Tuesday, July 7, 2020

Shale Law Weekly Review - July 7, 2020

Written by:
Sara Jenkins – Research Assistant 
Jackie Schweichler – Staff Attorney
Kaela Gray – Research Assistant

The following information is an update of recent local, state, national and international legal developments relevant to shale gas.

Pipelines: Michigan Court Allows Partial Restart of Enbridge Line 5 Pipeline After Temporary Restraining Order Issued
On July 1, 2020, the Michigan Circuit Court for Ingham County amended a Temporary Restraining Order (TRO) that had halted operations of both East and West lines of the Enbridge Line 5 pipeline. (Nessel v. Enbridge Energy, LP, No. 19-474-CE).  A TRO was issued on June 25, 2020, after damage to the East line was found.  However, the Amended TRO allows the West line of the pipeline to restart operations and allows for an “in-line investigation” of the West line.  The Amended TRO states that the East line would remain shut down until the Pipeline and Hazardous Materials Safety Administration completed an investigation into the damage of the East line.  Michigan’s Attorney General, Dana Nessel, issued a press release following the ruling stating, “[t]oday’s Court decision allows the State to receive the vital information surrounding this incident that we need to complete an informed analysis of the damage and evaluate the threat this pipeline poses to our environment if left to operate in its current state.”

Pipelines: Court of Appeals Rules FERC Cannot Use Tolling Orders to Eliminate Judicial Review of Pipeline Certificate Decisions
On June 30, 2020, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the Federal Energy Regulatory Commission (FERC) could not use tolling orders to eliminate judicial review of pipeline certificate decisions. (Allegheny Defense Project v. FERC, No. 17-1098). FERC is required by the Natural Gas Act to issue or deny a certificate of “public convenience and necessity” for proposed pipelines.  If FERC issues the certificate, and an affected landowner wishes to challenge the issuance, they must file a request for rehearing with FERC before seeking judicial review. (p. 4).  In this case, FERC issued a “tolling order” that granted a request for review to further consider the certificate for an indefinite amount of time.  The Court of Appeals ultimately ruled that FERC’s tolling orders are not considered a statutorily allowed response to a request for rehearing.  Under the statute, if FERC does not act on a rehearing request within 30 days, the request is considered denied, and judicial review is then allowed. 

Pipelines: Supreme Court Invites Solicitor General to File Brief in Pending PennEast Pipeline Case 
On June 29, 2020, the U.S Supreme Court invited the U.S. Solicitor General to file a brief in the pending PennEast Pipeline case. (PennEast Pipeline Company, LLC v. New Jersey, No. 19-1039).  PennEast filed a Petition for Writ of Certiorari on February 18, 2020, seeking to overturn a Third Circuit Court of Appeals decision that eminent domain could not be exercised on property in which a state has an interest. (p. 2).  The Supreme Court invited the Solicitor General to file a brief on the case to express the views of the United States in the matter.  The Supreme Court has not yet granted or denied the Petition for Writ of Certiorari. 

Community Impacts: Pennsylvania Attorney General Releases Grand Jury Report on Impacts of Hydraulic Fracturing
On June 25, 2020, the Pennsylvania Office of Attorney General released a Grand Jury report on the impacts of hydraulic fracturing (“fracking”) in the state.  The report concluded that state government officials failed to protect public health and safety through poor oversight of the fracking industry.  The report included eight recommendations to address problems found during the investigation.  The recommendations include expanding minimum “set-backs” from 500 feet to 2500 feet and regulating gathering lines.  The report also suggested that trucks carrying wastewater should be labeled to more accurately reflect the toxicity of wastewater, rather than use the label “residual waste.”  The Pennsylvania Department of Environmental Protection issued a lengthy response to the report stating that the report was inaccurate, outdated, and incomplete.  The Pennsylvania Department of Health also filed a response stating that the report contained “factual errors” and “erroneous conclusions.”

Water Quality: Pennsylvania Attorney General Files Criminal Complaint Against Cabot Oil and Gas 
On June 15, 2020, the Pennsylvania Office of Attorney General filed a Criminal Complaint against Cabot Oil and Gas Corporation.  The Complaint lists 15 different charges including eight third degree felonies and seven second degree misdemeanors.  The charges detail various environmental statutes that were allegedly violated through prohibited discharge of industrial waste, prohibition against other pollutants, and unlawful conduct by failing to comply with the Clean Streams Law. (See 35 P.S. § 691.611).  According to the Complaint, the alleged violations took place between March 27, 2008, through January 9, 2020, and involved the discharge of methane into groundwater in Dimock, Auburn, and Hartford Townships.  The Complaint includes an Affidavit of Probable Cause requesting that a Summons be issued for Cabot Oil and Gas Corp. 

