Shale Law Weekly Review – Week of September 27, 2021

Pipelines: PennEast Pipeline Co. LLC Withdraws Eminent Domain Claims and Halts Pipeline Project ⚡
In a notice sent to the Third Circuit Court of Appeals on September 20, 2021, PennEast Pipeline Co. LLC, in agreement with New Jersey Attorney General’s Office, decided to withdraw all eminent-domain claims on 42 parcels of state-owned land. In re: PennEast Pipeline Co LLC, No. 19-1191. This agreement puts an end to the PennEast Pipeline Project despite a recent U.S. Supreme Court’s decision allowing PennEast Pipeline Co. LLC to condemn state-owned properties in New Jersey. SLWR – July 5, 2021, “National Policy: Supreme Court Allows PennEast Pipeline to Condemn State Property in New Jersey.”

National Energy Policy: The U.S. Department of Energy (DOE) Provides Funding for Commercial Enhanced Geothermal Systems (EGS)
On September 22, 2021, the U.S. Department of Energy (DOE) handed out $12 million in funding to seven research projects for the commercialization Enhanced Geothermal Systems (EGS). The announcement reads, “The selected projects are part of DOE’s efforts to deploy innovative solutions to help achieve the Biden-Harris Administration’s goals of net-zero carbon emissions by 2050 and a carbon-free grid by 2035.”

Oil and Gas Leasing: Federal Court in West Virginia Shuts Down Underpaid Royalty Claims Filed Against EQT in State Court
On September 14, 2021, the U.S. District Court for the Northern District of West Virginia sided with EQT Production Company, granting its motion seeking enforcement of a final judgment order dated July 22, 2019, approving a $53.5 million statewide class action settlement in an underpaid royalty case. The Kay Company, LLC, et al. v. EQT Production Company, et al., USDC N.D. West Virginia, No. 1:13-cv-151. EQT argued in a motion filed in August 2021 that some plaintiffs were in violation of the final order after they filed in state court the same royalty claims that have already been settled and released in federal court. Philip K. Williams v. EQT Corporation, W. Va. Cir. Ct., Ritchie County, Nos. 20-C-23, 24, 25 and 26. The settlement money is to be used to resolve past and future claims for alleged underpayment of gas royalties.

Pipelines: Dakota Access, LLC, Asks U.S. Supreme Court to Rule on NEPA Review Judgment in Dakota Access Pipeline Case
On September 20, 2021, Dakota Access, LLC, filed a petition for a writ of certiorari with the U.S. Supreme Court and asked the Court to review a ruling issued by the D.C. Circuit Court in January 2021, vacating the subsurface easement used by Dakota Access, LLC, to traverse beneath Lake Oahe in North Dakota. Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, No. 20-1597. The D.C. Circuit Court found that the U.S. Army Corps of Engineers violated the National Environmental Policy Act (NEPA) by issuing the pipeline easement in 2017 without preparing an Environmental Impact Statement (EIS). In its petition, Dakota Access, LLC, raised two questions: 1) “[w]hether, under NEPA, an agency that carefully considers all criticisms of its environmental analysis must also “resolve’ those criticisms to the court’s satisfaction to justify a finding of no significant impact;” and 2) “[w]hether procedural error under NEPA per se warrants remand with vacatur.” Dakota Access, LLC, argued that the D.C. Circuit Court’s ruling would create disruptive consequences for the continuous operation of the Dakota Access Pipeline, leaving it at a risk of being shut down.

Pipelines: Minnesota Department of Natural Resources (DNR) Fines Enbridge Inc for Non-Compliance with State Environmental Laws during the Construction of Line 3 Pipeline Replacement Project
On September 16, 2021, the Minnesota Department of Natural Resources (DNR) fined Enbridge Energy, Inc. $3.32 million for failing to comply with state environmental laws in constructing the Line 3 Pipeline Replacement Project near the Enbridge Energy-Clearbrook Terminal property. According to Minnesota DNR, Enbridge “breached the confining layer of an artesian aquifer, resulting in an unauthorized groundwater appropriation” during the pipeline construction. In addition, Minnesota DNR issued a restoration and replacement order requiring Enbridge to remedy the unauthorized water flow within 30 days from the date of the order.

