Shale Law Weekly Review – August 7, 2020

National Energy Policy: EPA Issues Final Rule Revising Permit Appeal Process
On July 22, 2020, the U.S. Environmental Protection Agency (EPA) issued a final rule that revises the agency’s permit appeal process. (40 CFR Parts 1, 49, 71, and 124).  The final rule affects permits issued by the EPA under the Clean Air Act, Clean Water Act, Safe Drinking Water Act, and the Resources Conservation and Recovery Act. (rule summary).  The final rule amends the Environmental Appeals Board’s (EAB) scope for review of decisions limiting review to “findings of fact and conclusions of law that are clearly erroneous.”  The rule also establishes time and page limits for filing amicus briefs and sets term limits for EAB judges to twelve years.  Additionally, the rule gives EAB 60 days to issue a final decision on appeals that have been fully briefed and argued.  EPA Administrator Andrew Wheeler said in a press release that the rule changes would streamline the EAB appeals process and “lead to better certainty and a fairer process for both those applying for EPA permits and for the public.”  The rule will become effective 30 days after it is published in the Federal Register.

Municipal Regulation: Massachusetts Attorney General Disapproves Local Bylaw Banning Fossil Fuel Infrastructure in New Construction
On July 21, 2020, Massachusetts Office of the Attorney General disapproved a local bylaw that banned fossil fuel infrastructure in new construction.  Brookline’s bylaw proposal defined fossil fuel infrastructure as “fuel gas or fuel oil piping” connected to new buildings or buildings being significantly renovated. (see Article 21, p. 22, Warrant).  Brookline passed the bylaw in a local town meeting on November 20, 2019.  However, the Attorney General’s Office disapproved of the bylaw because it conflicted with several state statutes.   Specifically, the bylaw is preempted by the State Building Code, Gas Code, statute G.L. c. 142, §13, and statute G.L. c. 164 which gives other entities authority for regulating construction.  The Attorney General’s office explained that the bylaw was in line with state policy goals of reducing greenhouse gas emissions, but could not be approved because of existing laws.

Public Lands: BLM Issues Proposed Rule Amending 2016 Regulations for Oil and Gas Measurement and Site Security
On July 29, 2020, the U.S. Bureau of Land Management (BLM) issued a proposed rule that would amend regulations from 2016 regarding oil and gas measurement and site security. (43 CFR Part 3170).  The three 2016 regulations subject to the proposed rule are: “Onshore Oil and Gas Operations; Federal and Indian Oil and Gas Leases; Site Security,” “Onshore Oil and Gas Operations; Federal and Indian Oil and Gas Leases; Measurement of Oil,” and “Onshore Oil and Gas Operations; Federal and Indian Oil and Gas Leases; Measurement of Gas.” (see 81 FR 81365, 81 FR 81462, and 81 FR 81516).  BLM explained that they chose to amend the 2016 regulations following a review initiated by Executive Order 13783, “Promoting Energy Independence and Economic Growth.”  The proposed rule reduces certain requirements for site security and production handling and adds Production Management Team reviews for certain oil and gas measurement methods.  BLM is accepting public comments for the proposed rule until 60 days after the proposed rule is published in the Federal Register.

LNG Exports/National Energy Policy: Department of Energy Issues Final Policy Extending Natural Gas Export Authorizations Through 2050
On July 29, 2020, the U.S. Department of Energy (DOE) issued a Notice of Final Policy Statement for extending natural gas export authorizations through 2050. (10 CFR Part 590). DOE’s new policy applies to requests for exporting domestically produced liquefied natural gas (LNG), compressed natural gas, and compressed gas liquid to non-free trade agreement countries.  The notice changes DOE policy from authorizing standard 20-year terms to the new 2050 extension.  In the final policy statement, DOE described the implementation process for the 2050 term extension and how applicants and current 20-year term holders can request the extension.  DOE also responded to 22 public comments that it received in response to the proposed policy.  The Policy Statement will become effective on the date it is published in the Federal Register.

From the National Oil & Gas Law Experts:
George Bibikos, PA Superior Court Says Lessee not Liable for Lease Broker’s Activities (July 28, 2020).
George Bibikos, Wash. Appellate Court Upholds Conviction of Protester Over “Necessity” Defense (July 28, 2020).
Charles Sartain, Challenge to a Tax Sale Comes Too Late (July 28, 2020).
John McFarland, Post-Production Costs Podcast (July 30, 2020). 
Amy Turner, Municipal Natural Gas Bans: Round 2 (The Evolution Of State Preemption Law) (July 28, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Energy Press Releases:
No relevant releases July 27–August 3, 2020.

U.S. Department of Energy
President Trump announced the Department of Energy is issuing a final policy statement about liquefied natural gas exports (July 29, 2020).

U.S. Environmental Protection Agency
No relevant releases July 27–August 3, 2020.

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices:
50 Pa.B. 3845 “Unconventional Well Permit Application Fee Amendments” Environmental Quality Board Final Form Rulemaking (August 1, 2020).

Pennsylvania Legislature:
HB 2712 “An Act amending Title 58 (Oil and Gas) of the Pennsylvania Consolidated Statutes, in development, further providing for hydraulic fracturing chemical disclosure requirements” Referred to Environmental Resources And Energy (July 30, 2020) [House]

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies—Actions and Notices:
Federal Energy Regulatory Commission
85 FR 45869 “Transcontinental Gas Pipe Line Co., LLC; Regional Energy Access Expansion Project” Notice of Environmental Assessments; Availability (July 30, 2020).

Land Management Bureau
85 FR 45440 “Alaska Liquefied Natural Gas Project” Record of decision (July 28, 2020).
85 FR 46171 “Proposed Resource Management Plan Amendment for the Converse County Oil and Gas Project, Converse County, WY” Notice of Environmental Impact Statements; Availability (July 31, 2020).

Pipeline and Hazardous Material Safety Administration
85 FR 46218 “Pipeline Safety: Gas and Liquid Advisory Committee” Notice of Requests for Nominations (July 31, 2020).

House Energy and Commerce Committee Actions:
H.R.7878 “To bolster evaluation procedures in consideration of interstate natural gas pipelines in relation to National Scenic Trails, and for other purposes.” Referred to the House Committee on Energy and Commerce (July 30, 2020).

Senate Energy and Natural Resources Committee Actions:
No relevant actions July 27–August 3, 2020.

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
“Dominion Cancels Atlantic Coast Pipeline, Sells Pipeline Assets,” Oil And Gas Journal
“Potential Pipeline Delays Could Increase Permian Flaring,” Oil and Gas Journal
“Industry Cites ‘Burden’ Of Pa. Methane Emissions Plan,” EE News
“Deutsche Bank Says It Will No Longer Invest In Fracking Or Arctic Oil As Banks Turn Away From Fossil Fuels,” The Hill
“Orphan Well Cleanup Program Could Create Jobs, New Report Finds,” Casper Star Tribune
“Enviros Vow To Sue Over ‘Reckless’ LNG Rule,” EE News

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