Community Impacts: Range Resources Pleads No Contest to Negligent Oversight of Wells in PA
On June 12, 2020, Pennsylvania Attorney General, Josh Shapiro, announced that Range Resources Corporation pleaded “no contest” for negligent oversight of well sites in Washington County.  According to its website, Range Resources is an unconventional gas drilling company that targets shale, coal bed methane, and tight gas sand reservoirs. The Attorney General’s announcement explained that Range Resources was criminally charged after a two-year Grand Jury investigation into environmental crimes at the Brownlee and Yeager well sites.  During the Yeager site investigation, the Grand Jury found that Range Resources was aware of problems with their wastewater storage pond and reserve pit.  The Brownlee site investigation concluded that a wastewater storage tank had leaked into a nearby tributary of Buffalo Creek.  Range Resources will pay $150,000 in fines to various environmental groups as part of their plea.  

From the National Oil & Gas Law Experts: 
Charles Sartain, Texas Court Opines on Climate Lawsuits (July 2, 2020). 
Michael Joyce, Euan Strachan, An Emerging Economy (July 2020).
Michael Joyce, Australian Brown Coal to Green Hydrogen (July 1, 2020).
John McFarland, Switch On – a New Documentary about Energy From Dr. Scott Tinker and the Switch Energy Alliance (June 30, 2020).
Jennifer Danis, Allegheny Defense Project V. Federal Energy Regulatory Commission: Schrödinger’s Cat Scratches Back (July 1, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Energy Press Releases:
Statement from Wolf Administration on Grand Jury Report on Unconventional Gas Operations in Pennsylvania DEP’s Response To The Grand Jury Report (June 25, 2020).
DEP Releases Draft Report on Statewide Water Quality (July 2, 2020).

U.S. Department of Energy
DOE Report Spotlights Appalachia’s Economic Progress and Opportunities for Growth (June 30, 2020). 

U.S. Environmental Protection Agency
No relevant updates June 29 - July 6

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices: 
No relevant actions June 29 - July 6

Pennsylvania Legislature:
HB 2045 “An Act authorizing the Department of Conservation and Natural Resources, with the approval of the Governor, to grant and convey to Ohiopyle Borough, Fayette County, certain lands situate in Ohiopyle Borough, Fayette County, in exchange for Ohiopyle Borough granting and conveying certain lands to the Commonwealth of Pennsylvania to be added to those existing lands at Ohiopyle State Park.” Signed in Senate (June 30, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies—Actions and Notices: 
Federal Energy Regulatory Commission 
85 FR 39854 “Five-Year Review of the Oil Pipeline Index” Proposed Rule (July 2, 2020).  

Land Management Bureau
85 FR 38921 “Agency Information Collection Activities; Proposals, Submissions, and Approvals: Oil and Gas Leasing: National Petroleum Reserve—Alaska” Notice (June 29, 2020).

Ocean Energy Management Bureau
85 FR 39580 “Operations in the Outer Continental Shelf for Minerals Other than Oil, Gas and Sulfur” Agency Information Collection Activities; Proposals, Submissions, and Approvals- Notice (July 1, 2020). 

House Energy and Commerce Committee Actions:
H.R.7435 “To reduce methane emissions from flaring and venting natural gas during oil and natural gas production activities, and for other purposes.” Referred to the Committee on Energy and Commerce, and in addition to the Committee on Science, Space, and Technology (June 20, 2020).

H.R.7429 “To establish a more uniform, transparent, and modern process to authorize the construction, connection, operation, and maintenance of international border-crossing facilities for the import and export of oil and natural gas and the transmission of electricity.” Referred to the Subcommittee on Railroads, Pipelines, and Hazardous Materials (July 1, 2020).

H.R.7404 “To repeal restrictions on the export and import of natural gas.” Referred to the House Committee on Energy and Commerce (June 29, 2020). 

H.R.7401 “To provide for Federal and State agency coordination in the approval of certain authorizations under the Natural Gas Act, and for other purposes.” Referred to the House Committee on Energy and Commerce (June 29, 2020).

