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)
Pennsylvania
Notices
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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