August 28, 2023
Shale Law Weekly Review—Week of August 28, 2023
Crude Oil by Rail: The D.C. Appeals Court Halts Uinta Basin Railway Project Citing Defects in the Environmental Impact Statement Prepared by the Surface Transportation Board ⚡
On August 18, 2023, the U.S. Court of Appeals for the District of Columbia (the “Court”) issued an order vacating a final exemption order granted by the Surface Transportation Board (the “Board”) for the proposed Uinta Basin Railway project (“Railway”). Eagle County, Colorado v. Surface Transporation Board, No: 22-1019 (D.C. Cir. 2023). The potential Railway’s stated purpose is to provide an alternative method for firms to transport crude oil produced in the Uinta Basin by connecting the Basin to a more national rail network. The developer, Seven County Infrastructure Coalition, filed for an exemption from the full application process required by the Board to begin construction on a new railway. The Court took issue with and vacated the Environmental Impact Statement (“EIS”) and the Biological Opinion (“BiOp”) prepared by the Board and the Wildlife and Fisheries Service in consideration of the exemption application. The Court determined that neither the EIS nor the BiOp properly considered or disclosed environmental impacts, including potential upstream impacts and downline impact of additional rail traffic. Further, the EIS did not properly address the potential environmental impacts on the Colorado River and potential downstream effects. The Railway project will be halted until a new EIS and BiOp are conducted remedying the highlighted defects and a new exemption is granted, or full Board approval is granted.
Pipelines: Ohio State Appeals Court Deems Coal Company’s Challenge to a Gas Pipeline Not Ripe for Review
On July 28, 2023, Ohio’s Seventh District Court of Appeals issued a ruling on an appeal filed by B&N Coal, Inc. in its case against Blue Racer Midstream, LLC. B&N Coal, Inc. v. Blue Racer Midstream, LLC, No. 22NO0490 (Ct. App. 2023). In its ruling, the District Court affirmed the trial court’s decision to grant summary judgement in favor of Blue Racer on B&N’s claims for a permanent injunction, a declaratory judgment, and damages. The original complaint was filed after Blue Racer exercised its surface rights to construct a gas pipeline across land below which B&N holds coal mining rights. First, on the claim for declaratory judgment, the district court held that because Blue Racer has acknowledged that B&N’s mining rights take precedence over its surface rights and that Blue Racer may have to move its pipeline or pay damages to B&N when the company begins mining, the issue is moot. Further, the court held that because B&N is far from acquiring a permit to legally mine in this area, B&N’s claim is only speculative at this time and therefore not ripe for review. With respect to the claim for a permanent injunction, the district court found that B&N failed to demonstrate it will suffer irreparable harm if Blue Racer’s pipeline is not removed at this time. If the pipeline has not been removed when B&N is ready to mine, then the company will then be entitled to sue Blue Racer for monetary damages, meaning that there is a remedy available in the future, and that a permanent injunction is therefore an inappropriate remedy. Finally, the district court found that B&N is not entitled to damages under either of its two claims or for a claim of trespass. The court held that B&N could not prove a trespass claim because Blue Racer was legally entitled to construct a pipeline on the land from which the dispute originated.
CENTER PROGRAMS & RESOURCES
3rd Annual Penn State Solar Law Symposium – This year’s webinar topics will include gridscale solar overview; solar development from the perspectives of the landowner, the developer, and the municipality; Public Utility Commission considerations; and PJM considerations, more information, and registration available here.
August 23, 2023, noon – 4:15 pm (ET). (Register)
Understanding Agricultural Law – A free monthly Zoom webinar series for all agricultural and rural business advisors. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. Recordings and materials from the series, more information, and registration available here.
August 25, 2023, noon – 1 pm (ET). Understanding the Basics of Milk Pricing. (Register)
Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks
Driftwood LNG’s last export contract craters, leaving $25 billion project’s future in doubt [The Advocate]
Biden administration announces $1.2B in funding for projects to pull carbon from the air [The Hill]
U.S. natural gas pipeline exports to Mexico set a monthly high in June 2023 [EIA]
California secures settlement with SoCalGas over ‘misleading’ claims that natural gas is ‘renewable’ [The Hill]
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Penn State Farmland Energy Legal Podcast: Listen to the latest episode here.
