Brennan Weintraub - Research Assistant
Jackie Schweichler - Staff Attorney
The following information is an update of recent local,
state, national, and international legal developments relevant to shale gas.
Pipelines: Montana Federal Judge Orders Construction Halt
for Keystone XL Pipeline
On November 8, 2018, the U.S. District Court for the
District of Montana issued an
order temporarily halting further construction and operation of the
Keystone XL pipeline (Indigenous Environmental Network v. United States
Department of State, CV-17-29-GF-BMM). In the opinion, the court found that
the federal government did not satisfy its obligations under the National
Environmental Policy Act in approving construction of the Keystone XL pipeline
. Specifically, the court found that the Department of State’s environmental
analysis fell short of the “hard look” required by the statute. The court
ordered the Department to supplement its analysis by looking at several other
issues, including the effect of oil prices on the pipeline, cultural resources
that may be affected by construction, and the potential for oil spills.
Municipal Regulation: Pennsylvania Appeals Court Upholds
Penn Township Hydraulic Fracturing Exceptions
On November 8, 2018, the Pennsylvania Commonwealth Court affirmed
a trial court decision in Westmoreland County upholding the grant of permits to
several shale gas wells in Penn Township (Protect PT v. Penn Township Zoning
Hearing Board and Apex Energy (PA), LLC, No. 39-42 C.D. 2018). Opponents of
the permits argued that local water and air quality would be threatened and
that the proposals did not adequately address the issue of wastewater generated
by the wells. The Commonwealth Court found that the exceptions granted by the
Penn Township Zoning Hearing Board complied with the applicable zoning
ordinances, and that there was not sufficient evidence that the community would
suffer adverse impacts.
Electricity Generation: West Virginia Supreme Court Affirms
Grant of Permit for Natural Gas Power Plant
On November 1, 2018, the West Virginia Supreme Court of
Appeals issued an opinion
affirming the siting certificate for ESC Brooke County Power (Ohio Valley
Jobs Alliance, Inc., et al. v. The Public Service Commission of West Virginia,
et al., No. 18-0249). Petitioners alleged that the Public Service
Commission of West Virginia, which granted the siting permit, should have
required a hypothetical tax estimate for the project and a finding that the
plant would have a substantial positive impact on the state and local
economies. While the court agreed that a tax estimate should have been
required, it found that the weight of the evidence was in favor of the permit,
and therefore, affirmed the granting of the permit. The plant, which claims that it will
produce up to 830 megawatts of power and $440.5 million in total economic
impact, will be powered by the significant natural gas reserves found across
the state of West Virginia as part of the Marcellus Shale.
Wastewater Treatment/Disposal: New Mexico Releases Draft
White Paper for Reuse of Oil and Gas Wastewater
On November 9, 2018, the state of New Mexico, in
collaboration with the U.S. Environmental Protection Agency (EPA), released
a draft white paper on potential changes to regulations for treatment and reuse
of oil and gas wastewater. New Mexico, one of the most arid states in the
nation, generates roughly 38 billion gallons of wastewater from oil and gas
field in the Permian Basin, which covers much of the southeastern portion of
the state. In the draft white paper, EPA and New Mexico identified
regulatory opportunities, such as incentivizing the re-use of produced water
and researching the treatment of produced water for potable uses. (Oil
and Natural Gas Produced Water Governance in the State of New Mexico - Draft
White Paper)
Pipelines: Louisiana Landowners Sue Bayou Bridge Pipeline
for Trespass and Property Damage
On November 9, 2018, a group of landowners from Louisiana’s
Atchafalaya Basin filed
a pre-trial memorandum in their case against the Bayou Bridge Pipeline, LLC. (Bayou
Bridge Pipeline LLC v. 38.00 Acres, More or Less, et al., No. 87011-E).
The plaintiffs are suing Bayou Bridge for trespass and property damage,
alleging a lack of legal authority to build on their land. The plaintiffs
allege that pipeline construction has resulted in the felling of a number
of trees and destruction of their land. The pipeline, according to the
plaintiffs, was in the process of expropriating the land under the state’s
eminent domain laws, but it began construction on their property before the
process was completed. When completed, the pipeline will run 163 miles, from
East Texas to southwest Louisiana, and carry up to 480,000 barrels of oil per
day.
Methane Emissions: EPA Holds Public Hearing on Methane
Rule Changes
On November 14, 2018, the Environmental Protection Agency
(EPA) held
a public hearing on the proposed rule, Oil
and Natural Gas Sector Emission Standards for New, Reconstructed, and Modified
Sources Reconsideration. The proposed
rule was published on October 15, 2018, and would reduce the frequency of
inspections for oil and gas drilling sites and would alter or eliminate
requirements for pneumatic pumps at well sites and certification from a
professional engineer. EPA estimates that these changes will save the oil and
gas industry up to $75 million a year. According to the Denver
Post, the hearing invited support from some industry leaders, but
opposition from many private citizens. Comments on the proposed rule will
be accepted until December 17, 2018.
Municipal Regulation: Oklahoma Supreme Court Rules Against
County Restricting Oil and Gas Operations
On November 13, 2018, the Oklahoma Supreme Court issued
an order finding Kingfisher County’s local ordinances to be contrary to state
law (Oklahoma Oil & Gas Association, v. The Kingfisher County
Commissioners, No. 117,303). The Kingfisher County ordinances banned
temporary oil and gas lines from carrying produced water within county road
easements. The court found that the Oklahoma Corporation Commission, not
local authorities, has the authority to regulate the transportation and
disposal of produced water from oil and gas operations. Further, the court held
that the Oklahoma Corporation Commission has the authority to determine the
validity of similar local ordinances regarding restrictions on energy
development.
From the National Oil & Gas Law Experts:
George Bibikos,
At the Well Weekly, (November 19, 2018)
Charles Sartain, Local Zoning Board Okays Drilling-Friendly
Ordinance, Gray Reed (November 14, 2018)
Michael Burger, Sabin
Center Briefs Court in Exxon Lawsuit Appeal, Climate Law Blog
(November 16, 2018)
Pennsylvania Notices
Public
Hearings regarding: Air Quality Plan Approvals for Proposed Compressor
Stations in Delaware, Bucks Counties (December 4, 2018)
Upcoming
Meeting: Conservation and Natural Resources Advisory Council Meeting
(November 28, 2018)
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive
ShaleLaw HotLinks:
“Once
sleepy pipeline sector now at center of the action” - Houston Chronicle
“Nearly
a year after federal approval, PennEast pipeline still faces uphill battle”
- The Morning Call
“U.S
expected to produce half of global oil and gas growth by 2025” - Wall
Street Journal
Connect with us on Facebook! Every week
we will post the CASL Ledger which details all our publications and activities
from the week.
This week we published two new Shale Law in the Spotlight
articles: Shale
Law in the Spotlight – Overview of Statewide Ballot Initiatives Relevant to Oil
and Gas Development; and Shale
Law in the Spotlight - U.S. Forest Service Proposes New Rulemaking for Oil and
Gas Development on National Forest Lands.
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Check the November
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