Friday, June 17, 2016

Fayette County Natural Gas Waste Disposal Ban Struck Down

On June 10, Federal District Judge John T. Copenhaver, in the case of EQT v. Wender, struck down a Fayette County ordinance which banned the disposal, use and storage of oil and natural gas waste within Fayette County. The ruling in favor of EQT declares that the local ordinance was preempted by state and federal law. 

Judge Copenhaver cites the West Virginia Department of Environmental Protections ("DEP") authority under the West Virginia Oil and Gas Act, as well as the DEP's authority to regulate under the federal Safe Drinking Water Act as specific pre-emptions to the Fayette County Ordinance. Specifically he writes that, “all authority to oversee gas and oil exploitation in West Virginia resides with the DEP.” 

In the opinion, Judge Copenhaver also recognizes that oil and natural gas industry provides “highly valuable economic activity” in the state of West Virginia and the importance of having centralized regulatory certainty with the West Virginia DEP. 

EQT also challenged the Fayette County ordinance that bans storage of natural gas wastewater at horizontal drilling pads. In this instance, Judge Copenhaver ruled that EQT did not have standing to challenge the ordinance as there are no active EQT drilling pads located within Fayette County. However, he did state that EQT’s claim that this ordinance effectively bans all horizontal drilling in Fayette County was, “accurate.” 

For a more extensive analysis of this case and its potential impact, please contact Richard Gottlieb at (304) 345-2000 or

West Virginia DEP Rules Approved By Legislature

As the special session ends and the dust begins to settle from the contentious budget battle, the oil and natural gas industry can begin to fully analyze the DEP rules bundle. The DEP rules failed to pass during the regular session due to the suddenly touchy subject of wood stoves.

However, Governor Tomblin recognized the importance of maintaining regulatory stability and added the DEP rules to the call of the special session. After introduction the bills quickly made its way through the legislature to passage.

While the DEP rules did not dramatically change regulations on the oil and natural gas industry in West Virginia, the subtle changes can lead to big headaches when enforced. The main rule impacting the industry is 35 CSR 8, Rules Governing Horizontal Well Development.

The first significant change in the rule, which has become a major point in other oil and natural gas legislation, is protecting the “karst” regions of our state. While significant extraction activity is not presently taking place in karst regions, the legislature wanted to ensure that these regions were protected prior to future development.

Extensive changes were made within the rule dealing with aquifer and baseline water testing. The changes range from specific requirements for flow test collections to requiring baseline water testing prior to commencement of any site construction or well work.

Additional modification were also made to drilling system requirements and siting of certain pits and impoundments. After this rule becomes effective, “Closed-Loop Drilling Systems” are to be utilized for permitted work. Siting requirement for pits and impoundments with a capacity of more than five thousand (5,000) barrels are also added to the Horizontal Well Development Rules.

For a more extensive analysis of the Department of Environmental Protection's rules and its potential impact, please contact Richard Gottlieb at 304-342-2000 or

Friday, April 29, 2016

Tyler County Circuit Court Recognizes Implied Right to Pool or Unitize Leases

In an order filed on April 15, 2016, Circuit Judge David Hummel, in the case of American Energy v. Mary Jane Templeton Poling, ET AL., held that there was the implied right to pool or unitize leases regardless of whether the lease was silent on these rights. In reaching this, decision the Court sites case law from other jurisdiction, as well as the West Virginia Natural Gas Horizontal Well Control Act.

Reaching this conclusion, the Court relied upon an older federal decision, Brewster v. Lanon Zinc Co. 140 F. 811 (8th Cir. 1905), to recognize the constantly evolving natural gas industry. The vertical wells of yesterday have given way to the more efficient extractive technology of horizontal wells. That leaves old leases up to interpretation in an attempt to accomplish the ultimate intention of the contracting parties.

This court found that the ultimate intention of the lease was to grant the lessee access to the gas and allow for its reasonable development. The operative language within the decision granting a lessee’s implied right to pool or unitize is below:

“…owner of the leasehold rights and the right to drill, develop and produce the Subject Minerals, has the implied right to pool or unitize the Subject Lease with other properties because whatever is necessary to the accomplishment of that which is expressly contracted to be done is part and parcel of the contract, though not specified.”

While this case represents controlling precedent only in Judge Hummel’s jurisdiction and is subject to appeal to the West Virginia Supreme Court, this could be a very significant for the right to fully develop West Virginia’s gas reserves found in the Marcellus and Utica Shale.

If you have questions regarding the decision and its potential impact, please contact Richard Gottlieb of this firm at

Tuesday, October 27, 2015

Environmental Advocates Push FERC to Consider Joint Impact of Proposed Pipeline Projects

With attempts to halt fracking in the Appalachian Basin based on environmental concerns falling flat, environmental advocates have turned their attention to natural gas pipeline projects. On October 26, over 30 environmental groups submitted a letter to the Federal Energy Regulatory Committee (FERC) asking for a comprehensive regional review of four natural gas pipeline projects, rather than FERC’s traditional project-by-project review procedure.

The four pipeline projects connecting West Virginia natural gas to markets in Virginia and beyond are the Atlantic Coast Pipeline, the Mountain Valley Pipeline, the Appalachian Connector Pipeline and the WB Express Project. These mutli-billion dollar projects will allow the glut of gas being produced within the region to be piped out to new and expanding markets.

Traditionally interstate pipelines have piped gas from Texas and Louisiana to the northern markets. Now with production in the Marcellus and Utica increasing the supply of gas within the region, pipelines are now needed to ship gas from Appalachia to other markets.

As environmentalists are turning their attention from coal to natural gas it is important to stay well-informed of their tactics.

