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.
Pipelines: Army Corps of Engineers Completes Supplemental Review of Dakota Access Pipeline Impacts
On August 31, 2018, the Army Corps of Engineers released a memorandum detailing its supplemental review of the potential effects of the Dakota Access Pipeline (Standing Rock Sioux Tribe v. United States Army Corps of Engineers, Case No. 1:16-cv-01534). In June 2017, the U.S. District Court for the District of Columbia held that the agency had not sufficiently studied three factors when considering the proposed pipeline. The relevant factors included environmental justice concerns, impacts to tribal hunting and fishing rights, and whether the pipeline’s effects will be “highly controversial.” The supplemental review found no reason to alter the agency’s previous findings.
Pipelines: Third Circuit Declines to Review Pennsylvania Pipeline Certification
On September 4, 2018, the U.S. Court of Appeals for the Third Circuit issued an opinion denying a petition to review the Water Quality Certification given to the proposed Atlantic Sunrise pipeline (Delaware Riverkeeper Network v. Secretary of Pennsylvania Department of Environmental Protection, No. CP-15-138-000). Several environmental groups petitioned the court for review of the Pennsylvania Department of Environmental Protection’s (DEP) approval of the certification, arguing that the court lacked jurisdiction to review their claims. Plaintiffs also argued that DEP did not meet its obligation to protect Pennsylvania’s natural resources because it granted the certification before collecting the environmental impact data necessary to issue permits. The court disagreed with both assertions stating that the court has jurisdiction to review an Agency’s final decision under the Natural Gas Act. In addition, the court found that the permits must be acquired before construction can begin and, therefore, petitioners were not harmed.
Pipelines: Third Circuit Reverses New Jersey DEP Decision to Grant Pipeline Permit Without Hearing
On September 5, 2018, the U.S. Court of Appeals for the Third Circuit issued an opinion reversing a decision by the New Jersey Department of Environmental Protection (NJDEP) to issue permits for the expansion of a Transcontinental Pipeline project without holding a adjudicatory hearing (Township of Bordentown, New Jersey, et al., v. Federal Energy Regulatory Commission, No. 17-3207). The Townships of Bordentown and Chesterfield, New Jersey brought this petition to challenge the Federal Energy Regulatory Commission’s (FERC) approval of the Transcontinental Pipeline. They argued that FERC arbitrarily and capriciously approved the project. The petitioners also argued that NJDEP improperly issued permits for the project and improperly denied requests for an adjudicatory hearing. The court held in favor of FERC’s approval for the project, but determined that NJDEP’s denial of a request for a hearing was “unreasonable.” The court did not address the petitioners claim regarding the NJDEP permits, leaving that determination for NJDEP pending the hearing.
LNG Exports: U.S. Agencies Sign Memorandum of Understanding for LNG Approval Process
On August 31, 2018, the Pipeline and Hazardous Materials Safety Administration (PHMSA) and the Federal Energy Regulatory Commission (FERC) signed a Memorandum of Understanding (MOU) regarding liquefied natural gas (LNG) facilities. The agencies prepared the MOU to better coordinate the LNG permit application process for LNG facilities under FERC jurisdiction. FERC is responsible for issuing certificates of public convenience and necessity to LNG terminals involved in interstate commerce. PHMSA is responsible for establishing the minimum safety standards for location, design, construction, operation, and maintenance of LNG facilities. To determine whether a proposed LNG facility complies with safety standards, PHMSA will send a Letter of Determination to FERC for review.
Pipelines: FERC Authorizes Construction for Additional 200 Miles of Mountain Valley Pipeline
On August 29, 2018, the Federal Energy Regulatory Commission (FERC) authorized the Mountain Valley Pipeline (MVP) to resume construction on an additional 200 miles of the project (Docket No. CP16-10). The initial Stop Work Order was issued on August 3, 2018, after the U.S. Court of Appeals for the Fourth Circuit vacated MVP’s right-of-way and temporary use permits. Shortly thereafter, FERC found that from milepost 1 to 77, eighty percent of the area had already been cleared. Potential erosion or soil movement posed a risk to plant and wildlife habitat and nearby water bodies. In light of this, on August 15, 2018, FERC permitted MVP to resume construction on that 77-mile stretch of the pipeline. In the most recent authorization, FERC found that 65% of the area between milepost 77 and 303 was similarly cleared of vegetation. In order to mitigate environmental risks, FERC approved construction for this area as well.
Production and Operation: Pennsylvania DEP Releases 2017 Oil and Gas Annual Report
On August 31, 2018, the Pennsylvania Department of Environmental Protection (DEP) released its 2017 Oil and Gas Annual Report, detailing oil and gas production, development, and regulation across the state. The 2017 report reveals that Pennsylvania is the second-largest producer of natural gas in the United States, behind Texas. It also noted that unconventional wells have increased natural gas production in the state by roughly 250 billion cubic feet since 2016.
From the National Oil & Gas Law Experts:
Charles Sartain, An Arbitration Ruling That's About More than Arbitration, Gray Reed (September 6, 2018)
John McFarland, The EPA and the Rule of Law, Oil and Gas Lawyer Blog (September 10, 2018)
News Release: DEP Appoints Executive Director for Citizens Advisory Council (September 4, 2018)
Upcoming Meetings: Senate Environmental Resources & Energy meeting (September 25, 2018)
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
“Ohio reports increased Utica shale production in second quarter” - Oil & Gas Journal
Proposal would settle Chesapeake lawsuit for $6.95 million" - Washington Post
"On A Mission To Mitigate: Industry Vs. Methane Leaks"- MidStream Biz
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This week we published two new Shale Law in the Spotlight articles: Overview of Recent Legal Actions Relating to Oil and Gas Development on Public Lands in the United States, Part 2; and Overview of the Falcon Ethane Pipeline System Project.
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