H.R.7400 “To prohibit a moratorium on the use of hydraulic fracturing.” Referred to the Committee on Natural Resources, and in addition to the Committee on Energy and Commerce (June 29, 2020). 

Senate Energy and Natural Resources Committee Actions:
S.4147 “A bill to establish the Financing Energy Efficient Manufacturing Program at the Department of Energy to provide financial assistance to promote energy efficiency and onsite renewable technologies in manufacturing facilities, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources (July 1, 2020).

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
“Fracking Fight Continues In Colo.,” Reuters
“Europe Pushed To Finance Natural Gas, Nuclear As Part Of Green Deal,” Axios
“Permian Dealmaking Activity Grinds To A Near Halt,” Houston Chronicle
“Texas May Allow Oil Wastewater Discharge Into Waterways,” Houston Chronicle
“Natural Gas Now Flowing Through Centre Hall,” StateCollege.com
“Support Amplifies For Proposed State Methane Rule,” Pittsburgh Post-Gazette
“6 Things To Know About The Grand Jury's Report Into The Natural Gas Boom,” Pittsburgh Business Times

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 February 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!

Monday, June 29, 2020

Shale Law Weekly Review - June 29, 2020

Written by:

Sara Jenkins – Research Assistant 

Jackie Schweichler – Staff Attorney

Kaela Gray – Research Assistant

The following information is an update of recent local, state, national and international legal developments relevant to shale gas.

Pipelines: FERC Approves Mountain Valley Pipeline Extension Project

On June 18, 2020, the Federal Energy Regulatory Commission (FERC) issued an Order granting authorization for a Mountain Valley Pipeline, LLC extension project.  The project proposes to add 75.1 miles of natural gas pipeline to the 303.5-mile planned pipeline.   The project consists of pipeline, a new compressor station, and four interconnects with meter stations, all located within Virginia and North Carolina.  FERC issued the order after concluding that environmental impacts listed in the project’s Final Environmental Impact Statement were acceptable considering the public benefits of the project.  FERC’s order consists of a certificate of public convenience and necessity and is subject to several environmental conditions listed in Appendix of the order.  FERC mentioned that Mountain Valley’s mainline system is currently under a stop work order, and construction on the new extension project will not commence until the stop work order is lifted.  


Pipelines: Ninth Circuit Vacates Injunctions on Keystone XL Pipeline Project

On June 6, 2020, the U.S. Court of Appeals for the Ninth Circuit issued an Order vacating injunctions placed on the Keystone XL pipeline project. (Indigenous Envtl. Network v. U.S. Dep’t of State, No. 18-36068).  The previous district court order had enjoined construction or operation of the Keystone pipeline project until the U.S. Department of State supplemented the project’s 2014 final supplemental Environmental Impact Statement to comply with the National Environmental Policy Act and the Administrative Procedure Act.  TransCanada Corporation and TransCanada Keystone Pipeline, LP filed a motion to dismiss their appeal as moot after President Trump issued a new permit for the project in March 2019.  With the most recent decision, the Court of Appeals vacated prior district court judgments, dissolved the injunctions, and remanded the case to the district court for dismissal of the case as being moot.


Pipelines: Michigan Appeals Court Upholds Summary Judgment Ruling Regarding Enbridge Line 5 Pipeline

On June 11, 2020, the Michigan Court of Appeals affirmed a summary judgment ruling in favor of Enbridge Energy, LP regarding its Line 5 pipeline. (Enbridge Energy, LP, v. State of Michigan, No. 351366).  Enbrige planned to construct a utility tunnel for the Line 5 pipeline, at the request of the state, using authority under the 2018 Act 359 (Act).   The Michigan governor then raised concerns on the constitutionality of Act 359 and issued an executive order that halted the Enbridge utility tunnel project. Enbridge filed for a determination that the Act was constitutional and was granted summary judgment in the case.  The Michigan Court of Appeals ultimately agreed with the lower court’s determination that the Act is constitutional and affirmed the summary judgment decision. 


Public Lands: BLM Issues Guidance on Oil and Gas Royalty Rate Reductions

In June 2020, the U.S. Bureau of Land Management (BLM) issued guidance for onshore oil and gas operators who wished to apply for royalty rate reductions due to COVID-19.  Applications would be for temporary relief only and would not reduce the royalty rate more than 0.5 percent. Applications require a statement with supporting documentation that the operator would be able to produce in paying quantities were it not for the pandemic.  The application also requires an economic analysis showing that the leases are “uneconomic at the current royalty rate.”  The current guidance was amended from previous guidance issued by the BLM, which required a showing of “uneconomic at the current royalty rate, but would be economic with a royalty rate reduction.” 


