Shale Law Weekly Review – February 5, 2020

Pipelines: FERC Issues Declaratory Order to Offer Interpretation of Eminent Domain Provision in Natural Gas Act
On January 30, 2020, the Federal Energy Regulatory Commission (FERC) granted in part, and denied in part, a Petition for Declaratory Order filed by PennEast Pipeline Company, LLC on October 4, 2019.  In this petition, PennEast Pipeline asked FERC to provide an interpretation of the scope of eminent domain authority under NGA Section 7(h).  PennEast initiated this petition after the U.S. Court of Appeals for the Third Circuit ruled on September 10, 2019, that PennEast was barred by the 11th Amendment from suing New Jersey to obtain property using eminent domain (In re: PennEast Pipeline Co. LLC, No. 19-1191).  In its order, FERC expressed a “strong belief that NGA section 7(h) empowers natural gas companies, and not the Commission, to exercise eminent domain and that this authority applies to lands in which states hold interest.”  FERC noted, however, that they have no authority to overrule the Third Circuit decision.

Methane Emissions: Penn State Researchers Report Higher Level of Methane in the Air Compared to EPA’s Measurements in South-Central United States
On January 27, 2020, Penn State announced the publication of a study on methane emissions from oil and gas infrastructure.  The study was prepared by Penn State researchers who gathered data with a NASA aircraft outfitted to measure atmospheric conditions, including greenhouse gases. The researchers found that the U.S. oil and gas industry is leaking more methane into the atmosphere than what was initially reported by the U.S. Environmental Protection Agency, especially in the states of Arkansas, Texas, Louisiana, and Oklahoma.  Penn State News reported that “[t]he EPA uses a bottom-up approach to estimate methane emissions from industry by applying a value to each well and transport component.  Penn State researchers used a top-down approach, meaning the emissions were measured at their endpoint, the atmosphere.”  The study was published in the Geophysical Research Letters and is entitled “Forward Modeling and Optimization of Methane Emissions in the South Central United States Using Aircraft Transects Across Frontal Boundaries.”

Wildlife Habitat: U.S. Fish and Wildlife Service Issues Draft Recovery Plan for Rusty Patched Bumble Bee
On January 24, 2020, the U.S. Fish and Wildlife Service (FWS) announced the availability of a draft recovery plan for the Rusty Patched Bumble Bee.  FWS initially listed the Rusty Patched Bumble Bee as endangered in 2017 and the draft recovery plan provides a basis for delisting the bee species from the Federal List of Endangered and Threatened Wildlife and describes the necessary steps to protect its viability.  The public comment period on the draft plan is open and will run until February 24, 2020.  This announcement comes several months after the U.S. Court of Appeals for the Fourth Circuit vacated on July 26, 2019, a FWS 2018 Biological Opinion, which concluded that the Atlantic Coast Pipeline project would not threaten the survival and recovery of the Rusty Patched Bumble Bee, among other species (Defenders of Wildlife v. Dept. of the Interior, No. 18-2090).  In that case, the court found that FWS failed to properly assess the impacts of the ACP project on the Rusty Patched Bumble Bee’s recovery.

From the National Oil & Gas Law Experts:
Georges A. Bibikos, At the Well Weekly (Jan. 24, 2020)
Charles Sartain, Pennsylvania Supreme Court Says No Trespass by Fracking (Jan. 28, 2020)
Charles Sartain, Pennsylvania Says No Trespass by Fracking – the Dissent (Jan. 30, 2020)
John McFarland, ConocoPhillips v. Ramirez – Devise of “all right, title and interest in and to Ranch ‘Las Piedras’ did not include decedent’s mineral estate (Jan. 29, 2020)
Romany M. Webb, The Status of Methane Regulation in the U.S. (Jan. 31, 2020)
U.S. Energy Information Agency, U.S. crude oil and natural gas production increased in 2018, with 10% fewer wells (Feb. 3, 2020)

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Energy Press Releases:
DEP to Unveil Draft Regulations to Cap CO2 Emissions Using RGGI Model (January 30, 2020).
DEP Provides Funding to Help Counties with Water Quality Improvement in Chesapeake Bay Watershed (January 29, 2020).
DEP Issues Permits to PA Waste LLC for Proposed Camp Hope Run Landfill in Boggs Township, Clearfield County (January 28, 2020).

