October 18, 2021

Shale Law Weekly Review – Week of October 18, 2021

Pipelines: The United States and State of Illinois Sue Pipeline Owner and Operator for Damages Caused by Oil Pollution ⚡
On October 13, 2021, the United States and the state of Illinois filed a complaint before the U.S. District Court for the Northern District of Illinois. The plaintiffs ask for damages from both the owner, West Shore Pipe Line Co., and the operator, Buckeye Pipe Line Co. L.P., of Line 257, a 3.5-mile pipeline designed to transport crude oil in Illinois. Plaintiffs alleged that they suffered an “injury to, destruction of, loss of, or loss of use of, natural resources, and the unreimbursed costs of assessments thereof under the Oil Pollution Act” from the leaking of crude oil and violation of a Section 404 permit for the discharge of dredged or fill material into navigable waters near Lockport, Will County, Illinois. Plaintiffs asked for the payment of civil penalties and the issuance of a wetland restoration order. USA, et al. v. Buckeye Pipe Line Co. L.P., et al., No. 1:21-cv-05424.

State Regulation: California Appellate Court Rules that Local Ban on New Oil and Gas Development Is Preempted by State Law
On October 12, 2021, the California 6^th District Court of Appeal upheld a lower court decision that a local regulation prohibiting oil and gas development within a county’s limits is preempted by state law. In December 2016, Chevron USA filed a complaint against Monterey County, challenging a recent measure voted in November 2016 that banned land uses in support of new oil and gas extraction within the county boundaries. The lower court found that the local measure was preempted by Public Resources Code Section 3106, which “explicitly provides that it is the State of California’s oil and gas supervisor who has the authority to decide whether to permit an oil and gas drilling operation to drill a new well or to utilize wastewater injection in its operations.” The California Appellate Court concluded that “[i]f a local regulation conflicts with a state law, the local regulation exceeds the local entity’s power” pursuant to Cal. Const. art. XI § 7.

National Energy Policy: The U.S. Department of Energy Devoted Significant Funding to Support Energy Efficiency in Buildings and Offshore Wind Development
On October 13, 2021, the U.S. Department of Energy (DOE) announced it will provide major funding in the amount of $61 million for 10 pilot projects dedicated to developing connected communities and converting homes and workplaces into “state-of-the-art, energy-efficient buildings.” This initiative is part of President Joe Biden’s agenda to achieve a neutral carbon economy. In addition, the same day, the U.S. Department of Energy handed out $13.5 million in support of offshore wind development. The announcement reads, “[i]n support of a joint interagency goal to develop 30 gigawatts of offshore wind by 2030, DOE is funding four projects that will inform offshore wind siting, permitting and help protect wildlife and fisheries as offshore wind deployment increases.”

Pipelines: The U.S. Supreme Court Denies Request for a Stay of Order Vacating FERC’s Certificate Order for the Construction of Spire STL Pipeline
On October 15, 2021, the U.S. Supreme Court denied hearing an application filed on October 4^th by Spire Missouri Inc. and Spire STL Pipeline, LLC for a stay of a D.C. Circuit Court’s decision vacating FERC’s approval order for the construction of the Spire STL Pipeline, pending the filing and disposition of a petition for writ of certiorari. Applicants expressed that, in the absence of a stay, such decision would cause “widespread, prolonged, and life-threatening natural-gas service disruptions for residents and businesses in the St. Louis area …” On October 11^th, Respondent Environmental Defense Fund opposed applicants’ request stating that “Spire is ineligible for a stay because any interruption in the Spire STL pipeline’s operating authority is not merely unlikely; FERC’s actions to date show the scenario to be utterly fanciful.” Spire Missouri Inc., et al. v. Environmental Defense Fund, et al., No. 21A56.

Pipelines: Seafood Wholesalers Sue Energy Company Following Oil Spill Along the Californian Coast
On October 8, 2021, seafood wholesalers filed a class action lawsuit against Amplify Energy Corporation and other energy companies seeking damages, alleging that their rig activities and a breach in the San Pedro Bay Pipeline caused a “catastrophic oil spill” off the coast of Huntington Beach, Orange County, California. Plaintiffs claimed that they have suffered injury in fact due to Defendants’ actions and inactions. According to the complaint, “as much as 144,000 gallons” were discharged into U.S. navigable waters, “quickly spreading and washing ashore onto and into wetlands, estuaries, the Santa Ana River, bays and beaches in heavily populated communities along the coastline from Long Beach to Dana Point, and points south of Newport Beach.” Quality Sea Food, Inc., et al. v. Amplify Energy Corporation, et al., USDC C.D. Cal., No. 8:21-cv-01680.

