The following information is an update of recent local, state, national, and international legal developments relevant to shale gas.
Air Quality: Range Resources and DEP Settle Lawsuit over Methane Leak
On August 29, 2017, the PA Department of Environmental Protect (DEP) and Range Resources Appalachia LLC reached a settlement agreement in a lawsuit over a shale gas well in Lycoming County that allegedly leaked methane into groundwater in 2011, according to an article in the Pittsburgh Post-Gazette. The article states that DEP planned to seek $8.9 million in fines for pollution and failure to repair defective cement. The settlement agreement does not contain a fine, but it does reserve the rights of both parties to later raise any factual or legal issues in future appeals arising from the violations in question.
Pipelines: Pennsylvania DEP Approves Permit Applications for Atlantic Sunrise Project
On August 31, 2017, the Pennsylvania Department of Environmental Protection (DEP) approved two permit applications for the Atlantic Sunrise Pipeline Project which will be built by the Transcontinental Gas Pipeline Company, LLC (Transco). The approvals include a Chapter 105 Water Obstruction and Encroachment Permit and three Chapter 102 Erosion and Sediment Control Permit authorizations. DEP is still reviewing the Air Quality Plan Approval for construction activities in Lancaster County. If approved by DEP, the plan will authorize Transco to transfer and use 106 tons of nitrogen oxide Emission Reduction Credits (ERCs) from a facility in Maryland. The project will pass through ten Pennsylvania counties and consist of 183 miles of new pipeline, several miles of pipeline replacement, two compressor facilities, and other modifications.
Water Quality: Appeals Court Holds West Virginia County Wastewater Ban is Preempted
On August 30, 2017, the U.S. Court of Appeals for the Fourth Circuit upheld a district court ruling that found a ban on oil and gas wastewater disposal to be preempted by state law (EQT Production Company v. Matthew D. Wender, No. 16-1938). The case was brought by EQT Production Company (EQT), an oil and gas company that also operates disposal wells, against the County Commission (Commission) of Fayette County, West Virginia. In 2016, Commission enacted the “Ordinance Banning the Storage, Disposal, or Use of Oil and Natural Gas Waste in Fayette County, West Virginia.” The court held that this ban is preempted by state laws regulating the disposal of wastewater.
Pipelines: Appeals Court Denies Petition for Review in Orion Project Case
On August 30, 2017, the U.S. Court of Appeals for the Third Circuit denied the Delaware Riverkeeper Network’s (Riverkeeper) petition for review in a case involving the Orion project planned by Tennessee Gas Pipeline Co. (Tennessee Gas) (Delaware Riverkeeper Network v. Secretary of the Pennsylvania Department of Environmental Protection). The Pennsylvania Department of Environmental Protection (DEP) issued Water Quality Certifications for the Orion project, certifying that the pipeline is “water dependent,” and as such, can be built through “exceptional value” wetlands. Riverkeeper filed suit arguing that under federal law, pipelines are not categorically “water dependent,” and that there is a rebuttable presumption that viable alternative routes exist. Here, the Court of Appeals deferred to DEP’s decision and explanation that water dependency definitions under Pennsylvania law differ from federal law.
Pipelines: FERC Grants Certificate of Public Necessity to NEXUS Pipeline
On August 25, 2017, the Federal Energy Regulatory Commission granted a certificate of public convenience and necessity to NEXUS Gas Transmission, LLC (NEXUS) for the construction and operation of a pipeline system in the Appalachian Basin. The pipeline will supply Ohio, Michigan, and Ontario, Canada. FERC stated that the final environmental impact statement describes “environmentally acceptable actions.” Approval for the certificate is conditioned upon completion of the proposed facilities, compliance with FERC regulations, and other environmental conditions.
Pipelines: New York Denies Water Quality Application to Millennium Pipeline Company
On August 30, 2017, the New York State Department of Environmental Conservation (DEC) denied a Water Quality Certificate application submitted by the Millennium Pipeline Company LLC (Millennium) for the Valley Lateral Project. DEC stated that the conditional denial “is based in part on the inadequacy of the environmental review conducted by the Federal Regulatory Commission (FERC), which failed to account for downstream greenhouse gases.” This decision corresponds with the recent federal court decision, Sierra Club, et al. v. FERC, which held FERC’s environmental review to be inadequate. The Valley Lateral Project will consist of 7.8 miles of natural gas pipeline in Orange County, New York.
LNG Exports: DOE Announces Proposed Rule to Expedite Approval of Small-Scale Natural Gas Exports
On September 1, 2017, the U.S. Department of Energy (DOE) announced a proposed rule that will revise current regulations governing the authorization of natural gas and liquefied natural gas (LNG) exports. Specifically, DOE will approve a natural gas export application if the application will export natural gas up to 0.14 Bcf/d; and the application does not require an environmental impact statement under the National Environmental Policy Act. Applications satisfying these requirements will qualify as a “small-scale natural gas export.” The purpose of the proposed rule is to expedite the approval process for these small-scale exports to better meet the small volume market needs of countries located in the Caribbean, Central America, and South America.
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"DOE grid report says shale gas to blame for coal plant closures" - State Impact
"Pipeline projects could "further stall" after court ruling" - PG Power Source
EPA will be conducting public meetings on the definition of WOTUS under the Clean Water Act - Cansler Consulting
"Pennsylvania to increase fees for shale gas wells" - State Impact
"Canadian Oil Pipeline Protesters Fight From The Water" - Oil and Gas Investor
"Pa. bill could make it tougher for landowners to get better deals ..." - Shale Gas Reporter
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See our Global Shale Law Compendium and this week’s article, Shale Governance in Illinois.
Check out this week’s Shale Law in the Spotlight: The Delaware River Basin Commission’s Regulatory Action and Inaction on Natural Gas Development.
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