E2 Law Blog : Environmental Lawyers & Attorneys : Greenberg Traurig Law Firm : Climate Change, Energy Legislation

Contributed by Kerri Barsh
Co-Chair, GT Environmental and Land Development Practice, Miami

On September 22, the U.S. Fish & Wildlife Service announced that it will review the status of the wood stork under the Endangered Species Act  in response to a petition filed by the Pacific Legal Foundation and Biological Research Associates on behalf of the Florida Home Builders' Association seeking reclassification of the stork.

The Service is seeking "scientific and commercial" data and information concerning the wood stork throughout its range in the United States by November 22, 2010. Based upon its review, the Service must make one of three findings:

1. reclassification is not warranted; 
2. reclassification from endangered species to threatened species is warranted after a rule - making process occurs; or
3. reclassification is warranted but precluded by other, higher priority actions.

While environmental advocacy groups may not agree with the proposed reclassification, the change in status, if approved by FWS, would reflect the wood stork's recovery. 

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Contributed by Marvin A. Kirsner
GT Tax Practice, Boca Raton

The Pennsylvania Department of Revenue has ruled that equipment purchased by a company that provides fracturing and acidizing services in connection with natural gas wells is exempt from the Commonwealth's sales and use tax under the mining exemption. The ruling also concludes that materials used in fracturing services (such as gases, sand, and cement) are also exempt from sales and use tax under the mining exemption. For the full text of SUT-10-003 click here.

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In this month's column in The Legal Intelligencer / Pennsylvania Law Weekly, I address a problem that comes up from time to time:  the industrial or commercial tenant who vacates, leaving environmentally regulated materials behind in a building.  Should the landlord sue the vacating tenant (or its officers or owners) for an injunction requiring them to come back and clean up?  Should the landlord clean up and then sue to get its money back?  Should the landlord call the regulators immediately or delay until the landlord knows what it wants to do?  The situation is more of a puzzle than you would think.  The Tenant Who Leaves Trash Behind, 55 PLW 933 (Sept. 28, 2010).

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The New York Times recently covered the ongoing dispute over drilling for natural gas in the Delaware River Basin, an area not only subject to the jurisdiction of state environmental agencies but also an interstate compact agency known as the Delaware River Basin Commission. At the Commission's regular September 15 meeting, the DRBC Executive Director announced that draft regulations for natural gas wells expected by "end of Summer" would be delayed until "mid-October."  The Commission will not consider new production wells for approval until those regulations are adopted after a public review process.

However, at the same meeting, the Commission considered a request by opponents of natural gas development to stop construction of exploratory or "science" wells currently under way. The Executive Director's determination subjecting exploratory wells other than certain grandfathered wells to DRBC approval is the subject of a contested hearing, but that hearing may not take place until after the grandfathered wells, or several of them, are complete.  On September 15, the Commission voted not to stop construction of the grandfathered wells.  Until those wells are completed and analyzed, the gas production companies cannot decide whether to proceed with production wells in the area, and so if they are permitted, natural gas development can remain on track despite the "moratorium" currently in place until the Commission adopts regulations.

The request for a "supersedeas" filed by the opponents, Damascus Citizens for Sustainability, the Delaware Riverkeeper, and the Delaware Riverkeeper Network may be found here. The responses of the drilling proponents, Northern Wayne Property Owners' Alliance and Newfield Appalachia PA, LLC, may be found here and here.

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Opposition from Republican and some Democratic senators, spurred on by industry groups, has successfully forestalled (if not killed, per our prior blog post) passage of comprehensive climate change legislation. However, as Greenberg Traurig shareholder David Mandelbaum notes in his monthly column for The Legal Intelligencer, EPA and some states (notably Pennsylvania) will be regulating greenhouse gas emissions, perhaps awkwardly, under the Clean Air Act and state analogs. Query whether we are better off driving nails with baseball bats or hammers?

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