When is subsurface drilling a trespass in Pennsylvania?

by Ryan Hamilton

Unlike other minerals, natural gas is fugitive meaning it moves through the subsurface based on changes in pressure. Pennsylvania’s rule of capture permits a well operator to drain natural gas from a common reservoir under an adjacent property, even absent a mineral lease. In the context of unconventional shale gas wells using hydraulic fracturing, however, the Pennsylvania Superior Court recently decided that fractures crossing boundary lines are an unlawful trespass.

In November of 2015, the Briggs family filed suit against Southwestern Energy Production claiming the operator unlawfully extracted natural gas from beneath their 11 acres. The Briggs argued that, despite the lack of physical intrusion, Southwestern’s forced extraction of natural gas through hydraulic fracturing made it possible to identify which parcel provided the source of recovered gas. Southwestern argued the direction of fractures cannot be controlled and if the company did recover gas from beneath the Briggs’ property, their actions were permitted by the rule of capture.

This April, the Pennsylvania Superior Court issued a decision in the Briggs’ case explaining that engineers design hydraulic fracturing operations by selecting injection pressures and volumes based on site-specific geologic data and can estimate the length fractures will extend from the well. Further, “[u]nlike oil and gas originating in a common reservoir, natural gas, when trapped in a shale formation, is non-migratory in nature… Shale gas does not merely ‘escape’ to adjoining land absent the application of external force.” Briggs v. Southwestern Energy Prod. Co., 184 A.3d 153 (Pa. Super. Ct. 2018).

The Court found that in light of the differences between hydraulic fracturing and conventional gas drilling, hydraulic fracturing “may constitute an actionable trespass where subsurface fractures, fracturing fluid and proppant cross boundary lines and extend into the subsurface estate of an adjoining property for which the operator does not have a mineral lease...” Briggs, 184 A.3d at 163-164.

The Court sent the case back to the trial court for the Briggs to develop evidence of fractures crossing boundary lines and damages. In early July, however, Southwestern petitioned the Pennsylvania Supreme Court arguing the decision departs from the time-honored rule of capture and threatens to disrupt the industry. To date, the PA Supreme Court has not decided whether to hear the appeal.

For more information about how your rights and property may be impacted by natural gas extraction, contact attorney Ryan Hamilton at (412) 904-2774.

Constitutional Contract Protections Overrides Ohio’s Controversial Oil and Gas Statutory Unitization Powers, Says Ohio Appeals Court

by James Yskamp, Supervising Attorney

The Ohio Fifth District Court of Appeals issued a ruling on August 13, 2018 that could provide some protections for lessors that have leases with clauses that contain limitations on pooling or units.

The case, American Energy – Utica, LLC et al. v. Ronald Fuller, involved a lease that had included a handwritten clause that read “UNITIZATION BY WRITTEN AGREEMENT ONLY!”[1]  The lease was originally signed in 1981 by the landowners and D.B. Shaffer & Associates, Inc., and the rights of the lessee were assigned to EnerVest in 2009, and then to American-Energy-Utica (“AEU”) in 2013.[2] AEU then requested that the landowners agree to amend the lease in order to allow unitization of the leasehold, but the parties could not reach an agreement.[3] Rather than continue to negotiate, AEU filed an application with the Ohio Division of Oil and Gas pursuant to Ohio’s mandatory unitization statute, Ohio Revised Code Section 1509.28, in order to force the landowners’ property into the proposed unit, against the landowner’s will and in direct conflict the lease itself.[4]

On this particular issue, the Court held that using the mandatory unitization law at Section 1509.28 to circumvent the clear language in the lease violated the Section 28, Article II of the Ohio Constitution because it was “used to retroactively impair the obligation of the contract.”[5] The Court also found that this constituted a breach of the lease and remanded to the trial court with instructions to determine the remedy.[6] While the ultimate remedy remains to be seen, the constitutional finding by the Court is important because it suggests that the unitization statute can’t be used to force lands subject to leases with similar unitization restrictions into units.

For context, a “pool” is defined as an underground reservoir containing a common accumulation of oil or gas, or both.[7] A “unit” is simply a formal designation of contiguous land outlining the boundaries of development of a pool of oil and/or gas resources. With the recent development of technologies to horizontally drill and fracture deep shale formations in order to extract oil and gas resources, the concept of a “pool” in which to develop a unit has broadened greatly to include large geological formations of shale in an area. However, in 1965, when Ohio’s mandatory pooling and unitization statutes were enacted, a “pool” of oil or gas was more limited to a relatively free flowing reservoir in a geological formation. The drafters of the statutory sections outlining “mandatory pooling” and “mandatory unitization” could not have contemplated “pools” from which to form units would grow to the many hundreds of acres that we see today in the Utica and Marcellus shale development.

