April 20, 2021
Shale Law Weekly Review – April 19, 2021
Pipelines: Dakota Access Petitions Court of Appeals for Rehearing on Pipeline Decision ⚡
On April 12, 2021, Dakota Access, LLC petitioned the U.S. Court of Appeals for the District of Columbus Circuit for a rehearing of a January 2021 court decision. (Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, No. 20-5197). The January court decision vacated the subsurface easement used by Dakota Access Pipeline (DAPL) to traverse beneath Lake Oahe. The January decision found that the U.S. Army Corps of Engineers (the “Corps”) violated the National Environmental Policy Act (NEPA) by issuing the pipeline easement in 2017 without issuing an Environmental Impact Statement (EIS). In that opinion, the Court of Appeals ruled that the Corps would need to develop an EIS to determine the pipeline’s environmental effects, but that the pipeline did not need to be shut down and emptied. Dakota Access filed a Petition for Rehearing of the ruling, arguing that the Corps complied with NEPA, which allows agencies to prepare an Environmental Assessment and Finding of No Significant Impact, in lieu of an EIS.
UPDATE: On April 23, 2021, the Court of Appeals denied the Petition for Rehearing.
National Energy Policy: U.S. Court of Appeals Dismisses Case Regarding Offshore Energy Exploration and Development of Outer Continental Shelf
On April 13, 2021, the U.S. Court of Appeals for the Ninth Circuit dismissed a case challenging offshore energy exploration and development of certain Outer Continental Shelf areas. (League of Conservation Voters v. Biden, No. 19-35460). Conservation groups initially filed the case challenging former President Trump’s Executive Order 13795, which opened up certain Outer Continental Shelf Areas to energy exploration and development. President Biden recently issued Executive Order 13990, which revoked former President Trump’s order. In its most recent opinion, the court held that President Biden’s revocation made the case moot and remanded the case for dismissal. The court explained that it “lack[ed] jurisdiction to consider moot questions . . . or to declare principles or rules of law which cannot affect the matter in issue.”
National Energy Policy: Interior Department Further Delays Effective Date for Federal Royalty Rule
On April 16, 2021, the U.S. Department of the Interior, Office of Natural Resources Revenue (ONRR) published a delay of effective date in the Federal Register regarding a federal oil and gas royalty rule. (86 FR 20032). The rule titled, ONRR 2020 Valuation Reform and Civil Penalty Rule, was meant to amend ONRR regulations determining how to value oil and gas for federal royalty calculations. The rule’s effective date was initially delayed following a January 20, 2021 executive memo requesting reviews of regulations that have not yet become effective. ONRR stated that the second delay is meant “to avoid placing undue regulatory burdens on lessees” while it conducts a review of the rule. The effective date for the final rule has now been moved from April 16, 2021, to November 1, 2021.
Shale Law/Policy Resources of Interest:
George A. Bibikos, At the Well Weekly, Art. I, sec. 27 (April 9, 2021)
Charles Sartain, Well Operator Protected by the Model Form JOA (April 13, 2021)
Charles Sartain, What are “Drilling Operations”? (April 15, 2021)
John McFarland, Sundown Energy v. HJSA No. 3 Limited Partnership: Another Poorly Drafted Retained Acreage Clause (April 11, 2021)
AGENCY PRESS RELEASES – STATE/FEDERAL
Pennsylvania Department of Environmental Protection
DEP Report Assesses Pennsylvania’s Energy Storage Capacity, Recommends Solar-Plus-Storage for a Cleaner, More Resilient Electric Grid (April 14, 2021)
United States Department of Energy
DOE Announces Notice of Sale of Crude Oil from the Strategic Petroleum Reserve (April 16, 2021)
DOE Announces $162 Million to Decarbonize Cars and Trucks (April 15, 2021)
United States Environmental Protection Agency
EPA Publishes 28th Annual U.S. Greenhouse Gas Inventory (April 14, 2021)
U.S. Government and State of Illinois Announce Agreement with ExxonMobil’s Joliet Refinery to Reduce Air Pollution (April 13, 2021)
STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Legislature
HB 1161 “An Act providing for local solar program, for renewable energy credits and for powers and duties of the Pennsylvania Public Utility Commission” Referred to Consumer Affairs (April 12, 2021)
SB 494 “An Act establishing the Pipeline Safety and Communication Board and providing for its powers and duties; and making a related repeal” Referred to Consumer Protection And Professional Licensure (April 13, 2021)
SB 529 “A Joint Resolution proposing an amendment to the Constitution of the Commonwealth of Pennsylvania, providing for interstate compacts” Referred to Intergovernmental Operations (April 13, 2021)
