Shale Law Weekly Review – September 23, 2019

Pipelines: Commonwealth Court Finds Senator Lacks Standing to File Complaint Against Sunoco Pipeline
On September 9, 2019, the Commonwealth Court of Pennsylvania ruled that Pennsylvania State Senator, Andrew E. Dinniman, lacked standing to file a Complaint against Sunoco Pipeline L.P. (Sunoco).  Senator Dinniman initially filed a complaint with the Public Utility Commission (PUC) seeking to enjoin or halt operation of the Mariner East 1 (ME1) pipeline and construction of the Mariner East 2 (ME2) and 2X (ME2X) pipelines.  The Complaint alleged that construction of ME2 and MEX caused sinkholes to develop, which exposed ME1 and affected West Whiteland Township’s water supply.  Senator Dinniman asserted legislative standing to file the Complaint.  Upon review, however, PUC determined that Senator Dinniman lacked legislative standing to file the Complaint, but had personal standing as a property owner in the township that was adversely affected by pipeline construction.  Ultimately, the Commonwealth Court held that PUC erred and Senator Dinniman did not have  personal standing, adding that no harm to the Senator’s person or property had occurred.  The Court further held that Senator Dinniman lacked legislative standing to file the complaint, finding that “none of the[] alleged injuries impact[ed] the Senator’s ability to vote for or against legislation.”

Pipelines: Minnesota Supreme Court Denies Petition to Review Enbridge Pipeline Replacement Project and Final Environmental Impact Statement
On September 17, 2019, the Minnesota Supreme Court Denied a Petition for Further Review of Enbridge Inc.’s Line 3 Pipeline Replacement Project and Final Environmental Impact Statement (FEIS). The Petition was filed by environmental groups after the Minnesota Court of Appeals ruled that the “FEIS adequately analyzed potential impacts to GHG emissions, potential impacts on historic and cultural resources, the relative impacts of alternative routes, and cumulative potential effects.” (In re: Applications of Enbridge Energy, Nos. PL-9/CN-14-916; PL-9/PPL-15-137, 38-39, June 2019). Enbridge Liquids Pipelines Executive Vice President, Guy Jarvis, stated in a news release, “[w]e agree with this decision from the Minnesota Supreme Court which now allows the Minnesota Public Utilities Commission to move forth with the permitting process for the Line 3 replacement.” Enbridge’s Line 3 pipeline replacement project consists of “replacing existing 34-inch pipe with new 36-inch pipe for 13 miles in North Dakota, 337 miles in Minnesota, and 14 miles in Wisconsin.”  The project is expected to be completed by the end of 2020.

State Regulation: South Dakota District Court Temporarily Halts Enforcement of Some, But Not All, State Riot-Boosting Statutes
On September 18, 2019, the U.S. District Court for the District of South Dakota Western Division temporarily enjoined some state statutes related to riot boosting and felony riot. (Dakota Rural Action v. Noem, No. 19-5026). According to the court, these riot-boosting statutes were introduced by the South Dakota legislature as a way to address the costs of anticipated rioting resulting from construction of the Keystone XL pipeline. The new riot boosting statutes were added to “Liability for Torts” chapter 20-9 of the South Dakota Codified Laws (SDCL).  Many of the statutes were based on the SDCL “Riot and Unlawful Assembly” chapter 22-10.  The Court temporarily enjoined parts of SDCL § 20-9-54, but maintained liability for any person who “[u]pon the direction, advice, encouragement, or solicitation of any other person, uses force or violence.”  The Court temporarily enjoined the part of SDCL § 20-9-56 that stated: “A defendant who solicits or compensates any other person to commit an unlawful act or to be arrested is subject to three times a sum that would compensate for the detriment caused.”  Additionally, the Court ordered SDCL § 20-9-55 and § 20-9-57 to remain in effect.  The Court also ordered SDCL § 22-10-6 and § 22-10-6.1 to be temporarily enjoined in their entirety.

From the National Oil & Gas Law Experts:
George Bibikos, At the Well Weekly, (September 20, 2019)
Charles Sartain, Spudding? Reworking? What are “Operations” Under an Oil and Gas Lease?, (September 19, 2019)
John McFarland, Texas Supreme Court Opines on Consent-to-Assign Provision, (September 18, 2019)

Pennsylvania Legislation:
HB 500: Recognizes the month of October 2019 as “Energy Awareness Month” in Pennsylvania to build on national efforts of highlighting the importance of energy conservation in protecting the environment and growing the economy (Referred to Environmental Resources and Energy – September 18, 2019).
HB 1100: Amends the Tax Reform Code of 1971 to allow a tax credit for energy and fertilizer manufacturers as part of the ‘Energize PA’ package (Third consideration and final passage – September 19, 2019).

Pennsylvania Actions and Notices:

Department of Environmental Protection
Applications for National Pollutant Discharge Elimination System (NPDES) permits and Water Quality Management (WQM) permits 

Penn State Research:
“Iron a Key in Methane-producing Microorganisms” – Penn State Extension
“Penn State START Lab Awarded $6M for Modernizing Energy Infrastructure” – Penn State Extension
“Methane Detection Protocol Tested” – Penn State Extension
“A More Economical Way to Find Shale Gas?” – Penn State Extension

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
“Chatterjee Warns U.S. Needs to Improve Energy Security After Saudi Attack” – Houston Chronicle
“’Very Engaged’ Trump Talks biofuels Policy With U.S. Oil-State Senators” – Reuters
“Bill Would Mandate Study on Seismic, Landslide Threats” – E&E News
“Casualties in Fight Over New Gas Pipelines: The Customers” – Associated Press
“Frackers to Stand Pat, Reap Profits After Attacks on Saudi Oil” – Wall Street Journal
“Fossil Fuel Divestment Has ‘Zero’ Climate Impact, Says Bill Gates” – Financial Times
“Texas Charges Oil Port Protesters Under New Fossil Fuel Protection Law” – Inside Climate News
“Police Arrest Protesters Chained to Pipeline Equipment” – Associated Press
“Producer Seeks Dismissal of Closely Watched ‘Rule of Capture’ Case in Pennsylvania” – S&P Global Platts

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Written by:
Sara Jenkins – Research Assistant
Jackie Schweichler – Staff Attorney