Written by:
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.
Production and
Operation: Pennsylvania Court Upholds Most, But Not All, Unconventional Well
Regulations
On July 22, 2019, the Pennsylvania
Commonwealth Court upheld most of Pennsylvania’s unconventional well regulations while also
ruling that one regulation was void and unenforceable (Marcellus Shale Coal.
v. Dep’t of Envtl. Prot. of Pennsylvania, No. 573 M.D. 2016, 86-88). The
unconventional well regulations found in Title 25, Chapter 78a of the Pennsylvania Code were promulgated in
October 2016. The Marcellus Shale Coalition (Coalition) then filed suit against Pennsylvania’s
Department of Environmental Protection and Environmental Quality Board requesting
that the regulations be found invalid. Ultimately, the court ruled
that it would deny most of the Coalition’s request by upholding sections of the
unconventional well regulations regarding area of review, on-site processing,
well development, centralized impoundments, spill remediation, and waste
reporting. However, with regard to the regulation involving well site
restoration, section 78a.65(b), the court granted summary relief to the Coalition,
declaring the regulation to be void and unenforceable “to the extent that it
requires post-drilling site restoration within the statutory 9-month period to
[approximate original conditions].”
GHG Emissions: Federal
Court Sends Case Back to Rhode Island State Court in Climate Change Lawsuit
Against Oil Companies
On July 22, 2019, the
United States District Court for the District of Rhode Island ruled it did not have jurisdiction to hear a climate change lawsuit
that the State of Rhode Island filed against several large oil and gas
companies including ExxonMobil Corp., Chevron Corp., Royal Dutch Shell, and
others (Rhode Island v. Chevron Corp., No. 18-395 WES). The defendant
oil companies removed the case to federal court claiming federal question
jurisdiction. Under 28 U.S.C. § 1441, defendants can “remove”
or change venue from state court to federal court if they believe the causes of
action stated in the complaint should be governed by federal law. After
some discussion of the impacts that oil companies have had on climate change,
the district court ultimately found that the defendants did not show a federal
question existed in the state’s claims. In the Order, Judge William E.
Smith cited to Grable & Sons Metal Prods., Inc. v. Darue Eng’g &
Mfg., finding the “defendants have not pointed to a specific issue of
federal law that must necessarily be resolved to adjudicate the state law
claims and instead mostly gesture to federal law and federal concerns in a
generalized way.” The case will be sent back to state court after
giving the defendants time to prepare new briefs.
Pipelines: Native
American Tribe Files Lawsuit Against Enbridge for Removal of Pipeline
On July 23, 2019, the
Bad River Band of the Lake Superior Tribe of Chippewa Indians (Band) filed a Complaint in the District Court for the Western District of Wisconsin against
Enbridge Inc. and partners (Enbridge) for removal of a pipeline across
reservation land (Bad River Band v. Enbridge Inc., No. 3:19-cv-602).
According to the Complaint, the Enbridge pipeline (Line 5) was installed on the
Band’s Reservation in 1953 from an easement issued by the Bureau of Indian
Affairs. The Band claims that Enbridge has continued to operate the
pipeline despite the easement for the pipeline expiring in 2013.
Further, the Band describes environmental impacts the pipeline could have on
nearby wetlands and ecosystems in case of a leak or failure.
Ultimately, the Band has requested that the court declare Enbridge’s use of
Line 5 a “public nuisance and a trespass,” and seeks the issuance of an
injunction ending operations and requiring Line 5 removal.
Pipelines: North Dakota
Files Lawsuit Against the United States for Damages Caused by Dakota Access
Pipeline Protestors on Federal Lands
On July 18, 2019, the
state of North Dakota filed a Complaint in the U.S. District Court for the District of North Dakota
against the United States for damages caused by Dakota
Access Pipeline protestors on federal
lands (North Dakota v. United States, No.1:19-cv-00150-DLH-CRH). North
Dakota is requesting damages in the amount of $38 million under the Federal Tort Claims Act for various allegations including public
nuisance, gross negligence, and civil trespass (p. 1). According to the
Complaint, protestors left “noxious waste, garbage, and debris” at camps near
the pipeline site “to be cleaned up by the State at considerable cost.” Additionally, the Complaint states that protesters contributed to expenses
incurred by state and local law enforcement who responded to “violent and
illegal activity,” resulting in 761 arrests. By rule, the United States has 60 days to file a response to the
allegations in the Complaint (Fed. R. Civ. P. 12(a)(2)).
From the National Oil
& Gas Law Experts:
Paul Wight, Stephen
Hug, & Josh Robichaud, FERC Revises Market-Based Rate Seller
Requirements, (July 22, 2019)
Pennsylvania
Legislation:
HB 1735: Creates the Pipeline Early Detection and Warning Board. Fees
collected by the board would be issued as grants to municipalities for the
purpose of developing warning systems to alert residents of a pipeline incident
(Referred to Environmental Resources and Energy - July 24, 2019).
HB 1727: Amends Title 66 of the Pennsylvania Consolidated Statutes to
require the use of fiber optics for mitigating risks of pipelines and for
alerting personnel in a pipeline emergency (Referred to Consumer Affairs - July 24, 2019)
“Following Berkeley's Natural Gas Ban, More
California Cities Look to All-Electric Future” - Inside Climate News
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Recent Local Oil and Gas Moratoria in Colorado Following the Passage of Senate
Bill 19-181
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