September 17, 2023

Shale Law Weekly Review—Week of September 18, 2023

Oil and Gas Leasing: DOI Cancels Oil and Gas Leases in the Arctic National Wildlife Refuge ⚡
On September 6, 2023, the U.S. Department of the Interior announced it is cancelling oil and gas leases in the Arctic National Wildlife Refuge (ANWR) that were originally issued in a 2021 lease sale. See “Notice of 2021 Coastal Plain Alaska Oil and Gas Lease Sale and Notice of Availability of the Detailed Statement of Sale, 85 Fed. Reg. 78,865 (Dec. 7, 2020).” The leases encompassed over 430,000 acres, divided into nine tracts. Pursuant to this announcement, the Bureau of Land Management (BLM) and United States Fish and Wildlife Services (USFWS) jointly drafted and published the “Supplemental Environmental Impact Statement for the Coastal Plain Oil and Gas Leasing Program,” (Leasing SEIS). According to the DOI, the purpose of the Leasing SEIS is to support “the Department’s determination that the 2021 lease sale was seriously flawed and based on a number of fundamental legal deficiencies” and did not meet the statutory requirements of the National Environmental Policy Act. The comment deadline is October 23, 2023, and additional information can be found at the BLM National NEPA Register.

Oil and Gas Leasing: BLM Proposes New Rule on National Petroleum Reserve in Alaska
On September 8, 2023, the Bureau of Land Management (BLM) published a proposed rule which would change the regulatory framework for “Special Areas” in Alaska’s National Petroleum Reserve.  88 Fed. Reg. 62,025 (Sept. 8, 2023) (to be codified at 43 C.F.R. pt. 2360) (NPR-A Rule). The NPR-A Rule proposes to revise how resources and activities are managed, seeking “maximum protection of Special Areas’ significant resource values” and “access for subsistence activities throughout the NPR–A,” consistent with the “NPR–A Integrated Activity Plan (IAP) approved in April 2022.” According to BLM, the NPR-A Rule will not affect ongoing oil and gas activities within the Reserve. The comment deadline is November 7, 2023.

LNG Infrastructure: Department of Transportation Issues Rule to Suspend Transportation of LNG by Rail
On September 1, 2023, Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a final rule titled, “Hazardous Materials: Suspension of HMR Amendments Authorizing Transportation of Liquefied Natural Gas by Rail,” 88 Fed. Reg. 60,356 (Sept. 1, 2023) (to be codified at 49 C.F.R. pt. 172) (New Rule). The New Rule suspends a previous rule that permitted liquified natural gas (LNG) transportation via rail tank cars. The previous rule was entitled, “Hazardous Materials: Liquefied Natural Gas by Rail” (Suspended Rule) and specifically “authorize[d] the transportation of LNG by rail in DOT-113C120W specification rail tank cars with enhanced outer tank requirements.” The Suspended Rule was initially challenged by environmental groups and 14 states in 2020. According to PHMSA, the agency will be reviewing the current regulatory framework and determine if changes need to be made to avoid “potential risks to public health and safety or environmental consequences.”

Methane Emissions: $350 Million Grant Program to Reduce Methane Emissions Announced
On August 30, 2023, the U.S. Environmental Protection Agency (EPA), U.S. Department of Energy (DOE), and DOE’s National Energy Technology Laboratory (NETL) announced a grant program providing $350 million in funding to decrease methane emissions. The agencies stated that grants will primarily address oil and gas wells, to reduce methane emissions from existing well site leaks. The EPA and DOE included that funding for the grant program is made available through provisions in the Inflation Reduction Act and is directed by the White House Methane Task Force in the implementation of the U.S. Methane Emissions Reduction Action Plan. Additional programs targeting reducing and monitoring methane emissions are said to be on the way. States must apply to the grant program by September 30, 2023, at 5:00 p.m. ET.

