Tuesday, July 7, 2020

Shale Law Weekly Review - July 7, 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: Michigan Court Allows Partial Restart of Enbridge Line 5 Pipeline After Temporary Restraining Order Issued
On July 1, 2020, the Michigan Circuit Court for Ingham County amended a Temporary Restraining Order (TRO) that had halted operations of both East and West lines of the Enbridge Line 5 pipeline. (Nessel v. Enbridge Energy, LP, No. 19-474-CE).  A TRO was issued on June 25, 2020, after damage to the East line was found.  However, the Amended TRO allows the West line of the pipeline to restart operations and allows for an “in-line investigation” of the West line.  The Amended TRO states that the East line would remain shut down until the Pipeline and Hazardous Materials Safety Administration completed an investigation into the damage of the East line.  Michigan’s Attorney General, Dana Nessel, issued a press release following the ruling stating, “[t]oday’s Court decision allows the State to receive the vital information surrounding this incident that we need to complete an informed analysis of the damage and evaluate the threat this pipeline poses to our environment if left to operate in its current state.”

Pipelines: Court of Appeals Rules FERC Cannot Use Tolling Orders to Eliminate Judicial Review of Pipeline Certificate Decisions
On June 30, 2020, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the Federal Energy Regulatory Commission (FERC) could not use tolling orders to eliminate judicial review of pipeline certificate decisions. (Allegheny Defense Project v. FERC, No. 17-1098). FERC is required by the Natural Gas Act to issue or deny a certificate of “public convenience and necessity” for proposed pipelines.  If FERC issues the certificate, and an affected landowner wishes to challenge the issuance, they must file a request for rehearing with FERC before seeking judicial review. (p. 4).  In this case, FERC issued a “tolling order” that granted a request for review to further consider the certificate for an indefinite amount of time.  The Court of Appeals ultimately ruled that FERC’s tolling orders are not considered a statutorily allowed response to a request for rehearing.  Under the statute, if FERC does not act on a rehearing request within 30 days, the request is considered denied, and judicial review is then allowed. 

Pipelines: Supreme Court Invites Solicitor General to File Brief in Pending PennEast Pipeline Case 
On June 29, 2020, the U.S Supreme Court invited the U.S. Solicitor General to file a brief in the pending PennEast Pipeline case. (PennEast Pipeline Company, LLC v. New Jersey, No. 19-1039).  PennEast filed a Petition for Writ of Certiorari on February 18, 2020, seeking to overturn a Third Circuit Court of Appeals decision that eminent domain could not be exercised on property in which a state has an interest. (p. 2).  The Supreme Court invited the Solicitor General to file a brief on the case to express the views of the United States in the matter.  The Supreme Court has not yet granted or denied the Petition for Writ of Certiorari. 

Community Impacts: Pennsylvania Attorney General Releases Grand Jury Report on Impacts of Hydraulic Fracturing
On June 25, 2020, the Pennsylvania Office of Attorney General released a Grand Jury report on the impacts of hydraulic fracturing (“fracking”) in the state.  The report concluded that state government officials failed to protect public health and safety through poor oversight of the fracking industry.  The report included eight recommendations to address problems found during the investigation.  The recommendations include expanding minimum “set-backs” from 500 feet to 2500 feet and regulating gathering lines.  The report also suggested that trucks carrying wastewater should be labeled to more accurately reflect the toxicity of wastewater, rather than use the label “residual waste.”  The Pennsylvania Department of Environmental Protection issued a lengthy response to the report stating that the report was inaccurate, outdated, and incomplete.  The Pennsylvania Department of Health also filed a response stating that the report contained “factual errors” and “erroneous conclusions.”

Water Quality: Pennsylvania Attorney General Files Criminal Complaint Against Cabot Oil and Gas 
On June 15, 2020, the Pennsylvania Office of Attorney General filed a Criminal Complaint against Cabot Oil and Gas Corporation.  The Complaint lists 15 different charges including eight third degree felonies and seven second degree misdemeanors.  The charges detail various environmental statutes that were allegedly violated through prohibited discharge of industrial waste, prohibition against other pollutants, and unlawful conduct by failing to comply with the Clean Streams Law. (See 35 P.S. § 691.611).  According to the Complaint, the alleged violations took place between March 27, 2008, through January 9, 2020, and involved the discharge of methane into groundwater in Dimock, Auburn, and Hartford Townships.  The Complaint includes an Affidavit of Probable Cause requesting that a Summons be issued for Cabot Oil and Gas Corp. 