U.S. Department of Energy
Secretary Brouillette Applauds IAEA For Selecting the United States to Host the 2021 Nuclear Power Ministerial (January 30, 2020).
Department of Energy Announces New American-Made Challenge Prize (January 29, 2020).
Department of Energy Announces $10 Million for Particle Accelerator Research for Medicine and Industry (January 27, 2020).

U.S. Environmental Protection Agency
Administrator Wheeler Kicks Off Visit to Brazil with Bilateral Meetings (January 31, 2020).
EPA Offers Opportunities for Pollution Prevention Technical Assistance Grants in Midwest (January 30, 2020).
EPA Advances New Initiative to Reduce Polluting Emissions from Trucks in Arizona (January 30, 2020).
EPA Region 5 Tours Technical Center in Columbus, Ind., to Jumpstart Cleaner Trucks Initiative (January 27, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices:

Department of Environmental Protection
50 Pa.B. 740 “Pennsylvania’s FAST Act Corridor Infrastructure Grant Program; Availability of Grants” Notice (February 1, 2020).
50 Pa.B. 739 “Pennsylvania State Clean Diesel Grant Program; Availability of Grants” Notice (February 1, 2020).
50 Pa.B. 739 “Marine and Rail Freight Movers Grant Program; Availability of Grants” Notice (February 1, 2020).
50 Pa.B. 738 “Availability of the Non-Regulatory Agenda” Notice (February 1, 2020).

Pennsylvania Legislature:
S.B. 726 “will provide more clarity regarding permit appeals from decisions made by the Department of Environmental Protection (DEP).”  Laid on the table [Senate] (January 28, 2020).
S.B. 727 “will shorten the term period a judge serves on the Environmental Hearing Board’s membership from six to five years.”Laid on the table [Senate] (January 28, 2020).
S.B. 258 “ intended to assist communication and coordination between emergency management agencies and pipeline companies in the event of a catastrophic release of natural gas or natural gas liquids in a highly populated community” Removed from the table [Senate] (January 29, 2020).
S.B. 284 the purpose is to improve emergency response to pipeline accidents by “it would require that Emergency Response Plans are not only reviewed for regulatory compliance to federal …[PHMSA] guidelines by the PUC, but a complete, accurate and up to date copy is to be filed with the Commission.” Removed from the table [Senate] (January 29, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies—Actions and Notices:

Antitrust Division
85 FR 5719 “Implications for Exploitation of the Permian Basin-Phase 2” Notice (January 31, 2020).

Energy Department
85 FR 4654 “Office of Fossil Energy, Department of Energy: Methane Hydrate Advisory Committee [February 26, 2020]” Notice (January 27, 2020).

Environmental Protection Agency
85 FR 5578 “National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the Idaho Pole Co. Superfund Site” Rule (January 31, 2020).

Federal Energy Regulatory Commission
85 FR 4962 “Medallion Pipeline Company, LLC; Notice of Petition for Declaratory Order” Notice (January 28, 2020).
85 FR 4965 “Venture Global Delta LNG, LLC and Venture Global Delta Express, LLC; Supplemental Notice of Intent for the Planned Delta LNG and Delta Express Pipeline Project Request for Comments on Environmental Issues Related to Project Modifications Under Consideration” Notice (January 28, 2020).
85 FR 4970 “Rover Pipeline LLC; Notice of Intent To Prepare an Environmental Assessment for the Proposed Wick Meter & Regulator Station Project and Request for Comments on Environmental Issues” Notice (January 28, 2020).
85 FR 4962 “Combined Notice of Filings [Tennessee Gas Pipeline Company, L.L.C.; Northern Natural Gas Company; Gulf South Pipeline Company, LLC; Pixelle Specialty Solutions LLC; Rockies Express Pipeline LLC]” Notice (January 28, 2020).
85 FR 4978 “Combined Notice of Filings [Viking Gas Transmission Company; Garden Banks Gas Pipeline, LLC;  Transcontinental Gas Pipe Line Company, LLC; Algonquin Gas Transmission, LLC]” Notice (January 28, 2020).
85 FR 4977 “Notice of Application: WBI Energy Transmission, Inc.” Notice (January 28, 2020).
85 FR 4968 “Notice of Application: Texas Eastern Transmission, LP” Notice (January 28, 2020).
85 FR 5415 “Rover Pipeline LLC; Notice of Schedule for Environmental Review of the Wick Meter and Regulator Station Project” Notice (January 30, 2020).
85 FR 5424 “Magnolia LNG, LLC; Notice of Availability of the Final Supplemental Environmental Impact Statement for the Proposed; Magnolia LNG Production Capacity Amendment” Notice (January 30, 2020).
85 FR 5423 “Notice of Request for Confirmation or, in the Alternative, Abbreviated Application for Amendment of Certificate of Public Convenience and Necessity of Iroquois Gas Transmission, L.P.” Notice (January 30, 2020).