Pipelines: West Virginia District Court Denies Pipeline Company’s Motion to Dismiss and Permits Plaintiff to Amend Property Damages Complaint
On August 29, 2023, the Southern District Court of West Virginia denied a motion to dismiss filed by Columbia Gas Transmission, LLC, the defendant pipeline company in a breach of contract dispute brought by Aaron Randolph, the Trustee of the Randolph Trust. Randolph v. Columbia Gas Transm., Ltd. Liab. Co., No. 3:23-00006 (S.D.W.Va.). In the original complaint, Plaintiff alleged that Defendant breached their “Easement and Right-of-Way Agreement” when it “failed to properly restore certain property” after installing a natural gas pipeline. Due to this failure, Plaintiff alleges that the subject property now suffers from “drainage and water retention problems.” In response, Defendant has argued that Plaintiff was paid $34,320 for entering into the agreement, and that this payment was contracted to, among other things, act as advance compensation for damages due to improper restoration. Because these damages were already compensated in advance, Defendant argues the complaint should be dismissed.  Plaintiff disagrees with this interpretation, arguing that the damages waiver would only apply if Defendant properly restored the property. Here, the court found that Plaintiff properly alleged that Defendant violated their agreement by failing to restore the property and that, due to this failure, advance compensation would not cover the resulting damages. Because the court determined the Plaintiff’s claim to be sufficiently plausible, Defendant’s motion to dismiss was denied. Additionally, the court granted Plaintiff an opportunity to amend the original complaint to include a negligence claim.

 

CENTER PROGRAMS & RESOURCES

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.

Penn State Extension will hold the Starting and Improving Farms Conference at the Toftrees Golf Resort in State College, Pennsylvania. Staff Attorney Jackie Schweichler will provide a provide a presentation on Agritourism Law on September 20th as part of the Agritourism Workshop starting at 1:15pm.

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks 

EU HAS NO IMMEDIATE PLANS TO BAN RUSSIAN LNG, SAYS SPAIN’S RIBERA (Natural Gas World)

Chevron Australia LNG Workers Begin Strike (Rigzone)

Chevron appeals to labor market regulator to resolve LNG strike (Oil & Gas Journal)

Workers at Chevron Australia LNG Plants to Strike for Three Weeks (Rigzone)

Interior cancels ANWR leases, shrinks acreage on Alaska North Slope for leasing (Oil & Gas Journal)

Connect with us on Facebook.

Penn State Farmland Energy Legal Podcast: Listen to the latest episode here.

Oil & Gas Law & Policy Resources:

Charles Sartain, Winter Storm Uri – No Summary Judgment This Time (September 13, 2023)

John McFarland, World Electricity Sources in 2022 (September 14, 2023)

Bloomberg, Australian LNG Workers Escalate Strikes at Chevron Plants (September 14, 2023)

Katherine Sartain, What Makes a Reservation a Mineral Interest and not a Royalty? (September 15, 2023)

Bloomberg, Oil Gains For a Third Week, Making Predictions for $100 a Barrel Less Rare (September 15, 2023)

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S. DEPARTMENT OF ENERGY PRESS RELEASES

DOE Announces 2023 Clean Energy Education and Empowerment Awardees (September 12, 2023)

DOE Welcomes New Biden-Harris Appointees and Announces Promotions (September 12, 2023)

DOE Unveils New Interactive Map Showcasing Clean Energy Investment Announcements Nationwide (September 14, 2023)

DOE Announces $25 Million To Help Communities Expand Affordable and Reliable Clean Energy Across America (September 14, 2023)

U.S. ENVIRONMENTAL PROTECTION AGENCY PRESS RELEASES

EPA Issues Final Rule to Strengthen Water Protections, Support Clear and Timely Reviews of Infrastructure and Development Projects (September 14, 2023)

EPA Region 7 Celebrates Nearly $2M Clean School Bus Award in Cassville, Missouri (September 14, 2023)

Biden-Harris Administration Invests More than $100 Million in Recycling Infrastructure Projects Through Investing in America Agenda (September 13, 2023)

New EPA Report Shows Major Emissions Reductions in Electricity Sector from President Biden’s Inflation Reduction Act (September 12, 2023)