Infrastructure: PHMSA Issues Final Rule Allowing LNG Transport by Rail 

On June 19, 2020, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a final rule allowing the transport of liquified natural gas (LNG) by rail tank cars.  In issuing the final rule, PHMSA determined that transportation of LNG by rail complies with the Federal Hazardous Materials Transportation law and is a safe alternative for transport.  The rule allows for LNG transport in rail tank cars with a DOT-113C120W specification that have had enhancements made to the outer tank material and thickness.  The rail car specifications are “subject to operational controls for braking, monitoring, and route analysis.”  The final rule will take effect on July 19, 2020, when it is officially published in the Federal Register. 


COVID-19: Senate Committee Holds Hearing on COVID-19 Mineral Supply Chain Impact

On June 24, 2020, the U.S. Senate Committee on Energy and Natural Resources held a hearing to discuss the impact of COVID-19 on mineral supply chains.  During the hearing, Chairman Lisa Murkowski pointed out concerns from a World Bank report that clean energy demand for lithium, graphite, and cobalt will increase 500 percent by 2050.  Senator Murkowski detailed the difficulty the pandemic has made for importing needed clean energy minerals from Africa and South America.  Senator Murkowski proposed passing the introduced American Mineral Security Act to promote a domestic mineral supply chain.  The Act specifically excludes “fuel minerals, including oil, natural gas, or any other fossil fuels” from the list of critical minerals.

From the National Oil & Gas Law Experts:

John McFarland, Pipeline Loses Condemnation Appeal – Hlavinka v. HSC Pipeline (June 23, 2020). 

John McFarland, Recovery of the Oil Market (June 22, 2020).


AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Energy Press Releases:

Statement from Wolf Administration on Grand Jury Report on Unconventional Gas Operations in Pennsylvania (June 25, 2020).

DEP Launches Expanded Online Permitting Options to Assist Businesses (June 22, 2020).


U.S. Department of Energy

DOE Announces New Lab Consortia to Advance Hydrogen and Fuel Cell R&D (June 23, 2020).


U.S. Environmental Protection Agency

EPA Grant to Arkansas Department of Environmental Quality Will Support Illinois River Watershed Collaboration (June 26, 2020).

EPA Administrator Wheeler Talks USMCA Environmental Provisions on BNN Bloomberg (June 25, 2020).


STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices: 

Pennsylvania Public Utility Commission, Pipeline Assets (June 27, 2020).


Pennsylvania Legislature:

HB 1311 “An Act amending the act of June 28, 1995 (P.L.89, No.18), known as the Conservation and Natural Resources Act, in Department of Conservation and Natural Resources, further providing for fees and charges.” Re-committed to Rules (June 22, 2020).

SB 1217 “An Act amending Title 58 (Oil and Gas) of the Pennsylvania Consolidated Statutes, in development, providing for prohibition of natural gas hydraulic fracturing.” Referred to Environmental Resources and Energy (June 22, 2020).

SB 1218 “A Joint Resolution proposing an amendment to the Constitution of the Commonwealth of Pennsylvania, prohibiting hydraulic fracturing.” Referred to Environmental Resources and Energy (June 22, 2020). 

SB 763 “An Act amending the act of April 27, 1966 (1st Sp.Sess., P.L.31, No.1), known as The Bituminous Mine Subsidence and Land Conservation Act, further providing for compilation and analysis of data.” Removed from table (june 22, 2020).

SB 258 “An Act amending Title 66 (Public Utilities) of the Pennsylvania Consolidated Statutes, in service and facilities, providing for pipeline emergency management information.” Removed from table (June 22, 2020).

SB 284 “An Act amending the act of November 29, 2006 (P.L.1435, No.156), known as the Public Utility Confidential Security Information Disclosure Protection Act, further providing for definitions; providing for pipeline operation and emergency response plans; and further providing for prohibition.” Removed from table (June 22, 2020).

HB 99 “An Act imposing a duty on the Department of Environmental Protection to maintain a system for applicants to track the status of certain permit applications; and providing for permit notifications.” Laid on the table (June 24, 2020).


FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies—Actions and Notices: 


Environmental Protection Agency

85 FR 37571 “National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Deletion of the First Piedmont Rock Quarry (Route 719) Superfund Site”  Rule (June 23, 2020).

85 FR 37619 “National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Deletion of the First Piedmont Rock Quarry (Route 719) Superfund Site”  Proposed Rule (June 23, 2020).

85 FR 37763 “National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the Allied Chemical and Ironton Coke Superfund Site” Rule (June 24, 2020). 

85 FR 38327 “Massachusetts; Negative Declaration for the Oil and Gas Industry; Withdrawal of Direct Final Rule” Air Quality State Implementation Plans; Approvals and Promulgations, Rule (June 26, 2020).


Federal Energy Regulatory Commission 

85 FR 37939 “Request for Exemption of Time: Atlantic Coast Pipeline, LLC; Dominion Energy Transmission, Inc.” Notice, Request for Exemption of Time (June 24, 2020).


Internal Revenue Service

85 FR 38024 “Enhanced Oil Recovery Project” Notice (June 24, 2020).


Pipeline and Hazardous Material Safety Administration

85 FR 37496 “Pipeline Safety: Meeting of the Gas and Liquid Pipeline Safety Advisory Committees” Meeting Notice (June 22, 2020).


House Energy and Commerce Committee Actions:

H.R.7303 “To provide additional funds for Federal and State facility energy resiliency programs, and for other purposes.” Referred to the House Committee on Energy and Commerce (June 24, 2020).


Senate Energy and Natural Resources Committee Actions: 

S.4060 “A bill to provide additional funds for Federal and State facility energy resiliency programs, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources (June 24, 2020).

S.4029 “A bill to express the sense of Congress regarding the need for a nationwide moratorium on electric and natural gas utility disconnections during the nationwide emergency relating to the spread of the novel coronavirus.” Read twice and referred to the Committee on Energy and Natural Resources (June 22, 2020).

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:

“US gives go-ahead for LNG rail shipments,” Bloomberg

“API Testifies To Senate On COVID-19 Impact On Natural Gas And Oil Sector, Discuss Long-Term Industry Outlook,” Oil and Gas Online

“Nearly $2B In Natural Gas Revenues Generated From Existing Impact Taxes In Pennsylvania,” Oil and Gas Online 

“‘Desperate’ To Get Natural Gas Out Of Appalachia, Pipeline Builders Face Long Battle Even After Supreme Court Victory,” Forbes

“Workforce Reductions Threaten Shale Recovery,” Argus Media

“Vatican calls on Catholics to divest from fossil fuels,” Reuters

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 February 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!

Tuesday, June 23, 2020

Shale Law Weekly Review - June 23, 2020

Written by:

Sara Jenkins – Research Assistant 

Jackie Schweichler – Staff Attorney

Kaela Gray – Research Assistant

The following information is an update of recent local, state, national and international legal developments relevant to shale gas.

Public Lands: Secretary of Agriculture Directs Forest Service to Expedite Environmental Reviews 

On June 12, 2020, U.S. Secretary of Agriculture, Sonny Perdue, issued a Memorandum directing the Forest Service to expedite environmental reviews on lands in the National Forest System.  The purpose of the Memo, as stated by Perdue, is to provide relief from regulations that are overburdensome, improve customer service, and increase the productivity of the National Forests.  More specifically, the Memo directed the Forest Service to set time and page limits to environmental-related documents, streamline environmental review analyses and consultation processes, and expedite compliance with State Historic Preservation Offices.  The Memo also included directives for reducing reliance on foreign minerals and protecting rural communities.  The Forest System must implement the new directives while remaining compliant with the National Environmental Policy Act and other environmental regulations.

Infrastructure: Louisiana Governor Vetoes Bill Amending Unauthorized Entry of Critical Infrastructure
On June 12, 2020, Louisiana Governor, John Bel Edwards, vetoed a bill amending definitions and penalties for the unauthorized entry into a critical infrastructure.  The bill, HB 197, sought to add water control structures, floodgates, and pump stations to the definition of critical infrastructure.  The bill also added a section imposing a minimum prison sentence of three years for those guilty of unauthorized entry of a critical infrastructure during a state of emergency.  In addition to the prison sentence, guilty parties could have faced a possible fine of up to five thousand dollars.  Governor Edwards provided two main reasons for issuing the veto.  First, Edwards pointed to concerns that the term “state of emergency” could be all-encompassing considering that Louisiana is “currently under eleven different states of emergency,” thus making the three-year penalty the default penalty.  Second, Edwards raised concerns that the definition for “water control structure” was too broad and could potentially “criminalize conduct that does not endanger the water control structures.”  Edwards stated that he believed amendments could be made that protect critical infrastructure without having “unintended consequences.” 

