Shale Law Weekly Review – Week of May 31, 2021

GHG Emissions: Supreme Court Remands Three Climate Cases Back to Courts of Appeals for Further Consideration ⚡
On May 24, 2021, the U.S. Supreme Court issued a list of orders granting petitions of certiorari for climate change–related lawsuits filed against various fossil fuel companies.  The Court remanded the cases back to their respective circuits, pursuant to the Court’s May 17, 2021 decision in BP P.L.C., et al., Petitioners v. Mayor and City Council of Baltimore, No. 19-1189.  Proper jurisdiction—state or federal—is at issue in all three cases, and prior Court of Appeals’ rulings had ordered that they be heard in state courts.  The three cases are subject to the Court’s Baltimore holding, which found that the Court of Appeals had statutory authority to consider all, not just some, of the reasons in favor of federal jurisdiction asserted by the defendant oil companies.  The three cases are as follows:

• Suncor Energy, Inc., et al. v. B’d Comm’rs Boulder Cty., et al., Sup. Ct. No. 20-783, which was remanded back to the Tenth Circuit (Boulder Cty. Comm’rs v. Suncor Energy, No. 19-1330). For background, see SLWR—July 13, 2020, “Federal Appellate Court Rules State Court is the Proper Forum for Climate Case.”
• Chevron Corp., et al. v. San Mateo County, Ca, et al., Sup. Ct. No. 20-884, which was remanded back to the Ninth Circuit (County of San Mateo v. Chevron Corp., No. 18-15499). For background, see. SLWR—June 5, 2020, “Ninth Circuit Appeals Court Remands Climate Change Cases to State Court.”
• Shell Oil Products Co., et al. v. Rhode Island, Sup. Ct. No. 20-900, which was remanded back to the First Circuit (State of Rhode Island v. Shell Oil Products Co., LLC, No. 19-1818).

GHG Emissions: Court in the Netherlands Orders Royal Dutch Shell to Reduce CO2 Emissions
On May 26, 2021, the Hague District Court issued a judgment ordering Royal Dutch Shell (RDS) to modify their corporate policy which states that the company would reduce their CO2 emissions to 45% of their 2019 levels by 2030.  Milieudefensie et al. v. Royal Dutch Shell plc., HA ZA 19-379.  The case was brought by several environmental groups, including Friends of the Earth Netherlands (Milieudefensie) and Greenpeace Nederland, who alleged that Shell’s actions contributed to climate change in violation of the duty of care and human rights obligations imposed under Dutch and European Union (EU) laws.  The court found that under Dutch Civil Code, RDS is obligated to participate in climate reducing activities.  In accordance with the Paris agreement, the court found that “each company must independently work towards achieving net zero emissions by 2050” and the current RDS emissions reduction policy is not enough to meet that goal.  According to a press release, RDS affirmed that “[u]rgent action is needed on climate change” and that it has “accelerated [its] efforts to become a net-zero emissions energy company by 2050,” although the company states that it “fully expect[s] to appeal” the decision.

Pipelines: DHS Announces Cybersecurity Requirements for Owners and Operators of TSA-Identified Pipelines
On May 28, 2021, the U.S. Department of Homeland Security (DHS) Transportation Security Administration (TSA) issued a Security Directive, titled “Enhancing Pipeline Security.”  The directive applies to individuals who operate critical oil and natural gas pipelines and related infrastructure.  As announced by the agency, the Security Directive requires owners and operators of TSA-identified pipelines to (1) designate a “Cybersecurity Coordinator” with round-the-clock availability to address incidents and coordinate cybersecurity practices with TSA and DHS’s Cybersecurity and Infrastructure Security Agency (CISA); (2) report all cybersecurity incidents to TSA and CISA as soon as possible or within 12 hours, including discoveries of adverse software or “spyware,” incidents of service denial, and physical attacks; and (3) use TSA’s recommended Pipeline Security Guidelines to assess their activities for cyber risks and loopholes, develop measures to correct any inadequacies, and report their findings to TSA and CISA within 30 days.  The directive was effective upon issuance and expires on May 28, 2022.

Shale Law/Policy Resources of Interest:

Charles Sartain, What is “Willful Misconduct” in Texas and Louisiana? (May 25, 2021).

Charles Sartain, Climate Change for Landmen and Lawyers – Part 5 (May 27, 2021).