In general, the purpose of “mandatory pooling” is designed to force just enough land into a unit to meet the state’s minimum spacing requirements. In this way, mandatory pooling laws are passed to prevent one landowner from preventing other landowners’ ability to develop their property, because they cannot meet the state’s minimum spacing requirements without at least some of the non-consenting landowner’s land in the unit. The Chief of the Division of Oil and Gas can issue these forced pooling orders if he finds that the mandatory pooling is “necessary to protect correlative rights and to provide effective development, use, and conservation of oil and gas.”[8]

If you are a fan of private property rights, you might find forced pooling troubling, but you will almost certainly find forced unitization far more nefarious in the context of today’s shale gas development. Unitization in principle is closely related to mandatory pooling, because it compels non-consenting landowners to include their land in a unit for ultimate oil and gas development. However, where mandatory pooling is only allowed to the extent necessary to meet minimum spacing requirements, forced unitization can capture vast amounts of land, up to hundreds of acres in size. The requirements under the forced unitization statutory section are that the applicant have 65% of the proposed unit through consent or ownership, and be “reasonably necessary to increase substantially the ultimate recovery of oil and gas, and the value of the estimated additional recovery of oil and gas exceeds the estimated additional cost” of the unit.[9] In other words, the Ohio statute may allow private oil and gas companies to take of up to 35% of property within a proposed unit (which the companies come up with) as long as they can show it would be profitable. Since units for shale gas development can be upwards of 1,000 acres or more in size, this statute as its applied today can allow hundreds of acres at a time to be forced into development without agreement or consent of Ohio property owners.

Saving discussion on the constitutionality of the general application of Ohio’s forced unitization law to current shale gas development for another day, The Fifth District Court of Appeals’ ruling in Fuller appears to offer protections to landowners who have contracted limits on unitization from Ohio’s intrusive forced unitization law. Even landowners that are open to negotiating a lease often tell us that they feel like they can’t negotiate on equal footing with an a oil and gas company when company representatives threaten or initiate forced unitization proceedings if their standard lease terms aren’t met. Some older oil and gas leases contain size limits on units to 40 acres or less, and horizontal drilling in the Utica shale in Ohio often requires units of far greater than 40 acres, so the Fifth District’s decision could give landowners with such lease restrictions a lot of leverage in negotiations when approached to amend their lease.

Property rights issues, and oil and gas rights issues in particular, are often complex, and it is always advisable to speak to an experienced attorney about your rights when approached to sign or amend an oil and gas lease.

[1] Am. Energy - Utica, LLC v. Fuller, 5th Dist. Guernsey No. 17 CA 000028, 2018-Ohio-3250, ¶ 7.

[2] Id. at ¶ 10.

[3] Id. at ¶ 11.

[4] Id. at ¶ 15.

[5] Am. Energy - Utica, LLC v. Fuller, 5th Dist. Guernsey No. 17 CA 000028, 2018-Ohio-3250, ¶ 40.

[6] Id.

[7] O.R.C. § 1509.01(E).

[8] O.R.C. § 1509.27.

[9] O.R.C. § 1509.28.

Living in Coal Country: Justice for Sale

If you look at the law, you’ll see that you have protection. Living and working in coal country and the processes of coal extraction coexist beautifully in the statutes and rulebooks governing the handling of claims of damage from the process of mining. In reality, however, the law pits a landowner against two very powerful and resourceful figures: the coal mining company and the government, to enforce the landowner’s right to a replacement water supply or compensation for damage to buildings and lands that literally fall in to the ground due to subsidence once mining occurs in the area.

The law requires a replacement water supply or compensation for subsidence damage when a landowner complains to the mining company and the state conducts an investigation determining that mining was the presumptive cause or, for properties outside of a certain number of feet diagonally from the extracted coal, was the cause of the water loss or diminished quality or subsidence. If the state makes that finding, then the coal company is allowed time to rebut the presumption or otherwise prove that the cause of subsidence, contamination or diminished quantity of water is something other than mining. Many times, we see the state giving the coal company multiple opportunities to make such a showing.

Then it happens: the state issues an order stating that the coal company was right. We hear the same story from our clients almost every time. The story is that the state first orders the mining company to provide a temporary water supply replacement, which is usually in the form of a water buffalo that has to be filled at least once a week. Then, the state and the company test the water well for quality and quantity. They wait, test again, and may repeat this process as long as they see fit. Then, the company will produce an expert report that always seeks to rebut the presumption that they caused the damage. The state then gives in, sends a letter to the landowner stating that a replacement supply is not warranted, and the water buffalo is removed. Our client then has 30 days to appeal the decision.

Most of our clients start the appeal process headstrong to get their water back and seek justice. Even when we provide pro bono services, our clients are faced with the prospect of having to prove that the coal company’s actions caused the impact to their water or damage to their land and structures. The cost is daunting: around $15,000 at a minimum just for the development of an expert report. The decision our clients eventually have to make: spend money on an uncertain outcome to seek justice OR spend money on a solution to the home or structure damage, such as drilling a new and deeper water well or moving away. It’s an unfair outcome no matter which decision the client makes.