Pipelines/Federal Lands: U.S. Supreme Court Rules Forest Service Has Authority to Issue Pipeline Permit Across Appalachian Trail 
On June 15, 2020, the U.S. Supreme Court issued an Opinion holding that the U.S. Forest Service had authority to issue a special use permit for pipeline construction under the Appalachian Trail (Trail). (U.S Forest Service v. Cowpasture River Preservation Ass’n, No. 18–1584).  Atlantic Coast Pipeline, LLC (Atlantic) initially planned to construct a 604-mile natural gas pipeline from West Virginia to North Carolina, part of which would cross through the George Washington National Forest.  Atlantic applied for a special use permit from the Forest Service for a 0.1-mile pipeline right-of-way that would traverse the Trail in the National Forest.  After the Forest Service issued the permit for Atlantic’s pipeline right-of-way, Cowpasture River Preservation Association filed a petition to review the permit issuance in the Fourth Circuit Court of Appeals.  The Court of Appeals held that the Forest Service did not have authority under the Mineral Leasing Act to grant the right-of-way because the Trail was part of the National Park System, where pipeline rights-of-way are prohibited.  The Supreme Court’s ruling reversed the Court of Appeals decision.  The Supreme Court held that “the Department of the Interior’s decision to assign responsibility over the Appalachian Trail to the National Park Service did not transform the land over which the Trail passes into land within the National Park System.”  Therefore, pipeline rights-of-way across the Trail were not prohibited and the Forest Service had the authority to issue the permit to Atlantic. 

Oil and Gas Leasing: Court of Appeals Upholds Oil and Gas Lease Cancellation on Tribal Lands 

On June 16, 2020, the U.S. Court of Appeals for the District of Columbia Circuit upheld an oil and gas lease cancellation on tribal lands within Montana. (Solenex LLC v. Bernhardt, No. 18-5343).  Solenex LLC filed suit after the Secretary of the Interior cancelled Solenex’s oil and gas lease over the Badger-Two Medicine Area of Montana.  The Secretary cancelled the lease due to the significance of the area to the Blackfeet Tribe and for the Interior’s failure to follow pre-leasing procedures required under the National Environmental Policy Act and National Historic Preservation Act.  The lower court initially ruled in favor of Solenex, holding that the delay between lease issuance and cancellation violated the Administrative Procedure Act (APA).  The lower court also ruled that the Secretary did not consider Solenex’s reliance interests before the lease cancellation.  However, the Court of Appeals vacated the lower court’s ruling, holding that a delay between lease issuance and cancellation was not enough to meet the APA’s arbitrary and capricious standard.  The Court of Appeals also held that the Secretary considered and compensated Solenex for their reliance interests in the lease. 

From the National Oil & Gas Law Experts:

Charles Sartain, Mineral Reservations and “Terminological Inexactitude” (June 18, 2020).

Charles Sartain, Texas Supreme Court to Consider Continuous Development Clause (June 16, 2020). 

John McFarland, Fifth Circuit Upholds Takings Claim Against Groundwater District (June 15, 2020).


AGENCY PRESS RELEASES—STATE/FEDERAL


Pennsylvania Department of Energy Press Releases:

No new releases June 15–22, 2020.


U.S. Department of Energy

DOE Invests $20 Million in Workforce Development in Emerging Fields at University of Tennessee (June 18, 2020).

Department of Energy Invests $65 Million at National Laboratories and American Universities to Advance Nuclear Technology (June 18, 2020).

DOE Invests $17 Million to Advance Carbon Utilization Projects (June 16, 2020). 


U.S. Environmental Protection Agency

No new releases June 15–22, 2020.


STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices: 

No relevant actions June 20, 2020. 


Pennsylvania Legislature:

No relevant actions June 15-22, 2020. 


FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies—Actions and Notices: 

Environmental Protection Agency

85 FR 36368 “National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Deletion of the Fairfax St. Wood Treaters Superfund Site” Proposed Rule (June 16, 2020).

