Shale Law Weekly Review - June 23, 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.

Public Lands: Secretary of Agriculture Directs Forest Service to Expedite Environmental Reviews 

On June 12, 2020, U.S. Secretary of Agriculture, Sonny Perdue, issued a Memorandum directing the Forest Service to expedite environmental reviews on lands in the National Forest System.  The purpose of the Memo, as stated by Perdue, is to provide relief from regulations that are overburdensome, improve customer service, and increase the productivity of the National Forests.  More specifically, the Memo directed the Forest Service to set time and page limits to environmental-related documents, streamline environmental review analyses and consultation processes, and expedite compliance with State Historic Preservation Offices.  The Memo also included directives for reducing reliance on foreign minerals and protecting rural communities.  The Forest System must implement the new directives while remaining compliant with the National Environmental Policy Act and other environmental regulations.

Infrastructure: Louisiana Governor Vetoes Bill Amending Unauthorized Entry of Critical Infrastructure
On June 12, 2020, Louisiana Governor, John Bel Edwards, vetoed a bill amending definitions and penalties for the unauthorized entry into a critical infrastructure.  The bill, HB 197, sought to add water control structures, floodgates, and pump stations to the definition of critical infrastructure.  The bill also added a section imposing a minimum prison sentence of three years for those guilty of unauthorized entry of a critical infrastructure during a state of emergency.  In addition to the prison sentence, guilty parties could have faced a possible fine of up to five thousand dollars.  Governor Edwards provided two main reasons for issuing the veto.  First, Edwards pointed to concerns that the term “state of emergency” could be all-encompassing considering that Louisiana is “currently under eleven different states of emergency,” thus making the three-year penalty the default penalty.  Second, Edwards raised concerns that the definition for “water control structure” was too broad and could potentially “criminalize conduct that does not endanger the water control structures.”  Edwards stated that he believed amendments could be made that protect critical infrastructure without having “unintended consequences.” 

Pipelines/Federal Lands: U.S. Supreme Court Rules Forest Service Has Authority to Issue Pipeline Permit Across Appalachian Trail 
On June 15, 2020, the U.S. Supreme Court issued an Opinion holding that the U.S. Forest Service had authority to issue a special use permit for pipeline construction under the Appalachian Trail (Trail). (U.S Forest Service v. Cowpasture River Preservation Ass’n, No. 18–1584).  Atlantic Coast Pipeline, LLC (Atlantic) initially planned to construct a 604-mile natural gas pipeline from West Virginia to North Carolina, part of which would cross through the George Washington National Forest.  Atlantic applied for a special use permit from the Forest Service for a 0.1-mile pipeline right-of-way that would traverse the Trail in the National Forest.  After the Forest Service issued the permit for Atlantic’s pipeline right-of-way, Cowpasture River Preservation Association filed a petition to review the permit issuance in the Fourth Circuit Court of Appeals.  The Court of Appeals held that the Forest Service did not have authority under the Mineral Leasing Act to grant the right-of-way because the Trail was part of the National Park System, where pipeline rights-of-way are prohibited.  The Supreme Court’s ruling reversed the Court of Appeals decision.  The Supreme Court held that “the Department of the Interior’s decision to assign responsibility over the Appalachian Trail to the National Park Service did not transform the land over which the Trail passes into land within the National Park System.”  Therefore, pipeline rights-of-way across the Trail were not prohibited and the Forest Service had the authority to issue the permit to Atlantic. 

Oil and Gas Leasing: Court of Appeals Upholds Oil and Gas Lease Cancellation on Tribal Lands 

On June 16, 2020, the U.S. Court of Appeals for the District of Columbia Circuit upheld an oil and gas lease cancellation on tribal lands within Montana. (Solenex LLC v. Bernhardt, No. 18-5343).  Solenex LLC filed suit after the Secretary of the Interior cancelled Solenex’s oil and gas lease over the Badger-Two Medicine Area of Montana.  The Secretary cancelled the lease due to the significance of the area to the Blackfeet Tribe and for the Interior’s failure to follow pre-leasing procedures required under the National Environmental Policy Act and National Historic Preservation Act.  The lower court initially ruled in favor of Solenex, holding that the delay between lease issuance and cancellation violated the Administrative Procedure Act (APA).  The lower court also ruled that the Secretary did not consider Solenex’s reliance interests before the lease cancellation.  However, the Court of Appeals vacated the lower court’s ruling, holding that a delay between lease issuance and cancellation was not enough to meet the APA’s arbitrary and capricious standard.  The Court of Appeals also held that the Secretary considered and compensated Solenex for their reliance interests in the lease. 

From the National Oil & Gas Law Experts:

Charles Sartain, Mineral Reservations and “Terminological Inexactitude” (June 18, 2020).

Charles Sartain, Texas Supreme Court to Consider Continuous Development Clause (June 16, 2020). 

John McFarland, Fifth Circuit Upholds Takings Claim Against Groundwater District (June 15, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Energy Press Releases:

No new releases June 15–22, 2020.

U.S. Department of Energy

DOE Invests $20 Million in Workforce Development in Emerging Fields at University of Tennessee (June 18, 2020).

Department of Energy Invests $65 Million at National Laboratories and American Universities to Advance Nuclear Technology (June 18, 2020).

DOE Invests $17 Million to Advance Carbon Utilization Projects (June 16, 2020). 

U.S. Environmental Protection Agency

No new releases June 15–22, 2020.

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices: 

No relevant actions June 20, 2020. 

Pennsylvania Legislature:

No relevant actions June 15-22, 2020. 

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies—Actions and Notices: 

Environmental Protection Agency

85 FR 36368 “National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Deletion of the Fairfax St. Wood Treaters Superfund Site” Proposed Rule (June 16, 2020).

85 FR 36748 “Air Quality State Implementation Plans; Approvals and Promulgations: New Jersey; Gasoline Vapor Recovery Requirements” Rule (June 18, 2020).

Federal Energy Regulatory Commission 

85 FR 36321 “Commission Action to Address Effects of COVID-19 on Oil Pipelines” Rule (June 16, 2020). 

House Energy and Commerce Committee Actions:

H.R.7237 “To direct the Secretary of Energy to establish an Office of Advanced Clean Energy Technologies and manage a network of Regional Energy Innovation and Development Institutes to advance regional decarbonization strategies.” Referred to the Committee on Energy and Commerce, and in addition to the Committee on Science, Space, and Technology (June 18, 2020).

Senate Energy and Natural Resources Committee Actions: 

No new actions June 15–22, 2020.

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
“Pa. Driller Pleads No Contest to Environmental Crimes,” EE News

“Groups Appeal Decision to Ok Trump's Fracking Rule Rollback,” EE News

“Trump’s New Clean Water Act Rules Could Affect Embattled Natural Gas Projects on Both Coasts,” Inside Climate News

“Shale Crescent Region Produces More Natural Gas Than Texas,” The Center Square

“Banks Cut Shale Drillers’ Lifelines as Losses Mount,” The Wall Street Journal

“Driller Charged Over Contamination In ‘Gasland’ Town,” The Associated Press

“FERC Rule To Address Landowner Complaints Draws Fire,” EE News

“Special Report: Millions of Abandoned Oil Wells Are Leaking Methane, A Climate Menace,” Reuters

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