Indian Affairs Bureau
85 FR 5231 “Agency Information Collection Activities; Submission to [OMB] for Review and Approval; Leasing of Osage Reservation Lands for Oil and Gas Mining” Notice—Comment Period (January 29, 2020).

Interior Department
85 FR 5979 “Exxon Valdez Oil Spill Public Advisory Committee [February 25, 2020]” Notice (February 3, 2020).

Land Management Bureau
85 FR 5018 “Submission to [OMB] for Review and Approval; Surface Management Activities Under the General Mining Law” Notice—Comment Period (January 28, 2020).
85 FR 5022 “Submission to [OMB] for Review and Approval; Measurement of Oil” Notice—Comment Period (January 28, 2020).
85 FR 5019 “Submission to [OMB] for Review and Approval; Measurement of Gas” Notice—Comment Period (January 28, 2020).
85 FR 5232 “Notice of Availability of the Record of Decision for the Keystone XL Pipeline, Montana” Notice (January 29, 2020).

Ocean Energy Management Bureau
85 FR 5234 “Agency Information Collection Activities; Operations in the Outer Continental Shelf for Minerals Other Than Oil, Gas, and Sulphur” Notice—Comment Period (January 29, 2020).

Pipeline and Hazardous Material Safety Administration
85 FR 5549 “Pipeline Safety: Pipeline Research and Development Forum” Notice—Comment Period (January 30, 2020). 

Natural Resources Revenue Office
85 FR 5033 “Submission to [OMB] for Review and Approval; Federal Oil and Gas Valuation” Notice—Comment Period (January 28, 2020).

House Energy and Commerce Committee Actions:
H.R.5430 “United States-Mexico-Canada Agreement Implementation Act” Became Public Law No: 116-113 (January 29, 2020).
H.R.5718 “To establish a refund effective date for rates and charges under the Natural Gas Act, and for other purposes” Referred to the House Committee on Energy and Commerce (January 30, 2020).

Senate Energy and Natural Resources Committee Actions:
S.3247 “A bill to ban the practice of hydraulic fracturing, and for other purposes” Read twice and referred to the Committee on Energy and Natural Resources (January 28, 2020).
S.2508 “Promoting American Energy Jobs Act of 2019” Committee on Energy and Natural Resources filed written report (January 28, 2020).
S.2393 “Clean Energy Jobs Act of 2019” Committee on Energy and Natural Resources filed written report (January 28, 2020).

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
“Oil Industry Climate Suits Have Poor Track Record,” Rigzone
“Major Medical Journal Launches Fossil Fuel Divestment Push,” Greenwire
“Energy Firm Withdraws Permit Application For Pipeline,” Energy Wire
“Landowners Sue for FERC Oversight of Natural Gas Pipeline,” Energy Wire
“Lawsuit Planned To Stop Idaho-Wyoming Natural Gas Pipeline,” AP News
“N.J. Unveils Final Plan For 100% ‘clean’ Electricity,” Energy Wire
“Report: US, Canadian Oil Bankruptcies Surge 50% in 2019,” Hart Energy
“In Crucial Pennsylvania, Democrats Worry a Fracking Ban Could Sink Them,” The New York Times
“Protesters Urge Pitt Vote On Fossil Fuel Divestment,” Pittsburgh Post-Gazette
“Magistrate Finds Pipeline Opponents Guilty In Trespass Case That Exposes Tensions Between Residents And Pipeline Construction,” Stateimpact Pennsylvania

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Written by:
Chloe Marie – Research Specialist
Jackie Schweichler – Staff Attorney
Audry Thompson – Research Assistant