Monday, February 26, 2018

Shale Law Weekly Review - February 26, 2018

Written by:
Jacqueline Schweichler - Education Programs Coordinator
Tori Wunder - Research Assistant

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

Pipelines: Pennsylvania Court Rejects Zoning Challenges to Mariner East 2 Pipeline 
On February 20, 2018, the Pennsylvania Commonwealth Court denied a zoning appeal from the Delaware Riverkeeper Network and several landowners in favor of the Mariner East 2 Pipeline. The plaintiffs argued that construction of the pipeline violated the West Goshen Township zoning ordinance. Previously, the trial court held that the zoning ordinance was preempted by state law. The appeals court agreed, stating that Goshen Township lacked the authority to zone in a manner denying a public utility pipeline service regulated by the Public Utility Commission.

Air Quality: Court Grants Preliminary Injunction Against BLM’s Proposed Rule to Delay Methane Emissions Rule Requirements
On February 22, 2018, the U.S. District Court for the Northern District of California issued an order granting a preliminary injunction in favor of several environmental groups against the Bureau of Land Management (BLM) (California, et al., v. BLM, 17-cv-07187; Sierra Club, et al., v. Ryane Zinke, 17-cv-07186). The case was brought against BLM for their proposed rule that would delay the requirements of the Waste Prevention, Production Subject to Royalties, and Resource Conservation rule. These lawsuits were brought in December 2017 soon after BLM issued the proposed rule. The court held that the plaintiffs are likely to succeed on the merits, and they “have shown irreparable injury caused by the waste of publicly owned natural gas, increased air pollution and associated health impacts, and exacerbated climate impacts.”

Landowner Royalties: West Virginia Passes Bill to Allow Drilling when Majority of Royalty Owners Consent
On February 15, 2018, the West Virginia House passed a bill (H.B. 4268) that will allow oil and gas companies to drill on property where at least three fourths of the royalty interest owners have consented to development. The new law would apply only where there are seven or more royalty owners and the drilling company has made reasonable efforts to negotiate with all owners. Nonconsenting owners may receive a prorata share of production royalties while profits for unknown or unlocatable owners will be deposited in a fund in the State Treasury. The bill was passed in the House by a vote of 60 to 40 and was introduced in the Senate on February 16th.

Electricity Generation: West Virginia Issues Certificate for Natural Gas Electric Generating Facility
On February 20, 2018, the Public Service Commission of West Virginia issued a siting certificate to ESC Brooke County Power I, LLC (ESC) for an electric generating facility in Brooke County. The natural gas-fired facility will generate approximately 830 MW and will be constructed and operated by ESC. The facility will be located in the West Virginia Division of Natural Resources’ Cross Creek Wildlife Management Area. The facility is estimated to cost $884 million and expected to operate for 30 years.

Water Quality: Delaware River Basin Commission Holds Public Hearings on Proposed Rulemaking
On February 22, 2018, the Delaware River Basin Commission (DRBC) held the last in-person public hearing on the proposed rulemaking to amend its Special Regulations. The proposed amendment (18 CFR 440) includes a section prohibiting the use of high volume hydraulic fracturing within the Delaware River Basin (DRB). The amendment also discourages the use of water from the DRB for hydraulic fracturing purposes. Additionally, the rule discourages the importation of wastewater from hydraulic fracturing. The public comment period on the proposed changes will be open through March 30, 2018.

Pipelines: Court Orders Government to Review Keystone XL Documents
On February 21, 2018, the U.S. District Court for the District of Montana issued an order requiring federal officials to review documents relating to the Keystone XL pipeline, according to Associated Press. The court order applies to two cases brought by several environmental groups (Indigenous Environmental Network v. U.S. Department of State, No. 4:17-cv-00029; Northern Plains Resource Council v. Shannon, No. 4:17-cv-00031). Associated Press writes that any relevant documents must be provided to the court by March 21st, or the government must explain why the documents are being withheld.

Pipelines: West Virginia District Court Grants Mountain Valley Pipeline Access to Easements
On February 21, 2018, the U.S. District Court for the Southern District of West Virginia granted Mountain Valley Pipeline, LLC’s (MVP) motion for partial summary judgement allowing MVP to immediately access and possess the condemned easements. MVP was issued a certificate authorizing construction by the Federal Energy Regulatory Commission in October 2017. MVP then sought to obtain the necessary easements to construct the pipeline. When MVP failed to obtain all the necessary easements, they sought partial summary judgement to obtain immediate access by use of eminent domain. In order to access the condemned easements, the court has ordered MVP to post a deposit and security for the land. 

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