While we have settled many water supply replacement and subsidence cases, we have never won one. For example, after one 5-day hearing, Ohio’s Reclamation Commission, where appeals of the State’s decision on causation must be brought, factually ruled out every single one of the State’s reasons for causation (well maintenance, drought, and other local users), and yet could not reach a quorum on whether the nearby mining caused our clients’ water losses. The procedural result of this non-decision is that the State’s finding is upheld, despite the finding that the basis for their decision is false. These landowners are still without a potable water supply, more than 3 years after mining approached their properties and their wells went dry, and despite having plenty of water for household uses for decades from these same wells. The combination of two well-funded parties in the State and the Mining Company against a landowner, and requiring the landowner to prove exactly what occurred in the underground water source and how its connected to the nearby mining, is a nearly impossibly heavy burden in today’s expensive legal and expert services market.  Our clients simply cannot afford to go through hearing. Most of the time, our clients cannot afford an expert witness to opine on the cause of the water loss or structural damage.

We have noticed the difference between legal protection on the face of the law and justice most in these water supply replacement cases among all of our environmental cases. It renders legal rights meaningless when the administrative process is used to bargain those rights away.

The Rustic Ridge Settlement: creating citizen enforcement opportunities in the coalfields

To date and without any explanation of its consideration of the Pennsylvania Constitution's Environmental Rights Amendment, the Pennsylvania Environmental Hearing Board has put the burden of proving any objections to environmental permits, such as an inadequately sized geologic barrier between a newly proposed mine and an abandoned mine, on ill-equiped individuals and community organizations. 25 Pa. Code § 1021.122(c). Therefore, the most effective environmental permit challenges in PA are those where unsupported permit conditions are made practical, impactful and reasoned, which should make those conditions better. Defeating a permit is hard under these circumstances.

The process of challenging an environmental permit involves all-out litigation - factual & legal theory development, motions that whittle away at those theories and the parties respective budgets, hiring and working with scientific and engineering experts who can intelligently educate the judge on her expert opinion about the permit and its protectiveness. Then there's a lengthy trial where the administrative law judge sits as judge and jury. It's a three-party trial that typically pits an individual or community against a powerfully-aligned governmental agency and industry. Going to trial does not often yield the exact results sought. It's an expensive, and because of the inexplicable and unjust burden of proof rule, incredibly risky proposition to rely on the Board's hearing process to achieve reasonable results through a hearing on the merits.

Since we are, after all, lawyers as counselors instead of lawyers as monotonous predictors of the outcome of single court or administrative arguments, we can look at the permit challenge process as an opportunity to secure better results than what a full hearing on the merits may be able to achieve if the industrial party and community organization or individual party are willing to discuss settlement. Without fail, what my clients are seeking in this process is to be heard and valued for what they have to add to the decisionmaking process. So, in any process that I engage in for my clients, I seek to fulfill the objective of adding that client's value to the decisionmaking process. 

One of the best ways to ensure that your client is valued in environmental decisionmaking is to both maximize their access to information and data AND to give them as much future opportunity to enforce against violations of a permit (or a settlement agreement) in the future. In a hotly contested and well-funded coal mining permit challenge called Mountain Watershed Association v. DEP and LCT Energy Co. (Rustic Ridge Mine No. 1 case) we achieved that twofold objective in a way that should be replicated.

In the Rustic Ridge case, we achieved the following:

·      Barriers: 800 foot barrier increased to 1400 foot horizontal barrier between the Melcroft No. 3 abandoned mine & the new Rustic Ridge No. 1 Mine; a piezometer will be placed in the barrier to detect water level changes that would indicate an illicit discharge to the Melcroft No. 3; and quarterly monitoring and more frequent monitoring the closer the mining comes to the barrier of that piezometer goes to MWA.

·      Temperature: relocation of the wastewater outfall to a downstream location just prior to the confluence with Champion Creek.

·      Flow: 1500 gpm flow from dewatering of the coal seam reduced to 1,000 gpm to ensure that streambed erosion does not occur.

·      Noise & blasting: eliminated fan shaft & return shaft through development of three slopes in the pit; location of variable frequency fan underground during slope development; peak particle velocity limited to 1.0 inch per second; air blast limited to 126 db; seismograph installed at home nearest to mine & readings from the seismograph go to MWA.

·      Lighting: dark sky & canopy lighting to be used.

·      Information: Discharge Monitoring Reports, pumping rates & six month mining map to be provided to MWA regularly.

This settlement, which likely looks incredibly practical and reasonable, marks the first time in years that my client actually felt heard in the permit appeal process. On many occassions, we reached out to the governmental decisionmakers to try to make the exact points that the settlement agreement ultimately rested upon. The governmental attorney's response to our requests? Either that there's no need to meet or that my client has the ability to comment on the permit in the same way as everyone else. It is more than fair to criticize the PA governmental attorneys' apparent inability to do anything other than work to obstruct individuals and community organization's ability to be heard and valued.

