"JNREL Vol. 19 No. 2"

The Balancing of Coal and Coalbed Methane Interests Within the Coalbed Methane Statutory Schemes of Virginia, West Virginia, and Kentucky

Article by: Sharon O. Flanery and Leslie R. Miller-Stover; originally appearing in JNREL Vol. 19, No. 2

Abstract by: Kyle Hermanson, Staff Member

Virginia, West Virginia, and Kentucky each have coal seams that lay within the Appalachian Basin and each of the states have adopted statutory schemes designed to maximize the utilization of those natural resources. Their statutes are intended to both ensure the safe production of coalbed methane (CBM) and coal within the same coal seam and balance the rights of the CBM and coal interest holders when they conflict. In 1990, Virginia became the first of the three states to specifically regulate the production of CBM, doing so within its existing scheme of oil and gas regulations. Virginia's statute states that its provisions should be construed to encourage the exploration for and production of the Commonwealth's oil and gas reserves. The statute goes on to provide that the production of coal should be maximized so long as it does not substantially affect the rights of a gas or oil owner. West Virginia and Kentucky's statutes differ in that they emphasize the recovery of coal and that the recovery of CBM should be promoted, provided it does adversely affect the safety or mining of coal seams.

CBM is natural gas that lies trapped in coal seams. CBM is unique in that it is both generated and stored within coalbeds, with the coal acting like a sponge and storing six times the volume of natural gas found in conventional reservoirs. CBM is often produced as a safety measure in advance of underground mining. However, CBM can also be produced for commercial reasons from unmined coalbeds as well as from the fractured rock wastes generated by longwall mining. In order to produce CBM, "stimulation" of the coal seam is usually required. Fluids are injected into the seam at high pressures in order to stimulate the coal and release the gas. There is some concern that this process may affect both the safety and productivity of coal mining.

Despite Virginia's stated emphasis on gas production over coal, the Commonwealth has the toughest standard for the production of CBM, requiring coal owner consent before a permit for stimulation can be granted and providing no venue for appeal should consent not be obtained. West Virginia and Kentucky, like Virginia, also require a permit for stimulation. However, where consent cannot be obtained, both states allow the stimulation applicant to request a hearing before a state agency review board. At the hearing, the applicant must prove that the stimulation will not render the coal seam unmineable or unsafe for mining in order to obtain a permit. In West Virginia, even if a CBM producer obtains a stimulation permit, absent coal owner consent, the producer is subject to tort liability for any damage caused to coal or mining equipment by the stimulation.

In addition to stimulation, the location and spacing of CBM wells provide ample grounds for conflict between CBM producers and coal operators due to potential safety hazards and significantly increased costs to coal operators related to well placement. Through the enactment of statutes, Virginia, West Virginia, and Kentucky have addressed these and several other issues involved in balancing the interests of the producers of two valuable resources, however each state's statutes differ in their specifics and goals.

Can You See Me Now? The Struggle Between Cellular Towers and NIMBY

Comment By: Camille Rorer; originally appearing in JNREL Vol. 19, No.2

Abstract By: Bryan Henley, Staff Member

Cellular telephones, like most modern conveniences, are generally regarded as being beneficial to society. Much like sewage treatment and the production of sausages, most people want them to exist without being exposed to the unseemly processes and facilities that provide them. However, the inner workings that enable cellular telephones cannot be sequestered or buried beneath the pavement because those systems take the form of radio transmission towers. Instead, cell towers must typically be in an open area (and thus visible) and situated in an overlapping grid that covers all places where a person would want to make a telephone call. That's everywhere!

This puts the populace surrounding a potential site in a position of wanting a tower to exist, just not wanting it there. This is the NIMBY, or "Not-In-My-Back-Yard" obstacle. NIMBYs are groups of citizens and organizations that, at least in the context of cellular telephones, oppose the currently proposed site, but would support the tower's existence in another location. While immediately reasonable in any instant debate, this problem only becomes apparent when it is considered that every site would have its own separate NIMBY group in opposition. Left unrestrained, these isolated NIMBYs could comprehensively halt cellular service.

In response to this problem, the federal government amended the Federal Telecommunications Act in 1996. This act declares the ground rules for resolving these conflicting interests. These rules are clearly designed to further the placement of towers, as some reasons for denying a cell tower site are proscribed completely and all others must meet a standard of substantial evidence. This evidentiary standard is the fighting issue in these decisions which are very valuable to both the cellular service providers and the landowners who own the proposed site. In "Can You See Me Now? The Struggle Between Cellular Towers and NIMBY," Camille Rorer explores many such disputes and identifies five of the most common arguments put forth by NIMBYs. Each argument in analyzed from its legal and, when necessary, scientific positions. As our reliance on such communication enhancing devices increases as a society, so will these types of dispute. Through her analysis, Ms. Rorer offers a well considered understanding of what is likely to be a common dilemma.

Must NEPA Always Be Followed to the Letter When Obtaining an Environmental Assessment to Acquire a Conservation Easement?...