GHG Emissions: North Carolina Governor Signs Energy Bill with Carbon Emission Reduction Target
On October 13, 2021, North Carolina Governor Roy signed into law H.B. 951: Energy Solutions for North Carolina. The new legislation requires North Carolina Utilities Commission to reach a 70% reduction of the state-carbon emissions caused by electric generation by 2030 and then carbon neutrality by 2050. In a Press Release, Governor Roy declared, “Today, North Carolina moves strongly into a reliable and affordable clean energy future.”

Shale Law/Policy Resources of Interest:

Charles Sartain, Sahrish K. Soleja, and Lydia Webb, Delaware Bankruptcy Court Treats Royalty Owner Claims as Unsecured (October 14, 2021).

Maria Antonia Tigre, Major Developments for Global Climate Litigation: The Human Rights Council Recognizes the Right to a Healthy Environment and the Committee on the Rights of the Child Publishes Its Decision in an International Youth Climate Case (October 12, 2021).

Jeremy Mercer, Ohio Court of Appeals Determines Due Diligence to Find Heirs Under Marketable Title Act and Service by Publication Were Sufficient to Uphold Default Judgment (October 12, 2021).

Charles Sartain and Brittany Blakey, Added Party Can’t Avoid Amended Master Service Agreement (October 12, 2021).

AGENCY PRESS RELEASES – STATE/FEDERAL

Pennsylvania Department of Environmental Protection

RECOVERED – DEP, State Police Urge Public to Report Missing Portable Nuclear Gauge (October 14, 2021).

DEP Awards Over $4.1 Million in Grants to 13 Projects Statewide to Restore the Health of Local Watersheds (October 14, 2021).

Anglers Warned to Not Eat Fish from Neshaminy Creek Basin (October 13, 2021).

U.S. Department of Energy

DOE Awards $20 Million to Help States Deploy Carbon Capture and Storage (October 15, 2021).

DOE’s Better Plants Industry Partners Save $9 Billion in Energy Costs (October 14, 2021).

DOE Announces $13.5 Million for Sustainable Development of Offshore Wind (October 13, 2021).

DOE Invests $61 Million for Smart Buildings that Accelerate Renewable Energy Adoption and Grid Resilience (October 13, 2021).

U.S. Environmental Protection Agency

LyondellBasell Companies Agree to Reduce Harmful Air Pollution at Six U.S. Chemical Plants (October 15, 2021).

EPA Announces Selections for $3.8 Million in Grant Funding to Help Build Water Workforce

(October 15, 2021).

Justice Department, EPA and Texas Settle with DuPont and PMNA and Require Action to Address Violations of Waste, Water and Air Environmental Laws at Orange, Texas Facility (October 14, 2021).

EPA Announces Next Steps to Enhance Scientific Integrity and Strengthen New Chemical Safety Reviews (October 14, 2021).

EPA Presents 2021 National Federal Facility Excellence in Site Reuse Awards to Federal and Local Agencies for BRAC-Transferred Properties at Naval Air Station Key West, Florida (October 14, 2021).

EPA, Army Announce Regional Roundtables on WOTUS (October 13, 2021).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices (Pa. Bulletin Vol. 51, No. 42—October 16, 2021)

No relevant actions.

Pennsylvania Legislature

HB 148 “A Resolution urging the United States Environmental Protection Agency (EPA) to exercise its authority under section 211 (o) (7) (A) (i) of the Clean Air Act to revise the nationwide Renewable Fuel Standard (“RFS”) updating volume mandates to provide relief to refiners in Pennsylvania, the East Coast and elsewhere, and to implement additional reforms going forward which will allow for the blending of renewable fuels consistent with the original intention of the RFS program, while containing costs for independent refiners.” Referred to Environmental Resources and Energy [House] (October 12, 2021).

Upcoming Meeting: House Environmental Resources and Energy Meeting on Monday, October 25, 2021.

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register October 11 – October 15, 2021):

Defense Department

86 FR 57404 Proposed Rule: “Federal Acquisition Regulation: Minimizing the Risk of Climate Change in Federal Acquisitions [for the Department of Defense, General Services Administration, and National Aeronautics and Space Administration (NASA)]” (October 15, 2021).

Energy Department

86 FR 56696 Notice: “Secretary of Energy Advisory Board [Open Meeting]” (October 12, 2021).

Environmental Protection Agency

86 FR 57423 Notice: “Proposed Consent Decree, Clean Air Act Citizen Suit [Alleging the EPA Failed to Approve or Disprove 32 State Implementation Plan Submissions Regarding Interstate Transmission of Ozone Pollution]” (October 15, 2021).