It's not just the governmental attorney at fault. There's absolutely no reason that industries seeking permits cannot start the process of valuing the community in which they seek to operate long before a permit is even in draft form. If lawyers for those industrial users choose to push things through bureaucratic processes without valuing individuals and communities, then they should expect that hearings on the merits will focus on creating value by increased recordkeeping and data development as permit conditions, and by reducing environmental impact through more stringent pollution control requirements subject to citizen enforcement.

The way to engage in these otherwise lopsided hearing processes and ensure that you are meeting your client's objective of being valued in the environmental decisionmaking process is to see the attorney's role - for the industrial client, for the individual or community organization, and even for the government - as a true counselor, which involves much more than simply predicting the outcome of a legal argument. Lawyers as counselors can build value in all parts of the community and build community wealth. Use the settlement between a small watershed association and a coal mine as your guide for the possibilities. 

Emily

 

Day 5 & 6: Even the hunters have changed.

We spent day 5 broken into two parts: a fast rail-trail run from Marlinton to Cass, where we had a hearty lunch before heading out on technical and steep trail. For the second time, we were astounded by how few people used the trails: the rail trail and the mountain trail. If there was a theme to these last two days, it's that the amount of trail miles (and the unsegmented length of trail miles) available in WV are incredible. We heard stories about locals using the trail for cycling and horseback riding, but we didn't meet anyone running. Instead, we met hunters and one fisherman. If there was any disturbance to a trail, it was from a hunter dragging her deer down the trail or, in one case, from a bear cantering across the trail. There were instances when we wanted to alert mountain bikers about trails so that the cyclists could help prep the trail for running. Naturally, we started planning group runs and races that we could host across our tour.

On Day 5, we started to notice that the towns that we encountered had more of a quaint small town feel. Agriculture and farming dotted the landscape when we had only encountered a few small gardens in the days prior. The dogs that greeted us turned from those sought for protection - shepherds, pit bulls, and rottweilers - to hunting dogs - labs and beagles. And chain linked fences became non-existent in our last few days. We should mention that all the dogs we met, and especially the pit bulls early in our running tour, were very friendly. I think they just wanted to run with us. Only one dog required a little assistance - Connie walked her back to her house and told her to stay, which she did.

By the time we got to Cass, we realized that people were coming in from out of town to visit or stay for the weekend. The change was remarkable. People weren't just surviving, but deciding to spend time and money on the brink of West Virginia's glorious outdoors. Even the hunters had changed. They were coming in from out-of-state to hunt here. By the time we hit Davis, full blown tourism was upon us.

The extraction industry changed from coal to timbering by Cass. Where the historical markers were telling us about labor battles between coal miners and the coal industry in our first few days, the mill town historic markers described good labor relationships between owners and workers. There were company towns and company stories in both regions, but somehow the mill towns have turned to tourist destinations. The coal historical markers were typically all alone on the side of the road without a person in sight.

The stretch from Marlinton to Cass and then Durbin to Glady led us to start talking about racing - something we didn't talk about all week. In fact, we didn't even talk about training during our 6-day adventure. There was too much to see. We talked about what we were seeing. We only started talking about racing because we wanted to figure out how to let more people see this world that we had just discovered.

The fall colors must be breathtaking, but the November landscape on our last day gave us the subtle color contrasts that only wetlands surrounded by mountains can provide. The mountains started to outcrop and become even more amplified in their scenery.

We arrived at our cabin on the last day of running to get to work preparing a turkey dinner. The turkey, a heritage breed from Barton Farms and Gardens, turned out perfectly. We sat down, enjoyed a small feast, and talked about where we should go hiking the next morning.

You're probably wondering about how we're holding up, I'll say this: when you get up each day and go out for a run for the entirety of the day, you begin to feel very natural running for many miles. We all had different experiences with how we felt each day, but we all felt better over time. We were able to stay well-fueled by eating a good, protein-rich breakfast each day and a nice dinner each night. We cooked for ourselves for almost every meal. The breads we had from the Brimfield Bread Oven were the perfect accompaniment to our meals and snacks.

We also had critical gear and apparel on our run that got us through. Patagonia's trail running base layers and the airshed pullover were perfect for the crisp, freezing morning and sunny daytime running that we enjoyed. Nathan's hydration packs were awesome for the long haul: lots of pockets to store everything from food to clothing to lights and batteries. 

The folks who pitched in to help us along the way (both on the run and at home) deserve much credit. Roy Heger, Emma Hempstead, Rose Monahan, and Liz & Tom Kiousis were all wonderful crew. Jenn ran with us and crewed in an amazing display of logistical prowess. And Zach Vierheller both delivered the turkey and ran with us on the last day. Thank you.

We're coming home with stories, pictures, and a keen desire to retrace our steps with all of you.

Day 4: the paradise continues.