...After All, Aren’t We Maintaining the Environmental Status Quo?”

Note By: Ben W. Alderton; Originally published in JNREL Vol. 19, No. 2

Abstract By: Brandon Wells, Staff Member

Land that the Department of Defense (“DOD”) has been entrusted with for the training of military personnel has increasingly become a refuge for many threatened and endangered animals. Questions about what the DOD should do in this scenario have led to the solution of allowing the DOD to purchase lands surrounding training grounds and designating them as conservation lands. But, another question has arisen from these purchases of conservation lands. When acquiring conservation lands, should the DOD (or any other military department) be required to comply with the National Environmental Policy Act (“NEPA”) and prepare an Environmental Assessment (“EA”)?

NEPA is only triggered by a “major federal action”, and once triggered, requires the federal agency to complete an EA. An EA can result in one of two outcomes, either a finding of no significant impact (“FONSI”) or a duty to prepare an Environmental Impact Statement (“EIS”). Since acquiring conservation land would seem to lead to a FONSI, it seems wasteful to require a government agency to expend time and resources in preparing an EA. However, recent case law has not lead to a definitive answer.

NEPA is a procedural statute that demands that the decision to go forward with a federal project which significantly affects the environment to be an environmentally conscious one.” Sabine River Auth. V. U.S. Dept. of Interior, 951 F.2d 669, 676 (5th Cir. 1992). The federal agencies have the responsibility for issuing the EA and the FONSI or EIS. Before the DOD or other federal department can issue a FONSI, they have to also issue an EA. An EA is not to be taken lightly, and can result in high expenses in both cost and time to federal departments.
The court in Sabine River came close to resolving this issue. The holding in Sabine River seemed to indicate that acquiring a conversation easement was merely maintaining the status quo, and therefore NEPA was not triggered. However, there was no specific language in the case stating NEPA was not triggered. Also, in Sabine River the federal agency had already prepared an EA, failing to answer the question of whether the EA was actually required.

There has been a circuit split on the issue of whether NEPA is triggered when the Department of the Interior is designating a critical habitat under the Endangered Species Act (“ESA”). Pacific Legal dealt with the specific issue of whether the federal agency must prepare an EIS when listing endangered species. The court in Pacific Legal noted that “the legislative history [suggests that NEPA] was not intended to be applied to agencies whose function it was to protect the environment.” Pacific Legal Found. v. Andrus, 657 F.2d 829 (6th Cir. 1981).

The Ninth Circuit case of Douglas County v. Babbitt addressed the issue of whether a federal agency triggered NEPA when it was acting within the statutory scope of the ESA because an EA had been prepared prior. Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995). The court in Douglas County determined that NEPA did not apply to the designation of a critical habitat. However, in Catron County, the Tenth Circuit concluded that NEPA was triggered when designating a critical habitat under the ESA. Catron County Bd. of Comm’rs. v. Babbitt, 75 F.3d 1429 (10th Cir. 1996).

Even though the cases resulted in different outcomes, one possible explanation may be that in Douglas County the designation of habitats only affected federal lands. In Catron County some of the designated land potentially affected land owned by the county. Questions of standing such as these lead to the question of whether a challenge can be made to not preparing an EA in response to acquiring conservation easements.

A plaintiff who asserts purely economic injuries does not have standing to challenge any agency action under NEPA. Douglas County, 48 F.3d at 1499. Therefore, the plaintiff challenging the agency action must have some concrete and cognizable interest in the suit. Courts seem to be lenient in allowing plaintiffs to proceed, but one major group, developers, will undoubtedly be excluded by this standing requirement.

Thus, after much discussion, the question still remains as to whether the DOD must prepare an EA when acquiring these conservation easements. Sabine River seems to indicate that NEPA may not be triggered, but in that case an EA had already been filed prior to acceptance of the easement. The circuit split between Douglas County and Catron County doesn’t do much except to confuse the issue. Until the issue is taken up by Congress or the Supreme Court, the mystery will remain. In the meantime, prudence will likely require the DOD to prepare an EA to protect itself from litigation when acquiring conservation lands.

Valid Concerns Over Environmental Tobacco Smoke or Rights Going Up in Smoke?: An Analysis of Foundation for Independent Living, Inc. v. Cabell-Huntington Board of Health

Comment by Emily Heady; originally appeared in JNREL Vol. 19, No. 2

Abstract by Mattea Carver Van Zee, Staff Member

Foundation for Independent Living, Inc. v. Cabell-Huntington Board of Health, 591 S.E.2d 744, 752 (W. Va. 2003), investigates a state's adjudication on the legitimacy of Clean Indoor Air Regulations (CIAR). While CIARs have been upheld on federal constitutional challenges, the question remains as to whether local health boards hold the authority to enact such regulations.

