Shale Law Weekly Review - November 30, 2020

Written by: 
Jackie Schweichler – Staff Attorney
Sarah Straub – Research Assistant 

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

Pipelines: Enbridge Granted Water Crossing Permit by U.S. Army Corps of Engineers 
On November 23, 2020, the U.S. Army Corps of Engineers (Corps) issued a water crossing permit to Enbridge pipeline for the Line 3 replacement project.  In a statement, the Corps stated that “the Line 3 project is compliant with all federal laws and regulations.”  On November 24, 2020, the Minnesota Public Utilities Commission also issued its authorization allowing the pipeline replacement project to proceed.  In its statement, Enbridge noted that the only outstanding permit needed to proceed with the project is a stormwater permit issued by the Minnesota Pollution Control Agency. 

Operation and Production: Colorado Finalizes Rulemaking Shifting Colorado Oil & Gas Conservation Commission to Regulating Oil and Gas Industry 
On November 23, 2020, the Colorado Oil & Gas Conservation Commission finalized rules in accordance with the direction of SB 19-181 enacted April, 2019.  The legislation shifted the Commission’s function from “fostering” the oil and gas industry to “regulating” it.  A fact sheet issued by the Commission summarizes the various rules which have been implemented by the Commission and will become effective January 15, 2021.   The new rules include changes relating to permit transfers, environmental justice, chemical prohibitions, underground wastewater disposal, and setback requirements for schools and homes.  The rules also prohibit unnecessary flaring and venting.  In the upcoming year, the Commission plans to engage in additional rulemaking in areas such as Financial Assurance, Fees, and Worker Certification.

Income Taxation: DC Court of Appeals Refuses to Reconsider Decision Disallowing Income Tax Allowances for Pipelines 
On November 19, 2020, the U.S. Court of Appeals for the District of Columbia Circuit issued an order which denied the petitioner’s request for a rehearing en banc to reconsider the court’s earlier order issued on July 31, 2020, in SFPP v. FERC (Docket Number 19-1067).  The July 31 order approved a Federal Energy Regulatory Commission (FERC) policy decision which discontinued an income tax allowance for pipeline limited partnerships.  The court’s decision to deny a rehearing affirms its prior decision that FERC had the authority and properly altered the policy allowing pipelines to recoup income tax allowances through cost-of-service rates. 

From the National Oil & Gas Law Experts:
George A. Bibikos, At the Well Weekly (Nov. 20, 2020)
John McFarland, Something Completely Different (Nov. 20, 2020)

AGENCY PRESS RELEASES - STATE/FEDERAL

U.S. Environmental Protection Agency News Releases: 

EPA Finds That Existing Requirements Effectively Address Financial Risks from Three Industries (Nov. 25, 2020)

STATE ACTIONS - EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices (Pa. Bulletin Vol. 50, No. 48—Nov. 28, 2020):

50 Pa.B. 6826 Department of Environmental Protection, “Climate Change Advisory Committee Rescheduled Virtual Meeting” (Nov. 28, 2020). 

50 Pa.B. 6828 Department of Environmental Protection, “Oil and Gas Technical Advisory Board Virtual Meeting” (Nov. 28, 2020). 

Pennsylvania Legislature:

SB 790 “An Act relating to conventional wells and the development of oil, gas and coal; imposing powers and duties on the Department of Environmental Protection; providing for preliminary provisions, for general requirements, for enforcement and remedies, for related funds and for miscellaneous provisions; and making an appropriation.” Vetoed by the Governor (Nov. 25, 2020). 

HB 2293 “An Act amending Title 66 (Public Utilities) of the Pennsylvania Consolidated Statutes, in services and facilities, providing for emergency response plans.” Approved by Governor (Nov. 25, 2020). 

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Nov. 23-27, 2020): 

Environmental Protection Agency

85 FR 76077 Notice “Environmental Impact Statements; Notice of Availability” (Nov. 27, 2020). 

85 FR 76073 Notice of Availability, Notice of Public Hearing—Comments Period “Public Notice of State of Texas' Submittal to EPA of Request for Partial National Pollutant Discharge Elimination System (NPDES) Program Authorization for Oil and Gas Discharges” (Nov. 27, 2020). 

Energy Department

85 FR 75001 Notice of Open Meeting “National Petroleum Council Meeting” (Nov. 24, 2020). 

Land Management Bureau 

85 FR 75030 Notice of Intent—Comments Period “Notice of Intent To Amend the 2007 East Alaska Resource Management Plan and Prepare the Associated Environmental Assessment” (Nov. 24, 2020). 

Federal Energy Regulatory Commission 

85 FR 75313 Notice —Comments Period “Golden Pass Pipeline LLC; Notice of Scoping Period Requesting Comments on Environmental Issues for the Proposed Compression Relocation and Modification Project” (Nov. 25, 2020). 

85 FR 76069 Notice—Comments Period “Coffeyville Resources Refining & Marketing, LLC v. TransCanada Keystone Pipeline, LP; Notice of Complaint” (Nov. 27, 2020). 

National Oceanic and Atmospheric Administration

85 FR 76017 Notice—closure of administrative appeal decision record “Federal Consistency Appeal by Jordan Cove Energy Project, L.P. and Pacific Connector Gas Pipeline, LP” (Nov. 27, 2020). 

Interior Department 

85 FR 75373 Notice of Availability “Louisiana Trustee Implementation Group Deepwater Horizon Oil Spill Final Restoration Plan and Environmental Assessment #7: Wetlands, Coastal, and Nearshore Habitats; and Birds; and Finding of No Significant Impact” (Nov. 25, 2020). 

85 FR 76101 Notice “Notice of Availability of the Final Programmatic Environmental Impact Statement for Fuels Reduction and Rangeland Restoration in the Great Basin; Idaho, Washington, Oregon, California, Nevada and Utah” (Nov. 27, 2020). 

85 FR 76101 Notice “Notice of Realty Action: Non-Competitive Direct Sale of the Reversionary Interest and Mineral Interest in a Recreation and Public Purpose Act Patent, in Pershing County, Nevada” (Nov. 27, 2020). 

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks Nov. 23-27, 2020:
Pipe Dreams Leave U.S. Energy Firms Caught In Climate Trap, Reuters
DC Circuit Again Upholds FERC Stance On Pipeline Income Tax Allowance, S&P Global 
NOV and NexTier to Test Electric Frac Prototype, Rigzone 
Enbridge Begins Construction Of New Solar Facility In Pennsylvania, Reuters
The Danger of Big Oil’s New Methane Emissions Pledge, Gizmodo 

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