85 FR 36748 “Air Quality State Implementation Plans; Approvals and Promulgations: New Jersey; Gasoline Vapor Recovery Requirements” Rule (June 18, 2020).


Federal Energy Regulatory Commission 

85 FR 36321 “Commission Action to Address Effects of COVID-19 on Oil Pipelines” Rule (June 16, 2020). 


House Energy and Commerce Committee Actions:

H.R.7237 “To direct the Secretary of Energy to establish an Office of Advanced Clean Energy Technologies and manage a network of Regional Energy Innovation and Development Institutes to advance regional decarbonization strategies.” Referred to the Committee on Energy and Commerce, and in addition to the Committee on Science, Space, and Technology (June 18, 2020).


Senate Energy and Natural Resources Committee Actions: 

No new actions June 15–22, 2020.

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
Pa. Driller Pleads No Contest to Environmental Crimes,” EE News

“Groups Appeal Decision to Ok Trump's Fracking Rule Rollback, EE News

“Trump’s New Clean Water Act Rules Could Affect Embattled Natural Gas Projects on Both Coasts,” Inside Climate News

“Shale Crescent Region Produces More Natural Gas Than Texas,” The Center Square

“Banks Cut Shale Drillers’ Lifelines as Losses Mount,” The Wall Street Journal

“Driller Charged Over Contamination In ‘Gasland’ Town,” The Associated Press

“FERC Rule To Address Landowner Complaints Draws Fire,” EE News

“Special Report: Millions of Abandoned Oil Wells Are Leaking Methane, A Climate Menace,” Reuters

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 February 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!

Tuesday, June 16, 2020

Shale Law Weekly Review - June 16, 2020

Written by:
Sara Jenkins – Research Assistant 
Jackie Schweichler – Staff Attorney
Kaela Gray – Research Assistant

The following information is an update of recent local, state, national and international legal developments relevant to shale gas.

Pipelines: Court of Appeals Reverses Lower Court Decision on Enbridge Line 5 Pipeline
On June 5, 2020, the U.S. Court of Appeals for the Sixth Circuit reversed a district court decision that determined the Pipeline and Hazardous Materials Safety Administration (PHMSA) had acted improperly in approving the emergency response plans for the Enbridge Line 5 Pipeline.  The district court had held PHMSA was required to comply with the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA) before it could approve emergency response plans for pipelines. (Nat’l Wildlife Fed’n v. Sec’y of the U.S. Dep’t of Transp., Nos. 19-1609/1610).  The Court of Appeals explained that requirements in the ESA and NEPA only applied to “discretionary” agency actions.  The court held that PHMSA’s action of approving the response plan was not “discretionary” because of the plain language use of the word “shall” in the CWA.  The court further explained that the word “shall” indicated it was mandatory for PHMSA to approve the response plans if they met the criteria required by the CWA.

National Energy Policy: President Signs Executive Order to Accelerate Energy Infrastructure Projects 
On June 4, 2020, President Trump issued an Executive Order to accelerate energy infrastructure projects around the country.  The Order is titled, EO on Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities.  The purpose of the Order, as stated in section one, is to support economic recovery and national security during the COVID-19 pandemic.  The Order includes policies for expediting delivery of transportation infrastructure, expediting Army Corps of Engineers’ projects, applying emergency procedures for the National Environmental Policy Act, and establishing emergency regulations for the Endangered Species Act and the Clean Water Act.  General provisions in the Order state that the Order “shall be implemented consistent with applicable law and subject to the availability of appropriations.”  

National Energy Policy: FERC Issues Final Rule Amending Rehearing Requirements for Natural Gas Projects
On June 9, 2020, the Federal Energy Regulatory Commission (FERC) issued a Final Rule amending the rehearing requirements for natural gas projects approved under the Natural Gas Act.  The Rule prevents construction on approved natural gas projects from commencing until after FERC has acted on a request for rehearing or the time to file a request for rehearing has passed.  The Rule gives FERC 30 days to act on a request for rehearing or to issue an order extending the consideration period for more complex issues.  In a press release, FERC Chairman Neil Chatterjee stated that the Rule was an “important step forward” in addressing ways to “improve affected landowners’ access to a fair and transparent process.”  The Rule will take effect 30 days after the publication date in the Federal Register. 

