Monday, July 30, 2018

Shale Law Weekly Review - July 30, 2018

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)

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