Oral Argument Heard in the Third Circuit Court of Appeals

More Hellbender News

February 7, 2011

By Cathy Pedler

See court docs here

On January 27, 2011 the Third Circuit Court of Appeals heard oral argument on our (FSEEE, Sierra Club, and ADP), and the USFS appeal of the preliminary injunction (PI) granted by the U.S. District Court of Western Pennsylvania in Minard Run Oil Company et al. v. USFS et al. The Minard Run lawsuit challenges the settlement we reached with the USFS in 2009 in which the USFS agreed to “…undertake appropriate NEPA analysis prior to issuing Notices to Proceed, or any other instrument for authorizing access to and surface occupancy of the Forest for oil and gas projects on split estates including both reserved and outstanding mineral interests.”

After the settlement, the Forest Service initiated a forest-wide Environmental Impact Statement (EIS) under the National Environmental policy Act (NEPA). NEPA analysis must be done site-specifically, on a project-by-project basis, which is the process that we envisioned in the settlement. Instead, the Forest Service initiated the forest-wide analysis, which appeared to be a one-time analysis that the Forest Service would rely on (i.e., "tier to") for all future projects. It appeared that the Forest Service planned to simply review future projects under the completed, forest-wide NEPA, thus by-passing public input, transparency, and site-specific analysis.

The oil and gas industry used the ill-advised approach of the Forest Service (the forest-wide, one-time analysis) to claim there was a moratorium on drilling. With the exception of the nearly 600 wells our settlement grandfathered through without NEPA (what would be an above average year for drilling on the ANF), other drilling projects could not move forward until the Forest Service completed their forest-wide NEPA analysis. The industry filed their lawsuit against the settlement, and then filed a motion for a preliminary injunction claiming they were harmed by the settlement because they could not drill (even though an above average number of wells could be drilled in that year).

Companies who operate on the Forest admitted in a CNNMoney.com article that the global financial crisis that was affecting every other business in the country was in fact the reason for their business woes in 2009. However, in court the industry claimed the downturn they experienced in their business was due to our settlement. The claim is ludicrous because the settlement did not stop drilling on the ANF, and more-importantly the settlement said nothing about the forest-wide NEPA process the Forest Service chose to employ.

In December 2009, a federal judge in Erie granted the preliminary injunction demanded by the industry, which means our settlement agreement cannot be enforced while the merits of the industry’s lawsuit are argued. In early 2010, all the parties to the settlement agreement (the Forest Service, FSEEE, ADP and Sierra Club) appealed the judge’s order granting the preliminary injunction to the Third Circuit Court of Appeals. 

On January 27, 2011 in Philadelphia, a panel of three Circuit Court Judges including, the Honorable Judges Fuentes, Chagares, and Roth heard oral argument in the case.

Robert Stockman of the Department of Justice (DOJ) presented argument for the USFS; Marianne Dugan presented for ADP, FSEEE, and Sierra Club; and  R. Timothy McCrum of Crowell & Moring presented argument for Minard Run Oil Company et al.. The court allowed for 15 minutes of argument per "side," which meant that our attorney and the DOJ had to divide their time, while the industry attorney had 15 minutes. Appeal briefs are available here.

In attendance for the Plaintiffs-Appellees (Minard Run Oil Company et al.) were Craig Mayer (PGE), Arthur Stuart (Duhring Resources), and another one of their attorneys. In attendance for the Defendants-Appellants was Jim Seyler (Project Administrator for the ANF) for the USFS, and Cathy Pedler for FSEEE, Sierra Club, and ADP.

See court docs here

Photo: Federal Court House Philadelphia, Pennsylvania.

Source: www.flickr.com/photos/ken215/2484587365/