Shale Law Weekly Review - December 22, 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: Maryland Board of Public Works Approves Wetlands License for Underground Pipeline Construction 
On December 2, 2020, the Maryland Board of Public Works unanimously voted to issue a Wetlands License to Eastern Shore Natural Gas Pipeline Company to construct and operate an underground pipeline spanning seven miles beneath South Prong Wicomico River.  In considering whether to issue the license, the Board had to determine the extent of the pipeline project’s impact on wetlands.  At the meeting, a representative of the Maryland Department of Environment recommended that the Board approve the license with certain conditions relating to drilling fluid pressure limits, erosion and sediment control, altering trees within the right-of-way of the pipeline, and requiring the pipeline company to contribute fees to the Maryland Wetlands and Waterways Program Fund.  Ultimately, the pipeline will primarily serve a correctional facility and the University of Maryland Eastern Shore in Somerset County, Maryland. 

LNG Exports: Delaware River Basin Commission Approves Construction of Wharf to Transport LNG 
On December 9, 2020, the Delaware River Basin Commission approved the Delaware River Partners, LLC’s application to construct a wharf to import and export commodities including liquified natural gas (LNG) from Pennsylvania.  In its approval, the Commission agreed with the recommendations of the hearing officer who presided over a hearing regarding the project in May.  The Commission determined that the project imposed sufficient protections to limit impacts on water quality and aquatic plants and animals.  The Commission also found that the project was consistent with the Comprehensive Plan and, therefore, will allow construction to begin. 

Public Lands: Utah District Judge Orders BLM to Revise Reasonable Alternative Analysis for Oil Leases in Uinta Basin
On December 10, 2020, the U.S. District Court for the District of Utah issued an order stating that the U.S. Bureau of Land Management (BLM) violated the National Environmental Policy Act (NEPA) in leasing public land for oil and gas exploration in the Uinta Basin in Utah.  (Rocky Mountain Wild, et al., v. David Bernhardt, Case No. 2:19-cv-00929-DBB-CMR).  The court found that BLM’s preparation of an Environmental Assessment was sufficiently thorough in examining the potential impacts of the leases, including examining air quality and greenhouse gas emissions.  The court also found that BLM met its statutory duty under the Federal Land Policy and Management Act to develop and revise land use plans in connection with the leasing project.  However, the court stated that BLM did not adequately explore alternatives to the leases.  As a result, the court ordered BLM to conduct and document a reasonable alternative analysis which complies with the requirements of NEPA. 

Production and Operation: Texas Court Orders Texas Railroad Commission to Stop Granting Exceptions to Environmental Regulations 
On December 10, 2020, a state court in Texas issued an injunction preventing the Texas Railroad Commission from granting exceptions to oil companies from certain environmental regulations.  Specifically, the ruling applies to requirements imposing obligations upon companies to cap unplugged wells, clean waste pits, store oil and gas underground in a salt dome, and contribute other fees aimed to protect the environment.  The lawsuit, brought by Public Citizen, Inc., against the Texas Railroad Commission stated that the Commission violated the Texas Open Meetings Act and the Administrative Procedure Act.  (Case No. D-1-GN-20-003795).  The court determined that the Texas Railroad Commission provided insufficient notice to the public regarding the environmental regulation exceptions and that no further exceptions could be granted by the Commission until the court considers the merits of the case or the Commission provides the appropriate notice.  The Texas Railroad Commission has appealed the court’s order. 

Pipelines: Forest Service Publishes Final Supplemental Environmental Impact Statement for Mountain Valley Pipeline Project
On December 11, 2020, the U.S. National Forest Service announced that a Final Supplemental Environmental Impact Statement (FSEIS) is available for public comment.  The FSEIS was prepared in accordance with the National Environmental Policy Act (NEPA) to consider the impact that the Mountain Valley Pipeline project may have on the 3.5-mile portion of the Jefferson National Forest in Virginia and West Virginia.  The core issues addressed in the FSEIS included a Forest Plan Amendment, the feasibility and practicality of routes for the pipeline which do not cross public forests, and erosion and sediment control.  Notice of the FSEIS’s availability was published in the Federal Register at 85 FR 80093 on December 11, 2020.  Public comments are due by January 11, 2021. 

Pipelines: FERC Permits Mountain Valley Pipeline to Continue Construction
On December 17, 2020, the Federal Energy Regulatory Commission (FERC) issued an order partially lifting stop work orders previously issued to the Mountain Valley Pipeline and permitting some construction activity on the project to resume.  The order allows the Mountain Valley Pipeline to restart construction in an area around the Jefferson National Forest which was formerly excluded from stop work orders lifted by FERC.  Following its review, FERC concluded that construction would not create sediment impacting waterways in the Jefferson National Forest.  In addition, FERC found that the proposed route is unlikely to change and allowing construction to continue would not limit actions from the Bureau of Land Management or the Forest Service.  One FERC Commissioner dissented, stating that the stop work order should not be lifted because of the litigation that has accompanied the pipeline project and the project’s need for additional permits to be issued.

