Monday, February 17, 2020

Shale Law Weekly Review - February 17, 2020

Written by:
Sara Jenkins – Research Assistant 
Chloe Marie - Research Specialist 
Jackie Schweichler – Staff Attorney
Audry Thompson – Research Assistant
The following information is an update of recent local, state, national and international legal developments relevant to shale gas.    
Economic Development: Pennsylvania Congress Approves Energy Manufacturing Tax Credit 
On February 4, 2020, Pennsylvania’s House and Senate approved HB 1100, amending the 1971 Tax Reform Code and establishing a tax credit for natural gaspurchased and used in manufacturing of petrochemicals or fertilizers.” The bill was sponsored by Representative Aaron Kaufer as part of the “Energize PA Legislative Package.”  According to the House co-sponsorship memoranda, the bill is “designed to make Pennsylvania attractive to outside businesses, create family-sustaining jobs and provide economic benefits to underserved regions.”  The bill would create a tax credit for manufacturers that use natural gas to produce petrochemicals or fertilizers, invest up to $450 millions in the construction of facilities, and create 800 full-time jobs for the construction and operation of these facilities.  Eligible manufacturers would be entitled to a $0.47 tax credit per unit of natural gas that is purchased and used for petrochemical or fertilizer manufacturing.  If companies are approved for the natural gas tax credit, they will be ineligible for any other tax credits provided in HB 1100.  The bill has not yet been signed by Governor Wolf. 

Hydraulic Fracturing Bans: New York Governor Cuomo Announces Intention to Support Permanent Hydraulic Fracturing Ban 
On January 22, 2020, New York Governor Andrew Cuomo issued a press release announcing his intention to support legislation that would permanently ban hydraulic fracturing.  According to the press release, New York has been operating under a temporary hydraulic fracturing ban for the last five years, which, according to the governor, has created a “hotbed for clean energy and economic development investment” in the state.  Governor Cuomo also highlighted the success of the 76West competition and investment from businesses like Imperium3.  If passed, the legislation would “restrict the Department of Environmental Conservation from . . . authoriz[ing] an applicant to drill, deepen, plug back or convert wells that use high-volume hydraulic fracturing as a means to complete . . . a well.”

LNG Exports: Department of Energy Approves Texas Brownsville for LNG Exports to Non-Free Trade Agreement Nations
On February 10, 2020, the U.S. Department of Energy (DOE) issued an order granting Texas LNG Brownsville LLC (Texas LNG) authorization to export liquified natural gas to non-free trade agreement nations.  DOE limited Texas LNG’s export term to 20 years, with exports beginning “no later than seven years” from the date of the order.  Texas LNG will be required to file all long-term contracts with DOE within 30 days of their agreement.  DOE also posted a list on the status of long-term LNG export applications received as of January 8, 2020.  Other export projects located in Brownsville also were approved, including Annova LNG and Rio Grande LNG.  Texas LNG’s Port of Brownsville export facility is scheduled to be completed by 2025 with the capacity to produce two million tonnes of liquified natural gas per annum. 

Pipelines: Canada’s Federal Court of Appeal Dismisses Legal Challenge to Trans Mountain Pipeline Project
On February 4, 2020, the Federal Court of Appeal in Canada dismissed applications for judicial review of the Trans Mountain Pipeline Expansion Project.  The federal Cabinet first approved the project in November 2016, but the court later determined that the environmental assessment for the project was “too narrow” and that the Cabinet failed to comply with its duty to consult Indigenous peoples (Tsleil-Wautuh Nation v. Canada, 2018 FCA 153).  The matter was then sent back to the National Energy Board for review.  The National Energy Board issued a recommendation to approve the project, and the Cabinet again approved the project in June 2019.  According to the Federal Court of Appeal, the decision dated June 18, 2019, approving the expansion project was reasonable (Coldwater et al. v. Canada et al., 2020 FCA 34).  The court stated that “... the Government of Canada had remedied the flaws in consultation earlier identified by this Court and had engaged in adequate and meaningful consultation with Indigenous peoples.”
From the National Oil & Gas Law Experts:
Georges A. Bibikos, At the Well Weekly (Feb. 7, 2020)
Charles Sartain, Produced Water in Texas … Who Owns It (Feb.13, 2020)
AGENCY PRESS RELEASES—STATE/FEDERAL
Pennsylvania Department of Energy Press Releases:
No new releases Feb. 10–17, 2020.

U.S. Department of Energy

U.S. Environmental Protection Agency

STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies—Actions and Notices: 
No actions Feb. 17, 2020. 

Pennsylvania Legislature:
The House will reconvene on Monday, March 16, 2020 at 1:00PM
The Senate will reconvene on Monday, March 16, 2020 at 1:00PM unless sooner recalled by the Pres. Pro Temp.

