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:
John McFarland, ConocoPhillips v. Ramirez – What is the effect
of an oil and gas lease signed by the owner of a life estate?, (August 5, 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).
“New Laws Could Pump Billions of Dollars Into
Permian Basin’s Rapidly Growing Water Recycling Industry” - Houston Chronicle
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Supreme Court Rules that Post-Production Costs Cannot be Deducted from
Royalties Paid to State
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