Foundation demonstrates the potential state application of legitimacy determinations by looking first to the state's legislative mandates. The Supreme Court of Appeals determined whether the West Virginia Legislature granted local boards of health the authority to prohibit smoking in public places. The legislation provided that environmental health protection included methods of promoting and maintaining clean and safe air, water, food, and facilities. Local boards of health may uphold these public interests where necessary and proper for the protection of the general health of the area and for the prevention of disease. The court determined that the CIAR was consistent with the Legislature's mandate maintaining that the Legislature had delegated broad power to the local boards. When regulations are promulgated by a legally enabled board of health, the regulations are to be construed as valid if the regulation is reasonably calculated to achieve the Legislature's intended result.

Constitutional challenges facing locally-promulgated CIARs include the taking of private property without just compensation and as an inappropriate exercise of eminent domain. The court concluded that a regulation does not represent an unconstitutional taking where the regulation is reasonably found to promote the health, safety, morals, or the general welfare of the public. Additionally, the regulation must not destroy all economic use of the property. Second, challengers contended that CIARs represent an unconstitutional deprivation of due process. The court distinguished that the bans were not deprivations as the regulations apply to truly public areas. Truly private areas, such as one's home, would not allow such regulations.

Third, challengers argued the regulations usurped the power of the state Legislature by creating criminal laws and penalties. Challengers failed to recognize the penal possibilities set forth by the Legislature itself. Instead of usurpation, the local boards of health were merely reciting the penalties in their own regulations. Fourth, it was argued that the local CIARs violated the equal protection clause of the state constitution. With the local CIAR, distinctions were made between differing types of facilities, such as bars, gaming facilities, and restaurants. While bars are exempted from the smoking bans, restaurants were not. However, the court reasoned that because the regulations did not differentiate between facilities of the same type, equal protection was not denied.

Aside from West Virginia, other localities have varied in upholding the constitutionality of such regulations. Like West Virginia, the states seem to focus on health issues, preemption, and property rights. In conclusion, it is unclear what other factors state courts will utilize to analyze the constitutionality of health-related regulations.

Yellowstone, Snowmobiles, and Confusion: What Has the NPS Done For You Lately? The Ongoing Battle Over Fund for Animals v. Norton

Comment by Kimberly Ratliff, Former Staff Member; originally appeared in JNREL Vol. 19 No. 2

Abstract by: Matt Cocanougher, Staff Member

A war has been waged in the western United States between the snowmobile industry and conservation groups regarding the use of snowmobiles in national parks, specifically Yellowstone National Park. Interestingly, by handing down opposing decisions, two federal courts have allowed battles to be won by both sides. This has created a great amount of confusion for the conservation groups as well as the snowmobile industry. Additionally, the party charged with putting an end to the confusion, the National Parks Service ("NPS"), played an important role in causing the uncertainty in the first place.

Fund for Animals v. Norton, 294 F. Supp. 2d 92 (D.D.C. 2003), was a suit brought by numerous environmental organizations in the Washington D.C. circuit court to challenge the NPS's decision to allow snowmobile use at Yellowstone National Park. The events leading up to this case began in 1997 after some environmental problems arose because of the use of snowmobiles. The NPS responded to a suit by environmental groups which addressed these problems by completing an Environmental Impact Statement in 1998 and issuing a Finding of No Significant Impact, while vowing to continue studying the environmental impacts. Later, in 2001, the NPS decided on the Snowcoach Rule, which would phase out snowmobiles by the 2003-2004 seasons and replace them with mass transit snowcoaches. However, two years after the Snowcoach Rule was decided upon, the NPS completely changed its mind and decided to allow 950 snowmobiles to access Yellowstone daily, mandating that the snowmobiles conform with the best available technology standards.

After the NPS decision reversing its earlier Snowcoach Rule, Fund for Animals and other environmental organizations sued in the D.C. court based on the argument that the 2003 change of the rule was arbitrary and capricious, which violated the Administrative Procedure Act ("APA"). The D.C. court agreed that the 2003 rule was arbitrary and capricious and issued an order reinstating the 2001 decision and allowing the NPS to promulgate new rules to address the matter.

While it seems as though this should be the end of the story, it is not. After the D.C. decision, the International Snowmobile Manufacturers Association and the state of Wyoming brought suit to reopen their pending case challenging the 2001 Snowcoach Rule in Int'l Snowmobile Mfr. Ass'n v. Norton, 304 F. Supp. 2d 1278 (D. Wyo. 2004). Because the Wyoming District Court found that the NPS had not spent an adequate amount of time reviewing the environmental consequences of the Snowcoach Rule, it found that the Rule was invalid. This decision, therefore, ordered the NPS to restore the status quo of no restrictions on snowmobiles.

As a result of both of these cases, the environmental groups involved in the first D.C. case went back to the D.C. court to ask to resolve these inconsistent decisions. The D.C. court ruled that the NPS now has to create a new "rule making process in a manner consistent with, and addressing the concerns" of the Wyoming District Court. Funds for Animals v. Norton, 323 F. Supp. 2d 7, 10 (D.D.C. 2004). Therefore, the NPS has a very difficult task ahead of it of addressing the issues of both the snowmobile industry and environmental groups while keeping in mind the decisions issued in these two cases.