Monday, May 15, 2017

Shale Law Weekly Review - May 15, 2017

Written by Jacqueline Schweichler - Education Programs Coordinator

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

Water Quality: Pennsylvania Supreme Court Denies Appeal in Kiskadden Lawsuit
On May, 2, 2017, the Supreme Court of Pennsylvania denied the Petition for Allowance of Appeal in a well water contamination case (Kiskaden v. Pennsylvania DEP, 480 WAL 2016). The landowner, Loren Kiskadden, alleges that the oil and gas activities at the nearby Yeager Well Site contaminated his well water. Kiskadden filed this appeal after the Pennsylvania Environmental Hearing Board’s determination that he did not meet the burden of proof was upheld.

Pipelines: Middletown Township Residents File Lawsuit Against Mariner East 2 Pipeline
On May 5, 2017, several residents of Middletown Township filed a lawsuit against Sunoco Logistics for the placement of the Mariner East 2 pipeline, according to U.S. News & World Report. The lawsuit alleges that the pipeline will be too close to homes in violation of a Middletown Township code. The code prohibits petroleum products transmission lines from being within 75 feet of any residence. The Mariner East 2 pipeline will traverse Pennsylvania, West Virginia, and Ohio, carrying 275,000 barrels a day of natural gas liquids.

Post Production Costs: Rehearing Held in West Virginia Supreme Court Over Natural Gas Royalty Payments
On May 2, 2017, the Supreme Court of Appeals of West Virginia once again heard arguments in a case regarding post-production cost deductions from royalty payments made to landowners (Leggett v. EQT Production Co.) The landowners are mineral interest owners for oil and gas wells drilled by EQT Production Company (EQT). The plaintiff landowners alleged that the drilling company was underpaying royalties when they deducted post-production costs from their payments. The court agreed to rehear the case after a November decision held the deductions by EQT were improper.

Local Regulation: Judges Dismisses Case Against Boulder for Drilling Moratorium
On May 2, 2017, a District Court judge granted Boulder County’s Motion to Dismiss the lawsuit over the county’s oil and gas development moratorium (Colorado v. County of Boulder Colorado). Boulder County argued that the moratorium would expire on its own terms by May 1, 2017, and at that time the case would be moot. Boulder County stated that the purpose of the moratorium “was to provide the county with enough time to review the oil and gas regulations that the county adopted in December 2012...”

State Regulation: Connecticut House Passes Bill to Ban Hydraulic Fracturing Waste Disposal and Storage
On May 9, 2017, the Connecticut House of Representatives voted in favor of a bill that will prohibit hydraulic fracturing waste disposal and storage within the state. The bill, House Bill 6329, “permanently bans collecting, storing, handling, transporting, disposing, and using hydraulic fracturing (“fracking”) waste in Connecticut.” The bill was passed by a vote of 141 to 6.

Methane Emissions: Bill to Nullify BLM Methane Flaring Rule Fails in the Senate
On May 10, 2017, the Senate failed to obtain sufficient votes to pass H.J.Res.36 which would have overturned the Bureau of Land Management (BLM) rule entitled “Waste Prevention, Production Subject to Royalties and Resource Conservation.” The purpose of the BLM rule is to “reduce waste of natural gas from venting, flaring, and leaks during oil and natural gas production activities on onshore Federal and Indian leases.” The motion to pass the bill under the Congressional Review Act failed by a vote of 49 to 51.

National Energy Policy: White House Provides Guidance for Executive Order on Energy Promotion
On May 8, 2017, the White House released a “Memorandum For: Regulatory Reform Officers and Regulatory Policy Officers at Executive Departments and Agencies.” The purpose of the memorandum was to provide guidance for an earlier executive order, Promoting Energy Independence and Economic Growth. Section 2(d) of the executive order requires agencies to submit a report with their plan to review agency actions. The memorandum states that these reports “shall include specific recommendations that, to the extent permitted by law, could alleviate or eliminate aspects of agency actions that burden domestic energy production.”

Federal Lands: Settlement Agreement Pauses California Oil and Gas Lease Sales
On May 3, 2017, a settlement agreement was approved for two environmental groups and the United States Bureau of Land Management (BLM) in a case regarding oil and gas leases in California (Los Padres ForestWatch v. U.S. Bureau of Land Management, No. 2:15-cv-04378). The lawsuit alleged violations of the National Environmental Policy Act (NEPA) for the BLM’s Approved Resource Management Plan for the Bakersfield Office and the associated final environmental impact statement. The settlement requires the BLM to prepare new NEPA documentation and new decision document. The BLM agreed to not hold oil or gas lease sales until after the issuance of the new decision document.

Federal Lands: BLM Files Brief Requesting Court to Hold Hydraulic Fracturing Rule Case in Abeyance
On May 4, 2017, the United State Bureau of Land Management (BLM) filed a supplemental brief in the lawsuit involving the BLM’s rule, Hydraulic Fracturing on Federal and Indian Lands (Wyoming v. United States, 2:15-CV-043-SWS). The purpose of the rule was to “ensure the environmentally responsible development of oil and gas resources on Federal and Indian lands…” Several states filed suit against the BLM, arguing that the BLM did not have the authority to promulgate this rule. In the present brief, the BLM argues that they have the authority to regulate in this area, but they request the court hold the appeal in abeyance because the Hydraulic Fracturing Rule is currently under review.

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