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies—Actions and Notices: 
Energy Department
85 FR 7672 “Extending Natural Gas Export Authorizations to Non-Free Trade Agreement Countries Through the Year 2050” Proposed Rule—Comment Period (February 11, 2020). 

Environmental Protection Agency
85 FR 7999 “Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2018” Notice (February 12, 2020)

Federal Energy Regulatory Commission 
85 FR 7997 “Transcontinental Gas Pipe Line Company, LLC; Notice of Application” Notice (February 12, 2020)
85 FR 7991 “Venture Global Delta LNG, LLC; Venture Global Delta Express, LLC; Supplemental Notice of Intent for the Planned Delta LNG and Delta Express Pipeline Project Request for Comments on Environmental Issues Related to Project Modifications Under Consideration” Notice (February 12, 2020)
85 FR 7989 “Kinder Morgan Louisiana Pipeline LLC; Columbia Gulf Transmission, LLC; Notice of Availability for the Proposed Acadiana Project and the Louisiana XPress Project” Notice (February 12, 2020)
85 FR 7989 “BP Energy Company v. Natural Gas Pipeline Company of America LLC; Notice of Complaint” Notice (February 12, 2020)
85 FR 7985 “Port Arthur Pipeline, LLC; Notice of Intent to Prepare an Environmental Assessment for the Proposed Louisiana Connector Amendment Project, Request for Comments on Environmental Issues, and Notice of Public Scoping Session” Notice (February 12, 2020)
85 FR 8276 “National Fuel Gas Supply Corporation; Transcontinental Gas Pipe Line Company, LLC; Notice of Availability of the Environmental Assessment for the Proposed Fm100 and Leidy South Projects” Notice (February 13, 2020)
85 FR 8271 “Texas Eastern Transmission, LP; Notice of Intent to Prepare an Environmental Assessment for the Proposed Middlesex Extension Project, Request for Comments on Environmental Issues, and Notice of Public Scoping Session” Notice (February 13, 2020)
85 FR 8266 “Transcontinental Gas Pipe Line Company, LLC; Notice of Application” Notice (February 13, 2020)

House Energy and Commerce Committee Actions:
H.R. 5842 “To authorize the Administrator of the Environmental Protection Agency to award grants to entities to participate in decisions impacting the health and safety of their communities in connection with the release of certain hazardous air pollutants and the permitting of solid waste disposal facilities and hazardous waste facilities, and for other purposes.” Referred to the House Committee on Energy and Commerce (Feb. 11, 2020).
H.R. 5857 “To ban the practice of hydraulic fracturing, and for other purposes.” Referred to the House Committee on Natural Resources, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned (Feb. 12, 2020).

Senate Energy and Natural Resources Committee Actions: 
S.3288 “A bill to provide for the protection of and investment in certain Federal lands in the State of California” Read twice and referred to the Committee on Energy and Natural Resources (February 12, 2020).
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
Connect with us on Facebook! Every week we will post the CASL Ledger which details all our publications and activities from the week.
Want to get updates, but prefer to listen? Check out the Shale Law Podcast! We can always be found on our Libsyn page, iTunes, Spotify, or Stitcher.
Check out the January Agricultural Law Brief ! Each month we compile the most significant legal developments in agriculture. If you’d like to receive this update via email, check out our website and subscribe!

Wednesday, February 5, 2020

Shale Law Weekly Review - February 5, 2020

Written by:
Chloe Marie – Research Specialist 
Jackie Schweichler – Staff Attorney
Audry Thompson – Research Assistant
The following information is an update of recent local, state, national and international legal developments relevant to shale gas. 
Pipelines: FERC Issues Declaratory Order to Offer Interpretation of Eminent Domain Provision in Natural Gas Act 
On January 30, 2020, the Federal Energy Regulatory Commission (FERC) granted in part, and denied in part, a Petition for Declaratory Order filed by PennEast Pipeline Company, LLC on October 4, 2019.  In this petition, PennEast Pipeline asked FERC to provide an interpretation of the scope of eminent domain authority under NGA Section 7(h).  PennEast initiated this petition after the U.S. Court of Appeals for the Third Circuit ruled on September 10, 2019, that PennEast was barred by the 11th Amendment from suing New Jersey to obtain property using eminent domain (In re: PennEast Pipeline Co. LLC, No. 19-1191).  In its order, FERC expressed a “strong belief that NGA section 7(h) empowers natural gas companies, and not the Commission, to exercise eminent domain and that this authority applies to lands in which states hold interest.”  FERC noted, however, that they have no authority to overrule the Third Circuit decision.

