Sara Jenkins – Research Assistant
Jackie Schweichler – Staff Attorney
Brennan Weintraub – Research Assistant
The following information is an update of recent local, state, national and international legal developments relevant to shale gas.
Water Quality: Study Examines Hydraulic Fracturing and Pennsylvania Watersheds
On February 3, 2020, the Proceedings of the National Academy of Sciences (PNAS) published a study that focused on shale gas development in 25 watersheds over a two-year period. The Pennsylvania State Forests (PASF) area was chosen for the study because the area has “few other potential anthropogenic stressors” on streams while containing a “gradient of shale gas development under a consistent regulatory structure.” The researchers found no chemical or microbial impact or connection between hydraulic fracturing and the watersheds. The study, however, did identify a possible relationship between sediment caused by increased traffic – on developer’s unpaved roads and well pads – and the streams’ microbiota. The research was funded by several groups including the US Geological Survey, the Institute for Geosciences, the Pennsylvania Department of Conservation and Natural Resources, and the Pennsylvania Department of Environmental Protection. The study is titled “Shale gas development has limited effects on stream biology and geochemistry in a gradient-based, multiparameter study in Pennsylvania.”
Pipelines: Texas Court Denies Restraining Order, Allowing Kinder Morgan Pipeline Construction to Move Forward
On February 14, 2020, the U.S. District Court for the Western District of Texas denied a temporary restraining order (TRO), allowing Kinder Morgan to begin construction of its natural gas pipeline. The TRO was filed by the City of Austin, Travis County, and other parties objecting to the pipeline’s construction. The plaintiffs were concerned that pipeline construction requires clearing land containing habitat for the endangered Golden-cheeked Warbler. In considering a TRO, a court must determine whether the plaintiff has met their burden to prove “that irreparable harm will result if the [TRO] is not granted.” The court here found that the plaintiffs did not meet this burden and explained that the U.S. Fish and Wildlife Service’s (FWS) Biological Opinion determined that clearing land for the pipeline’s construction “was ‘not likely to jeopardize the continued existence’ of the warbler.” The court further noted that according to FWS, only 0.04% of the breeding habitat would be affected. Further, the incidental take statement issued by FWS prohibited Kinder Morgan from “clearing vegetation within the warbler habitat from March 1 to July 31.” The court ultimately concluded that irreparable harm was not proven because “the injury is limited in terms of takes and destruction of habitat due and the effect will be mitigated by  conservation measures.”
Pipelines: FERC Issues Final Environmental Impact Statement for Mountain Valley Pipeline’s Southgate Project
On February 14, 2020, the Federal Energy Regulatory Commission (FERC) issued a Final Environmental Impact Statement (EIS) for Mountain Valley Pipeline’s Southgate Project (MVP). According to MVP, the proposed natural gas pipeline system “will receive gas from the Mountain Valley Pipeline in Pittsylvania County, Virginia and extend approximately 75 miles south to . . . Rockingham and Alamance Counties, North Carolina.” FERC issued a press release explaining that the Southgate project “would result in some adverse environmental impacts, but these impacts would be reduced to less-than-significant levels through implementation of our recommendations and Mountain Valley’s proposed avoidance, minimization, and mitigation measures.” FERC considered that 49 percent of the pipeline route would be constructed along existing rights-of-way and that “Mountain Valley would minimize impacts on natural and cultural resources during construction and operation of the Project” by implementing project specific plans. FERC also responded to comments on the draft EIS before issuing the Final statement.
Pipelines: North Dakota Commission Approves Permit for Additional Pump Station Expanding Capacity of Dakota Access Pipeline
On February 19, 2020, the North Dakota Public Service Commission approved a permit for a pump station to be added to the Dakota Access Pipeline in Emmons County. The additional pump station will “allow the pipeline to increase its current maximum capacity of 600,000 barrels [of crude oil] per day to up to 1.1 million barrels  per day.” The Commission held an evidentiary hearing on the proposal which consisted of expert and public testimony. The Commission also considered written comments, petition signatures, and other filings related to the pump station proposal. The Commission’s approval includes several provisions that Dakota Access, LLC will have to comply with during construction and operation of the pump station. Some of the provisions include setting maximum operating pressures, requiring remote leak protection, and setting maximum sound levels at the station.
From the National Oil & Gas Law Experts:
George A. Bibikos, At the Well Weekly (Feb. 14, 2020)
Charles Sartain, What’s New in the War Over the Environment (Feb. 19, 2020)
John McFarland, Boomtown! (Feb. 17, 2020)
AGENCY PRESS RELEASES—STATE/FEDERAL
U.S. Department of Energy
Department of Energy Announces $38.5 Million to Develop Technology to Rehabilitate Natural Gas Distribution Pipelines (Feb. 18, 2020)
U.S. Environmental Protection Agency
EPA and DOJ Settlement Upholds Integrity of Clean Air Act (Feb. 18, 2020)
EPA Continues to Act on PFAS, Proposes to Close Import Loophole and Protect American Consumers (Feb. 20, 2020)
The House will reconvene on Monday, March 16, 2020 at 1:00PM
The Senate will reconvene on Monday, March 16, 2020 at 1:00PM unless sooner recalled by the Pres. Pro Temp.
Federal Executive Agencies—Actions and Notices:
Federal Energy Regulatory Commission
85 FR 9469 “Iroquois Gas Transmission System, L.P.; Notice of Application” Notice (February 19, 2020)
85 FR 9468 “PennEast Pipeline Company, LLC; Notice of Application” Notice (February 19, 2020)
85 FR 10428 “Betelgeuse Energy, LLC v. Paso Natural Gas Company, LLC; Notice of Complaint” Notice (February 24, 2020)
Foreign-Trade Zones Board
85 FR 9734 “Foreign-Trade Zone (FTZ) 122-Corpus Christi, Texas, Authorization of Production Activity, Cheniere Energy, Inc. (Liquefied Natural Gas Processing), Portland, Texas” Notice (February 20, 2020)
85 FR 10548 “Deepwater Horizon Oil Spill Final Restoration Plan #1.3 and Environmental Assessment: Rabbit Island Restoration and Shoreline Protection at Jean Lafitte Historical National Park and Preserve and Finding of No Significant Impact; Louisiana Trustee Implementation Group” Notice (February 24, 2020)
Land Management Bureau
85 FR 10187 “Notice of Availability of the Final Environmental Impact Statement for the Moneta Divide Natural Gas and Oil Development Project and Proposed Casper Resource Management Plan Amendment, WY” Notice (February 21, 2020)
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
“Study Funded in Part by PA DEP Finds No Evidence Fracking Waste Harming Pennsylvania Streams,” Pennsylvania Business Report
“Lamb: Western Pennsylvanians Feel ‘Betrayed’ by Fracking Ban Legislation,” Pittsburgh Post-Gazette
“Ohio Anti-Protest Bill Could Criminalize Support for Pipeline Demonstrations,” Energy News Network
“Mountain Valley Pipeline Expansion Clears Hurdle,” API SmartBrief
“Is Natural Gas Really Helping the US Cut Emissions?,” InsideClimate News
“Students Push Universities to Stop Investing in Fossil Fuels,” Associated Press
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