Tuesday, June 16, 2020

Shale Law Weekly Review - June 16, 2020

Written by:
Sara Jenkins – Research Assistant 
Jackie Schweichler – Staff Attorney
Kaela Gray – Research Assistant

The following information is an update of recent local, state, national and international legal developments relevant to shale gas.

Pipelines: Court of Appeals Reverses Lower Court Decision on Enbridge Line 5 Pipeline
On June 5, 2020, the U.S. Court of Appeals for the Sixth Circuit reversed a district court decision that determined the Pipeline and Hazardous Materials Safety Administration (PHMSA) had acted improperly in approving the emergency response plans for the Enbridge Line 5 Pipeline.  The district court had held PHMSA was required to comply with the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA) before it could approve emergency response plans for pipelines. (Nat’l Wildlife Fed’n v. Sec’y of the U.S. Dep’t of Transp., Nos. 19-1609/1610).  The Court of Appeals explained that requirements in the ESA and NEPA only applied to “discretionary” agency actions.  The court held that PHMSA’s action of approving the response plan was not “discretionary” because of the plain language use of the word “shall” in the CWA.  The court further explained that the word “shall” indicated it was mandatory for PHMSA to approve the response plans if they met the criteria required by the CWA.

National Energy Policy: President Signs Executive Order to Accelerate Energy Infrastructure Projects 
On June 4, 2020, President Trump issued an Executive Order to accelerate energy infrastructure projects around the country.  The Order is titled, EO on Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities.  The purpose of the Order, as stated in section one, is to support economic recovery and national security during the COVID-19 pandemic.  The Order includes policies for expediting delivery of transportation infrastructure, expediting Army Corps of Engineers’ projects, applying emergency procedures for the National Environmental Policy Act, and establishing emergency regulations for the Endangered Species Act and the Clean Water Act.  General provisions in the Order state that the Order “shall be implemented consistent with applicable law and subject to the availability of appropriations.”  

National Energy Policy: FERC Issues Final Rule Amending Rehearing Requirements for Natural Gas Projects
On June 9, 2020, the Federal Energy Regulatory Commission (FERC) issued a Final Rule amending the rehearing requirements for natural gas projects approved under the Natural Gas Act.  The Rule prevents construction on approved natural gas projects from commencing until after FERC has acted on a request for rehearing or the time to file a request for rehearing has passed.  The Rule gives FERC 30 days to act on a request for rehearing or to issue an order extending the consideration period for more complex issues.  In a press release, FERC Chairman Neil Chatterjee stated that the Rule was an “important step forward” in addressing ways to “improve affected landowners’ access to a fair and transparent process.”  The Rule will take effect 30 days after the publication date in the Federal Register. 

Wastewater Treatment/Disposal: Oklahoma Governor Signs Bill on Wastewater Recycling and Reuse 
On May 19, 2020, Oklahoma Governor Kevin Stitt approved SB 1875 regarding ownership and responsibility of wastewater from oil and gas production.  The bill clarifies that ownership of wastewater used in oil and gas drilling operations lies with both the well “operator” and “nonoperator.”  A nonoperator is a person who contributes to drilling expenses.  The bill states that the operator and nonoperator of a well are responsible for handling, transfer, and disposal of the wastewater.  The bill also includes a section on liability for recycled wastewater use and transfer.  In a press release issued by the Oklahoma Senate, the purpose of the bill was stated as being to encourage entrepreneurs to “innovate and invest in technology” to process wastewater and reduce wastewater injection.  

From the National Oil & Gas Law Experts:
Andrew B. Derman, Andrew Melsheimer, and TJ Auner, Arbitration: Keep It Efficient and Cost Effective (June 9, 2020)

John McFarland, Texas Supreme Court Acts on Two Significant Oil and Gas Cases (June 5, 2020)

Tiffany Challe, Ninth Circuit Ruled for California Cities and Counties on Questions of Whether Climate Lawsuits Against Energy Companies Belonged in State or Federal Court (June 8, 2020)


Pennsylvania Department of Energy Press Releases:
No new releases June 8–June 15, 2020. 

U.S. Department of Energy
DOE Announces $11 Billion in Energy Cost-Savings from Better Buildings Initiative Partners (June 9, 2020).

U.S. Environmental Protection Agency
No new releases June 8–June 15, 2020.


Pennsylvania Executive Agencies—Actions and Notices: 
Permit Requested by Appalachia Midstream Services, LLC (E6629-031) To construct, operate and maintain the Hunter Well Line Project, which consists of one 12-inch diameter natural gas pipeline for the purpose of installing a natural gas well line and associated access roadways for Marcellus shale development (June 13, 2020). 

Pennsylvania Legislature:
HB2025 “An Act authorizing the Department of Environmental Protection to conduct a public comment process on and submit to the General Assembly a measure or action intended to abate, control or limit carbon dioxide emissions by imposing a revenue-generating tax or fee on carbon dioxide emissions” Re-committed to Rules (June 9, 2020).


Federal Executive Agencies—Actions and Notices: 

Energy Department
85 FR 7672 “Extending Natural Gas Export Authorizations to Non-Free Trade Agreement Countries Through the Year 2050” Proposed Rule—Comment Period (February 11, 2020).  

Federal Energy Regulatory Commission
85 FR 35650 “Impacts of COVID-19 on the Energy Industry; Technical Conference” Notice of Meeting (June 11, 2020). 

Pipeline and Hazardous Material Safety Administration
85 FR 35240 “Pipeline Safety: Gas Pipeline Regulatory Reform” Proposed Rule (June 9, 2020).

Presidential Documents
85 FR 35165 “Infrastructure Investments and Other Activities; Economic Recovery From COVID-19 Emergency, Efforts To Expedite (EO 13927)” Executive Order (June 9, 2020).

85 FR 35797 “National Defense Authorization Act for Fiscal Year 2020 and Eastern Mediterranean Security and Energy Partnership Act of 2019; Delegation of Authorities (Memorandum of April 14, 2020)” Administrative Order (June 12, 2020). 

House Energy and Commerce Committee Actions:
No significant actions June 8- 15, 2020.

Senate Energy and Natural Resources Committee Actions: 
S.886 “Indian Water Rights Settlement Extension Act” Message on Senate action sent to the House (June 11, 2020).

EC4758 “Executive Communication from the Secretary of Energy, transmitting, pursuant to law, a legislative proposal entitled "Amend Section 4601(c) of the Atomic Energy Defense Act"; to the Committee on Energy and Natural Resources” Referred to Committee (June 9, 2020).

S.3906 “A bill to amend the Gulf of Mexico Energy Security Act of 2006 to eliminate the cap on qualified outer Continental Shelf revenues that may be received by Gulf producing States under that Act, and for other purposes” Read twice and referred to the Committee on Energy and Natural Resources (June 8, 2020). 

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
EPA Faces Lawsuit Alleging Failure to Update Flaring Requirements,” The Hill
“How George Floyd Protests Swayed a Texas Fracking Town,” EE News
“U.S. FERC Landowner Protection Rule Likely to Delay Natgas Project,” Reuters
“Enbridge Wins Court Approval for Oil Pipelines,” AP News
“Colo. Group Won't Pursue Anti-fracking Ballot Initiative,” Reuters 
“New FERC Rule Protects Landowners in Pipeline Disputes,” The Hill
“Trump’s Emergency Executive Order May Help Pipelines,” Shale Gas Reporter

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