86 FR 57140 Notice: “Clean Air Act Operating Permit Program; Petitions for Objection to State Operating Permit for Phillips 66 Company, Borger Refinery, Hutchinson County, Texas [EPA Has Not Objected” (October 14, 2021).

86 FR 56934 Notice: “Notice of Request for Approval of Alternative Means of Emission Limitation [Using a Leak Detection Sensor Network with a Detection Response Framework]” (October 13, 2021).

86 FR 56930 Notice: “Adequacy Status of Post-Attainment Year Motor Vehicle Emissions Budgets in 2006 PM2.5” (October 13, 2021).

86 FR 56704 Notice: “Agency Information Collection Activities; Proposed Collection; Comment Request; RCRA Expanded Public Participation, EPA ICR No. 1688.09, OMB Control No. 2050-0149″ (October 12, 2021).

Federal Energy Regulatory Commission

86 FR 57419 Notice: “Tennessee Gas Pipeline Company, LLC and Southern Natural Gas Company, LLC; Notice of Availability of the Final Environmental Impact Statement for the Proposed Evangeline Pass Expansion Project [Projects Located in Louisianna and Mississippi]” (October 15, 2021).

86 FR 57135 Notice: “Florida Gas Transmission Company, LLC; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline [Seeking Abandonment of Several Lines]” (October 14, 2021).

86 FR 57130 Notice: “Texas Gas Transmission, LLC; Notice of Intent to Prepare an Environmental Impact Statement for the Proposed Henderson County Expansion Project, Request for Comments on Environmental Issues, and Schedule for Environmental Review” (October 14, 2021).

86 FR 56702 Notice: “Columbia Gas Transmission, LLC; Notice of Application and Establishing Intervention Deadline [for Compression Systems in Virginia]” (October 12, 2021).

86 FR 56698 Notice: “Adelphia Gateway, LLC; Notice of Availability of the Final Environmental Impact Statement for the Proposed Marcus Hook Electric Compression Project [in Pennsylvania]” (October 12, 2021).

General Services Department

See Defense Department.

Land Management Bureau

86 FR 56719 Notice: “Notice of Proposed Extension of Public Land Order No. 7873 and Public Meeting; Nevada [Regarding Federal Land in the Dixie Valley Training Area; Meeting on December 9, 2021]” (October 12, 2021).

National Aeronautics and Space Administration

See Defense Department.

National Institute of Standards and Technology

86 FR 56898 Notice: “National Cybersecurity Center of Excellence (NCCoE) Migration to Post-Quantum Cryptography [Inviting Letters of Interest]” (October 13, 2021).

Office of United States Trade Representative

86 FR 56749 Notice: “Notice of Continuation and Request for Nominations for the Trade and Environment Policy Advisory Committee” (October 12, 2021).

Presidential Documents

86 FR 57321 Proclamation: “Bears Ears National Monument [Restoration of Portions Removed Under President Trump]” (October 15, 2021).

86 FR 57335 Proclamation: “Grand Staircase-Escalante National Monument [Restoration of Portions Removed Under President Trump]” (October 15, 2021).

Transportation Security Administration

86 FR 57198 Notice: “Extension of Agency Information Collection Activity Under OMB Review: Pipeline Operator Security Information [Request for Extension Sent]” (October 14, 2021).

86 FR 57197 Notice: “Revision of Agency Information Collection Activity Under OMB Review: Critical Facility Information of the Top 100 Most Critical Pipelines [Request for Revision Sent]” (October 14, 2021).

House Energy and Commerce Committee Actions:

H.R.5568 “Clean Cities Act [to Decrease Air Pollution, Increase Alternative Fuel Usage, Increase Energy and Economic Security, and Reduce Petroleum Use]” Referred to the House Committee on Energy and Commerce (October 12, 2021).

Senate Energy and Natural Resources Committee:

No relevant actions.

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks October 9–October 15, 2021:

EIA Reports a Weekly Climb of More than 2 Million Barrels in U.S. Crude Supplies, Market Watch

DOE Announces $20 Million to Produce Clean Hydrogen from Nuclear Power, Department of Energy

Oil Surges to $80 as Global Energy Crisis Threatens Supplies, Mint

U.S. Shale Producer APA Ends Flaring, Captures More Gas as Prices Soar, Reuters

Shale Restraint Means ‘Modest’ Oil Growth in 2022, BNEF Says, BNN Bloomberg

New Oil Drilling in the STACK, OK Energy Today

China Is Investing in Its Domestic Oil and Gas Industry, Institute for Energy Research

Shell Reveals Ida Impact on Operations, Rigzone

Fracking Is Going Electric and Not Everyone Is Impressed, BNN Bloomberg