Christoph Schwarte, Guest Commentary: Should Countries Issue Binding Unilateral Declarations on GHG Emission Targets? (May 27, 2021).

AGENCY PRESS RELEASES – STATE/FEDERAL

Pennsylvania Department of Environmental Protection

DEP Issues Code Orange Air Quality Action Day for Ozone for Wednesday, May 26, 2021, in Southeastern Counties (May 25, 2021).

U.S. Department of Energy

California and Massachusetts Schools Win DOE’s 31st National Science Bowl® (May 24, 2021).

DOE Announces $14.5 Million to Combat Plastics Waste and Pollution (May 25, 2021).

DOE Awards $100 Million to Early-Career Scientists for Mission-Critical Research (May 27, 2021).

U.S. Environmental Protection Agency

EPA Announces the Signing of the U.S.-Mexico Environmental Program: Border 2025 Framework Document (May 24, 2021).

U.S. EPA penalizes Lupton, Arizona refinery for violating Clean Air Act chemical safety requirements (May 24, 2021).

EPA Seeks Input on the Review of Oil and Natural Gas New Source Performance Standards (May 25, 2021).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices (Pa. Bulletin Vol. 51, No. 22—May 29, 2021)

No relevant actions.

Pennsylvania Legislature

HB 1144 “An Act relating to conventional wells and the development of oil, gas and coal; imposing powers and duties on the Department of Environmental Protection; and providing for preliminary provisions, for general requirements, for underground gas storage, for enforcement and remedies, for related funds, parties and activities and for miscellaneous provisions.” Referred to Environmental Resources and Energy [Senate] (May 28, 2021).

SB 28 “An Act providing for the administration of permits by State agencies, for a tracking system for permit applications, for the establishment of permit programs, for third-party review of permit decision delays and for annual reports.” Third consideration and final passage [Senate, 28-20] (May 26, 2021).

SB 717 “An Act amending . . . the Environmental Hearing Board Act, further providing for definitions and for jurisdiction [‘Improving the Permit Appeals Process]’.” Referred to Environmental Resources and Energy [Senate] (May 28, 2021).

SB 718 “An Act amending . . . the Environmental Hearing Board Act, further providing for Environmental Hearing Board [‘Improving the Permit Appeals Process]’.” Referred to Environmental Resources and Energy [Senate] (May 28, 2021).

HB 1230 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in liquid fuels and fuels tax, further providing for political subdivision and volunteer service use of tax-free motor fuels.” Laid on the table [House] (May 26, 2021).

SB 435 “An Act amending Title 66 (Public Utilities) of the Pennsylvania Consolidated Statutes, in restructuring of electric utility industry, providing for transportation fueling infrastructure development [‘Clean Transportation Infrastructure Act’].” Removed from table [Senate] (May 24, 2021).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register May 24–28 2021):

Environmental Protection Agency

86 FR 28494 Final Rule: “Air Plan Approval; Texas; Revisions to the Texas Diesel Emissions Reduction Incentive Program” (May 27, 2021).

86 FR 28101 Notice—Comment Period: “Proposed Information Collection Request; Comment Request; Cross-State Air Pollution Rule and Texas SO2” (May 25, 2021).

86 FR 28099 Notice—Comment Period: “Notice of Data Availability Relevant To Petition Submissions Under the American Innovation and Manufacturing Act of 2020” (May 25, 2021).

Federal Energy Regulatory Commission

86 FR 27842 Notice: “Combined Notice of Filings [Northern Border Pipeline Company, Rockies Express Pipeline LLC, et al.]” (May 24, 2021).

86 FR 27847 Notice: “Revisions to Oil Pipeline Regulations, Pursuant to the Energy Policy Act of 1992; Notice of Annual Change in the Producer Price Index for Finished Goods” (May 24, 2021).

86 FR 28093 Notice: “Combined Notice of Filings [Midship Pipeline Company, LLC, Alliance Pipeline L.P., et al.]” (May 25, 2021).

86 FR 28096 Notice: “Coalition for Fair Fuel Rates v. Columbia Gulf Transmission, LLC; Notice of Complaint” (May 25, 2021).

86 FR 28094 Notice: “Nevada Power Company, Sierra Pacific Power Company v. California Independent System, Operator Corporation; Notice of Complaint” (May 25, 2021).

Land Management Bureau

86 FR 28142 Notice—Comment Period: “Agency Information Collection Activities; Production Subject to Royalties, and Resource Conservation” (May 25, 2021).