Methane Emissions: Penn State Researchers Report Higher Level of Methane in the Air Compared to EPA’s Measurements in South-Central United States
On January 27, 2020, Penn State announced the publication of a study on methane emissions from oil and gas infrastructure.  The study was prepared by Penn State researchers who gathered data with a NASA aircraft outfitted to measure atmospheric conditions, including greenhouse gases. The researchers found that the U.S. oil and gas industry is leaking more methane into the atmosphere than what was initially reported by the U.S. Environmental Protection Agency, especially in the states of Arkansas, Texas, Louisiana, and Oklahoma.  Penn State News reported that “[t]he EPA uses a bottom-up approach to estimate methane emissions from industry by applying a value to each well and transport component.  Penn State researchers used a top-down approach, meaning the emissions were measured at their endpoint, the atmosphere.”  The study was published in the Geophysical Research Letters and is entitled “Forward Modeling and Optimization of Methane Emissions in the South Central United States Using Aircraft Transects Across Frontal Boundaries.”

Wildlife Habitat: U.S. Fish and Wildlife Service Issues Draft Recovery Plan for Rusty Patched Bumble Bee
On January 24, 2020, the U.S. Fish and Wildlife Service (FWS) announced the availability of a draft recovery plan for the Rusty Patched Bumble Bee.  FWS initially listed the Rusty Patched Bumble Bee as endangered in 2017 and the draft recovery plan provides a basis for delisting the bee species from the Federal List of Endangered and Threatened Wildlife and describes the necessary steps to protect its viability.  The public comment period on the draft plan is open and will run until February 24, 2020.  This announcement comes several months after the U.S. Court of Appeals for the Fourth Circuit vacated on July 26, 2019, a FWS 2018 Biological Opinion, which concluded that the Atlantic Coast Pipeline project would not threaten the survival and recovery of the Rusty Patched Bumble Bee, among other species (Defenders of Wildlife v. Dept. of the Interior, No. 18-2090).  In that case, the court found that FWS failed to properly assess the impacts of the ACP project on the Rusty Patched Bumble Bee’s recovery.  
From the National Oil & Gas Law Experts:
Georges A. Bibikos, At the Well Weekly (Jan. 24, 2020)
Romany M. Webb, The Status of Methane Regulation in the U.S. (Jan. 31, 2020)
AGENCY PRESS RELEASES—STATE/FEDERAL
Pennsylvania Department of Energy Press Releases:

U.S. Department of Energy

U.S. Environmental Protection Agency

STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies—Actions and Notices: 
Department of Environmental Protection
50 Pa.B. 740 “Pennsylvania's FAST Act Corridor Infrastructure Grant Program; Availability of Grants” Notice (February 1, 2020). 
50 Pa.B. 739 “Pennsylvania State Clean Diesel Grant Program; Availability of Grants” Notice (February 1, 2020).
50 Pa.B. 739 “Marine and Rail Freight Movers Grant Program; Availability of Grants” Notice (February 1, 2020).
50 Pa.B. 738 “Availability of the Non-Regulatory Agenda” Notice (February 1, 2020).

Pennsylvania Legislature:
S.B. 726 “will provide more clarity regarding permit appeals from decisions made by the Department of Environmental Protection (DEP).”  Laid on the table [Senate] (January 28, 2020).
S.B. 727 “will shorten the term period a judge serves on the Environmental Hearing Board’s membership from six to five years.”Laid on the table [Senate] (January 28, 2020).
S.B. 258 “ intended to assist communication and coordination between emergency management agencies and pipeline companies in the event of a catastrophic release of natural gas or natural gas liquids in a highly populated community” Removed from the table [Senate] (January 29, 2020).
S.B. 284 the purpose is to improve emergency response to pipeline accidents by “it would require that Emergency Response Plans are not only reviewed for regulatory compliance to federal ...[PHMSA] guidelines by the PUC, but a complete, accurate and up to date copy is to be filed with the Commission.” Removed from the table [Senate] (January 29, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies—Actions and Notices: 
Antitrust Division
85 FR 5719 “Implications for Exploitation of the Permian Basin-Phase 2” Notice (January 31, 2020). 

Energy Department
85 FR 4654 “Office of Fossil Energy, Department of Energy: Methane Hydrate Advisory Committee [February 26, 2020]” Notice (January 27, 2020). 

Environmental Protection Agency
85 FR 5578 “National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the Idaho Pole Co. Superfund Site” Rule (January 31, 2020). 