Today, we started from Richwood, hopped on the Fork Mountain Trail, and didn't see anyone for 8 hours. There were carpets of moss, the trail was as green as could be, and it was so extremely quiet. The only wildlife we witnessed were pheasants. We expected to see a bear given the significant scratch marks along the trail and droppings. We debated whether the surreal surroundings were from Alice in Wonderland, Snow White and the Seven Dwarfs, or just West Virginia itself that gave the authors their ideas for both. It was a great day to be thankful for mountains that reminded us of the rainforests of the Pacific Northwest and realize that we were starting to miss sharing these incredible experiences with our families and dogs. Happy Thanksgiving.

Day 3: A runner's paradise.

Today, we ran. We ran through the New River Gorge. From there, we ran to the Gauley River National Recreation area. We knew that there were unknowns in our route today. The run from the Gorge to the Gauley was wonderful. A series of rollers that felt like an interval day. And the places we saw along the way were absolutely gorgeous. We started calling it the waterfalls run after we got to the Gauley River.

Once we got to the Gauley, we ran a rail trail that seemed completely unmarked and unknown. It's difficult to describe the beauty (especially when you're cold), but it was an experience that was the definition of beauty. The river was raging, and we (we - the people attempting a 300-mile run) were completely humbled by its power and beauty. It made the act of running seem both natural and mandatory. It's a way of being, really. And we couldn't resist just running. 

We ran to the point that it didn't matter so much that we were off-course. We just wanted to be there. We ran to be part of something bigger than ourselves. It felt like we did the right thing by simply acknowledging the existence of this place. It's a place that's unmarked. It's a place that is known by people around it. It's a place of unknown ownership, but potentially accessibly by all if you know a little something.

West Virginia couldn't be more beautiful and more complex. 

Day 2: Access

We had a rough start today...mostly because of access. We had to re-route around a mine for the second time in two days. Why? Previously public roads (listed as such on Google Maps and the Gazetter) are now gated and cut off easy access to these small communities that we've been running through. One access point to our route, listed on maps as Bailey Mountain Road, was closed by the mine "10 - 15 years ago"  according to the security guard at the gate barring our way. For the community of Lindytown, at the end of the road on the opposite side of the mine, this would be incredibly isolating. The road turns into unpassable ATV trails and abandoned mining parking lots, and we were forced to backtrack. Only five miles from the starting point, we were rerouted approximately sixty miles to get over the mountain. 

It was a little shocking, really. Perhaps since we were expecting that traversing some of the more rural roads would be easier (and more accessible by foot). But creating less accessible areas in rural West Virginia is clearly the opposite of what is needed there. As we approached a highway crossing on Day 2, it was difficult not to notice that people were much more mobile and more affluent.

Still, we're loving the run over rural roads that show off West Virginia's culture. As we moved into Fayetteville, we kind of missed everyone waving at us. 

Day 1: Clusters of homes in hollows

We climbed two major mountains (Bearwallow at the Hatfield McCoy Trail System & Cazy Mountain), got fairly off course a few times, saw a lot of clusters of homes in hollows and churches, met some really nice people...some who had just processed a deer and got us right back on course, and we climbed and climbed and climbed.

At the top of Cazy Mountain towards the end of the day, we found ourselves at a plateau with low vegetation. We were untroubled until we rounded the bend only feet away, opening out into a gorgeous vista full of developed trees, and realized the low growth wasn't tree line but the vestiges of surface mining.

What pieces of community are still standing in the many of the clusters of homes we ran through? Typically, a post office, a dump, small plots with chain link fences, and homes that made the most of it, contrasted by well-maintained churches. In those clusters of homes, we saw so many "Free Will Baptist" churches that we started to wonder about the branding and were concerned that hope lies in things like food, health, the absolutely gorgeous places that we ran through (we all thought national park status was warranted for almost the entirety of our route), and something more than branded faith. We quickly added it to our to-do list to hear from people more familiar with the churches before reaching any judgments.

We spent a good amount of time along creeks and steep hillsides that made us feel like we were in areas where the land was protected and for the people to enjoy. What was incredible is that we didn't see people in those places. The connection between land and people was disjointed and unclear. But the people we met were so wonderful, so helpful and kind, and hunting. So, we're going into day 2 wondering about that connection and seeking clarity. West Virginians live in paradise. It's unclear that paradise is helping them.

Guest Blog by FSELS Legal Intern Christina Pollonais: The Ohio Verified Complaint Process: An Easy, Cost-Effective Way to Seek Results

Have you ever been faced with a situation in which there was an alleged violation of law regarding air pollution, water pollution, solid waste, infectious waste, hazardous waste, construction and demolition debris, public water supply, or cessation of chemical operations? Or has there ever been a circumstance where you suspected that a company has failed to meet a requirement of a license, permit, variance or plan approval relating to any of the previously listed violations?