Wastewater Treatment/Disposal: Oklahoma Governor Signs Bill on Wastewater Recycling and Reuse 
On May 19, 2020, Oklahoma Governor Kevin Stitt approved SB 1875 regarding ownership and responsibility of wastewater from oil and gas production.  The bill clarifies that ownership of wastewater used in oil and gas drilling operations lies with both the well “operator” and “nonoperator.”  A nonoperator is a person who contributes to drilling expenses.  The bill states that the operator and nonoperator of a well are responsible for handling, transfer, and disposal of the wastewater.  The bill also includes a section on liability for recycled wastewater use and transfer.  In a press release issued by the Oklahoma Senate, the purpose of the bill was stated as being to encourage entrepreneurs to “innovate and invest in technology” to process wastewater and reduce wastewater injection.  

From the National Oil & Gas Law Experts:
Andrew B. Derman, Andrew Melsheimer, and TJ Auner, Arbitration: Keep It Efficient and Cost Effective (June 9, 2020)

John McFarland, Texas Supreme Court Acts on Two Significant Oil and Gas Cases (June 5, 2020)

Tiffany Challe, Ninth Circuit Ruled for California Cities and Counties on Questions of Whether Climate Lawsuits Against Energy Companies Belonged in State or Federal Court (June 8, 2020)

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Energy Press Releases:
No new releases June 8–June 15, 2020. 

U.S. Department of Energy
DOE Announces $11 Billion in Energy Cost-Savings from Better Buildings Initiative Partners (June 9, 2020).

U.S. Environmental Protection Agency
No new releases June 8–June 15, 2020.

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices: 
Permit Requested by Appalachia Midstream Services, LLC (E6629-031) To construct, operate and maintain the Hunter Well Line Project, which consists of one 12-inch diameter natural gas pipeline for the purpose of installing a natural gas well line and associated access roadways for Marcellus shale development (June 13, 2020). 

Pennsylvania Legislature:
HB2025 “An Act authorizing the Department of Environmental Protection to conduct a public comment process on and submit to the General Assembly a measure or action intended to abate, control or limit carbon dioxide emissions by imposing a revenue-generating tax or fee on carbon dioxide emissions” Re-committed to Rules (June 9, 2020).

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).  

Federal Energy Regulatory Commission
85 FR 35650 “Impacts of COVID-19 on the Energy Industry; Technical Conference” Notice of Meeting (June 11, 2020). 

Pipeline and Hazardous Material Safety Administration
85 FR 35240 “Pipeline Safety: Gas Pipeline Regulatory Reform” Proposed Rule (June 9, 2020).

Presidential Documents
85 FR 35165 “Infrastructure Investments and Other Activities; Economic Recovery From COVID-19 Emergency, Efforts To Expedite (EO 13927)” Executive Order (June 9, 2020).

85 FR 35797 “National Defense Authorization Act for Fiscal Year 2020 and Eastern Mediterranean Security and Energy Partnership Act of 2019; Delegation of Authorities (Memorandum of April 14, 2020)” Administrative Order (June 12, 2020). 

House Energy and Commerce Committee Actions:
No significant actions June 8- 15, 2020.

Senate Energy and Natural Resources Committee Actions: 
S.886 “Indian Water Rights Settlement Extension Act” Message on Senate action sent to the House (June 11, 2020).

EC4758 “Executive Communication from the Secretary of Energy, transmitting, pursuant to law, a legislative proposal entitled "Amend Section 4601(c) of the Atomic Energy Defense Act"; to the Committee on Energy and Natural Resources” Referred to Committee (June 9, 2020).

S.3906 “A bill to amend the Gulf of Mexico Energy Security Act of 2006 to eliminate the cap on qualified outer Continental Shelf revenues that may be received by Gulf producing States under that Act, and for other purposes” Read twice and referred to the Committee on Energy and Natural Resources (June 8, 2020). 

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
EPA Faces Lawsuit Alleging Failure to Update Flaring Requirements,” The Hill
“How George Floyd Protests Swayed a Texas Fracking Town,” EE News
“U.S. FERC Landowner Protection Rule Likely to Delay Natgas Project,” Reuters
“Enbridge Wins Court Approval for Oil Pipelines,” AP News
“Colo. Group Won't Pursue Anti-fracking Ballot Initiative,” Reuters 
“New FERC Rule Protects Landowners in Pipeline Disputes,” The Hill
“Trump’s Emergency Executive Order May Help Pipelines,” Shale Gas Reporter

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