HB 1185 “An Act amending Title 66 (Public Utilities) of the Pennsylvania Consolidated Statutes, in public utility code, providing for minimum energy and water efficiency standards for certain products sold in this Commonwealth” Referred to Consumer Affairs (April 15, 2021)
HB 1208 “An Act amending Title 15 (Corporations and Unincorporated Associations) of the Pennsylvania Consolidated Statutes, in corporate powers, duties and safeguards, further providing for additional powers of certain public utility corporations” Referred to Consumer Affairs (April 16, 2021)
Environmental Resources and Energy Committee
“Voting meeting on HB 72, HB 139, HB 288 and any other business that may come before the committee” (April 20, 2021 at 10:00 am)
Pennsylvania Executive Agencies—Actions and Notices (Pa. Bulletin Vol. 51, No. 16—April 17, 2021)
51 Pa.B. 2227 Department of Environmental Protection “Growing Greener Plus Grants Program; Request for Applications” (April 17, 2021)
FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies (Federal Register April 12-16 2021):
Federal Energy Regulatory Commission
86 FR 18973 Notice “Seahawk Pipeline LLC; Notice of Petition for Declaratory Order” (April 12, 2021)
86 FR 19613 Notice “Capline Pipeline Company LLC; Notice of Petition for Declaratory Order” (April 14, 2021)
86 FR 20137 Notice—Comments Period “Alliance Pipeline L.P.; Notice of Application and Establishing Intervention Deadline” (April 16, 2021)
86 FR 20132 Notice—Comments Period “Transcontinental Gas Pipe Line Company, LLC; Notice of Applcation and Establishing Intervention Deadline” (April 16, 2021)
86 FR 20142 Notice—Comments Period “Pacific Gas and Electric Company; Notice of Petition for Declaratory Order” (April 16, 2021)
86 FR 20143 Notice—Comments Period “El Paso Natural Gas Company, L.L.C.; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (April 16, 2021)
Ocean Energy Management Bureau
86 FR 19782 Final Rule “2021 Civil Penalties Inflation Adjustments for Oil, Gas, and Sulfur Operations in the Outer Continental Shelf” (April 15, 2021)
National Oceanic and Atmospheric Administration
86 FR 19228 Notice; issuance of Letter of Authorization “Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Oil and Gas Activities in Cook Inlet, Alaska” (April 13, 2021)
House Energy and Commerce Committee Actions:
H.R. 2434 “To require Federal agencies to address environmental justice, to require consideration of cumulative impacts in certain permitting decisions, and for other purposes” Referred to the Subcommittee on Environment and Climate Change (April 13, 2021)
H.R. 2394 “To provide for the establishment of a Climate Justice Working Group to help guide the Nation’s just and equitable transition towards a clean, climate-resilient, zero-emission economy, and for other purposes” Referred to the Subcommittee on Environment and Climate Change (April 13, 2021)
H.R. 2451 “To amend the Internal Revenue Code of 1986 to establish a carbon fee to reduce greenhouse gas emissions, and for other purposes” Referred to the Committee on Energy and Commerce (April 12, 2021)
Senate Energy and Natural Resources Committee Actions:
- 1145 “A bill to prohibit the placement in service or continued operation of certain natural gas compressor stations as part of a project that would lead to or facilitate natural gas exports” Read twice and referred to the Committee on Energy and Natural Resources (April 15, 2021)
- 1115 “A bill to prohibit drilling in the outer Continental Shelf, to prohibit coal leases on Federal land, and for other purposes” Read twice and referred to the Committee on Energy and Natural Resources (April 14, 2021)
- 1076 “A bill to amend the Energy Policy Act of 2005 to require the Secretary of the Interior to establish a program to plug, remediate, and reclaim orphaned oil and gas wells and surrounding land, to provide funds to State and Tribal government to plug, remediate, and reclaim orphaned oil and gas wells and surrounding land, and for other purposes” Read twice and referred to the Committee on Energy and Natural Resources (April 12, 2021)
Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks April 12-16, 2021:
“DOE Study Upends Assumptions About Wind Power Costs” Energywire
“North Dakota Oil Production Drops More Than Expected For February” Williston Herald
“U.S. Oil Comprised 77% Of Canada’s Foreign Oil Imports Last Year” BNN Bloomberg
“New York Pension Fund Divests $7 Mln From Canadian Oil Sands Firms” Reuters
“Shell Threatens To Leave US Trade Groups Over Climate Disagreements” Houston Chronicle
Connect with us on Facebook. Every week we post the CASL Ledger detailing our publications and activities from the week.
Penn State Shale Law Podcast: Listen to the latest episode here.
Written by:
Sara Jenkins – Research Assistant
Jackie Schweichler – Staff Attorney
Sarah Straub – Research Assistant
