During the 2009 Session of the Maryland General Assembly, several statutes were amended to allow interested parties the ability to challenge certain environmental agency decisions. Permits issued by Maryland Department of the Environment (MDE), for example, became subject to judicial review at the request of any person that (1) meets the threshold standing requirements under federal law and (2) takes part in the public participation process unless such opportunity is not provided. Prior to this change, Maryland law set the bar low for standing to challenge the merits of permitting environmental harm. The new laws went into effect on January 1, 2010. In 2007, a local builder applied to MDE for a permit to develop the Woodmore Towne Center, an approximately 245 acre residential and commercial development situated in the Patuxent River watershed. In March of 2010, MDE issued a permit granting authorization to build the Towne Center. On April 16, 2010 the Patuxent Riverkeeper sought judicial review of MDE's decision to issue the permit in the Circuit Court for Prince George's County. Both the developer and MDE moved to dismiss the case for lack of standing. Despite the new law that allowed for citizen standing in this case, the Circuit Court dismissed the Riverkeeper for lack of standing. An appeal to the Court of Appeals followed. Because this case presents a question of first impression in Maryland, and because it concerns an area of law that addresses citizen participation in the permitting process, CBF chose to get involved. CBF and the Riverkeeper Alliance joined forces in support of the new laws and submitted an amicus curiae brief to the Court of Appeals in April of 2011.
Arrow Cove (Maryland)
In February of 2007, the Circuit Court for Anne Arundel County upheld a decision of the County Board of Appeals granting several Critical Area variances to a developer proposing to build on land located on steep slopes along Saltworks Creek, a tributary to the Severn River. CBF recently constructed an oyster reef at the mouth of the Creek and development of the adjacent land carries with it an obvious risk to the health of the creek and its inhabitants. The property at stake is also within the Resource Conservation Area of the Critical Area. Development in Resource Conservation Areas is subject to the most stringent restrictions. Maryland law dictates that these areas must be conserved and protected.
Local residents concerned that the law was not being properly interpreted in this case and that the environment would suffer harm, appealed the Circuit Court';s decision to the Maryland Court of Special Appeals. CBF filed an amicus curiae brief in support of the appeal, arguing that the Circuit Court failed to satisfy legally required burdens in its decision and failed to properly evaluate the area where the proposed development would be built. In January of 2008, the Court of Special Appeals upheld the Board's decision to grant the variances. The citizens appealed, this time to the Maryland Court of Appeals, and CBF again submitted an amicus curiae brief.
In July of 2007, CBF filed an amicus curiae brief with the Maryland Court of Appeals challenging a decision of the Court of Special Appeals. The decision said the creation of critical area maps in support of a proposed development in the critical area that received growth allocations from the Critical Area Commission was merely a ministerial duty. In the lower court's view the maps did not have to be accurate and did not have to correctly describe the shoreline, location of wetlands, or extent of hydric (wet) soils. The Chester River Association also submitted a brief challenging the decision.
The Court of Appeals affirmed the lower court's decision in its opinion filed August 21, 2009.
Terrapin Run (Maryland)
In October of 2007, CBF filed an amicus curiae brief with the Maryland Court of Appeals supporting the appeal of a the Court of Special Appeals decision allowing a special exception for a 4,300 unit development on 935 acres in Allegany County abutting Green Ridge State Forest. CBF took exception to the lower court's view that a special exception does not have to conform to the county's Comprehensive Plan. The lower court held such plans were merely advisory. CBF believes that such a decision could wreck havoc on the development planning process in Maryland and render Comprehensive Plans—developed after years of study and input by citizens and commercial interests—obsolete. A national planning group and the Maryland Department of Planning submitted similar briefs challenging the decision.
On March 11, 2008 the Court of Appeals issued its opinion agreeing with the views of the lower courts.