Written by:
Brennan Weintraub - Research Assistant
Jackie Schweichler - Education Programs Coordinator
The following information is an update of recent local,
state, national, and international legal developments relevant to shale gas.
State Regulation: Federal Court Dismisses Lawsuit Seeking
Compensation for New York Hydraulic Fracturing Ban
On June 18, 2018, the U.S. District Court for the Western
District of New York dismissed a lawsuit by an East Rochester resident who sued the state of New
York for banning hydraulic fracturing. The resident, David Morabito, claimed that
the ban constituted an unconstitutional taking of his oil and gas rights. The
court, however, decided that the lawsuit was in violation of the Eleventh
Amendment, which prohibits parties from suing states for money in federal
court.
Pipelines: FERC Declines to Review Approval of Mountain
Valley Pipeline
On June 15, 2018, the Federal Energy Regulatory Commission
(FERC) issued an opinion
denying a request from environmental groups for rehearing in the ongoing
lawsuit against Mountain Valley Pipeline, LLC. (MVP). In November 2017, several
environmental groups sought rehearing after FERC approved MVP’s Certificate Order
authorizing construction and operation of the pipeline. The court held that the
Certificate Order complies with all requirements including those within the
Natural Gas Act and the National Environmental Policy Act. The pipeline, once completed,
will carry natural gas from the Utica and Marcellus Shales in northern West
Virginia to a compressor station in southern Virginia. Construction on the project has already
begun and completion is expected by the end of 2018.
Pipelines: Fourth Circuit Court of Appeals Issues Stay
for Mountain Valley Pipeline Construction
On June 21, 2018, the U.S. Fourth Circuit Court of Appeals issued a stay halting construction on parts of EQT Midstream Partners’
(EQT) Mountain Valley Pipeline in West Virginia (Sierra
Club, et al v. U.S. Army Corps of Engineers, et al., No. 18-1173). The
stay was requested by Sierra Club, which challenged a permit issued to the project
that allows the pipeline to cross streams and wetlands in the southern part of
the state. Sierra Club argued that it would not be possible for EQT to cross all four bodies of
water within the 72 hours required by the permit. EQT responded to the stay saying that they will be using a different technique
to cross the waterways that requires more time but is also is more
environmentally protective.
PA Impact Fee: Pennsylvania Announces Distribution of
2017 Shale Gas Fees
On June 21, 2018, the Pennsylvania Public Utilities
Commission (PUC) announced
the planned distribution of the nearly $210 million collected in shale gas fees
in 2017. More than half will be given to counties and municipalities across the
state and nearly $80 million will be placed in the
Marcellus Legacy Fund, which supports environmental and infrastructure
projects in the state. Last year’s total marks an increase from 2016, when Pennsylvania took in $173 million. The PUC also announced that
it has now taken in more than $1.4 billion in shale gas fees in the last seven
years.
Municipal Regulation: Chatham County Extends Moratorium
on Hydraulic Fracturing
On June 18, 2018, the Board of Commissioners of Chatham County, North Carolina extended a moratorium on hydraulic fracturing within the county to January
31, 2019, according to the Herald-Sun. The Board decided to extend the
moratorium to conduct further research and fully consider potential impacts.
The moratorium
was originally put into place in August 2015. The commission received a report from an
environmental consultant last October which warned of potential groundwater
contamination. The state of North Carolina began
allowing oil and gas exploration in 2014. State law preempts local governments
from banning it entirely, though counties and municipalities may still regulate
the practice.
Methane Emissions: Study Suggests Oil and Gas Industry
Leaks Far More Methane Than EPA Reports
On June 21, 2018, a collaboration of researchers from
various universities published a study which found that methane emissions from
the oil and gas industry may be up to sixty percent higher than reported by the
U.S. Environmental Protection Agency. The study estimated that yearly methane
emissions from the production and transport of oil and gas are equal to about
2.3 percent of all natural gas production in the United States. The most
significant source of leaks, according to the study, are vents and hatches in
storage tanks. The study is entitled Assessment
of Methane Emissions From the U.S. Oil and Gas Supply Chain, and was
published in Science.
Public Health: Report Examines Effect of Energy Companies
Located Near Disadvantaged Communities
On June 20, 2018, Food & Water Watch, a Washington, D.C.
environmental group, released a report,
Pernicious Placement of Pennsylvania Power Plants, detailing the
impact of the Pennsylvania oil and gas industry on disadvantaged communities.
Specifically, the study concluded that existing power plants were
disproportionately located near communities with “lower incomes, higher
economic stress, lower educational levels and/or communities of color.”
The report noted that people of color make up nearly half of the
population of census tracts within three miles of fossil fuel power plants.
Majority white populations, however, were found in less than ten percent of
those census tracts within three miles of fossil fuel power plants according to
the researchers. The report also noted that household income in Pennsylvania is
considerably lower near power plants and rises as residents get further away.
International Development: Judge Says Hydraulic
Fracturing is Not Banned in Scotland
On June 19, 2018, Lord Pentland of the Scottish Court of
Session issued an opinion in which he agreed with the Scottish government that the nation did
not have an enforceable ban on hydraulic fracturing. Scotland had been sued by
Ineos Upstream, which claimed that the government had illegally banned the
practice in October 2017. Instead, the court agreed with the government’s
argument that Scotland’s policy on unconventional oil and gas had not yet been
finalized. A representative of the Scottish government stated that the
government is currently undertaking environmental impact studies and no final
policy will be announced until they are completed in October.
From the National Oil & Gas Law Experts:
Ag
Groups File Amicus Brief in WOTUS Case, Amie Alexander, William H.
Bowen School of Law (June 18, 2018)
Texas
Supreme Court Affirms Washout of a Back-in Interest, Charles Sartain,
Gray Reed (June 20, 2018)
Pennsylvania Legislation:
HB
107 An Act amending Title 66 (Public Utilities) of the Pennsylvania
Consolidated Statutes, in rates and distribution systems, providing for
recovery of natural gas distribution system extension costs. (re-reported as
committed, June 22, 2018)
HB
2502 An amending Title 58 (Oil and Gas), further providing for well permits
(referred to Environmental Resources and Energy, June 18, 2018)
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive
ShaleLaw HotLinks:
“A
greener future starts with natural gas” - Bloomberg
“China
hits pause on Appalachian energy investment citing trade war concerns” -
Pittsburgh Post-Gazette
“Presbyterian
panel backs shedding investments in fossil fuels” - Pittsburgh Post-Gazette
“US
prepares for next wave of LNG exports” - Financial Times
Connect with us on Facebook! Every week
we will post the CASL Ledger which details all our publications and activities
from the week.
This week we published our Shale Law in the Spotlight:
Pennsylvania
Superior Court Denies Request for Rehearing in Trespass by Hydraulic Fracturing
Case
Want to get updates, but prefer to listen? Check out the Shale Law Podcast! We
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