If so, then most likely you have called your local or state authorities to report. However, waiting on the agency to respond or to take action, if ever, can be a frustrating process that citizens often have little control over. Well, Ohio law provides a way in which you can ease this frustration. You can file a verified complaint directly to the Ohio EPA. This process provides for formal written and appealable agency response to your complaint. If you file proper a verified complaint to the Ohio EPA, they have a duty to respond and act on this complaint within a period of 180 days. By taking advantage of this unique process, you can better assure answers to the numerous questions or problems you may be facing within your local community or home when an environmental violation occurs.

Ohio’s rules for filing verified complaints can be found under Ohio Revised Code §3745.08. Once an individual demonstrates that they have been adversely affected by an environmental issue, they can file a verified complaint. If the director determines a violation is evident from the verified complaint that you have filed, the director may issue an order to the violator to correct the problem or request that the Attorney General's Office begin legal proceedings.

It is important to note that if for any reason the verified complaint is reviewed and dismissed, the dismissal is considered a final decision of the Director of the Ohio Environmental Protection Agency (EPA). Any action taken by the Director in relationship to a verified complaint is considered appealable to the Ohio Environmental Review Appeals Commission (ERAC). Specifically, if the complainant is adversely affected by the decision, he or she can file a Notice of Appeal with ERAC in order to appeal a final action if the Ohio EPA proceeding or decision was arbitrary, capricious or unlawful.

There are four issues that a verified complaint must fully address to ensure that a verified complaint is filed properly. These include:

1)         The person submitting the complaint must demonstrate “standing”

a.         To address standing the complainant must: identify the complainant, and how he/she is personally affected by the violation that has occurred, will occur or is occurring;

b.         Also, the complainant must describe his or her knowledge of the violation.

                                                                                             i.         Standing cannot be based upon something the complainant simply read.

2)        The complainant must provide a detailed background of the situation

a.         The complainant must give as many detailed facts as possible. This is because often times a verified complaint can be dismissed where the Ohio EPA cannot gather sufficient information about the violation. Photographic evidence can be very useful.

3)         The complainant must provide a list of the alleged violations citing the specific laws or regulations that were disregarded.

a.         It may be helpful to have attorney review your complaint prior to submitting it. This way you can identify as many laws and regulations that were believed to be violated, and the Ohio EPA will have a better idea of what the specific problem is.

4)        The complainant must provide verification in the form of a sworn and notarized affidavit by the complainant, or his/her agent or attorney.

a.         To notarize prevents fraud and ensures the appropriate people execute documents freely. Institutions rely upon notaries so they may have full faith in important documents. These materials serve as a means of verifying the transaction so others may rely upon it. When you see a notary’s seal on a document, it means a trusted notary public represents that it is authentic and properly executed.

b.         The verified complaint must be in writing and include the words “Verified Complaint” at     the top.

Be sure to review your verified complaint several times before submitting it! It is imperative to understand that a verified complaint may be of ease and cost efficient, BUT it can be easily dismissed or overlooked if it isn’t executed properly. The Director of the Ohio EPA makes the decision to either dismiss the complaint or take action.   A properly executed verified complaint can be a powerful tool for landowners who suspect environmental violations have occurred on their property or in their community.

Where’s the ‘Free’ in the Freedom of Information Act? FOIA Requests, Fee Waivers, and the U.S. Environmental Protection Agency

FOIA is intended to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”[1]  Indeed, information held by government agencies often helps individuals and communities understand the very environment that surrounds them.  However, federal agencies can request high fees for this information, often making these documents out of reach for many requesters.  This can create an access-to-justice issue: yes, the information is available, but only to those who can afford it.

There are ways in which these fees can be appealed—but first, a short primer on FOIA requests.

"Science as my Guide"

"Science as my Guide"

I remember it distinctly and as if the world were about to change. President Obama had taken office – the excitement was palpable – and I was about to teach my first semester as a Clinical Assistant Professor at the University of Pittsburgh School of Law in their wonderful Environmental Law Clinic. On the same day that I turned 30, Lisa P. Jackson was confirmed as the President’s first U.S. EPA Administrator. Her message to the U.S. Senate Committee on Environment and Public Works was simple and impactful: “If I am confirmed, I will administer with science as my guide.”

Oil and Gas Development: Stories from SE Ohio

Winter clouds gathered outside the cafeteria of River High School in Hannibal, Ohio, promising high winds and black ice…but the folks inside were worried about threats a little closer to home.

On January 14, residents from southeast Ohio met with representatives from local, state and federal government to discuss their environmental concerns. The event, sponsored by the Ohio Environmental Council, gave citizens the chance to describe their experiences with oil, gas and other development. While the issues were universal—protecting land, water, air—the stories were highly individual:

·      The local farmer—having lost access to his leased grazing land because of a newly placed pipeline—decided to cash in his retirement and build a new home far away from development…only to have a natural gas compressor station built nearby. “It sounds like nine train engines running day and night,” he says.