Lewis, Glasser, Casey & Rollins PLLC routinely represents pipeline companies on regulatory issues including rendering advice regarding the FERC process. Please do not hesitate to contact Richard Gottlieb or Ramonda Lyons at 304-345-2000 with any questions regarding this or any other pipeline matter.

Also, LGCR Government Solutions provides government relations for several pipeline companies and stays up to date on natural gas industry developments. If you have any questions please do not hesitate to contact the author of this article, Chris Weikle at 304-345-2000.

Friday, August 28, 2015

Governor Tomblin's Oil and Natural Gas Safety Commission Focuses On Current Industry Safety Initiatives

Governor Tomblin's Oil and Natural Gas Safety Commission met on Wednesday for its second scheduled meeting. Representatives from the oil and natural gas industry, as well as state and federal safety officials gave presentations about current safety initiatives occurring during every phase of the natural gas industry.

The first presentation of the day was given by Richard Jeffrey of the Occupational Safety and Health Administration (OSHA). He presented specific information on safety violations that occurred in the natural gas industry over the last few years. In closing, Mr. Jeffrey stated that the natural gas industry is working closely with their office and other outside groups to ensure worker safety.

The next two presentations were from representatives of the oil and natural gas industry. These workers outlined, in detail, the natural gas industry from pad construction to drilling to the distribution of oil and natural gas. At each step of the process they summarized critical safety procedures used to protect workers.

Whether it is empowering employees to stop work if they observe an unsafe condition or the engineering of well pads and pipelines in ways that provide safe conditions, it was clear that the industry is striving for their goal of no accidents.

The final presentations of the day were about federal and state safety training programs. The Appalachian Service, Transmission, Exploration, Production, Safety "STEPS" Network is a public private partnership established in 2011 that strives for "Incident Free Operations." OSHA also spoke about their industry safety workshops and an e-Tool for safety initiatives. The West Virginia Department of Environmental Protection and the Public Service Commission also discussed their safety initiatives.

The next scheduled meeting of the Commission is in Wheeling on Wednesday, September 16.

Wednesday, August 19, 2015

West Virginia Judge Issues Injunction Barring Surveyors from Entering Land in Pipeline Case

On August 5, 2015, Judge Irons of the Circuit Court of Monroe County, West Virginia granted landowners’ petition for an injunction barring  surveyors connected to the Mountain Valley Pipeline (“MVP”) project from entering their property without permission.  This decision, if permitted to stand, could constitute a substantial impediment to pipeline construction project across the state of West Virginia.  The 300-mile natural gas pipeline at issue will stretch from Wetzel County, West Virginia to the Virginia coast.  The landowners were represented by Appalachian Mountain Advocates.   Landowners’ counsel argued that the pipeline will provide little, if any, natural gas to the citizens of West Virginia and therefore would not serve a public use in West Virginia.   As such, the landowners asserted that MVP could not meet the statutory requirements to invoke the power of eminent domain under West Virginia law.
MVP conceded that West Virginia utility companies have not currently committed to utilize the pipeline to supply gas to consumers in West Virginia, but argued that over time some of the pipeline's natural gas will be distributed in West Virginia.  MVP also argued that the landowners had not demonstrated that they would suffer "irreparable harm" from a survey of their property and that the issue of "public use" should not be considered until the Federal Energy Regulatory Commission (“FERC”) issued a certificate of convenience for the pipeline project.

At the end of a four-hour hearing, Judge Irons granted the landowners’ motion for declaratory judgment and injunctive relief, but indicated that he would be willing to reconsider his ruling if MVP could demonstrate that West Virginia gas utility companies will tap into the pipeline and provide gas to the citizens of West Virginia. 

Once MVP obtains a certificate of public necessity and convenience from FERC, MVP will also obtain the power of eminent domain under federal law.  In the meantime, it is clear that the landowners succeeded in delaying the pipeline’s progress.  Emboldened by Judge Irons’ decision, we anticipate that landowners and the Appalachian Mountain Advocates will seek similar injunctive relief to stymie pipeline development in West Virginia.

Lewis, Glasser, Casey & Rollins PLLC routinely represents pipeline companies in the state and federal courts of West Virginia, including property access matters. Please do not hesitate to contact Richard Gottlieb or Ramonda Lyons at 304-345-2000 with any questions regarding this or any other pipeline matter.

Thursday, March 12, 2015

Natural Gas Legislation Continues To Advance In West Virginia Legislature

With only three days remaining in the 60 day session, two important pieces of legislation for the natural gas industry continue to advance through the legislature. Senate Bill 423, Amending Aboveground Storage Tank Act (Tank Bill), and House Bill 2688, Lease Integration, are positioned for final passage before the end of session.

In the House of Delegates, the Tank Bill was read a first time and advanced to second reading with amendments pending. As the bill stands now, it still requires all aboveground storage tanks to be registered. However, the bill would focus West Virginia DEP’s enforcement of the Aboveground Storage Tank Act to tanks that have the greatest potential to harm public drinking water supplies. Changes to current law will lessen the regulatory burden on West Virginia’s oil and natural gas industry, while protecting the integrity of public drinking water supplies.

It is expected the Tank Bill will face several amendments from the floor. While some amendments will likely be adopted, they are not expected to significantly change the regulatory structure in the bill. Meanwhile in the Senate, after two hours of serious debate, House Bill 2688, Lease Integration, made it out of Senate Judiciary Committee without any amendment that negatively impacts the purpose of the bill.

Unlike in the House, a long floor fight is not expected in the Senate. If you would like additional information as to the contents of House Bill 2688, please see our previous article written by Joseph Jenkins, here.

If you have any questions regarding these bills or any other bill involving oil and gas introduced this session, please do not hesitate to contact the author, Chris Weikle at or 304-345-2000.