Sara Jenkins -
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: Council
on Environmental Quality Issues Proposed Draft Guidance to Assist Federal
Agencies when Considering Greenhouse Gas Emissions
On June 26, 2019, the U.S. Council on Environmental Quality (CEQ) issued proposed draft guidance on how federal agencies should address
greenhouse gas emissions in accordance with the National Environmental Policy
Act (NEPA). The guidance titled, Draft National Environmental Policy Act
Guidance on Consideration of Greenhouse Gas Emissions, is expected to
replace previous guidance that was withdrawn in 2017. The purpose of the
guidance is to ensure that major federal actions are in compliance with NEPA,
which requires considering environmental impacts and consequences during the
decision-making process. The draft guidance states “[a]gencies preparing NEPA
analyses need not give greater consideration to potential effects from GHG
emissions than to other potential effects on the human environment.” CEQ is
seeking public comments on the draft guidance until July 26, 2019.
Pipelines: U.S. Forest
Service Petitions Supreme Court for Review of Atlantic Coast Pipeline Decision
On June 25, 2019, the
U.S. Forest Service filed a petition with the U.S. Supreme Court for review of a U.S. Court of Appeals
decision regarding the Atlantic Coast pipeline project (U.S. Forest
Service v. Cowpasture River Preservation Ass’n). In its decision issued
December 13, 2018, the Court of Appeals for the Fourth Circuit found that the
U.S. Forest Service did not have the authority to issue a pipeline “right of
way” to Atlantic Coast Pipeline, LLC, to cross the Appalachian Trail (Cowpasture
River Preservation Ass’n v. U.S. Forest Service, No. 18-1144). In the
petition to the Supreme Court, the Forest Service argues that “the Park Service
is responsible for administering the Appalachian Trail as a footpath, while the
Forest Service retains jurisdiction and authority over the lands within
national forests traversed by the footpath.” The Atlantic Coast pipeline is expected to stretch 600 miles from West
Virginia to North Carolina, and is scheduled to be fully operational by
2021.
Pipelines: Texas Court
Ruling Allows Permian Highway Pipeline Project to Move Forward
On June 25, 2019, the
Travis County District Court issued a letter with a ruling in favor of the Texas Railroad Commission
(Commission) and Kinder Morgan Texas Pipeline, LLC, allowing the Permian
Highway Pipeline project to move forward. The original petition was filed in April 2019 by Hays County, the
City of Kyle, and private landowners to address the use of eminent domain in
obtaining land for pipeline projects (Sansom v. Texas Railroad Commission et
al., 2019 WL 1772866). The plaintiffs alleged that the
Commission implemented insufficient standards to allow gas utilities the right
to exercise eminent domain. In addition, the plaintiffs argued that Kinder
Morgan’s actions were unconstitutional by applying these eminent domain
provisions. The court, however, dismissed the claims against the Commission,
ruling that the Commission does not have the authority to grant eminent domain
power to utility companies. The court also dismissed the claims against Kinder
Morgan, holding that their actions did not “violate the separation of powers
provision in the Texas Constitution.” The Permian Highway Pipeline project consists of 430 miles of pipeline designed to carry 2.1 Bcf/d of
natural gas from Waha, Texas to the U.S. Gulf Coast.
State Regulation:
Pennsylvania Senate Passes Bill Amending Clean Streams Law
On June 26, 2019, the
Pennsylvania Senate passed Bill 619, amending an Act known as the Clean Streams Law (P.L.1987,
No.394). The amendment would alter definitions in the Act and change reporting
provisions for spills or discharges. More specifically, the bill amends the
definition of pollution to exclude accidental spills that do not violate
“numeric water quality criteria.” In addition, operators would be required to
report a discharge or spill only if it would violate water quality criteria,
violate federal discharge limits, and if the operator does not have a permit
for the discharge in question. The bill has moved to the Pennsylvania House of
Representatives where it was referred to the Environmental Resources and Energy
Committee on June 27, 2019.
Public Health:
University of Toledo Studies Relationship Between Hydraulic Fracturing and
Higher Indoor Radon Levels
On June 18, 2019 the
University of Toledo issued a news release summarizing the findings in a study linking closer proximity of hydraulic fracturing operations to
higher indoor radon levels. The EPA website explains that radon, “the
second-leading cause of lung cancer,” is a naturally occurring radioactive gas
that can only be detected through testing. According to the study, in Ohio,
radon gas is found primarily in soil and shale. To conduct their analysis, the
researchers used data from the Ohio Radon Information System, which records average household radon levels
by zip code. The researchers applied multilevel modeling to compare the
relationship between increased airborne radon levels and the proximity of
hydraulic fracturing activities. In the news release, one of the project leads,
Dr. Yanqing Xu, summarized the conclusion by stating, “The shorter the distance
a home is from a fracking well, the higher the radon concentration. The larger
the distance, the lower the radon concentration.” The study is titled, Impact
of the Hydraulic Fracturing on Indoor Radon Concentrations in Ohio: A
Multilevel Modeling Approach and can be found in the online journal,
Frontiers in Public Health.
From the National Oil
& Gas Law Experts:
Jessica Wentz, New Draft Guidance On Climate Change And Nepa Reviews
Unlikely To Significantly Affect Agency Practice Or Judicial Interpretation Of
Nepa Obligations, (June 24, 2019)
Pennsylvania
Legislation:
HB 827: would allow compensation for landowners impacted by the
natural gas moratorium within the Delaware River Basin (Removed from table - June 24, 2019)
SB790: would create a conventional oil and gas wells act with
regulations specific to conventional drilling (Referred to Environmental Resources and Energy - June 21, 2019)
SB694: would allow well bores to cross multiple units provided the
operator has the leasing rights to drill wells on the units (Reported as committed, First consideration - June 25, 2019)
SB619: would amend the Clean Streams Law to only require reporting to
DEP if the unauthorized discharge could cause a violation of water quality or
if it is reportable under federal requirements (Third consideration and final passage (Senate), Referred to Environmental Resources and
Energy (House) - June 27, 2019)
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This week we published
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Rules that Owner of Severed Mineral Estate Cannot Use Surface Estate to Develop
Minerals from Neighboring Properties
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