American Oil and Gas Reporter - July 2019 - 16

IndustryDigest
Groups Sue USFWS
Over Prairie Chicken
WASHINGTON-Several
conservation groups have sued the U.S.
Department of the Interior's U.S. Fish
& Wildlife Service, claiming the
federal government has failed to
increase protections for the lesser
prairie chicken.
The lawsuit, Defenders of Wildlife v.
David Bernhardt, filed in the U.S.
District Court for the District of
Columbia, claims the U.S. Fish &
Wildlife Service failed to meet a Sept.
8, 2017 deadline to determine whether
listing the bird under the Endangered
Species Act was warranted, not
warranted or warranted but precluded.
The lawsuit says federal regulations
require USFWS to issue such a
determination within 12 months.
The plaintiffs also include the Center
for Biological Diversity and WildEarth
Guardians. They are asking the court to
declare USFWS in violation of ESA for
not publishing a required finding and
order the service to publish a proposed
rule by a set date.
According to the plaintiffs, petitions
to list the lesser prairie chicken as
endangered first were submitted in
1995, with USFWS saying listing the
bird was warranted but precluded by
higher-priority species. Since then, the
service has reviewed the lesser prairie
chicken's status 11 times and issued the
same determination.
In 2014, a group of oil and gas
producers, led by the Permian Basin
Petroleum Association, challenged the
listing decision in the U.S. District
Court for the Western District of Texas.
That court vacated the listing decision
the following year (AOGR, October
2015, pg. 20). r

Pa. Ruling OKs Outsider
Input For Conditional
Use Permit For Gas Wells
PITTSBURGH-Municipal zoning
authorities considering whether to grant
permission for developing natural gas
wells may weigh testimony from
residents of a neighboring municipality
about their experiences with the same
operator at a different site, if there is a
significant degree of similarity between
the nature of the land use at that
16 THE AMERICAN OIL & GAS REPORTER

different site and the proposed site, the
Pennsylvania Supreme Court held in a
6-1 decision issued May 31.
The Pennsylvania Independent Oil &
Gas Association indicates that the high
court's decision reinforces the message
sent by its June 2018 Gorsline ruling on
the need to develop a sufficient
evidentiary record to satisfy the
specifications and requirements of the
zoning law.
"While the decision offers practical
assistance by clarifying burden of proof
and production issues concerning
conditional use applications, it offers no
such help about how an applicant
develops the evidentiary record in these
generally informal hearing settings
where the witnesses are local and
known by the decision makers,"
explains PIOGA General Counsel
Kevin Moody. "It's difficult to strike a
balance between making your case and
not pushing away the people and the
community."
According to PIOGA, the case
involved a conditional use permit
denied to EQT Production Co. and an
affiliate for unconventional natural gas
production in Jefferson Hills Borough,
Allegheny County. A borough council
hearing on the application included
negative testimony from residents of
adjacent Union Township who lived
near another EQT production site.
Jefferson Hills Borough Council
denied the conditional use permit on the
basis of that negative testimony, which
the borough described as "credible and
persuasive." EQT appealed the decision
to the county Court of Common Pleas,
which in turn reversed the decision on
the basis that the negative testimony
was "speculative" and raised only
"theoretical concerns," and thus was
insufficient to satisfy the burden of
proof. On appeal, Commonwealth Court
affirmed the county court decision.
In the May 31 decision,
Pennsylvania's Supreme Court reversed
the Commonwealth Court decision and
sent the case back to the common pleas
court with orders to reconsider its
decision in light of the high court's
opinion.
"As a general matter, our court has
recognized the relevancy and probative
value of an applicant's past conduct in
determining whether he meets the
conditions of licensure for conducting
future business activities of the same

nature," the high court's majority
opinion states. "This similarity rendered
the testimony of the Union Township
residents, as to their firsthand actual
experiences with the effects of the
construction and operational activities at
the (Union Township) site, relevant and
probative as to the question of whether
the grant of conditional use approval to
EQT for construction and operation of
the (Jefferson Hills) site would
adversely impact the health, safety, and
general welfare of the residents of
Jefferson Borough."
"PIOGA argued in an amicus brief
that the case did not present the
question the court agreed to hear-
whether the negative testimony was
"admissible" because it was admitted-
but the court interpreted the
Commonwealth Court's decision as
questioning the admissibility of the
testimony rather than its sufficiency,"
Moody says. "However, I am concerned
with the court's acceptance of testimony
concerning impacts from "drilling
activities" because zoning ultimately
regulates land use-that is, production,
not the temporary construction or
drilling activities."
PIOGA reports it is not clear how the
common pleas court will implement the
remand. ❒

California High Court
Rejects CIPA Petition
SACRAMENTO, CA.-The California Supreme Court has rejected the California Independent Petroleum Association's petition to hear litigation involving anti-oil activists and the city of Los
Angeles.
Youth for Environmental Justice,
South Central Youth Leadership Coalition and the Center for Biological Diversity sued Los Angeles in 2015,
claiming city officials had permitted oil
drilling in Los Angeles in violation of
environmental and civil rights laws,
court documents describe. CIPA sought
to intervene in the case. After a lower
court granted the association intervenor
status in the case, an appellate court
ruled against CIPA's involvement. That
decision then was appealed to the
Supreme Court.
The nonprofit groups settled their
lawsuit with the city without CIPA being granted intervenor status. CIPA filed

American Oil and Gas Reporter - July 2019

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