Monday, April 30, 2018

Shale Law Weekly Review - April 30, 2018

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.

Pipelines: New York Denies Water Quality Certification to Transco Pipeline
On April 20, 2018, the New York State Department of Environmental Conservation (NYSDEC) denied several permits to Transcontinental Gas Pipe Line Company, LLC (Transco). The denied permits included a Water Quality Certification, Endangered/Threatened Species permit, and Excavation & Fill in Navigable Waters permit. NYSDEC stated in their press release that the application materials submitted “showed potentially significant environmental impacts that raised serious concerns.” Some of the concerns listed by NYSDEC include toxic sediments handling, total suspended solids mixing requirements, wet-storage of sediment, backfilling, hydrostatic testing, and resource impacts and mitigation plans. Transco’s proposed pipeline project in New York includes the installation of 17.4 miles of a 26-inch pipe within New York waters.

Municipal Regulation: Ohio Supreme Court Rules Youngstown Initiative Should be Included on Ballot
On April 24, 2018, the Supreme Court of Ohio granted a writ of mandamus compelling the Mahoning County Board of Elections to place the proposed Youngstown Drinking Water Protection Bill of Rights on the May 2018 ballot (State ex re. Khumprakob v. Mahoning Cty. Bd. of Elections, Slip Opinion No. 2018-Ohio-1602). If adopted, the proposed amendment would recognize that Youngstown residents have the right to clean water and the right to be free from some types of fossil-fuel development. In February 2018, the board of elections certified that there were a sufficient number of valid signatures and the Youngstown City Council instructed the board to place the charter amendment on the ballot. The board, however, found that the proposed amendment contained provisions that were beyond the scope of their power to enact and refused to place the amendment on the ballot. The court allowed the ballot proposal to go forward while acknowledging that the proposed amendment is vague and likely to be ineffective.

Pipelines: Minnesota Court Dismisses Objection to Pipeline Protesters’ Use of Necessity Defense
On April 23, 2018, the Court of Appeals of Minnesota dismissed the State of Minnesota’s objection to the use of the necessity defense in a case involving climate change protests (State v. Klapstein, 2018 Minn. App. Unpub. Apr. 23, 2018). In October 2016, several climate change protesters entered property owned by Enbridge in order to shut down a petroleum pipeline. The protesters were charged with felony criminal damage and trespassing. They filed notice to present the necessity defense at trial stating that their actions were necessary to prevent the growing threat of climate change. The state argued that use of the necessity defense is inapplicable and will unnecessarily confuse the jury. The court disagreed and held that the state was unable to meet the burden of showing that the defense would have a critical impact on the case.

Municipal Regulation: Court Holds City’s Oil and Gas Rules are Preempted by Colorado Law
On April 24, 2018, the Adams County District Court in Colorado held that several oil and gas related rules adopted by the City of Thornton are preempted by state law (Colorado Oil and Gas Association, et al. v. City of Thornton, 2017 CV 31640). The Colorado Oil & Gas Association and the American Petroleum Institute filed suit against the city after Thornton adopted new oil and gas rules in August 2017. The new ordinance increased oil and gas development setback requirements to 750-feet from buildings and created more stringent standards for gathering lines. The court granted summary judgement in part, holding that the new setback and gathering line requirements are preempted by state law. However, the court denied summary judgment with regard to the Thornton rules on well consolidation and surface/site conditions.

Methane Emissions: Canada Publishes New Oil and Gas Methane Emissions Rules
On April 26, 2018, Canada published new methane emission standards for the oil and gas industry. The new regulations were created as part of Canada’s commitment “to reduce methane emissions from the oil and gas sector by 40 to 45 percent from 2012 levels by 2025,” under the Pan-Canadian Framework on Clean Growth and Climate Change. The rules require that covered compressors and well completions involving hydraulic fracturing must conserve or destroy methane to meet venting limits. In addition, oil and gas facilities will be required to implement leak detection and repair programs, limit vented methane volumes, and comply with new emission rules for pneumatic pumps and controllers. Parts of these regulations will go into effect January 1, 2020 and the remainder of the rules will go into effect January 1, 2023.

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See our Global Shale Law Compendium and this week’s article, Shale Law Governance in Pennsylvania - Regulations from 2008 to 2010

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