Oil & Gas Law & Policy Resources:
Ruth Santiago, Guest Blog: USACE and FEMA Promote Fossil Fuel Dependence and a Centralized Grid in Puerto Rico (Aug. 2, 2023)
Michael Gerrard, New California Legislation Would Be a Major Step Forward for Climate Disclosure (Aug. 8, 2023)
Charles Sartain, “Harmony” in a Texas Mineral Reservation (Aug. 9, 2023)
Sharon Cho, Oil’s Push Toward $90 Gets Lift From Physical Markets Everywhere (Aug. 15, 2023)
Charles Sartain & London England, Federal Court Distinguishes Devon v. Sheppard (Aug. 16, 2023)
Energy Connects, Proserv’s new Saudi Arabia base to aid digital push and new market moves (Aug. 16, 2023)
Yongchang Chin, Oil Steadies After Two-Day Loss as US Inventories Seen Dropping (Aug. 16, 2023)
Stephen J. Hug, et al., Department of Energy Seeks Comments on Reforms to Accelerate Electric Transmission Project Permitting (Aug. 16, 2023)
Brigit Rollins, States File Suit Over E10 Biofuels (Aug. 17, 2023)
Energy Connects, Equinor makes new discovery in the North Sea (Aug. 18, 2023)
John McFarland, Federal District Court Addresses Post-Production Costs in Light of Devon v. Sheppard (Aug. 18, 2023)
Energy Connects, Cheiron announces new oil discovery in the Gulf of Suez (Aug. 23, 2023)
Bloomberg, Oil Drops for Fourth Day With Venezuela Aiding Supply Outlook (Aug. 24, 2023)
FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S. DEPARTMENT OF ENERGY PRESS RELEASES
Joint Statement on Accelerating Methane Mitigation from the LNG Value Chain (Aug. 16, 2023)
DOE Awards $34 Million to Advance Clean Hydrogen (Aug. 17, 2023)
DOE Announces $126 Million for Small Businesses to Pursue Clean Energy Research and Development (Aug. 25, 2023)
U.S. ENVIRONMENTAL PROTECTION AGENCY PRESS RELEASES
Educational Organization in Reno, Nevada Wins EPA Grant to Advance Environmental Efforts (Aug. 15, 2023)
University of Maine Selected for $1+ Million EPA Research Grant to Address Energy Transitions in Underserved Communities (Aug. 17, 2023)
Idaho Diesel Parts Companies and Owner Plead Guilty to Selling and Installing Illegal Defeat Devices and Agree to Pay $1 Million (Aug. 24, 2023)
FEDERAL EXECUTIVE AGENCIES (Federal Register Aug. 11 – Aug. 25, 2023)
Environmental Protection Agency
88 FR 51812 Notice: “Environmental Impact Statements; Notice of Availability (CP2 LNG and CP Express Project)” (Aug. 4, 2023)
88 FR 55220 Proposed Rule – Comment Period: “Alabama: Denial of State Coal Combustion Residuals Permit Program” (Aug. 14, 2023)
88 FR 55040 Notice: “Renewable Fuel Standard (RFS) Program Compliance; Notification of Webinar” (Aug. 14, 2023)
88 FR 55383 Rule – Comment Period: “Air Plan Approval; Illinois; Base Year Emissions Inventory for the 2015 Ozone Standard” (Aug. 15, 2023)
88 FR 55379 Rule: “Air Plan Approval; Texas; Oil and Natural Gas Reasonably Available Control Technology in the Dallas-Fort Worth and Houston-Galveston-Brazoria Ozone Nonattainment Areas” (Aug. 15, 2023)
88 FR 56615 Notice: “Environmental Impact Statements; Notice of Availability” (Aug. 18, 2023)
88 FR 58178 Proposed Rule, Comments Close 9/25/2023: “Approval and Promulgation of Air Quality Implementation Plans; Maryland; Regional Haze State Implementation Plan for the Second Implementation Period” (August 25, 2023)
Federal Energy Regulatory Commission
88 FR 55451 Notice: “Combined Notice of Filings (Natural Gas and Oil Pipeline Rate and Refund Report)” (Aug. 15, 2023)
88 FR 55689 Notice: “Florida Gas Transmission Company, LLC; Notice of Schedule for the Preparation of an Environmental Assessment for the South Louisiana Project” (Aug. 16, 2023)
88 FR 55686 Notice: “Columbia Gas Transmission, LLC; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (Aug. 16, 2023)
88 FR 56016 Notice: “ANR Pipeline Company; Notice of Application and Establishing Intervention Deadline” (Aug. 17, 2023)
88 FR 56613 Notice: “Gulf South Pipeline Company, LLC; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (Aug. 18, 2023)
88 FR 58263 Notice: “Combined Notice of Filings” (August 25, 2023)
Energy Department
88 FR 51792 Notice: “Notice of Final Determination on 2023 DOE Critical Materials List” (Aug. 4, 2023)
88 FR 56610 Notice: “President’s Council of Advisors on Science and Technology” (Aug. 18, 2023)
U.S. Army Corps of Engineers
88 FR 56608 Notice – Comment Period: “Request for Project Proposals Pursuant to the Water Resources Development Act of 2020, Pilot Program for Continuing Authority Projects in Small or Disadvantaged Communities-Extension of Time To Submit Proposals; Correction” (Aug. 18, 2023)
Land Management Bureau
