Tuesday, April 21, 2020

Shale Law Weekly Review - April 21, 2020

Written by:
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.
LNG Infrastructure: Texas Environmental Commission Grants Air Permit for Annova LNG Facility
On April 8, 2020, the Texas Commission on Environmental Quality granted an air quality permit for Annova’s liquified natural gas (LNG) common infrastructure facility.  The Commission approved the permit during an online meeting (item called 1:09:13).  The Commission received nine requests for hearing on the matter.  Two of the requests failed to submit timely comments and were thus denied on statutory procedural grounds.  The Commission stated that the remaining seven requesters lived too far from the proposed site for the air quality to affect them differently than the general public.  Therefore, the other seven requests were denied.  The Commission also concluded that all of the notice requirements for the matter had been met.  According to item five for the meeting’s new business agenda, the facility will be located on the Brownsville ship channel and will treat and store LNG for marine transfer facilities. 

Pipelines: Nebraska Supreme Court Orders New Hearing on Attorney’s Fees for Keystone XL Pipeline Case 
On April 10, 2020, the Nebraska Supreme Court ordered a new hearing on attorney’s fees for several Keystone XL Pipeline Condemnation cases. (TransCanada Keystone Pipeline, LP v. Tanderup, Nos. S-19-493 through S-19-508, 305 Neb. 493).  TransCananda, owner of the Keystone XL pipeline, dismissed its condemnation proceedings in favor of pursuing approval for construction of the pipeline through the Nebraska Public Service Commission. (pg. 4).  Landowners involved in the condemnation proceedings requested that TransCanada pay their attorney’s fees for the proceedings.  Antelope County Court denied Landowners’ Motion for Attorney's fees. (pg. 9).  However, on appeal, the district court reversed the county court’s decision and remanded the issue back to county court for an evidentiary hearing. (pg. 9).  TransCanada appealed the district court’s findings that the county court denial was “plain error,” and that an evidentiary hearing was required. (pg. 9).  The Nebraska Supreme Court ultimately held that the district court decision of plain error was correct and that the matter should be remanded for an evidentiary hearing. (pg. 20).  The court explained that the landowners’ affidavits in support of their motion were ruled inadmissible, thus, there was no evidence to support the county court’s denial of the Motion for Attorney’s fees. (pg 10). 

Pipelines: Federal District Court Vacates Discharge Permit for Keystone XL Pipeline
On April 15, 2020, the District Court for the District of Montana Great Falls Division vacated Nationwide Permit 12 (NWP 12) for the Keystone XL Pipeline. (Northern Plains Resource Council v. U.S. Army Corps of Engineers, No. CV-19-44-GF-BMM).  The NWP 12 was reissued by the U.S. Army Corps of Engineers (Corps) in 2017 for the discharge of “dredged or fill material into jurisdictional waters” during pipeline construction. (pg. 3).  When reissuing the permit, the Corps determined it would not need to consult with the U.S. Fish and Wildlife Service (FWS) because the permit “would not affect listed species or critical habitat.” (pg. 5-6). The court determined that the Corps decision was arbitrary and capricious because they failed to consider relevant expert analysis needed for compliance with the Endangered Species Act. (pg. 21). Therefore, the court vacated the NWP 12 and remanded to the Corps to complete consultation with FWS. (pg. 21).  The court also enjoined the Corps from “authorizing any
dredge or fill activities under NWP 12.” (pg. 21).  The court denied other claims from the plaintiffs that the Corps also violated the National Environmental Policy Act and the Clean Water Act, pending further action by the Corps. (pg. 22). 

Pipelines: Federal Court Rejects ‘Failure to Act’ Claim Regarding PHMSA’s Pipeline Inspection Requirements 
On April 15, 2020, the District Court for the District of Montana rejected a “failure to act” claim regarding the Pipeline Hazardous Material Safety Administration’s (PHMSA) pipeline inspection requirements. (WildEarth Guardians v. Chao, No. CV-18-110-GF-BMM).  WildEarth Guardians alleged that PHMSA had not complied with the Mineral Leasing Act (MLA), which requires inspections of pipelines on federal lands at least once per year. (pg. 1).  PHMSA argued that its various safety regulations that it issues for certain types of pipelines comply with the MLA requirements. (pg. 7).  WildEarth Guardians brought suit under the “failure to act” claim provided under the Administrative Procedure Act (APA).  However, the court explained that a “failure to act” claim was inappropriate for this case, because PHMSA has taken some steps to address the requirements to inspect all pipelines. (pg. 20).  The court suggested that a claim under the APA to state that PHMSA’s action was “not in accordance with law” would be more appropriate for this situation. (pg. 20).  The court concluded that determining whether and how PHIMSA’s regulations comply with the MLA cannot be addressed by the “failure to act” claim. (pg. 27). 
From the National Oil & Gas Law Experts:
George A. Bibikos, At the Well Weekly (Apr. 13, 2020)
Charles Sartain, Lessons from an Override Assignment (Apr. 17, 2020)
John McFarland, To Prorate or Not to Prorate? (Apr. 15, 2020)

AGENCY PRESS RELEASES—STATE/FEDERAL
Pennsylvania Department of Energy Press Releases:

U.S. Department of Energy

U.S. Environmental Protection Agency

STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies—Actions and Notices: 
No actions Apr. 19, 2020. 

Pennsylvania Legislature:
No actions Apr. 13 - 20, 2020.

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies—Actions and Notices: 
Energy Department
85 FR 20993 “Cameron LNG, LLC; Request for Extension of Commencement Deadline for Non-Free Trade Agreement Authorization” Notice (Apr. 15, 2020)

Environmental Protection Agency
85 FR 20621 “Wyoming Underground Injection Control Program; Class VI Primacy” Proposed Rule (Apr. 14, 2020)
85 FR 20909 “Request for Comments on Michigan Underground Injection Control Class II Program Application” Proposed Rule (Apr. 15, 2020)

Federal Energy Regulatory Commission 
85 FR 20681 “Trans-Foreland Pipeline Commission, LLC; Notice Suspending Environmental Review Schedule” Notice (Apr. 14, 2020)
85 FR 21420 “Standard Applied to Complaints Against Oil Pipeline Index Rate Changes” Notice (Apr. 17, 2020)
85 FR 21424 “Sunoco Pipeline, L.P.; Notice of Petition for Declaratory Order” Notice (Apr. 17, 2020)
85 FR 21843 “Transcontinental Gas Pipe Line Company, LLC; Notice of Revised Schedule for Environmental Review of a Proposed Amendment of the Northeast Supply Enhancement Project” Notice (Apr. 20, 2020)

Land Management Bureau
85 FR 21453 “Notice of Availability of the Wyoming Pipeline Corridor Initiative Draft Environmental Impact Statement and Resource Management Plan Amendments for 9 BLM-Wyoming Resource Management Plans” Notice (Apr. 17, 2020)

National Oceanic and Atmospheric Administration
85 FR 21834 “Federal Consistency Appeal by Jordan Cove Energy Project, LP and Pacific Connector Gas Pipeline, LP” Notice (Apr. 20, 2020)

Ocean Energy Management Bureau
85 FR 21455 “Notice on Outer Continental Shelf Oil and Gas Lease Sales; MMAA104000” Notice (Apr. 17, 2020)

House Energy and Commerce Committee Actions:
No new actions Apr. 13–20, 2020

Senate Energy and Natural Resources Committee Actions: 
No new actions Apr. 13–20, 2020.
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“Confusion Prevails as Mariner East Pipeline Gets Construction Waivers by Mistake,” The Philadelphia Inquirer
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