Wednesday, May 23, 2018

Shale Law in the Spotlight – UPDATE: Current Legal Developments Relating to Bureau of Land Management (BLM) Rules on Methane Waste Prevention and Hydraulic Fracturing

Written by Chloe Marie – Research Fellow

In a prior article, we provided an update on legal developments regarding the BLM Waste Prevention and Hydraulic Fracturing rules. This followed the publication last year of two articles - one relating to the status and overview of the BLM Hydraulic Fracturing Rule and another relating to the Methane Waste Prevention Rule. This article provides a second update on the legal developments pertaining to these rules.

·       Update on BLM Methane Waste Prevention Rule

Following the issuance of the Suspension Rule on December 8, 2017, delaying certain provisions of the Waste Prevention Rule, the Interior Department, along with the Western Energy Alliance and Independent Petroleum Association of America, and the states of Wyoming and Montana, jointly filed on December 26, 2017, a motion to stay the ongoing cases regarding the Suspension Rule pending the administrative review of the Waste Prevention Rule. [State of Wyoming et al. v. U.S. Dept. of the Interior et al. (2:16-cv-00285) and State of California et al. v. Bureau of Land Management et al. (3:17-cv-07186)]. All parties agreed that “it currently would not be a wise use of the Parties’ or the Court’s resources to adjudicate the merits of this case given that the Suspension Rule has been published and will be effective on January 8, 201[8], and the BLM is in the process of issuing a proposed Revision Rule.”  On December 29, 2017, the U.S. District Court for the District of Wyoming ordered the stay of the above-referenced cases while the Suspension Rule is effective and pending review of the Waste Prevention Rule.

Subsequently, on February 22, 2018, BLM issued a proposed rule revising the Waste Prevention Rule and sought public comments “on ways that the BLM can reduce the waste of gas by incentivizing the capture, reinjection, or beneficial use of gas.” On the same day, the U.S. District Court for the Northern District of California granted a preliminary injunction enjoining the Suspension Rule from becoming effective pending current litigation. Consequently, the Waste Prevention Rule again entered into force, thereby rendering the Suspension Rule ineffective. The U.S. District Court stated that “BLM’s reasoning behind the Suspension Rule is untethered to evidence contradicting the reasons for implementing the Waste Prevention Rule, and so plaintiffs are likely to prevail on the merits.”

On February 28, 2018, the states of Montana and Wyoming filed a joint motion before the U.S. District Court for the District of Wyoming to lift the stay order entered December 29, 2017, and to suspend the implementation deadlines in the Waste Prevention Rule in light of the preliminary injunction granted by the U.S. District Court in California. The state parties contended that “the Court [previously] stayed this case … because it was clear that ‘moving forward to address the merits of the present Petitions for Review in these case, in light of the now finalized Suspension Rule and the BLM’s continued efforts to revise the Waste Prevention Rule, would be a waste of resources … Nevertheless, the reinstatement of the Waste Prevention Rule returns the ball to this Court for further proceedings.”

On April 4, 2018, the U.S. District Court for the District of Wyoming ruled in favor of the states of Montana and Wyoming finding that “the most appropriate and sensible approach is to exercise its equitable discretion to stay implementation of the Waste Prevention Rule’s phase-in provisions and further stay these cases until the BLM finalizes the Revision Rule, so that this Court can meaningfully and finally engage in a merits analysis of the issues raised by the parties.”

·       Update on BLM Hydraulic Fracturing Rule

On January 24, 2018, the state of California asked the U.S. District Court for the Northern District of California to vacate the rescission rule published on December 29, 2017, and to reinstate all provisions of the 2015 Hydraulic Fracturing rule (see State of California v. Bureau of Land Management et al., Docket no. 4:18-cv-00521). No significant legal developments have been recorded in this action to date.

Monday, May 21, 2018

Shale Law Weekly Review- May 21, 2018
Written by:
Brennan Weintraub - Research Assistant
The following information is an update of recent local, state, national, and international legal 
developments relevant to shale gas.
Water Quality: University Study Finds No Groundwater Impacts from Drilling
On May 3, 2018, researchers from the University of Cincinnati (Ohio) published a four-year study on the effects of hydraulic fracturing (fracking) on the groundwater of the Utica Shale region of Ohio. “We found no relationship between Ch4 [methane] concentration or source in groundwater and proximity to active gas well sites,” said geology professor Amy Townsend-Small and the five other authors of the publication.