Community Impacts: Range Resources Pleads No Contest to Negligent Oversight of Wells in PA
On June 12, 2020, Pennsylvania Attorney General, Josh Shapiro, announced that Range Resources Corporation pleaded “no contest” for negligent oversight of well sites in Washington County.  According to its website, Range Resources is an unconventional gas drilling company that targets shale, coal bed methane, and tight gas sand reservoirs. The Attorney General’s announcement explained that Range Resources was criminally charged after a two-year Grand Jury investigation into environmental crimes at the Brownlee and Yeager well sites.  During the Yeager site investigation, the Grand Jury found that Range Resources was aware of problems with their wastewater storage pond and reserve pit.  The Brownlee site investigation concluded that a wastewater storage tank had leaked into a nearby tributary of Buffalo Creek.  Range Resources will pay $150,000 in fines to various environmental groups as part of their plea.  

From the National Oil & Gas Law Experts: 
Charles Sartain, Texas Court Opines on Climate Lawsuits (July 2, 2020). 
Michael Joyce, Euan Strachan, An Emerging Economy (July 2020).
Michael Joyce, Australian Brown Coal to Green Hydrogen (July 1, 2020).
John McFarland, Switch On – a New Documentary about Energy From Dr. Scott Tinker and the Switch Energy Alliance (June 30, 2020).
Jennifer Danis, Allegheny Defense Project V. Federal Energy Regulatory Commission: Schrödinger’s Cat Scratches Back (July 1, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Energy Press Releases:
Statement from Wolf Administration on Grand Jury Report on Unconventional Gas Operations in Pennsylvania DEP’s Response To The Grand Jury Report (June 25, 2020).
DEP Releases Draft Report on Statewide Water Quality (July 2, 2020).

U.S. Department of Energy
DOE Report Spotlights Appalachia’s Economic Progress and Opportunities for Growth (June 30, 2020). 

U.S. Environmental Protection Agency
No relevant updates June 29 - July 6

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices: 
No relevant actions June 29 - July 6

Pennsylvania Legislature:
HB 2045 “An Act authorizing the Department of Conservation and Natural Resources, with the approval of the Governor, to grant and convey to Ohiopyle Borough, Fayette County, certain lands situate in Ohiopyle Borough, Fayette County, in exchange for Ohiopyle Borough granting and conveying certain lands to the Commonwealth of Pennsylvania to be added to those existing lands at Ohiopyle State Park.” Signed in Senate (June 30, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies—Actions and Notices: 
Federal Energy Regulatory Commission 
85 FR 39854 “Five-Year Review of the Oil Pipeline Index” Proposed Rule (July 2, 2020).  

Land Management Bureau
85 FR 38921 “Agency Information Collection Activities; Proposals, Submissions, and Approvals: Oil and Gas Leasing: National Petroleum Reserve—Alaska” Notice (June 29, 2020).

Ocean Energy Management Bureau
85 FR 39580 “Operations in the Outer Continental Shelf for Minerals Other than Oil, Gas and Sulfur” Agency Information Collection Activities; Proposals, Submissions, and Approvals- Notice (July 1, 2020). 

House Energy and Commerce Committee Actions:
H.R.7435 “To reduce methane emissions from flaring and venting natural gas during oil and natural gas production activities, and for other purposes.” Referred to the Committee on Energy and Commerce, and in addition to the Committee on Science, Space, and Technology (June 20, 2020).

H.R.7429 “To establish a more uniform, transparent, and modern process to authorize the construction, connection, operation, and maintenance of international border-crossing facilities for the import and export of oil and natural gas and the transmission of electricity.” Referred to the Subcommittee on Railroads, Pipelines, and Hazardous Materials (July 1, 2020).

H.R.7404 “To repeal restrictions on the export and import of natural gas.” Referred to the House Committee on Energy and Commerce (June 29, 2020). 

H.R.7401 “To provide for Federal and State agency coordination in the approval of certain authorizations under the Natural Gas Act, and for other purposes.” Referred to the House Committee on Energy and Commerce (June 29, 2020).

H.R.7400 “To prohibit a moratorium on the use of hydraulic fracturing.” Referred to the Committee on Natural Resources, and in addition to the Committee on Energy and Commerce (June 29, 2020). 

Senate Energy and Natural Resources Committee Actions:
S.4147 “A bill to establish the Financing Energy Efficient Manufacturing Program at the Department of Energy to provide financial assistance to promote energy efficiency and onsite renewable technologies in manufacturing facilities, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources (July 1, 2020).

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
“Fracking Fight Continues In Colo.,” Reuters
“Europe Pushed To Finance Natural Gas, Nuclear As Part Of Green Deal,” Axios
“Permian Dealmaking Activity Grinds To A Near Halt,” Houston Chronicle
“Texas May Allow Oil Wastewater Discharge Into Waterways,” Houston Chronicle
“Natural Gas Now Flowing Through Centre Hall,” StateCollege.com
“Support Amplifies For Proposed State Methane Rule,” Pittsburgh Post-Gazette
“6 Things To Know About The Grand Jury's Report Into The Natural Gas Boom,” Pittsburgh Business Times

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