Federal Energy Regulatory Commission 
85 FR 4962 “Medallion Pipeline Company, LLC; Notice of Petition for Declaratory Order” Notice (January 28, 2020). 
85 FR 4965 “Venture Global Delta LNG, LLC and Venture Global Delta Express, LLC; Supplemental Notice of Intent for the Planned Delta LNG and Delta Express Pipeline Project Request for Comments on Environmental Issues Related to Project Modifications Under Consideration” Notice (January 28, 2020).
85 FR 4970 “Rover Pipeline LLC; Notice of Intent To Prepare an Environmental Assessment for the Proposed Wick Meter & Regulator Station Project and Request for Comments on Environmental Issues” Notice (January 28, 2020).
85 FR 4962 “Combined Notice of Filings [Tennessee Gas Pipeline Company, L.L.C.; Northern Natural Gas Company; Gulf South Pipeline Company, LLC; Pixelle Specialty Solutions LLC; Rockies Express Pipeline LLC]” Notice (January 28, 2020).
85 FR 4978 “Combined Notice of Filings [Viking Gas Transmission Company; Garden Banks Gas Pipeline, LLC;  Transcontinental Gas Pipe Line Company, LLC; Algonquin Gas Transmission, LLC]” Notice (January 28, 2020).
85 FR 4977 “Notice of Application: WBI Energy Transmission, Inc.” Notice (January 28, 2020). 
85 FR 4968 “Notice of Application: Texas Eastern Transmission, LP” Notice (January 28, 2020).
85 FR 5415 “Rover Pipeline LLC; Notice of Schedule for Environmental Review of the Wick Meter and Regulator Station Project” Notice (January 30, 2020). 
85 FR 5424 “Magnolia LNG, LLC; Notice of Availability of the Final Supplemental Environmental Impact Statement for the Proposed; Magnolia LNG Production Capacity Amendment” Notice (January 30, 2020). 
85 FR 5423 “Notice of Request for Confirmation or, in the Alternative, Abbreviated Application for Amendment of Certificate of Public Convenience and Necessity of Iroquois Gas Transmission, L.P.” Notice (January 30, 2020). 

Indian Affairs Bureau
85 FR 5231 “Agency Information Collection Activities; Submission to [OMB] for Review and Approval; Leasing of Osage Reservation Lands for Oil and Gas Mining” Notice—Comment Period (January 29, 2020). 

Interior Department
85 FR 5979 “Exxon Valdez Oil Spill Public Advisory Committee [February 25, 2020]” Notice (February 3, 2020). 

Land Management Bureau
85 FR 5018 “Submission to [OMB] for Review and Approval; Surface Management Activities Under the General Mining Law” Notice—Comment Period (January 28, 2020).
85 FR 5022 “Submission to [OMB] for Review and Approval; Measurement of Oil” Notice—Comment Period (January 28, 2020).
85 FR 5019 “Submission to [OMB] for Review and Approval; Measurement of Gas” Notice—Comment Period (January 28, 2020).
85 FR 5232 “Notice of Availability of the Record of Decision for the Keystone XL Pipeline, Montana” Notice (January 29, 2020). 

Ocean Energy Management Bureau
85 FR 5234 “Agency Information Collection Activities; Operations in the Outer Continental Shelf for Minerals Other Than Oil, Gas, and Sulphur” Notice—Comment Period (January 29, 2020). 

Pipeline and Hazardous Material Safety Administration
85 FR 5549 “Pipeline Safety: Pipeline Research and Development Forum” Notice—Comment Period (January 30, 2020).  

Natural Resources Revenue Office
85 FR 5033 “Submission to [OMB] for Review and Approval; Federal Oil and Gas Valuation” Notice—Comment Period (January 28, 2020).

House Energy and Commerce Committee Actions:
H.R.5430 “United States-Mexico-Canada Agreement Implementation Act” Became Public Law No: 116-113 (January 29, 2020). 
H.R.5718 “To establish a refund effective date for rates and charges under the Natural Gas Act, and for other purposes” Referred to the House Committee on Energy and Commerce (January 30, 2020). 

Senate Energy and Natural Resources Committee Actions: 
S.3247 “A bill to ban the practice of hydraulic fracturing, and for other purposes” Read twice and referred to the Committee on Energy and Natural Resources (January 28, 2020). 
S.2508 “Promoting American Energy Jobs Act of 2019” Committee on Energy and Natural Resources filed written report (January 28, 2020).
S.2393 “Clean Energy Jobs Act of 2019” Committee on Energy and Natural Resources filed written report (January 28, 2020).
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
“Oil Industry Climate Suits Have Poor Track Record,” Rigzone
Connect with us on Facebook! Every week we will post the CASL Ledger which details all our publications and activities from the week.
Want to get updates, but prefer to listen? Check out the Shale Law Podcast! We can always be found on our Libsyn page, iTunes, Spotify, or Stitcher.
Check out the January Agricultural Law Brief ! Each month we compile the most significant legal developments in agriculture. If you’d like to receive this update via email, check out our website and subscribe!