Brennan Weintraub - Research Assistant
Jackie Schweichler - Staff Attorney
The following information is an update of recent local, state, national, and international legal developments relevant to shale gas.
GHG Emissions: EPA Proposes Change to New Source Performance Standards
On December 6, 2018, the Environmental Protection Agency (EPA) proposed changes to the New Source Performance Standards for fossil fuel-fired power plants. Previously, power plants were required to use partial carbon capture and storage technology to meet the best system of emission reduction standard under §111(b) of the Clean Air Act. Under EPA’s proposed rule, such plants would be required to use the most efficient demonstrated steam cycle in combination with best operating practices. EPA is proposing this change to address the high costs and “limited geographic availability” of carbon capture and storage technology. The proposed action is entitled, Review of Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units.
Pipelines: Federal Court Blocks Keystone XL ‘Pre-construction’ Activities
On December 7, 2018, the U.S. District Court for the District of Montana issued a supplemental order refusing to allow TransCanada, the company constructing the Keystone XL pipeline, to complete pre-construction activities in preparation for the project (Indigenous Environmental Network v. United States Department of State, CV-17-29-GF-BMM). Previously, on November 8, 2018, the court ordered a halt to construction on the pipeline until TransCanada completed a supplemental environmental analysis. TransCanada initiated this proceeding requesting clarification from the court to ensure that preliminary construction activities would not be prohibited. The court held that TransCanada would be permitted to conduct cultural, biological, or other surveys and also could maintain security at sites. The court enjoined all other pre-construction activities including transportation of pipe, preparation of sites for worker camps, and preparation of pipe storage. According to the court, TransCanada’s economic harms did not outweigh the environmental harm that would result from these construction activities.
Methane Emissions: Pennsylvania Issues Draft Emissions Regulation for Oil and Gas Operations
On December 13, 2018, the Pennsylvania Department of Environmental Protection Bureau of Air Quality presented an interim draft of oil and gas emissions requirements to the Air Quality Technical Advisory Committee. DEP is addressing this issue in response to EPA’s proposed changes to the Control Technique Guidelines (CTG). The purpose of CTG is to reduce volatile organic compound emissions from products or sources in ozone nonattainment areas. The draft DEP requirements aim to achieve greater or equivalent VOC reductions when compared to CTG. The agency’s draft recommendations cover a variety of potential emission sources and set a goal of 95% emission reduction for storage vessels. In addition to methane, the regulations would cover VOCs that are released from oil and gas wells in the state.
Pipelines: Federal Appeals Court Vacates Atlantic Coast Pipeline Permit
On December 13, 2018, the U.S. Court of Appeals for the Fourth Circuit issued an opinion vacating the Atlantic Coast Pipeline’s permit to cross the Appalachian National Scenic Trail and pass through national forestland (Cowpasture River Preservation Association v. Forest Service, No. 18-1144). The Atlantic Coast Pipeline is a 604 mile natural gas pipeline that is designed to connect West Virginia and North Carolina. The court held that the U.S. Forest Service’s decisions violated the National Environmental Policy Act and the Mineral Leasing Act. In addition, the court stated that the Forest Service lacked the statutory authority under the Mineral Leasing Act to grant a right of way across the Appalachian Trail. The court found that the Forest Service had “abdicated its responsibility to preserve national forest resources” by granting the pipeline permit. The opinion noted that the Forest Service had a number of serious environmental concerns with the project throughout 2016 and early 2017, but that the agency changed course in May of 2017. In concluding its opinion, the court quoted the Dr. Seuss children’s book, The Lorax, saying “We trust the United States Forest Service to ‘speak for the trees, for the trees have no tongues.’”
From the National Oil & Gas Law Experts:
George Bibikos, At the Well Weekly, (December 14, 2018)
Charles Sartain, Local Taxation of Oil and Gas Activities Fails Again, Energy and the Law (December 11, 2018)
Mining and Reclamation Advisory Board: Meeting to be held January 17, 2019
Oil and Gas Technical Advisory Board: Meeting to be held March 21, 2019
Environmental Quality Board: Meeting to be held February 19, 2019
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
“Oil sector boosts state government fortunes in New Mexico” - Associated Press
“Shale drilling remains strong in Ohio, Pa.” - Shale Gas Reporter
“Company plans to double production in Marcellus by end of 2020” - Shale Gas Reporter
“Oil pipeline foes look past regulators after another loss” - Minneapolis Star Tribune
“Pennsylvania well permits down by 42 percent” - Argus Media
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This week we published two new Shale Law in the Spotlight articles: Overview of Recent Legal Actions Relating to the Dakota Access Pipeline (Part 1) and Overview of Recent Legal Actions Relating to the Dakota Access Pipeline (Part II): North Dakota Files Notice of Claim Under Federal Tort Claims Act.
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