·      The family who lived through a nearby well pad fire in June 2014, raised a host of questions about their subsequent health issues—and claim they’ve received precious few answers.

·      The new resident who came from bruising battles with drilling companies in the western United States, only to find similar issues brewing here. “I don’t want to sound defeatist,” he said. “I guess I’m here to warn you.”

While billed as a “listening session” for elected officials, few government representatives could offer more than sincere expressions of concern. Not surprising, really; environmental issues are often complicated and difficult to solve.

But Fair Shake Supervising Attorney James Yskamp had a simple reminder for those in attendance: “You have rights,” Yskamp said. “You have rights to be involved in the process, and you have rights if you feel you’ve been harmed.”

Yskamp and Resident Attorney Megan Hunter outlined some of the issues that were voiced during the forum, and noted where and how affected residents could seek answers and possibly redress.

Such rights, Yskamp said, are invaluable tools toward meaningful engagement.

”You have options,” he said, “and you need to know that.”

Fair Shake & Community Groups File Protest Letter to Protect Ohio’s Only National Forest from Oil and Gas Development

Oil and gas development on federal land is primarily governed by the Mineral Leasing Act of 1920, as amended (30 U.S.C. § 181 et seq.). This law established the Secretary of the Interior’s authority to lease public lands for the development of mineral resources, including oil and gas. While the numbers of leases issued and acres of federal land leased by the Bureau of Land Management (“BLM”) for oil and gas development has steadily and significantly decreased over the past eighteen years, the number producing leases on federal lands had gradually risen from under 19,000 in 1988 to almost 24,000 in 2015.[1] The number of producing acres on federal lands has been rising since 1993 and was almost 13 million in 2015.[2]

The National Environmental Policy Act (“NEPA”) requires federal agencies, including BLM, to consider the environmental impact of their actions.[3] NEPA is triggered at multiple stages of the leasing and development process, and is a powerful tool for ensuring that adequate information is available to make reasoned policy decisions regarding mineral development on public lands and the potential impacts to the environment. Pursuant to NEPA, agencies are required to take a “hard look” at every significant environmental impact of a proposed agency action, as well as the impacts of any alternatives available.[4]

On November 14, 2016, Fair Shake Environmental Legal Services filed a protest letter on behalf of FreshWater Accountability Project and 26 other organizations to oppose the opening of the Wayne National Forest to oil and gas development. The letter protests the federal Bureau of Land Management’s (BLM’s) proposed December 13, 2016, oil and gas lease sale of 33 parcels of publicly owned lands.

The proposed lease sale would allow unconventional oil and gas development and hydraulic fracturing (commonly known as “fracking”) on approximately 1,600 acres of Ohio’s only national forest. Fair Shake argues that the lease sale would violate substantive and procedural federal law designed to protect human health and the environment.  Specifically, the protest argues that BLM is required under the National Environmental Policy Act to prepare a full Environmental Impact Statement.  This would include a more thorough environmental analysis than the Environmental Assessment (EA) conducted by BLM.  The groups also argued the EA itself was inadequate because it relied on outdated information and did not fully assess many of the foreseeable environmental impacts of the lease sale, including the impacts to air quality, water resources, public health, and endangered species.  The protest letter also raises concerns regarding climate change and environmental justice for local communities surrounding the proposed extraction sites. The letter also states BLM must consider other alternatives to the lease sale, such as keeping federal hydrocarbons in the ground or prohibiting hydraulic fracturing on leased parcels.

Fair Shake filed the protest letter—pursuant to 43 C.F.R. § 3120.1-3—on behalf of FreshWater Accountability Project, Athens County Fracking Action Network, Buckeye Forest Council, Ohio Valley Environmental Coalition, Appalachian Mountain Advocates, Torch CAN DO, West Virginia Highlands Conservancy, Mountain Lakes Preservation Alliance, Radioactive Waste Alert, Columbus Community Bill of Rights, Guernsey County Citizens’ Support on Drilling Issues, Frack Free Lake County, Sustainable Medina County, Ohio Allies, Frack Free Geauga, Network for Oil & Gas Accountability & Protection, Concerned Citizens Ohio, Friends for Environmental Justice, FaCT-Faith Communities Together for a Sustainable Future, Northwest Ohio Alliance to Stop Fracking, The Committee for the Youngstown Community Bill of Rights, Ohio Community Rights Network, Concerned Citizens of New Concord, Ohio River Citizens’ Alliance, Ashtabula County Water Watch, and Headwaters Defense.

You can read the full protest letter here.

[1] Bureau of Land Management, Summary Of Onshore Oil & Gas Statistics, available at https://www.blm.gov/style/medialib/blm/wo/MINERALS__REALTY__AND_RESOURCE_PROTECTION_/energy/oil___gas_statistics/data_sets.Par.69959.File.dat/summary.pdf.

[2] Id.

[3] 42 U.S.C.A. § 4321.

[4] See 42 U.S.C.A. § 4332(C).

