Monday, August 12, 2019

Shale Law Weekly Review - August 12, 2019

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.

Pipelines: Virginia Department of Environmental Quality Issues Stop Work Instruction for Mountain Valley Pipeline
On August 2, 2019, the Virginia Department of Environmental Quality (DEQ) issued a stop work instruction for a section of the Mountain Valley Pipeline. According to the instruction, an inspection conducted by DEQ on August 1, 2019, found an “imminent and substantial adverse impact to water quality” due to construction of the pipeline in Montgomery County, Virginia. DEQ asserts that the pipeline failed to control erosion and sediment in the area of construction. The instruction named corrective measures to be taken including the installation of erosion control devices and remediation of accumulated sediment. DEQ Director David Paylor stated in a news release, “DEQ will continue to monitor and inspect all ongoing work to ensure continued compliance and protection of Virginia’s natural resources.” 

Pipelines: D.C. Court of Appeals Denies Landowners’ Petition to Review Atlantic Sunrise Pipeline Decision 
On August 2, 2019, The U.S. Court of Appeals for the District of Columbia Circuit denied landowner petitions requesting reviews of the Federal Energy Regulatory Commission’s (FERC) approval of the Atlantic Sunrise pipeline expansion (Allegheny Defense Project v. Fed. Energy Regulatory Comm’n, No. 17-1098). The Petitioners argued that FERC “improperly conducted its environmental assessment under NEPA” (National Environmental Policy Act), failed to prove a market need for the pipeline expansion, and denied due process by allowing the project to move forward without judicial review of FERC’s decision. The court found that FERC sufficiently met the requirements of NEPA through its environmental impact statement and by thoroughly evaluating other proposed routes for the project. The court also found that FERC provided evidence of market need for the project beyond what was required. Further, the court found that petitioners were not denied due process, citing to circuit precedent that FERC’s “public-convenience-and-necessity determination” was enough to satisfy the Fifth Amendment’s public-use requirement. A concurring opinion was filed by Judge Millett agreeing with the court’s decision but acknowledging a concern for “fair process” on behalf of the homeowners to “have their day in court.” 

Wildlife Habitat: Forest Service Issues Proposed Land Management Amendments and Final Impact Statement for Greater Sage-Grouse Areas 
On August 2, 2019, the United States Department of Agriculture’s Forest Service issued the Greater Sage-Grouse Proposed Land Management Plan Amendments (LMPA) and Final Environmental Impact Statement (FEIS) for the Intermountain and Rocky Mountain Regions. The purpose of the LMPA and FEIS is to benefit sage-grouse conservation in Colorado, Idaho, Nevada, Utah, and Wyoming. The LMPA is proposing changes to the 2015 greater sage-grouse plan amendments for “better alignment with Bureau of Land Management (BLM) and state plans.” According to the USDA’s press release, “[t]he 2019 plans have been adapted to take into account site-specific conditions to ensure ranchers, permittees, and industry can adapt to their local conditions.” A notice of the planned amendments and final impact statement was published in the Federal Register on July 31, 2019, and allows for a 60-day objection period. 

Federal Lands: District Court Rules Environmental Groups Lack Standing in Climate Change Suit 
On July 31, 2019, the U.S. District Court for the District of Oregon dismissed a climate change lawsuit, filed by several environmental groups, for a lack of standing (Animal Legal Defense Fund v. U.S., No. 6:18-cv-01860-MC). The plaintiffs argued that the federal government failed to protect them against climate change impacts on federally-owned lands, depriving them of their right to a “safe and sustainable environment.” Additionally, the plaintiffs alleged that they were exposed to dangerous conditions on federal lands through the promotion and development of “carbon-intensive industries.” The plaintiffs asked the court to recognize a “right to wilderness” under the Constitution. The defendants, consisting of the United States and various federal agencies, filed a motion to dismiss the case, claiming the plaintiffs failed to “assert a cognizable case or controversy.” The court ultimately ruled that the plaintiffs lacked standing because their harm was not individualized. Further, the court ruled that the plaintiffs failed to state a claim, finding that “there is no fundamental right to a particular type of environment or environmental conditions.”

Water Quality: EPA Issues Proposed Rule for Clean Water Act 
On August 9, 2019, the Environmental Protections Agency (EPA) issued a news release announcing a proposed rule to implement section 401 of the Clean Water Act. The purpose of the proposed rule is to update water quality certifications for compliance with President Trump’s Executive Order 13868. More specifically, the proposed rule seeks to clarify “timeframes for certification, the scope of certification review and conditions, and related certification requirements and procedures.” EPA Administrator Andrew Wheeler stated in the news release, “Our proposal is intended to help ensure that states adhere to the statutory language and intent of [the] Clean Water Act.” A 60-day public comment period will be open once the proposed rule is published in the Federal Register. 

From the National Oil & Gas Law Experts:
George Bibikos, At the Well Weekly, (August 2, 2019)

Charles Sartain, Tenancy in Common and Joint Tenancy Explained, (August 7, 2019)

Pennsylvania Legislation:
SB 753: Amends the Gas and Hazardous Liquids Pipelines Act to require clear permit conditions and siting guidelines for increasing pipeline safety and minimizing impacts on the environment (Referred to Environmental Resources and Energy - August 7, 2019).

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