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.
Federal Lands: Ohio
District Court Rules that Wayne National Forest Leasing Decisions Failed to
Account for Impacts of Hydraulic Fracturing
On March 13, 2020, the U.S.
District Court for the Southern District of Ohio ruled that the decision to lease land for mineral
extraction in the Wayne National Forest (Forest) failed to account for the
impacts of hydraulic fracturing. (Center for Biological Diversity v. U.S.
Forest Service, No. 2:17-cv-372). In
October 2016, the Bureau of Land Management (BLM) issued an Environmental
Assessment with a Finding of No Significant Impact on lands proposed for
leasing in the Marietta Unit of the Forest. In May 2017, environmental groups, including
the Center for Biological Diversity, filed a complaint alleging the U.S. Forest Service’s (USFS)
approval of the BLM lease proposals violated the National Environmental Policy
Act by failing to prepare an Environmental Impact Statement before making the
leasing decisions. The court concluded
that both USFS and BLM failed to take a hard look at the impacts of hydraulic
fracturing in the Forest including: surface area disturbance, impacts on the
Indiana Bat and the Little Muskingum River, and impacts on air quality. The court will accept additional briefings
from each of the parties to determine the appropriate remedy.
GHG Emissions:
Massachusetts District Court Remands Climate Change Lawsuit Back to State Court
On March 17, 2020, the U.S.
District Court for the District of Massachusetts ordered that a lawsuit against
Exxon Mobil Corp. be remanded back to state court. (Commonwealth of
Massachusetts v. Exxon Mobil Corp., No. 19-12430-WGY). In their Complaint, the State of Massachusetts alleged that Exxon
violated the Massachusetts Consumer Protection Act by misrepresenting climate
change risks, making false and misleading statements to investors, failing to
disclose the climate change risk of using its products, and promoting false and
misleading greenwashing campaigns. Exxon
moved the case to federal district court, arguing that the case raised federal issues and that
climate change suits fall under federal common law. Massachusetts argued that the Complaint did not raise any federal
issues allowing federal court jurisdiction and that Exxon did not meet its
burden to establish federal jurisdiction. After hearing oral arguments on the matter of
jurisdiction, the District Court ultimately ordered the case to be remanded
back to state court.
Production and Operation:
Colorado District Court Dismisses Case Challenging “Forced Pooling” Law
On March 18, 2020, the U.S.
District Court for the District of Colorado dismissed a case challenging the “forced pooling”
provision of the Colorado Oil and Gas Conservation Act. (Wildgrass Oil and
Gas Comm. v. State of Colorado, No. 19-cv-00190-RBJ). Wildgrass Oil and Gas
Committee filed the Complaint, alleging that the statute is unconstitutional,
that Colorado Oil and Gas Conservation Commission is impairing non-consenting
mineral owners’ due process rights, and that the statute allows unlawful
trespass and violates the right to contract. The District Court found that Wildgrass failed
to state a due process claim, a contracts claim, or a First Amendment claim. The court dismissed the case concluding that a
federal court was not the appropriate forum to address issues of state law.
Infrastructure:
Minnesota Supreme Court Will Review Decision Involving Utility’s Proposed Natural
Gas Power Plant in Wisconsin
On March 17, 2020, the
Minnesota Supreme Court granted a petition for review of a decision involving
the Minnesota Public Utilities Commission’s approval of a proposed natural-gas
power plant in Wisconsin. (In the Matter of Minnesota Power's Petition for
Approval of the EnergyForward Resource Package, Nos. A19-0688, A19-0704). In the Court of Appeals Decision, the court reversed the Commission's approval
of Minnesota Power’s proposal to construct, operate, and purchase Nemadji Trail
Energy Center in Superior, Wisconsin. Environmental advocacy groups previously
petitioned the Commission to prepare an Environmental Assessment Worksheet
before approving Minnesota Power’s proposal. The Appellate Court’s reversal of the
Commission’s approval requires the Commission to determine whether the proposal
may have significant environmental impacts. The Minnesota Supreme Court
will review the Appellate Court’s decision.
LNG Infrastructure: FERC
Issues Draft Environmental Impact Statement for Jordan Cove LNG Project
On March 29, 2020, the
Federal Energy Regulatory Commission (FERC) issued a Draft
Environmental Impact Statement for the Jordan Cove LNG project (Project). FERC concluded that the Project would result in “temporary,
long-term, and permanent impacts on the environment,” but that those impacts
could be reduced to less-than-significant levels through mitigation measures. FERC also concluded that the Project is likely
to adversely affect some federally-listed species including: the marbled
murrelet, northern spotted owl, and coho salmon. The Project is proposed to consist of a liquified natural
gas terminal in Coos County, Oregon with a pipeline designed to transport
natural gas 229 miles from Malin, Oregon to the proposed terminal. FERC is accepting public comments on the Draft
Statement until July 5, 2020.
