Shale Law Weekly Review – November 13, 2020

Methane Emissions: Texas Approves Revisions to Data Sheet to Collect More Information on Flaring
On November 4, 2020, the Texas Railroad Commission announced that it had approved revisions to the Statewide Rule 32 Exception Data Sheet. The changes were proposed in August and will compel oil and gas operators to more thoroughly document the reasons for which operators determine their need to flare gas.  The new provisions allow the Texas Railroad Commission to assess operator compliance with flaring and venting regulations. The changes will also provide more insight into the practice of flaring and venting by providing a method for collecting critical data points. The new Application for Exception to Statewide Rule 32 form is effective immediately, however operators may continue to use the previous form until April 1, 2021.

 National Energy Policy: President Issues Memorandum Directing Secretary of Energy to Assess Impacts of Banning Hydraulic Fracturing
On October 31, 2020, President Donald J. Trump issued a presidential memorandum which directs the Secretary of Energy to submit a report to the President to assess how decreasing or prohibiting hydraulic fracturing would impact American workers, the economy, and national security. The report is due in 70 days and will examine a range of topics including jobs, energy prices, tax revenues, trade, and energy production in Russia and China. The memorandum also reinforces Executive Order 13211, issued by President George W. Bush, which requires executive agencies, upon taking certain actions, to prepare a Statement of Energy Effects when those actions may significantly and adversely impact energy supply, distribution, or use. Energy Secretary Dan Brouillette issued a statement that said that “[th]e Department of Energy will swiftly and thoroughly execute our tasks as directed by President Trump.”

Pipelines: North Dakota Federal Judge Dismisses Dakota Access Pipeline Protestor’s Defamation Suit Against County Law Enforcement
On October 29, 2020, the U.S. District Court for the District of North Dakota issued an order dismissing a Dakota Access Pipeline protestor’s defamation and excessive force claims against law enforcement in Morton County, North Dakota while allowing other claims to go forward. In her complaint, filed at 1:18-cv-236, Plaintiff Sophia Wilansky alleged that she was injured in 2016 during a peaceful protest by an explosive munition that was deployed in her direction by law enforcement. She alleged that law enforcement thereafter defamed her by making statements to the press that she was injured by a homemade explosive device rather than through the use of force by police. Wilansky stated in the complaint that, as a result of law enforcement’s statements, she has gained the “undeserved reputation as a violent protestor and would-be terrorist.” In dismissing the excessive force claim, the court found that using non-lethal force to disperse protestors told to move from the area does not shock the conscience, the standard which must be met to maintain an excessive force lawsuit. Further, the court found that the county was not liable under the Monell theory of liability because Wilansky could not show that it was a policy or custom  for county law enforcement to engage in excessive force or that law enforcement engaged in a pattern of excessive force. The defamation claims were dismissed because the court found that the law enforcement officers were entitled to immunity because the statements about Wilansky were made in the course of the officers’ official duties. Wilansky’s other claims relating to excessive force, assault and battery, negligence, and emotional harm were permitted to proceed.

From the National Oil & Gas Law Experts:
Brett Thornton, Paycheck Protection Program Loan Necessity Questionnaire (Nov. 4, 2020).
Charles Sartain, Louisiana Oil Pipeline Expropriation System is Constitutional (Nov. 4, 2020).
Daniel J. Metzger, Sabin Center Launches Climate Attribution Database (Nov. 6, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Environmental Protection Press Releases:
The Environmental Quality Board Seeks Comments on CO2 Budget Trading Program Regulations (Nov. 6, 2020).

U.S. Department of Energy Press Releases
Statement from Secretary Brouillette on the President’s Memorandum on Fracking (Oct. 31, 2020).

U.S. Department of Environmental Protection
U.S. EPA Recognizes Freight Industry Leaders for Environmental Performance New Jersey and New York among the Winners (Nov. 5, 2020).
U.S. EPA Recognizes Freight Industry Leaders for Environmental Performance (Nov. 5, 2020).
U.S. EPA Recognizes Freight Industry Leaders in Georgia for Environmental Performance (Nov. 5, 2020).
U.S. EPA Recognizes Freight Industry Leaders in North Carolina for Environmental Performance (Nov. 5, 2020).
EPA Recognizes Nine Truck Carriers in Iowa, Missouri and Nebraska for Environmental Performance and Energy Efficiency (Nov. 5, 2020).
EPA Honors Northwest Companies For Top Environmental Performance – Moving More Goods More Miles With Less Energy And Emissions (Nov. 5, 2020).
U.S. EPA Recognizes Pacific Southwest Freight Industry Leaders for Environmental Performance (Nov. 5, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 45—Nov. 7, 2020):
50 Pa.B. 6212, Environmental Quality Board, “CO₂  Budget Trading Program” Proposed Rulemaking (Nov. 7, 2020).