FEDERAL EXECUTIVE AGENCIES (Federal Register September 9 – Sept. 15, 2023)

Environmental Protection Agency

88 FR 63529: Rule, Effective Date 10/16/2023: “Air Plan Approval; Missouri; Revisions to the Cross-State Air Pollution Rule SO2 Group 1 Trading Program” (September 15, 2023)

88 FR 62499: Proposed Rule, Comments Close 10/12/2023: “Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities (July 2023)” (September 12, 2023)

88 FR 62781: Notice, Comments Close 11/13/2023: “Proposed Information Collection Request; Comment Request; Federal Implementation Plan for Oil and Natural Gas Well Production Facilities, Fort Berthold Indian Reservation (Mandan, Hidatsa and Arikara Nation), North Dakota (Renewal)” (September 13, 2023)

Federal Energy Regulatory Commission

88 FR 63560: Notice: “Combined Notice of Filings” (September 15, 2023)

88 FR 63102: Notice: “Combined Notice of Filings” (September 14, 2023)

88 FR 62560: Notice: “Combined Notice of Filings” (September 12, 2023)

Department of Justice

88 FR 62599: Notice: “Notice of Lodging of Proposed Consent Decree Under the Clean Water Act” (September 12, 2023)

Ocean Management Bureau

88 FR 63613: Notice, Comments Close 11/14/2023: “Agency Information Collection Activities; Pollution Prevention and Control” (September 15, 2023)

Other Agencies

88 FR 63642: Notice: “Projects Approved for Consumptive Uses of Water” (September 15, 2023)

U.S. HOUSE ENERGY AND COMMERCE COMMITTEE

H.R.5496 “To reduce greenhouse gas emissions and protect the climate.” Referred to the House Committee on Energy and Commerce. (September 14, 2023)

H.R.5482 “To prevent energy poverty and ensure that at-risk communities have access to affordable energy.” Referred to the Committee on Natural Resources, and in addition to the Committees on Energy and Commerce, Agriculture, the Budget, and Rules, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned. (September 14, 2023)

H.R.5468 “To amend the Social Security Act, the Food and Nutrition Act of 2008, and the Low-Income Home Energy Assistance Act of 1981 to require that the value of children’s savings accounts be disregarded for the purpose of determining eligibility to receive certain benefits under such Acts, and for other purposes.” Referred to the Committee on Ways and Means, and in addition to the Committees on Agriculture, Education and the Workforce, and Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned. (September 14, 2023)

H.R.5444 “To amend the Energy Policy Act of 2005 to reauthorize the diesel emissions reduction program.” Referred to the House Committee on Energy and Commerce. (September 13, 2023)

H.R.5411 “To prohibit the Secretary of Energy from finalizing, implementing, or enforcing the proposed rule titled “Energy Conservation Program: Energy Conservation Standards for Residential Clothes Washers”.” Referred to the House Committee on Energy and Commerce. (September 12, 2023)

U.S. SENATE ENERGY AND NATURAL RESOURCES COMMITTEE 

S.2826 “A bill to prevent energy poverty and ensure that at-risk communities have access to affordable energy.” Read twice and referred to the Committee on Energy and Natural Resources. (September 14, 2023)

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPT. OF ENVIRONMENTAL PROTECTION PRESS RELEASES

Shapiro Administration Secures $100 Million from Monsanto to Help Pennsylvanians Impacted by Environmental Damages (September 12, 2023)

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 37—September 16, 2023)

Department of Environmental Protection

53 Pa.B. 5853: Notices: “Availability of National Pollutant Discharge Elimination System General Permit for Discharges from the Application of Pesticides (PAG-15)”

53 Pa.B. 5855: Notices: “Rescission of Technical Guidance”

Pennsylvania Public Utility Commission

53 Pa.B. 5863: Notices: “Natural Gas Service”

 

Written by:
Kendal Ashman, Research Assistant
Kole Zellers, Research Assistant
Dillon Lightfoot, Research Assistant
Sergio Porras, Research Assistant
Jackie Schweichler, Staff Attorney