By Armando Benincasa and Bridget Furbee
[On Nov. 21] the West Virginia Supreme Court of Appeals issued an important decision regarding whether surface owners have a right to appeal well work permits issued by the West Virginia Department of Environmental Protection in the state's circuit courts.
The decision ends the attempt by surface owners to obtain rights not granted under the statutes. As the Court clarified that surface owners have no constitutional due process claims against the State for rights established under the property severance documents, this eliminates the possibility of delays by surface owners for otherwise lawful drilling permits. The decision ends significant concerns within the industry that if surface owners were granted appeal rights that future permitting in the state would be greatly impeded if not halted in some instances.
In upholding the position of the WVDEP and the industry, the Court found that the plain and unambiguous language of the statute does not extend the right of judicial review of the issuance to surface owners for comments submitted to the WVDEP on shallow (including Marcellus shale) well permits. The Court found that where the legislature has prescribed limitations on the right to appeal, those limitations are exclusive and cannot be enlarged by the Court.
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Armando Benincasa concentrates his practice in the areas of energy law, environmental law, environmental litigation, and administrative law. Bridget Furbee focuses her practice in the area of energy law.
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