American Oil and Gas Reporter - September 2017 - 16

IndustryDigest
reportedly told the Associated Press.
More than 40 Dimock residents sued
Cabot in 2009, claiming the company's
drilling in the Marcellus Shale had
polluted their water wells, and Dimock
was featured in the 2010 anti-oil-andgas documentary, Gasland. All but two
of the Dimock families settled with
Cabot after tests by the U.S.
Environmental Protection Agency and
the Pennsylvania Department of
Environmental Protection found no
chemicals associated with drilling in
any of their wells.
In March 2016, an eight-member jury
in Scranton, Pa., awarded the two
families that did not settle $4.24 million,
but that judgement was overturned in
March 2017 by the U.S. District Court
for the Middle District of Pennsylvania
(AOGR, May 2017, pg. 18).
According to reports, Cabot's
lawsuit claims Kemble, whom it says
was part of the 2012 settlement,
breached the settlement by continuing
to publicly claim Cabot polluted his
water. r

D.C. Circuit Says FERC
Must Consider Pipe's
Impact On Climate

WASHINGTON-A federal court
has ruled the Federal Energy
Regulatory Commission must consider
the climate effects of burning natural
gas as part of its environmental review
of proposed pipeline projects, the
Independent Petroleum Association of
America reports.
IPAA says the U.S. Court of Appeals
for the D.C. Circuit on Aug. 22
remanded to FERC its 2016 approval of
the Southeast Markets Pipelines Project,
a group of projects that would add
nearly 700 miles of pipe to move
natural gas to electric generation
facilities in Florida.
The 2-1 decision says FERC's
environmental impact statement was
inadequate because it "either should
have given a quantitative estimate of the
downstream greenhouse emissions that
(would) result from burning the natural
gas that the pipelines will transport or
explained more specifically why it
could not have done so," IPAA quotes
the court.
Other published reports note lawsuit
filed by the Sierra Club and other
environmental groups raised concerns
16 THE AMERICAN OIL & GAS REPORTER

about the project's impact on wetlands
and sensitive topography, and whether
the pipeline really was needed.
However, they say the D.C. Circuit
dismissed all objections except the
climate issue.
The law firm of Spilman Thomas &
Battle says the ruling "should give
everyone involved in fossil fuel
infrastructure projects pause," adding,
"This decision would seem to open
Pandora's box for any project requiring
a federal approval and compliance with
the National Environmental Policy
Act."
IPAA says it expects the project
sponsors and FERC to seek an en banc
review by the full court, based on the
dissent of Justice Janice Rogers Brown,
who argued that FERC was not
obligated to regulate greenhouse gases,
and indeed, did not have the authority to
regulate them. r

Appeals Court Decision
Protects Drilling Rigs
From WARN Act Lawsuits

TULSA-In Meadows v. Latshaw
Drilling Co. LLC, the U.S. Court of
Appeals for the 5th Circuit has upheld
a lower court's finding that excludes
drilling rigs from the federal Worker
Adjustment and Retraining
Notification (WARN) Act of 1988.
According to Madalene A.B.
Witterholt, a director in the labor and
employment practice at Crowe &
Dunlevy, that decision could save
drilling contractors millions of dollars.
Under the WARN Act, she notes,
companies with more than 100
employees must notify employees, the
chief local elected official, and the state
retraining agency of a mass layoff or
plant closing 60 days in advance. If they
fail to do so, they must pay 60 days'
wages and benefits to the affected
employees, and may face fines as high
as $500 a day.
"The mayor and the state are advised
a layoff is coming so they can prepare
and mitigate its impacts," Witterholt
says. "The law was meant to apply to
towns that would be dramatically
impacted by a facility closing or a mass
layoff, not to mobile sites such as
drilling rigs."
But in 2015, Witterholt estimates 10
lawsuits were filed in Texas against
major drilling contractors alleging they

had violated the WARN Act. Normally,
the act only applies if the layoff occurs
at a site with at least 50 employees. For
it to apply to drilling rigs, which
generally are crewed by fewer than half
that number, Witterholt says, Meadows
had to argue that drilling rigs should be
considered a single site of employment
under the law.
Regulations allow sites aggregation
under specific-but narrow-situations,
Witterholt says, noting that even two
plants on separate sides of town are
considered separate facilities. "No
evidence can make drilling rigs that are
hundreds of miles apart be in the same
town," she stresses.
The original court concurred,
dismissing the case. Under the strict
standards for summary judgement, it
ruled that "no reasonable jury could . . .
find that any of Latshaw's job sites can
be combined into a single site of
employment."
"That decision was persuasive and
has been cited by other courts, but it
was not binding," Witterholt says. "By
upholding the original decision, the
Fifth Circuit Court of Appeals has
effectively made the case the law. In
addition to saving millions of dollars for
entities that have been sued under the
WARN Act, that decision will reassure
drilling contractors that must decide
whether it applies to them." r

District Court Conﬁrms
EPA Authority To Set
Renewable Fuel Volume

WASHINGTON-A federal court
decision confirms the U.S.
Environmental Protection Agency's
authority to increase volumes of
biomass-based fuel under the
Renewable Fuel Standard, but also
handicaps the agency's ability to adapt
by shrinking the mandate. The ruling in
Americans for Clean Energy v.
Environmental Protection Agency
combined several lawsuits focusing on
fuel volumes required for compliance
years 2014-16 and biomass-based diesel
volumes for 2014-17.
The U.S. Court of Appeals for the
District of Columbia decision, issued
July 28, supports the National Biodiesel
Board's view that the EPA has the
authority to increase the biomass-based
diesel volumes even through it missed
American Oil and Gas Reporter - September 2017

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