Environmental Rights Amendment: Gas Well Permits Don’t Violate PA Constitution, Panel Says
On May 11, 2018, the Pennsylvania Environmental Hearing Board issued its opinion in the Delaware Riverkeeper Network et al. v. Commonwealth of Pennsylvania case. The Board found that the state did not breach its constitutional duties as environmental trustee by issuing permits to Rex Energy Corp. to build several natural gas wells in Butler County. The relevant constitutional provision, Art. I, §27, designates the Commonwealth as the trustee of the state’s public natural resources.

Pipelines: Pennsylvania PUC Approves Restart of Mariner East 1 Pipeline
On May 3, 2018, the Pennsylvania Public Utility Commission unanimously approved a resolution allowing the Mariner East 1 pipeline to resume operations. The pipeline had been shut down after several sinkholes appeared in the area. The owners of the pipeline, Sunoco Pipeline, took “corrective actions,” per the request of the Commission.

Pipelines: Energy Transfer Partners Gets Approval for Additional Rover Facilities
On April 25, 2018, the U.S. Federal Energy Regulatory Commission gave its approval for the Rover Pipeline to put a compressor station and 51 miles of pipeline into service in northern Ohio. Nearly all of the pipeline and most of the necessary infrastructure is already finished. The entire project is expected to be completed within the next year.

Municipal Regulation: Colorado City Leaders Approve Extension of Hydraulic Fracturing Moratorium
On May 15, 2018, the Boulder City Council unanimously approved an extension of the city’s ban on hydraulic fracturing for another two years. The city has banned the practice since 2013, despite a 2016 ruling by the Colorado Supreme Court striking down a similar ban in Longmont. The Boulder ban, however, has not yet been challenged in court.

International Development: UK Makes Changes in Administration of Shale Gas Development
On May 17, 2018, the UK government announced that it will seek to make changes to regulations governing the exploration and extraction of shale gas. Greg Clark, the Secretary of State for Business Energy, and Industrial Strategy stated to Parliament that the government would create a new administrative body, the Shale Environmental Regulator, to simplify regulations. He also announced that a new support fund would be created to help local authorities process shale applications.

National Energy Policy: President Trump Alters Policy on Reduction of Energy Usage by Federal Agencies
On May 17, 2018, President Trump issued an executive order which altered requirements established by President Obama for federal agencies to reduce their energy use by 2.5 percent per year, use clean energy sources for 25 percent of their energy needs, and reduce overall water consumption by 36 percent. The new executive order removes the specific targets put into place in 2015 and allows agencies to set their own targets instead.

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Friday, May 18, 2018

Shale Law in the Spotlight: Timeline and Overview of Natural Gas Severance Tax Proposals in Pennsylvania

Written by Chloe Marie – Research Fellow

The state of Pennsylvania does not levy a specifically identified severance tax on natural gas extraction, but rather imposes an impact fee on unconventional gas wells. Each year that he has been in office, Pennsylvania Governor Tom Wolf has proposed a severance tax on unconventional natural gas extraction as part of his budget proposal, but severance tax legislation has failed to advance through the Pennsylvania General Assembly.

In light of the recent severance tax proposal made upon the issuance of the 2018-2019 proposed Executive Budget, this Shale Law in the Spotlight article will provide an overview of the prior proposals set forth by Governor Wolf since taking office in January 2015.

·       2015 Severance Tax Proposal and proposed legislation

As part of his 2015-2016 Executive Budget, Governor Wolf proposed to impose a severance tax at a rate of 5% on natural gas extracted at the wellhead, plus a fixed tax amount of 4.7 cents per Mcf of gas extracted. As this proposal was incorporated into legislation, a pricing floor was established for producers at $2.97 per Mcf – meaning that each time the average market price was below $2.97, the pricing floor would have been used to calculate the severance tax.

This severance tax proposal was included as part of Governor Wolf’s education reinvestment plan to improve the funding public education in Pennsylvania. In a Press Release dated February 11, 2015, the Governor Office declared that this proposal was modeled on West Virginia’s severance tax structure and was expected to raise over one billion dollars in revenue for fiscal year 2017. The 2015-2016 Executive Budget was passed in March 2016 without the Governor’s signature, and it did not include any severance tax provisions.