Pennsylvania Legislature:

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Nov. 2-6, 2020): 

Environmental Protection Agency
85 FR 69189 Final Rule “NPDES Electronic Reporting Rule-Phase 2 Extension” (Nov. 2, 2020).
85 FR 70612 Notice—Comments Period “Proposed Information Collection Request; Comment Request; Gathering Data on Results of Newly Required Annual and Triennial Testing To Evaluate the Impacts of U.S. E.P.A.’s 2015 Federal Underground Storage Tank Regulation” (Nov. 5, 2020).
85 FR 71074 Notice “Environmental Impact Statements; Notice of Availability” (Nov. 6, 2020).

Energy Department
85 FR 69608 Notice and request for OMB review and comment “Proposed Agency Information Collection Extension, With Changes” (Nov. 3, 2020).

Energy Information Administration
85 FR 69609 Notice—Comment Period “Agency Information Collection Extension With Changes” (Nov. 3, 2020).
85 FR 71063 Notice—Comments Period “Agency Information Collection Extension” (Nov. 6, 2020).

Federal Energy Regulatory Commission
85 FR 69619 Notice —Comments Period “Natural Gas Pipeline Company of America, LLC; Notice of Application and Establishing Intervention Deadline” (Nov. 3, 2020).
85 FR 69611 Notice —Comments Period “Southern Star Central Gas Pipeline, Inc.; Notice of Scoping Period Requesting Comments on Environmental Issues for the Proposed Lines DT and DS Replacement Project Amendment” (Nov. 3, 2020).
85 FR 69609 Notice—Comments Period “Spire Storage West LLC; Notice of Request for Extension of Time” (Nov. 3, 2020).
85 FR 70133 Notice—Comments Period “Enable Gas Transmission, LLC; Enable Gulf Run Transmission, LLC; Notice of Availability of the Environmental Assessment for the Proposed Gulf Run Pipeline and Line CP Modifications Project” (Nov. 4, 2020).
85 FR 70140 Notice—Environmental Assessment “Freeport LNG Development, L.P., FLNG Liquefaction, LLC, FLNG Liquefaction 2, LLC and FLNG Liquefaction 3, LLC; Notice of Schedule for Environmental Review of the Noble Gas Project” (Nov. 4, 2020).
85 FR 70137 Notice—Comments Period “Gulf South Pipeline Company, LLC; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (Nov. 4, 2020).
85 FR 70604 Notice—Comments Period “Commission Information Collection Activities (FERC-588); Comment Request; Extension” (Nov. 5, 2020).

Foreign-Trade Zones Board
85 FR 71048 Notice—Comments Period “Foreign-Trade Zone 116-Port Arthur, Texas; Application for Subzone; Port Arthur LNG, LLC; Port Arthur and Jefferson County, Texas” (Nov. 6, 2020).

Pipeline and Hazardous Materials Safety Administration
85 FR 70124 Proposed Rule “Pipeline Safety: Midstream Facilities Frequently Asked Questions” (Nov. 4, 2020).
85 FR 70710 Notice—Comments Period “Pipeline Safety: Request for Special Permit; Columbia Gas Transmission, L.L.C.” (Nov. 5, 2020).

Executive Office of the President
85 FR 70039 Presidential Document “Protecting Jobs, Economic Opportunities, and National Security for All Americans by Ensuring Appropriate Support of Innovative Technologies for Using Our Domestic Natural Resources” (Nov. 4, 2020).

Maritime Administration
85 FR 70707 Notice—Comments Period “Deepwater Port License Application: Blue Marlin Offshore Port, LLC (BMOP)” (Nov. 5, 2020).

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks Nov. 2-6, 2020:
In Effort To Curb Emissions, State Regulators Probe The Future Of Natural Gas In Massachusetts, Boston Globe
Environmental Groups Ask Federal Court To Once Again Stop Construction Of The Mountain Valley Pipeline, West Virginia Public Broadcasting
Exxon Warns of US$30 Billion Shale Writedown Amid Record Loss, Bloomberg News
Colorado Moves To Eliminate Routine Natural Gas Flaring At Oil Wells, Denver Business Journal
Nation Sees Its Oil Industry Continuing 10-15 Years, E&E News

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Written by:
Jackie Schweichler – Staff Attorney
Sarah Straub – Research Assistant