 

 

Legal Counseling Under Conditions of Uncertainty

Legal Counseling Under Conditions of Uncertainty

For our clients, in almost every instance we work with clients who are confronted with a situation where they, often for the first time, are realizing that their own government will not protect them. It doesn't take much for the implicit trust that we have in our institutions to turn into a sense of panic and hopelessness. Many, if not all, of our clients come to us in that shocked state. We knew long before the election that the belief in our nation's systems working for our clients had faded. And that's what is important: that we acknowledge and accept that our system of justice, our system of opportunity, and our system of advocacy have to work for everyone. Fair Shake is about tilting those systems toward working for all in our everyday work and in our model of the practice of law.

Small-Scale Conservation: Protecting Privately-Owned Forestland for Future Generations

Small-Scale Conservation: Protecting Privately-Owned Forestland for Future Generations

Private landowners hold more than 70 percent of Pennsylvania's forests and woodlots. For many such landowners, especially those without children to leave their land to in their wills, it may seem like they have no other option but to expose their land to the possibility of development when they are gone. However, many options exist to preserve privately owned land in its present state for the foreseeable future. This post intends to serve as a summary of the wide variety of methods open to a landowner looking to do so, and will discuss transfer to a land trust, conservation easements, deed restrictions, and government programs.

Pets in Hot Cars: Know Your Rights by Adam Cetra, FSELS Legal Intern

Pets in Hot Cars: Know Your Rights by Adam Cetra, FSELS Legal Intern

Many of us have been there before. You pull into a parking spot on a hot summer day, only to find a dog left unattended in the car next to you. You may be worried about what could happen if you simply move on with your day. According to the Humane Society, when it is 72 degrees Fahrenheit outside, the temperature inside a vehicle can heat up to 116 degrees Fahrenheit within an hour. When it is 80 degrees Fahrenheit outside, the temperature inside your car can heat up to 99 degrees Fahrenheit within 10 minutes. Further, rolling down the windows has been shown to have little effect on the temperature inside a car. Unlike humans, our pets do not have the ability to sweat to reduce their body temperatures. Being left in a vehicle can lead to a “painful, horrible death.” For example, once a dog’s body temperature exceeds 105 or 106 degrees, their cells start dying, which can lead to seizures or even mass organ failure and death.

Knowing the dangers to the animal, you may even be wondering how people can still do this after we see the same stories every year. As you sit there wanting to help, you may also be left to wonder what you can do in the moment, legally speaking. As with many legal issues, the answer is dependent upon the state in which you live.

Defending Your Environment Against Fracking Wastewater Disposal Injection: Citizen Suits under the Safe Drinking Water Act

Defending Your Environment Against Fracking Wastewater Disposal Injection: Citizen Suits under the Safe Drinking Water Act

Two recent studies by the U.S. Geological Survey, Duke University, and the University of Missouri have demonstrated that fracking wastewater injection disposal sites can lead to contamination of surface waters in nearby streams.  Of particular concern, the studies found endocrine-disrupting activity in the streams at levels high enough to lead to adverse health effects in aquatic life. Where potential or actual public underground drinking water sources are affected, citizens suits under the Safe Drinking Water Act may provide a way for people to defend their environment from contamination by wastewater injection.

Amendments to PA Alternative Energy Regulations, Now Under Review

Amendments to PA Alternative Energy Regulations, Now Under Review

Next Thursday, May 19, Pennsylvania’s Independent Regulatory Review Commission (the “IRRC”) will consider significant amendments to the State’s Alternative Energy Portfolio Standards Act of 2004 (the “Act”). The amendments largely pertain to net metering, interconnection, and portfolio standard compliance provisions, as described in a final rulemaking issued by the PA Public Utility Commission (the “Commission”) on February 11, 2016 (passed by a vote of 3-2). The Commission primarily justifies these revisions as required to ensure default electric service rates are provided at the least cost to customers. These same changes, however, are opposed by renewable energy industry supporters on the basis they are unjustified by data and likely to decrease renewable energy use across the State. 

Dealing with Old Oil and Gas Wells

Dealing with Old Oil and Gas Wells

In the past decade, a lot of attention has been paid to modern hydraulically-fractured and horizontally drilled oil and gas wells that have increasingly populated Pennsylvania and Ohio. It can be easy to forget that this is not the first (or even second) round of energetic well drilling in the area. Many people deal with old wells on their property, some of which were drilled 50 or 60 years ago. Old wells - and old pipes, fittings, valves, tanks, and other infrastructure pieces - can be unreliable or even outright dangerous. Wells that provide "sour gas" - natural gas which is naturally rich in hydrogen sulfide, a chemical which corrodes metal, causes respiratory problems, blindness and death - can cause serious public health crises if they are not properly maintained. Even properly operating wells can go dry or nearly dry - leaving you with noisy and intrusive oil and gas equipment on your property with little to no royalties for the inconvenience.