In 2015, a total of at least 14 bills were introduced in either the Senate or the House regarding the levy of a natural gas severance tax in Pennsylvania, including Senate Bills 116, 395, 415, 519, 719, 741, and House Bills 82, 500, 528, 1142, 1321, 1363, 1536, 1743. None of those bills advanced through the General Assembly by the end of the 2015-2016 legislative session.

·       2016 Severance Tax Proposal and proposed legislation

In its proposed 2016-2017 Executive Budget, Governor Wolf again proposed the imposition of a severance tax on natural extraction at a 6.5% rate of the value of natural gas. The proposal specifies that the impact fee can be taken as a credit against the severance tax. The Pennsylvania General Assembly passed the state budget in June 2016, but it did not provide for a severance tax.

In 2016, at least three more bills – House Bills 2013, 2165, and 2171 – were introduced in the House of Representatives regarding the imposition of a severance tax on natural gas extraction. None of these bills advanced through the General Assembly by the end of the 2015-2016 legislative session.

·       2017 Severance Tax Proposal and proposed legislation

The Office of the Governor renewed its call for a 6.5% severance tax on natural gas extracted in Pennsylvania in the Executive Budget for fiscal years 2017-2018 released on February 7, 2017. During extended budget negotiations, Governor Wolf called on the General Assembly to “replace their most recent tax proposals with a commonsense severance tax and vote,” as stated in a Press Release dated October 4, 2017. The General Assembly passed the state Executive Budget without agreeing to a severance tax on natural gas.

In addition to Governor Wolf’s initiative to impose the payment of a severance tax, House Bill 1401 was introduced on May 18, 2017, to provide for the levy of a severance tax at a rate of 3.2% of the gross value of dry natural gas or natural gas liquids. On October 18, 2017, the Bill was reported out of the House Finance Committee. It remains pending before the House of Representatives. 

A total of at least seven other bills have been introduced to the House of Representatives and Senate regarding the imposition of a severance tax on natural gas, including House Bills 1054, 1086, 1624, 1662, 1720, and Senate Bills 566 and 245.

·       2018 Severance Tax Proposal and proposed legislation

On February 6, 2018, Governor Wolf introduced a proposed Executive Budget for fiscal years 2018-2019, in which he urged the General Assembly to agree on severance tax legislation. Governor Wolf proposed the enactment of a volume-based tax determined using the New York Mercantile Exchange price as follows:
·       A rate of 4.2 cents per Mcf will be levied if the NYMEX price equals to $3 or less;
·       A rate of 5.3 cents per Mcf will be levied if the NYMEX price equals to $3 but less than $5;
·       A rate of 6.4 cents per Mcf will be levied if the NYMEX price equals to $5 but less than $6;
·       A rate of 7.4 cents per Mcf will be levied if the NYMEX price is greater than $6.

If legislation were passed, the severance tax would enter into force on July 1, 2018, with a first payment due on June 15, 2019. The proposed budget clearly states that the existing impact fee will remain in place, but no fee deduction or credit will be allowed against the severance tax. The Governor Office declared that “this commonsense proposal generates much-needed revenue to address critical budget needs, but does not place a majority of this tax burden on Pennsylvania residents.”

On the same day, Marcellus Shale Coalition President David Spigelmyer released a statement in which he expressed the organization’s opposition to Governor Wolf’s severance tax proposal alleging that “unfortunately, the governor once again is putting politics first by proposing additional energy taxes that will make hiring and investing in Pennsylvania more difficult for local job creators, small businesses and manufacturers.”

In early March, Senator Baker asked the Pennsylvania Independent Fiscal Office (IFO) to provide its own assessment of the potential impact of the proposed severance tax on future royalty payments, and more precisely how it may affect post-production costs. On March 16, 2018, the IFO answered in a memorandum that “in the longer-term, if the [NYMEX] price did increase in response to the tax, then royalties would also increase and thereby offset some (or all) of the tax passed back to landowners.”

In response to this finding, the Governor Office provided additional language to the severance tax proposal implying that “current landowners would be held harmless from any pass back of the new severance tax” before adding that “on a prospective basis, it is possible that royalty rates for new leases could be reduced to reflect a portion of the new tax.”  

On May 9, 2018, Senate Bill 1000 was introduced, with the support of Governor Wolf, that would provide for a volumetric severance tax and amend the Tax Reform Code of 1971. The Bill was referred to the Senate Environmental Resources & Energy Committee where it remains pending. The companion bill, House Bill 2253, was introduced and referred to the House Environmental Resources and Energy Committee on May 3, 2018.

This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.