Mine Safety and Health Administration

86 FR 27898 Notice—Comment Period: “Petitions for Modification of Application of Existing Mandatory Safety Standards” (May 24, 2021).

86 FR 28385 Notice—Comment Period: “Petitions for Modification of Application of Existing Mandatory Safety Standards” (May 26, 2021).

86 FR 28391 Notice—Comment Period: “Petitions for Modification of Application of Existing Mandatory Safety Standards” (May 26, 2021).

Pipeline and Hazardous Materials Safety Commission

86 FR 27959 Notice—Comment Period: “Pipeline Safety: Request for Special Permit; Tejas Pipeline, LLC” (May 24, 2021).

86 FR 28185 Notice—Comment Period: “Pipeline Safety: Information Collection Activities” (May 25, 2021).

86 FR 28187 Notice—Comment Period: “Pipeline Safety: Request for Special Permit; National Fuel Gas Supply Corporation” (May 25, 2021).

86 FR 28184 Notice—Comment Period: “Pipeline Safety: Request for Special Permit; Buckeye Partners, LP” (May 25, 2021).

Surface Mining Reclamation and Enforcement Office

86 FR 28888 Notice—Comment Period: “Petition Process for Designation of Federal Lands as Unsuitable for All or Certain Types of Surface Coal Mining Operations and for Termination of Previous Designations” (May 28, 2021).

86 FR 28887 Notice—Comment Period: “Reclamation on Private Lands” (May 28, 2021).

86 FR 28888 Notice—Comment Period: “Grant Notification for Fiscal Year 2021” (May 28, 2021).

86 FR 28890 Notice—Comment Period: “Permanent Regulatory Program Requirements-Standards for Certification of Blasters” (May 28, 2021).

House Energy and Commerce Committee Actions:

H.R.2102 “End Polluter Welfare Act of 2021 [‘To eliminate certain subsidies for fossil-fuel production’].” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (May 26, 2021).

H.R.3473 “To establish an expansive infrastructure program to create local jobs and raise the quality of life in every community, to launch middle class career pathways in infrastructure, and to invest in high-quality American jobs, and for other purposes.” Referred to the Subcommittee on Highways and Transit (May 26, 2021).

H.R.3571 “To require the Board of Governors of the Federal Reserve System, in consultation with the heads of other relevant Federal agencies, to develop and conduct financial risk analyses relating to climate change, and for other purposes.” Referred to the Committees on Financial Services and Energy and Commerce (May 28, 2021).

H.R.3592 “To require the Administrator of the Environmental Protection Agency to update the modeling used for lifecycle greenhouse gas assessments for corn-based ethanol and biodiesel, and for other purposes.” Referred to the House Committee on Energy and Commerce (May 28, 2021).

Senate Energy and Natural Resources Committee:

S.1851 “A bill to amend the Outer Continental Shelf Lands Act to permanently prohibit the conduct of offshore drilling on the outer Continental Shelf in the Mid-Atlantic, South Atlantic, North Atlantic, and Straits of Florida planning areas.” Read twice and referred to the Committee on Energy and Natural Resources (May 26, 2021).

S.1921 “A bill to establish the National Institutes of Clean Energy.” Read twice and referred to the Committee on Energy and Natural Resources (May 27, 2021).

S.1956 “A bill to require the Secretary of Energy to establish a manufacturing clean energy and energy efficiency grant program, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources (May 28, 2021).

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks May 24-28, 2021:

Ethanol Production, Stocks Recede, Brownfield

U.S. EPA To Keep Biofuel Mandates Steady In 2021-22 Due to Coronavirus -Sources, Reuters

Economics Continue to Improve in US Shale Basins but Operators Hold Steady, S&P Global Platts

Dutch Court Orders Shell to Curb Emissions in ‘Historic Ruling,’ Offshore Energy

Enbridge Keeps Line 5 Pipeline Operating Amid Court Fight Over Shutdown Order, Oil & Gas Journal

‘Watershed’: Is Ford’s F-150 an EV breakthrough?, E&E News

Shell on Trial as Court Weighs Its Climate Responsibility, Bloomberg

Connect with us on Facebook.  Every week we post the CASL Ledger detailing our publications and activities from the week. 

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Written by:
Audry Thompson, Research Assistant
Jackie Schweichler, Staff Attorney