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.
Montana Department of Environmental Quality Issues Final Determination on
Keystone XL’s 401 Water Quality Certification Application
On December 31, 2020, the Montana Department of Environmental Quality (DEQ) issued its final determination on Keystone XL Pipeline’s application for 401 Water Quality Certification. The final determination announced that DEQ would issue the pipeline the 401 Water Quality Certification with fifteen conditions, including one which allows DEQ to reopen and modify the Certification to ensure the pipeline adheres to relevant water quality standards. DEQ imposed the conditions because it has been unable to answer and meaningfully respond to all of the more than 650 comments it received regarding the project since Keystone XL’s application was received in August. The pipeline will cross 201 wetland and waterbody features in Montana.
and Operation: Texas Railroad Commission Votes to Ratify, Approve, and Confirm
May 2020 Temporary Exceptions to Certain Environmental Regulations
On January 6, 2020, the Texas Railroad Commission voted to ratify, approve and confirm temporary exceptions and waivers regarding some environmental regulations approved by the Commission in May of 2020. The waivers and exceptions approved at the May 2020 meeting included measures which relieved oil and gas companies from environmental regulations requiring the 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. On December 8, 2020, in connection with a lawsuit (Case No. D-1-GN-20-003795) filed by Public Citizen against the Commission, a Texas judge enjoined the Commission from issuing further waivers and exceptions until it published proper public notice and named the specific rules to which the waivers and exceptions applied. You can watch the Commission’s entire meeting here.
Quality: Virginia Department of Environmental Quality Announces Changes to Its
NWP 12 Permitting on Pipelines
On December 21, 2020, the Virginia Department of Environmental Quality (DEQ) sent a letter to the U.S. Army Corps of Engineers regarding certifications and federal regulations and requirements under the Clean Water Act. In the letter, the Virginia DEQ stated that it will now deny water quality certifications under Nationwide Permit 12 (NWP 12) for pipelines which are greater than thirty-six inches in diameter. The NWP 12 is a permit which allows discharges to waterways which occur in the construction process of public utility infrastructure, including oil and gas pipelines. The Mountain Valley Pipeline, currently under construction in parts of Virginia, could be impacted by the Virginia DEQ’s announcement because its proposed pipeline is slated to be forty-two inches in diameter and would be barred from using the general NWP 12 permit, forcing it to apply for individual permits to cross waterways throughout its construction.
Congress Provides Appropriations and Requirements for Pipeline Safety in
Omnibus Fiscal Legislation
On December 21, 2020 Congress passed its year end fiscal legislation, a portion of which authorizes funding for improving pipeline safety and infrastructure. The Division-By-Division Summary of Authorizing Matters of H.R. 133 states that the legislation provides funding to the Pipeline and Hazardous Materials Safety Administration’s Pipeline Safety Program through the year 2023. The appropriations include funding to hire more personnel to conduct inspections of pipelines, hire experts to assist with rulemaking, money for pilot programs to test new technologies and practices to improve pipeline safety, and measures aimed to reduce methane emissions. The legislation also requires executive agencies to engage in rulemaking to address pipeline safety, emissions, and to update rules on pipelines near coastal beaches and coastal waters.
Shale Law/Policy Resources of Interest:
Chris Boronzzi, Ohio Supreme Court interprets the requirements of the notice provisions of the Dormant Mineral Act (Jan. 4, 2021)
Charles Sartain, Renewable Energy Tax Credits Extended by New COVID Relief Law (Jan. 5, 2021)
Michael Byrd and Shane Sullivan, Wait, What Am I Buying? Severance and reservation issues in Texas oil and gas asset transactions (Jan. 2021)
John McFarland, Lyle v. Midway Solar: Solar farm meets accommodation doctrine (Jan. 4, 2021)
Amy Turner, Net-Zero Stretch Code: A New Model For Municipal Building Decarbonization In Massachusetts (Jan. 8, 2021)
AGENCY PRESS RELEASES - STATE/FEDERAL
United States Department of Energy:
United States Environmental Protection Agency:
STATE ACTIONS - EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies—Actions and Notices (Pa. Bulletin Vol. 50, No. 51—Jan. 9, 2021)
51 Pa.B. 238 Department of Environmental Protection “Conditional State Water Quality Certification under Section 401 of the Clean Water Act for the United States Army Corps of Engineers Nationwide Permits” (Jan. 9, 2021).
Federal Executive Agencies (Federal Register Jan. 4 – 8, 2021):
Environmental Protection Agency
86 FR 88 Notice of Proposed Consent Decree—Comments Period “Proposed Consent Decree, Clean Air Act Citizen Suit” (Jan. 4, 2021).
86 FR 469 Final Rule “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information” (Jan. 6, 2021).
Federal Energy Regulatory Commission
86 FR 86 Notice—Comments Period “Southern Star Central Gas Pipeline, Inc.; Notice of Availability of the Environmental Assessment for the Proposed” (Jan. 4, 2021).
86 FR 79 Notice—Comments Period “Algonquin Gas Transmission, LLC; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (Jan. 4, 2021).
86 FR 82 Notice—Comments Period “Colorado Interstate Gas Company, L.L.C.; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (Jan. 4, 2021).
86 FR 295 Notice “Mayflower Power & Gas LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization” (Jan. 5, 2021).
86 FR 1492 Notice—Comments Period “Kern River Gas Transmission Company; Notice of Scoping Period Requesting Comments on Environmental Issues for the Planned Delta Lateral Project” (Jan. 8, 2021).
House Energy and Commerce Committee Actions:
H.R. 191 “To repeal Federal energy conservation standards, and for other purposes” Referred to House Committee on Energy and Commerce (Jan. 5, 2021).
H.R. 190 “To repeal certain amendments to the Clean Air Act relating to the expansion of the renewable fuel program, and for other purposes” Referred to House Committee on Energy and Commerce (Jan. 5, 2021).
H.R 156 “To amend title II of the Department of Energy Organization Act to reauthorize an office within the Department of Energy, to direct the Secretary of Energy to establish and carry out a comprehensive, nationwide energy-related industries jobs program, and for other purposes” Referred to House Committee on Energy and Commerce (Jan. 4, 2021).
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“Fracking May Be Bad For Your Heart — Study” Energywire
“The Cleanest Fossil Fuel Is Set for a Post-Pandemic Rebound” Yahoo Finance
“Biden To Rescind Trump's Last-Minute Rulemaking” Argus Media
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