From the National Oil & Gas Law Experts: 
Charles Sartain, Predicting the Effect of Biden’s Election on the Oil Industry and the Climate (Dec. 15, 2020). 

AGENCY PRESS RELEASES - STATE/FEDERAL

Pennsylvania Department of Environmental Protection: 

DEP Reaches Agreement with CrossAmerica Partners, LP to Address Fuel Storage Violations (Dec. 17, 2020)

United States Environmental Protection Agency: 

Crowley Fuels pays over $1 million for environmental, public safety violations in Alaska (Dec. 17, 2020)

EPA Announces Historic Approval of Florida’s Request to Administer the Clean Water Act Section 404 Program (Dec. 17, 2020)

WHAT THEY ARE SAYING: EPA Finalizes Benefit-Cost Analyses Procedures to Increase Consistency, Honest Accounting in Future Clean Air Act Rulemakings (Dec. 10, 2020)

STATE ACTIONS - EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices (Pa. Bulletin Vol. 50, No. 51—Dec. 19, 2020):

50 Pa.B. 7259, Pennsylvania Public Utility Commission “Application of Columbia Gas of Pennsylvania, Inc. for approval of the abandonment of natural gas service to one residential premise located in Centre County.” (Dec. 19, 2020).  

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Dec. 14-18, 2020):

Environmental Protection Agency 

85 FR 80626 Final Rule “Hazardous and Solid Waste Management System: Disposal of CCR; A Holistic Approach to Closure Part B: Alternate Demonstration for Unlined Surface Impoundments; Correction” (Dec. 14, 2020). 

85 FR 82474 Notice “Environmental Impact Statements; Notice of Availability” (Dec. 18, 2020). 

Federal Energy Regulatory Commission 

85 FR 81196 Notice “Golden Pass Pipeline LLC; Notice of Schedule for the Preparation of an Environmental Assessment for the Compression Relocation and Modification Project” (Dec. 15, 2020). 

85 FR 81193 Notice “Spire Storage West, LLC; Notice of Schedule for the Preparation of an Environmental Assessment for the Clear Creek Expansion Project” (Dec. 15, 2020). 

85 FR 81196 Notice—Comments Period “Empire Pipeline, Inc.; Notice of Petition for Waiver” (Dec. 15, 2020). 

85 FR 81920 Notice “Northern Natural Gas Company; Notice of Availability of the Environmental Assessment for the Proposed 2021 Auburn A-Line Abandonment and Capacity Replacement Project” (Dec. 17, 2020). 

 Fish and Wildlife Service

85 FR 81952 Notice—Comments Period “Notice of Receipt of Right-of-Way Application for Natural Gas Pipeline Crossing San Bernard National Wildlife Refuge” (Dec. 17, 2020). 

Land Management Bureau 

85 FR 81485 Notice—Comments Period “Notice of Availability of the Coastal Plain Marsh Creek East Seismic Exploration Environmental Assessment” (Dec. 16, 2020).  

Pipeline and Hazardous Materials Safety Administration

85 FR 81440 Proposed rule—Comments Period “Pipeline Safety: Midstream Facilities Frequently Asked Questions” (Dec. 16, 2020). 

85 FR 82028 Notice—Comments Period “Pipeline Safety: Information Collection Activities” (Dec. 17, 2020). 

House Energy and Commerce Committee Actions:

H.R. 8995 “To require the Secretary of Energy to establish programs for carbon dioxide capture, transport, utilization, and storage, and for other purposes.” Referred to the Committee on Science, Space, and Technology, and in addition to the Committees on Energy and Commerce (Dec. 16, 2020). 

H.R. 5120 “SAFER Pipelines Act of 2019” Placed on Union Calendar (Dec. 17, 2020). 

H.R. 9036 “To amend title VI of the Public Utility Regulatory Policies Act of 1978 to establish a Federal renewable electricity standard for retail electricity suppliers and a Federal energy efficiency resource standard for retail electricity suppliers and retail natural gas suppliers, and for other purposes.” Referred to the House Committee on Energy and Commerce (Dec. 18, 2020).  

Senate Energy and Natural Resources Committee:

S. 5050 “A bill to amend the Farm Security and Rural Investment Act of 2002 to provide grants for deployment of renewable fuel infrastructure, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources (Dec. 17, 2020). 

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks Dec. 14-18, 2020:
“Enbridge Plans To Seek Dismissal Of Gov. Whitmer’s Order To Shut Down Line 5” MLive
“PA’s Natural Gas Is Stranded from ‘High Risk’ Energy Regions Like New England” Delaware Valley Journal
“Exxon Mobil, Under Pressure On Climate, Aims To Cut Emissions Intensity By 2025” Reuters
“EU Agrees Its Green Transition Fund Will Not Support Natural Gas” Reuters 
“New Mexico Land Boss Ends Fresh Water Sales For Oil And Gas” AP

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