State Regulation: Texas Railroad Commission Issues Proposed Rules to Prevent Energy Power Outage and Weather Emergencies
On September 10, 2021, the Texas Railroad Commission proposed to add new §3.65, relating to Critical Designation of Natural Gas Infrastructure regulations to Texas Admin. Code, Title 16, and amend §3.107, relating to Penalty Guidelines for Oil and Gas Violations, as required by the recently enacted S.B. 3. The legislation reforms the state’s power supply system by establishing an energy emergency alert system to avoid any future power blackout due to inclement weather. In this regard, the legislation requires the state Railroad Commission to elaborate rules for identifying certain natural gas facilities as critical during energy emergencies (Sec. 38074).

LNG Infrastructure: District of Columbia Circuit Court Petitions to Rehear Prior Ruling Over Social Cost of Carbon Tool
On September 17, 2021, Rio Bravo Pipeline Co., LLC, filed a petition with the U.S. Court of Appeals for the District of Columbia Circuit requesting a rehearing of the August decision that remanded without vacatur FERC’s NEPA “deficiencies” in evaluating the climate change impacts of the Rio Grande LNG Terminal Project located in the Port of Brownsville, Texas. The LNG Terminal project proposed to “produce the greenest LNG in the world” by reducing by more than 90% the project’s carbon emissions via carbon capture and storage – “capturing and permanently storing more than 5 million metric tonnes of CO₂ per year.” In its petition, Rio Bravo asserted that the court “should revise its opinion to remove dicta that will be read to prejudge important and sharply contested questions about the social cost of carbon tool.”

Shale Law/Policy Resources of Interest:

Jacob Elkin, Extreme Heat Protections Should Include Incarcerated Workers (September 24, 2021).

John McFarland, Excellent Report from Deloitte on Transitioning to Renewable Energy Sources (September 23, 2021).

Brigit Rollins, WOTUS Update: Breaking Down the Pre-2015 Regulatory Regime (September 21, 2021).

AGENCY PRESS RELEASES – STATE/FEDERAL

Pennsylvania Department of Environmental Protection

DEP Announces $750,000 in Grants for Environmental Educational Projects (September 24, 2021).

Wolf Administration to Announce Pennsylvania Climate Action Plan 2021, Call for Statewide Action on Climate Change (September 20, 2021).

U.S. Department of Energy

Secretary Granholm Pursues Global Climate Action, Clean Energy Jobs at Ministerial with 24 Eastern and Central European Countries (September 24, 2021).

DOE Welcomes New Biden-Harris Appointees (September 24, 2021).

DOE Invests $27 Million in Battery Storage Technology and to Increase Storage Access (September 23, 2021).

DOE Announces $12 Million to Boost Geothermal Energy Research (September 22, 2021).

U.S. Environmental Protection Agency

U.S. Will Dramatically Cut Climate-Damaging Greenhouse Gases with New Program Aimed at Chemicals Used in Air Conditioning, Refrigeration (September 23, 2021).

Federal Government, State of Nebraska Fine Big Ox Energy and NLC Energy Venture 30 LLC $1.1 Million for Violations of Multiple Environmental Laws (September 23, 2021).

EPA Announces 2021 Safer Choice Partner of the Year Award Winners (September 22, 2021).

EPA Region 8 announces new Regional Pollution Prevention Award Program (September 20, 2021).

EPA Region 4 Announces First Regional Pollution Prevention Award Program (September 20, 2021).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices (Pa. Bulletin Vol. 51, No. 39—September 25, 2021)

Department of Environmental Protection

51 Pa.B. 6216 Notice: “Technical Advisory Committee on Diesel-Powered Equipment Meeting [on Wednesday, October 13, 2021].”

Pennsylvania Public Utilities Commission

51 Pa.B. 6229 Notice: “Electric Generation Supplier License Cancellations of Companies with an Expired Financial Security, Insufficient Financial Security Amount or Language.”

51 Pa.B. 6235 Notice: “Policy Proceeding—Utilization of Storage Resources as Electric Distribution Assets Additional Questions; Doc. No. M-2020-3022877; Request for Extension of Time to File Comments to November 26, 2021 [Extension Granted Until November 29, 2021].”

Susquehanna River Basin Commission

51 Pa.B. 6241 Notice: “Projects Approved for Consumptive Uses of Water.”

Pennsylvania Legislature

HB 1901 “An Act amending Titles 3 (Agriculture) and 27 (Environmental Resources) of the Pennsylvania Consolidated Statutes, in Conservation Excellence Grant Program, further providing for criteria for evaluation of applications; and, in conservation and natural resources, providing for nonpoint source pollution reduction and establishing the Agriculture Conservation Assistance Program, the Pennsylvania Clean Water Procurement Program and the Municipal Storm Water Assistance Program.” Referred to Environmental Resources and Energy [House] (September 23, 2021).

