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.
Public Lands: Pennsylvania DCNR Releases Shale Gas
Monitoring Report
On July 25, 2018, the Pennsylvania Department of Conservation
and Natural Resources (DCNR) announced
the release of the second
Shale Gas Monitoring Report. DCNR began this monitoring
program in 2011 in order to track, detect, and report on the impacts shale gas
development could have on state forests within Pennsylvania. The report found
that gas development in state forests has decreased, partially due to market
demand and the prohibition on new leasing by DCNR. The report also notes that
invasive plants are becoming increasingly problematic, but it found no
significant concerns with water quality. According to DCNR, 600,500 out of 2.2
million acres of state forest lands are available for shale gas development.
Air Quality: Pennsylvania DEP Releases Report on Air
Quality Sampling Initiative
On July 20, 2018, the Pennsylvania Department of
Environmental Protection (DEP) released a
report on the results of a short-term air quality sampling initiative in
Washington County. The report, Long-Term Ambient Air Monitoring Project:
Marcellus Shale Gas Facilities, found that health impacts relating to
ambient air from unconventional natural gas operations “may be limited” for
residents in the area. The researchers found that concentrations of toxic air
pollutants were at low levels, however, the researchers noted that insufficient
data collection could mean an underestimation of risk and hazard. The report
recommended that DEP continue data collection, expand the list of chemicals in
the research, and administer further analysis. The Pennsylvania Department of
Health released a companion
report which, while finding that the DEP’s data was generally sufficient,
noted the limitations of some of that data in determining overall air quality.
Production and Operation: Pennsylvania Orders Drillers to
Plug Over 1,000 Abandoned Wells
On July 25, 2018, the Pennsylvania Department of Environmental
Protection issued a
news release detailing an order it had sent to three oil and gas companies
requiring that they plug their abandoned oil and gas wells. The three
companies, Alliance Petroleum, CNX, and XTO have a combined 1,058 wells in
Pennsylvania that have been inactive for more than twelve months.
Pipelines: Third Circuit Rejects Religious Freedom
Argument Against Atlantic Sunrise Pipeline
On July 25, 2018, the U.S. Third Circuit Court of Appeals affirmed
the decision of a lower court to dismiss a claim brought by a group of Catholic
sisters against the Atlantic Sunrise Pipeline. Adorers of the Blood of
Christ v. Federal Energy Regulatory Commission, No. 17-3163. The group, the
Adorers of the Blood of Christ, owns a piece of land on which the pipeline is
proposed to be constructed. The sisters argued that the use of eminent domain
to build the pipeline would violate the Religious Freedom and Restoration Act
(RFRA), as their religious beliefs include acting as “stewards of God’s earth.” RFRA is a
1993 federal law which prevents the government from “substantially burden[ing]
a person's exercise of religion even if the burden results from a rule of
general applicability.”
Pipelines: Atlantic Coast Pipeline May Begin Construction
in North Carolina
On July 24, 2018, the Federal Energy Regulatory Commission
(FERC) gave its final approval
for Dominion Energy to begin construction of the North Carolina section of the
Atlantic Coast Pipeline. The pipeline,
which began construction in 2017, will run roughly six hundred miles from West
Virginia to North Carolina. The FERC decision comes as the U.S. Fourth Circuit
Court of Appeals is
expected to release its full opinion regarding the vacated Incidental Take
Statement.
Pipelines: Fourth Circuit Upholds FERC Eminent Domain Use
for Pipelines
On July 25, 2018, the U.S. Fourth Circuit Court of Appeals upheld
a lower court’s dismissal of a challenge to the Federal Energy Regulatory
Commission’s (FERC) use of eminent domain for natural gas pipelines (Berkley
v. Mountain Valley Pipeline, No. 18-1042). The lawsuit was brought by a
group of Virginia and West Virginia landowners who claimed that the agency’s
use of eminent domain was an unconstitutional taking under the Fourth
Amendment. The court affirmed the dismissal because the district court did not
have subject-matter jurisdiction, as the litigants failed to go through the
appropriate administrative process with FERC.
GHG Emissions: Ninth Circuit Declines to Dismiss Climate
Change Lawsuit
On July 20, 2018, the Ninth Circuit Court of Appeals
declined the federal government’s petition for a writ of mandamus in a
lawsuit brought by a group of children and young adults (Juliana v. U.S. No.
18-71928). The plaintiffs
allege that the government’s policies regarding climate change "have
violated and continue to violate Plaintiffs’ fundamental constitutional rights
to freedom from deprivation of life, liberty, and property.” The federal
government filed a similar petition
earlier this year that was also denied.
Federal Lands: Department of Interior Amends Compensatory
Mitigation Policy for Public Lands
On July 24, 2018, the Department of the Interior (DOI)
issued an instruction memo
which alters existing policy regarding compensatory mitigation on public lands.
Previously, developers on public land that damaged wildlife or habitats were
required to engage in “compensatory
mitigation,” which required offset payments to fund environmental
restoration and protection projects. In this memo, DOI stated that the Bureau
of Land Management must not require compensatory mitigation and may consider
voluntary proposals of compensation only under limited circumstances.
International Development: Australian Northern Territory
Government Announces Plan to Adopt Recommendations for Hydraulic Fracturing
On July 17, 2018, the government of the Northern Territory
of Australia released its
plan to implement over one hundred recommendations by the independent
Scientific Inquiry Panel before allowing shale gas development to resume. These
recommendations largely focus on issues such as environmental protection,
industry regulation, and local population benefits. The government is planning
to fully implement these recommendations by the end of 2018 in order to allow
exploration to begin again next year.
International Development: UK Government Gives Consent
for Cuadrilla to Begin Hydraulic Fracturing
On July 24, 2018, the UK Department for Business, Energy
& Industrial Strategy granted Cuadrilla final
approval to begin hydraulic fracturing in northwest England. Cuadrilla is
the first company in the UK to receive hydraulic fracturing consent, an
additional step in the regulatory
process which was put into place in 2015. This decision follows a
report by the National Infrastructure Commission, an independent body which
warned that “the UK cannot achieve its emissions targets while relying on
natural gas, a fossil fuel, for heating.”
From the National Oil & Gas Law Experts:
Charles Sartain, MSA
Indemnity Denied Under the Louisiana Oilfield Indemnity Act, Gray
Reed (July 24, 2018)
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive
ShaleLaw HotLinks:
“Columbia
Gas plans $29 million gas-line replacement project for central Ohio” -
Columbus Dispatch
“Assessors:
Pipelines unlikely to impact residential property values” - Exponent
Telegram
“Environmental
regulators cite Mountain Valley Pipeline again” - Roanoke Times
“How
an oil glut could quickly turn into an oil shortage” - Houston Chronicle
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we will post the CASL Ledger which details all our publications and activities
from the week.
This week we published one Shale Law in the Spotlight
article: Overview
of Recent Legal Actions Relating to Induced Seismicity Damage Claims in the
United States (Part 3 of 3).
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