88 FR 56652 Notice: “Notice of Availability of the Draft Environmental Impact Statement for the Bald Mountain Mine Plan of Operations Amendment, Juniper Project, White Pine County, Nevada” (Aug. 18, 2023)
88 FR 56649 Notice: “Notice of Intent To Prepare an Environmental Impact Statement for the Proposed Robertson Mine Project, Lander County, Nevada” (Aug. 18, 2023)
Natural Resources Revenue Office
88 FR 57881 Rule: “Amendments to OMB Control Numbers and Certain Forms; Correction” (Aug. 24, 2023)
Department of Justice
88 FR 55077 Notice: “Notice of Lodging of Proposed Consent Decree Under the Clean Air Act” (Aug. 14, 2023)
Susquehanna River Basin Commission
88 FR 55814 Notice: “Projects Approved for Consumptive Uses of Water” (Aug. 16, 2023)
Indian Affairs Bureau
Safety and Environmental Enforcement Bureau
88 FR 57334 Rule: “Oil and Gas and Sulfur Operations in the Outer Continental Shelf-Blowout Preventer Systems and Well Control Revisions” (Aug. 23, 2023)
National Highway Traffic Safety Administration
88 FR 56128 Proposed Rule – Comment Period: “Corporate Average Fuel Economy Standards for Passenger Cars and Light Trucks for Model Years 2027-2032 and Fuel Efficiency Standards for Heavy-Duty Pickup Trucks and Vans for Model Years 2030-2035” (Aug. 17, 2023)
Ocean Management Bureau
88 FR 58173 Proposed Rule, Comments Close 6/29/2023: “Risk Management and Financial Assurance for OCS Lease and Grant Obligations; Extension of Public Comment Period” (Aug. 25, 2023)
U.S. HOUSE ENERGY AND COMMERCE COMMITTEE
H.R.5191 “To direct the Secretary of Agriculture to establish a renewable energy grant program for territories of the United States, and for other purposes.” Referred to the Committee on Agriculture, and in addition to the Committees on Energy and Commerce. (Aug. 11, 2023)
H.R.5204 “To direct the Administrator of the Environmental Protection Agency to establish a grant program to facilitate the development of climate adaptation plans by certain entities, and for other purposes.” Referred to the House Committee on Energy and Commerce. (Aug. 15, 2023)
H.R.5210 “To direct the Administrator of the Environmental Protection Agency to amend regulations relating to exemptions for engines and equipment for purposes of national security, and for other purposes.” Referred to the House Committee on Energy and Commerce. (Aug. 15, 2023)
H.R.5244 “Fusion Energy Act” Referred to the House Committee on Energy and Commerce. (Aug. 18, 2023)
U.S. SENATE ENERGY AND NATURAL RESOURCES COMMITTEE
S.2480 “A bill to require the Federal Energy Regulatory Commission to promulgate regulations with respect to regional and interregional transmission planning, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources. (Jul. 25, 2023)
S.Res.321 “A resolution expressing the sense of the Senate relating to nuclear power and the commitment of the Senate to embracing and promoting nuclear power as a clean baseload energy source necessary to achieve a reliable, secure, and diversified electric grid.” Referred to the Committee on Energy and Natural Resources. (Jul. 27, 2023)
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPT. OF ENVIRONMENTAL PROTECTION PRESS RELEASES
Shapiro Administration Provides Update on Plum Stray Gas Investigation (Aug. 18, 2023)
DEP Collects $660,000 in Penalties from Sunoco for Violations In Constructing the Mariner East 2 Pipeline (July 26, 2023)
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 31—Aug. 5, 2023)
Department of Environmental Protection
53 Pa.B. 5183 Notice: “APPLICATIONS FOR NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) PERMITS AND WATER QUALITY MANAGEMENT (WQM) PERMITS UNDER THE CLEAN STREAMS LAW AND FEDERAL CLEAN WATER ACT”
53 Pa.B. 5250 Notice: “Proposed State Implementation Plan Revision; Basic Vehicle Inspection and Maintenance Program Certification for the Philadelphia, PA Moderate Nonattainment Area for the 2015 Ozone National Ambient Air Quality Standard; Public Hearing”
Pennsylvania Energy Development Authority
53 Pa.B. 5261 Notice: “Board Meeting”
Pennsylvania Legislature
SB 198 “An Act amending the act of July 13, 1988 (P.L.530, No.94), known as the Environmental Hearing Board Act, further providing for definitions and for jurisdiction.”
Referred to ENVIRONMENTAL RESOURCES AND ENERGY (Jun. 22, 2023).
HB 1032 “An Act establishing the Solar for Schools Grant Program; and providing for powers and duties of the Department of Community and Economic Development.” Referred to COMMUNITY, ECONOMIC AND RECREATIONAL DEVELOPMENT (Jul. 27, 2023)
Written By:
Dillon Lightfoot, Research Assistant
Kole Zellers, Research Assistant
Kendal Ashman, Research Assistant
Jackie Schweichler, Staff Attorney