HB 1902 “An Act amending Title 65 (Public Officers) of the Pennsylvania Consolidated Statutes, in ethics standards and financial disclosure, further providing for restricted activities. [Providing for a one-year bar on employment at companies involved with development of unconventional natural gas formations for public officials and public employees of the Department of Environmental Protection]” Referred to State Government [House] (September 23, 2021).

HB 100 “An Act amending Title 27 (Environmental Resources) of the Pennsylvania Consolidated Statutes, providing for transition to renewable energy; imposing duties on the Department of Environmental Protection and other Commonwealth agencies relating to energy consumption and renewable energy generation; establishing the Renewable Energy Transition Task Force, the Just Transition Community Advisory Committee, the Renewable Energy Center of Excellence, the Council for Renewable Energy Workforce Development and the Renewable Energy Workforce Development Fund; providing for interim limits on energy produced from nonrenewable sources and for wage requirement for energy producing systems.” Referred to Environmental Resources and Energy [House] (September 22, 2021).

SB 872 “[See HB 100 Directly Above ]” Referred to Environmental Resources and Energy [Senate] (September 22, 2021).

SB 545 “An Act amending the act of June 22, 1937 (P.L.1987, No.394), known as The Clean Streams Law, in other pollutions and potential pollution, providing for notice of discharge endangering public health or environment.” Re-Referred to Appropriations [Senate] (September 21, 2021).

SB 726 “An Act amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, in computer offenses, providing for the offense of ransomware; and imposing duties on the Office of Administration.” Re-Referred to Appropriations [Senate] (September 21, 2021).

Upcoming Meeting: House Environmental Resources and Energy Meeting on Monday, October 4, 2021.

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register September 20 – September 24, 2021):

Bureau of Safety and Environmental Enforcement

86 FR 52922 Notice: “Programmatic Environmental Impact Statement for Oil and Gas Decommissioning Activities on the Pacific Outer Continental Shelf, Reopening Comment Period” (September 23, 2021).

Commerce Department

86 FR 53018 Proposed Rule: “Taking Additional Steps to Address the National Emergency with Respect to Significant Malicious Cyber-Enabled Activities” (September 24, 2021). 

Defense Department

86 FR 53039 Notice: “Notice of Availability of Draft Construction and Demonstration of a Prototype Mobile Microreactor Environmental Impact Statement” (September 24, 2021). 

Energy Department

86 FR 53014 Proposed Rule: “Energy Conservation Program for Appliance Standards: Energy Conservation Standards for Residential Furnaces and Commercial Water Heaters: Notification of Proposed Interpretive Rule” (September 24, 2021).

86 FR 53043 President’s Council of Advisors on Science and Technology [Public Meetings September 28 and 29, 2021]” (September 24, 2021).

Environmental Protection Agency

86 FR 52991 Rule: “Air Plan Approval; Louisiana; Regional Haze Five-Year Progress Report State Implementation Plan [Approval of State Implementation Plan (SIP) Revision]” (September 24, 2021).

86 FR 52993 Rule: “Air Plan Approval; Maryland; Negative Declaration for the Oil and Gas Industry [No Sources Subject to EPA’s 2016 Oil and Gas CTG]” (September 24, 2021).

86 FR 53053 Notice: “Request for Nominations for the 2022 Clean Air Excellence Awards Program” (September 24, 2021).

86 FR 52903 Notice: “Proposed Information Collection Request; Comment Request: Information Collection Request Submitted to OMB for Review and Approval; Notification of Episodic Releases of Oil and Hazardous Substances (Renewal) EPA ICR Number 1049.15, OMB Control Number 2050-0046” (September 23, 2021).

86 FR 52674 Notice: “Administration of Cross-State Air Pollution Rule Trading Program Assurance Provisions for 2020 Control Periods [Data Available]” (September 22, 2021).

86 FR 52416 Rule: “Control of Air Pollution from Airplanes and Airplane Engines: GHG Emission Standards and Test Procedures [Formula Correction]” (September 21, 2021).

Federal Energy Regulatory Commission

86 FR 53050 Notice: “Rover Pipeline, LLC; Notice of Applications and Establishing Intervention Deadline” (September 24, 2021).

86 FR 53049 Notice: “Great Lakes Gas Transmission Limited Partnership; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (September 24, 2021).