From the National Oil & Gas Law Experts:
Charles Sartain, Coronavirus and
the Energy Industry: Drilling Into Force Majeure Clauses (Mar. 16, 2020)
AGENCY PRESS
RELEASES—STATE/FEDERAL
Pennsylvania
Department of Energy Press Releases:
No new releases Mar.
16–23, 2020.
U.S.
Department of Energy
U.S.
Environmental Protection Agency
No new releases Mar.
16-22, 2020.
STATE
ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania
Executive Agencies—Actions and Notices:
No new actions Mar. 22, 2020.
Pennsylvania
Legislature:
No new actions Mar. 22, 2020
FEDERAL
ACTIONS—EXECUTIVE/LEGISLATIVE
Federal
Executive Agencies—Actions and Notices:
Energy Department
85 FR 15442 “Texas LNG Brownsville, LLC; Opinion and Order
Granting Long-Term Authorization to Export Liquefied Natural Gas to Non-Free
Trade Agreement Nations” Notice (Mar. 18, 2020)
85 FR 15442 “Eagle LNG Partners Jacksonville, LLC; Opinion
and Order Granting Long-Term Authorization to Export Liquefied Natural Gas to
Non-Free Trade Agreement Nations” Notice (Mar. 18, 2020)
85 FR 15443 “Annova LNG Common Infrastructure, LLC; Opinion
and Order Granting Long-Term Authorization to Export Liquefied Natural Gas to
Non-Free Trade Agreement Nations” Notice (Mar. 18, 2020)
85 FR 15443 “Rio Grande LNG, LLC; Opinion and Order
Granting Long-Term Authorization to Export Liquefied Natural Gas to Non-Free
Trade Agreement Nations” Notice (Mar. 18, 2020)
85 FR 15444 “Venture Global Plaquemines LNG, LLC; Opinion
and Order Granting Long-Term Authorization to Export Liquefied Natural Gas to
Non-Free Trade Agreement Nations” Notice (Mar. 18, 2020)
85 FR 15769 “Cameron LNG, LLC; Application for Blanket
Authorization to Export Liquefied Natural Gas to Non-Free Trade Agreement
Countries on a Short-Term Basis” Notice (Mar. 19, 2020)
Environmental Protection
Agency
85 FR 15729 “Amendments to Federal Implementation Plan for
Managing Air Emissions From True Minor Sources in Indian Country in the Oil and
Natural Gas Production and Natural Gas Processing Segments of the Oil and
Natural Gas Sector” Rule (Mar. 19, 2020)
Federal Energy
Regulatory Commission
85 FR 15160 “Apex Oil Company, Inc. FutureFuel Chemical
Company v. Colonial Pipeline Company; Notice of Complaint” Notice (Mar.
17, 2020)
85 FR 15160 “Explorer Pipeline Company; Notice of Petition
for Declaratory Order” Notice (Mar. 17, 2020)
85 FR 15165 “Texas Eastern Transmission, LP; Notice of
Schedule for Environmental Review of the Lilly Compressor Units Replacement
Project” Notice (Mar. 17, 2020)
85 FR 15446 “Magnum Gas Storage, LLC; Notice of Motion to
Partially Vacate Certificate Authorization or in the Alternative, Motion to
Amend Certificate Authorization” Notice (Mar. 18, 2020)
85 FR 15772 “Columbia Gas Transmission, LLC; Notice of
Request Under Blanket Authorization” Notice (Mar. 19, 2020)
85 FR 15774 “Enable Gas Transmission, LLC, Enable Gulf Run
Transmission, LLC; Notice of Application” Notice (Mar. 19, 2020)
Foreign-Trade Zones
Board
85 FR 16054 “Foreign-Trade Zone (FTZ) 116-Port Arthur,
Texas, Notification of Proposed Production Activity, Port Arthur LNG, LLC
(Liquefied Natural Gas Processing), Port Arthur, Texas” Notice (Mar. 20,
2020)
Justice Department
85 FR 15815 “Notice of Lodging of Proposed Consent Decree
Under the Clean Water Act, the Oil Pollution Act of 1990, and the Pipeline
Safety Laws” Notice (Mar. 19, 2020)
House
Energy and Commerce Committee Actions:
No new actions Mar.
16-23, 2020.
Senate
Energy and Natural Resources Committee Actions:
No new actions Mar.
16-23, 2020.
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