Governor Cuomo Tells NYSDEC To Consider Pennsylvania Well Blowout in Horizontal Drilling Review, Finish Review by July 1

Posted on May 31, 2011 by Caleb Holmes

From William Hurst of GT Albany:

On May 27, 2011, New York Governor Andrew Cuomo, through his Director of State Operations, transmitted a brief memorandum to Joseph Martens, Commissioner of the New York State Department of Environmental Conservation ("NYSDEC"), stating, in sum and substance, that the NYSDEC should incorporate into its ongoing review of the potential environmental impacts of horizontal drilling in New York State some consideration of the recent natural gas well blowout in Bradford County, Pennsylvania, including recommending a site visit by NYSDEC personnel.  Perhaps more significantly, the May 27 memorandum requests that the NYSDEC's Supplemental Generic Environmental Impact Statement ("SGEIS") on horizontal drilling be "completed for issuance" by July 1, 2011.  Recent reports from NYSDEC had indicated that the SGEIS may not be ready for release until the early Fall, 2011, so the new July 1 deadline established by the May 27 memorandum should advance that schedule.   

 

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Non-Partisan Legislative Analyst Recommends Ceasing All Work on the Cap-And-Trade Program Until More Alternatives are Analyzed By Legislature

Posted on May 25, 2011 by Caleb Holmes

From Thomas Sheehy of GT Sacramento:

The Global Warming Solutions Act of 2006 (AB 32) established the goal of reducing greenhouse gas emissions (GHGs) statewide to 1990 levels by the year 2020 and charged the California Air Resources Board (CARB) with monitoring and regulating the state's sources of GHGs. In December of 2010, a lawsuit was filed against CARB alleging that the board failed to follow statutory requirements of AB 32 and the California Environmental Quality Act (CEQA) in the development of CARB’s proposed cap-and-trade regulation. In its statement of decision, the lower court found that, because CARB failed to adequately describe and analyze cap-and-trade alternatives, it failed to proceed in the manner prescribed by law. In its final ruling, the court enjoined CARB from engaging in any cap-and-trade-related project activity until CARB has come into complete compliance with CEQA. CARB has stated that it is currently conducting further analysis, as required by the courts, but that it intends to file an appeal. CARB intends to proceed with the development of its cap-and-trade program during the appeal process.

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Senate Rejects Bill Attempting to Speed Up Offshore Drilling

Posted on May 24, 2011 by Caleb Holmes

From Sabrina Mizrachi of GT Philadelphia:

As a follow up to the May 13 post regarding the Infrastructure Jobs and Energy Independence Act, on May 18, 2011, the Senate rejected a bill written by Senate GOP leader Mitch McConnell to speed up decision-making on drilling permits and force previously scheduled lease sales in the Gulf of Mexico and off the Alaska and Virginia coasts.  This occurred 4 days after President Obama directed his administration to ramp up U.S. oil production.  Five Republicans and 52 Democrats/Independents rejected this bill; both parties express that they want to see responsible oil and gas drilling, but do not agree on the approach.

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Bill Allowing More Offshore Drilling Introduced to Congress

Posted on May 13, 2011 by Caleb Holmes

From Sabrina Mizrachi of GT Philadelphia:

The Infrastructure Jobs and Energy Independence Act was introduced on May 12, 2011, and seeks to allow more offshore drilling in order to reduce U.S. reliance on imported fuels and create jobs. The bill was introduced by a bipartisan group of four congressmen, Democrats Jim Costa of California and Tim Walz of Minnesota in collaboration with Pennsylvania Republicans Tim Murphy and Bill Shuster. The bill contains no new taxes or increase of existing taxes, and would allow drillers to reach natural-gas reservoirs that could fuel industry in the U.S. for 63 years and the U.S. oil industry for 80 years, and also create 1.2 million jobs per year.

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Third Circuit Limits Continuing Nuisance Exception to SOL

Posted on May 11, 2011 by Caleb Holmes
 
In May 2011, the Third Circuit affirmed dismissal of a land developer's claims for property value diminution, arising from groundwater contamination flowing from an adjacent landfill.  See Haddonbrook Associates v. General Electric Company, No. 10-1744 (3d Cir. May 4, 2011).  The developer knew about the hazardous waste disposal long before New Jersey's six-year statute of limitations deadline, but argued that defendant's failure to prevent continuing migration of contaminated water constitutes a continuing tort within the limitations period. 
 
Although an ongoing failure to remove a nuisance can give rise to a continuing tort when new injuries continue to occur, the developer's case did not reflect new injuries.  By their very nature, value diminution claims make little sense as continuing torts because they typically measure permanent damages.  In addition, the developer's evidence indicated that groundwater contamination had completely destroyed the property's value before the six-year limitations deadline, even though new contamination continued to migrate to the developer's property in more recent years.  For similar reasons, the Third Circuit also affirmed dismissal of negligence and strict liability claims. 
 
The District Court held open (and the Third Circuit did not reject) the hypothetical possibility that if the developer had claimed other injuries based on some incremental increase in contamination as a result of continuing migration, that increase might qualify as a continuous new injury to the extent defendant could abate the groundwater flow. 
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