86 FR 53044 Notice: “Alliance Pipeline, L.P. ; Notice of Scoping Period Requesting Comments on Environmental Issues for the Proposed Three Rivers Interconnection Project” (September 24, 2021).

86 FR 52665 Notice: “Southern Star Central Gas Pipeline, Inc.; Notice of Application and Establishing Intervention Deadline” (September 22, 2021).

86 FR 52664 Notice: “Technical Conference on Greenhouse Gas Mitigation: Natural Gas Act Sections 3 and 7 Authorizations; Notice of Technical Conference [on November 19, 2021]” (September 22, 2021).

86 FR 52664 Notice: “Building for the Future Through Electric Regional Transmission Planning and Cost Allocation and Generator Interconnection; Notice of Technical Conference” (September 22, 2021).

86 FR 52141 Notice: “Technical Conference on Reassessment of the Electric Quarterly Report Requirements; Supplemental Notice of Technical Conference [Agenda for October 14, 2021 Meeting]” (September 20, 2021).

Justice Department

86 FR 52695 Notice: “Notice of Lodging of Proposed Modification of Consent Decree Under the Clean Water Act and Oil Pollution Act [Relating to Claims Against Enbridge and Eight Affiliated Entities from Two 2010 Oil Spills in Michigan and Illinois]” (September 22, 2021).

Maritime Administration

86 FR 53144 Notice: “Deepwater Port License Application: Texas GulfLink LLC” (September 24, 2021).

National Oceanic and Atmospheric Administration

86 FR 52638 Notice: “Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico” (September 22, 2021).

Nuclear Regulatory Commission

86 FR 52931 Notice: “NRC’s Full Draft Strategic Plan for Fiscal Years 2022 Through 2026” (September 23, 2021).

Pipeline and Hazardous Materials Safety Administration

86 FR 52947 Notice: “Hazardous Materials: Public Meeting Notice for the Research, Development & Technology Forum [October 12 to 15, 2021]” (September 23, 2021).

Susquehanna River Basin Commission

86 FR 52965 Rule: “Review and Approval of Projects [Changes in Standards and Policies]” (September 24, 2021).

86 FR 52944 Notice: “Actions Taken at September 17, 2021 Meeting” (September 23, 2021).

House Energy and Commerce Committee Actions:

H.R.5372 “To prohibit the Department of Health and Human Services from using any Federal funds to create or maintain an office to address climate and health equity, or for any climate change program, project, or activity.” Referred to the House Committee on Energy and Commerce. . . (September 24, 2021).

H.R.5367 “Advancing Energy Manufacturing in Coal Communities Act [Directs ‘the Secretary of Energy to establish a program to award grants for qualifying advanced energy projects’]” Referred to the House Committee on Energy and Commerce. . . (September 24, 2021).

H.R.5332 “Reclaiming the Solar Supply Chain Act of 2021 [Requires ‘the Secretary of Energy to carry out a program to provide grants and loans to support and expand the domestic solar component manufacturing supply chain’]” Referred to the House Committee on Energy and Commerce. . . (September 22, 2021).

Senate Energy and Natural Resources Committee:

S.2836 “A bill to improve revegetation and carbon sequestration activities in the United States, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources. . . (September 23, 2021).

PN1157 “[Nomination of] Willie L. Phillips Jr — Federal Energy Regulatory Commission” Received in the Senate and referred to the Committee on Energy and Natural Resources. . . (September 20, 2021).

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks September 20–September 24, 2021:

Shell Announces $9.5 Billion Sale of West Texas Oil Field Assets to ConocoPhillips, CNBC

EXCLUSIVE U.S. Shale Oil firm Pioneer Natural Launches Land Sale – Sources, Reuters

Natural Gas Pipelines ‘Not at the Forefront’ of Cybersecurity, Experts Warn, Natural Gas Intelligence

Does Nature Have Rights? A Burgeoning Legal Movement Says Rivers, Forests and Wildlife Have Standing, Too, Inside Climate News

Rivian Is Coming. Here’s Why It Matters, E&E News

PennEast Pumps Brakes on Pipeline despite Supreme Court Win, E&E News

The American West Is Running Out of Water—and Big Oil, of All Things, Can Help Fix It, Fast Company

US Rig Count Increases by Six, Bringing the Total to 635, Shale Gas Reporter (Farm and Dairy)

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Written by:
Noah Gochnauer, Research Assistant
Chloe Marie, Research Specialist
Jackie Schweichler, Staff Attorney