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.
National Energy Policy:
EPA Issues Final Rule Revising Permit Appeal Process
On July 22, 2020, the
U.S. Environmental Protection Agency (EPA) issued a final rule that revises the agency’s permit appeal
process. (40 CFR Parts 1, 49, 71, and 124). The final rule affects permits issued by the
EPA under the Clean Air Act, Clean Water Act, Safe Drinking Water Act, and the
Resources Conservation and Recovery Act. (rule summary). The final rule amends the Environmental
Appeals Board’s (EAB) scope for review of decisions limiting review to
“findings of fact and conclusions of law that are clearly erroneous.” The rule also establishes time and page limits
for filing amicus briefs and sets term limits for EAB judges to twelve years. Additionally, the rule gives
EAB 60 days to issue a final decision on appeals that have been fully briefed
and argued. EPA Administrator
Andrew Wheeler said in a press release that the rule changes would streamline the EAB
appeals process and “lead to better certainty and a fairer process for both
those applying for EPA permits and for the public.” The rule will become effective 30 days after
it is published in the Federal Register.
Municipal Regulation:
Massachusetts Attorney General Disapproves Local Bylaw Banning Fossil Fuel
Infrastructure in New Construction
On July 21, 2020,
Massachusetts Office of the Attorney General disapproved a local bylaw that banned fossil fuel
infrastructure in new construction. Brookline’s
bylaw proposal defined fossil fuel infrastructure as “fuel gas
or fuel oil piping” connected to new buildings or buildings being significantly
renovated. (see Article 21, p. 22, Warrant). Brookline passed the bylaw in a local town meeting on November
20, 2019. However, the Attorney General’s
Office disapproved of the bylaw because it conflicted with several state
statutes. Specifically, the
bylaw is preempted by the State Building Code, Gas Code, statute G.L. c. 142,
§13, and statute G.L. c. 164 which gives other entities authority for
regulating construction. The Attorney
General’s office explained that the bylaw was in line with state policy goals
of reducing greenhouse gas emissions, but could not be approved because of
existing laws.
Public Lands: BLM Issues
Proposed Rule Amending 2016 Regulations for Oil and Gas Measurement and Site
Security
On July 29, 2020, the
U.S. Bureau of Land Management (BLM) issued a proposed rule that would amend regulations from 2016
regarding oil and gas measurement and site security. (43 CFR Part 3170). The three 2016 regulations subject to the
proposed rule are: “Onshore Oil and Gas Operations; Federal and Indian Oil and
Gas Leases; Site Security,” “Onshore Oil and Gas Operations; Federal and Indian
Oil and Gas Leases; Measurement of Oil,” and “Onshore Oil and Gas Operations;
Federal and Indian Oil and Gas Leases; Measurement of Gas.” (see 81 FR 81365,
81 FR 81462, and 81 FR 81516). BLM
explained that they chose to amend the 2016 regulations following a review
initiated by Executive Order 13783, “Promoting Energy Independence and Economic
Growth.” The proposed rule
reduces certain requirements for site security and production handling and adds
Production Management Team reviews for certain oil and gas measurement methods. BLM is accepting public
comments for the proposed rule until 60 days after the proposed rule is
published in the Federal Register.
LNG Exports/National
Energy Policy: Department of Energy Issues Final Policy Extending Natural Gas
Export Authorizations Through 2050
On July 29, 2020, the
U.S. Department of Energy (DOE) issued a Notice of Final Policy Statement for extending natural
gas export authorizations through 2050. (10 CFR Part 590). DOE’s new policy
applies to requests for exporting domestically produced liquefied natural gas
(LNG), compressed natural gas, and compressed gas liquid to non-free trade
agreement countries. The notice
changes DOE policy from authorizing standard 20-year terms to the new 2050
extension. In the final
policy statement, DOE described the implementation process for the 2050 term
extension and how applicants and current 20-year term holders can request the
extension. DOE also responded
to 22 public comments that it received in response to the proposed policy. The Policy Statement will
become effective on the date it is published in the Federal Register.
From the National Oil & Gas Law Experts:
George Bibikos, PA Superior
Court Says Lessee not Liable for Lease Broker’s Activities (July 28, 2020).
George Bibikos, Wash. Appellate
Court Upholds Conviction of Protester Over "Necessity" Defense (July 28, 2020).
Charles Sartain, Challenge to a
Tax Sale Comes Too Late (July 28, 2020).
John McFarland, Post-Production
Costs Podcast
(July 30, 2020).
Amy Turner, Municipal
Natural Gas Bans: Round 2 (The Evolution Of State Preemption Law) (July 28, 2020).
AGENCY PRESS
RELEASES—STATE/FEDERAL
Pennsylvania
Department of Energy Press Releases:
No relevant releases
July 27–August 3, 2020.
U.S.
Department of Energy
President Trump
announced the Department of Energy is issuing a final policy statement about
liquefied natural gas exports (July 29, 2020).
U.S.
Environmental Protection Agency
No relevant releases
July 27–August 3, 2020.
STATE
ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania
Executive Agencies—Actions and Notices:
50 Pa.B. 3845 “Unconventional Well Permit Application Fee
Amendments” Environmental Quality Board Final Form Rulemaking (August 1,
2020).
Pennsylvania
Legislature:
HB 2712 “An Act amending Title 58 (Oil and Gas) of the Pennsylvania
Consolidated Statutes, in development, further providing for hydraulic
fracturing chemical disclosure requirements” Referred to Environmental Resources
And Energy (July 30, 2020) [House]
FEDERAL
ACTIONS—EXECUTIVE/LEGISLATIVE
Federal
Executive Agencies—Actions and Notices:
Federal Energy
Regulatory Commission
85 FR 45869 “Transcontinental Gas Pipe Line Co., LLC;
Regional Energy Access Expansion Project” Notice of Environmental
Assessments; Availability (July 30, 2020).
Land Management Bureau
85 FR 45440 “Alaska Liquefied Natural Gas Project” Record
of decision (July 28, 2020).
85 FR 46171 “Proposed Resource Management Plan Amendment
for the Converse County Oil and Gas Project, Converse County, WY” Notice of
Environmental Impact Statements; Availability (July 31, 2020).
Pipeline and Hazardous
Material Safety Administration
85 FR 46218 “Pipeline Safety: Gas and Liquid Advisory
Committee” Notice of Requests for Nominations (July 31, 2020).
House
Energy and Commerce Committee Actions:
H.R.7878 “To bolster evaluation procedures in
consideration of interstate natural gas pipelines in relation to National
Scenic Trails, and for other purposes.” Referred to the House Committee on
Energy and Commerce (July 30, 2020).
Senate
Energy and Natural Resources Committee Actions:
No relevant actions July
27–August 3, 2020.
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
“Dominion Cancels Atlantic Coast Pipeline, Sells
Pipeline Assets,”
Oil And Gas Journal
“Potential Pipeline Delays Could Increase Permian
Flaring,” Oil and Gas Journal
“Industry Cites 'Burden' Of Pa. Methane Emissions
Plan,” EE News
“Deutsche Bank Says It Will No Longer Invest In
Fracking Or Arctic Oil As Banks Turn Away From Fossil Fuels,” The Hill
“Orphan Well Cleanup Program Could Create Jobs, New
Report Finds,” Casper Star Tribune
“Enviros Vow To Sue Over 'Reckless' LNG Rule,” EE News
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