Shale Law Weekly Review – January 18, 2021

Water Quality: Pennsylvania Senators File Lawsuit Against Delaware River Basin Commission Seeking to Lift Drilling Moratorium
On January 11, 2021, a lawsuit was filed in the U.S. District Court for the Eastern District of Pennsylvania against the Delaware River Basin Commission by Pennsylvania Senators Gene Yaw and Lisa Baker, the Pennsylvania Senate Republican Caucus, and Damascus Township. (Senator Gene Yaw, et al. v. The Delaware River Basin Commission, Docket number 2:21-cv-00119.)  The complaint asks the court to determine whether the Delaware River Basin Commission exceeded its authority by imposing a moratorium on the construction and operation of natural gas wells, or, alternatively, whether the Commission’s moratorium, if lawful, amounted to an uncompensated taking under the Fifth Amendment of the United States Constitution.  The suit alleges that the Commission exceeded its authority in instituting the moratorium under the Delaware River Basin Compact, and that the moratorium has prevented both private and public lands from being utilized to produce natural gas from the Marcellus Shale formation, depriving both private landowners and the state from revenue which could be derived from the natural resource.

Federal Lands: U.S. Forest Service Issues Decision Allowing Mountain Valley Pipeline to Cross Jefferson National Forest
On January 11, 2021, the U.S. Forest Service issued a Record of Decision for the Mountain Valley Pipeline and Equitrans Expansion Project allowing the pipeline to be constructed across a portion of the Jefferson National Forest.  The Forest Service’s decision included nine conditions that must be followed by Mountain Valley Pipeline, including obtaining a Right-of-Way approval by the U.S. Bureau of Land Management.  Several environmental groups have challenged the Forest Service’s decision by filing a Joint Petition for Review in the U.S. Court of Appeals for the Fourth Circuit.  Upon completion, the pipeline will cross 3.5 miles of the forest, occupy 42 acres, and cross the Appalachian National Scenic Trail and the Brush Mountain Inventoried Roadless Area.

Pipelines: Pipeline and Hazardous Materials Safety Administration Issues Final Rule Easing Regulatory Requirements for Pipelines
On January 11, 2021, the Pipeline and Hazardous Materials Safety Administration published a Final Rule in the Federal Register (86 FR 2210) “to ease regulatory burdens on the construction, maintenance, and operation of gas transmission, distribution, and gathering pipeline systems without adversely affecting safety.”  The Rule makes various changes to reporting and testing requirements including increasing the reporting requirements for property damage resulting from leaks, fires, and other incidents from $50,000 to $122,000.  It also modifies inspection procedures to inspect for corrosion by allowing operators to inspect for corrosion remotely and requiring inspections every five years, instead of every three years.  Additionally, the Rule eliminates a separate reporting requirement for most mechanical fitting failures.  The Rule is set to take effect on March 12, 2021.

Shale Law/Policy Resources of Interest:

Brigit Rollins, Overview of Trump Administration’s Environmental “Midnight Regulations” (Jan. 14, 2021)

Chris Baronzzi, Brett Thornton & Brad Hughes, Ohio Supreme Court Wraps Up 2020 By Repeatedly Reminding State Agencies To Stay In Their Statutory Lanes (Jan. 14, 2021)

Scott Daniel Johnson, FERC Increases Maximum Civil Monetary Penalties (Jan. 11, 2021)

Margaret Barry and Korey Silverman-Roati, January 2021 Updates To The Climate Case Charts (Jan. 13, 2021)

AGENCY PRESS RELEASES – STATE/FEDERAL

United States Department of Energy:

Energy Secretary Dan Brouillette Urges Prioritizing Critical Energy Infrastructure Workers In Covid-19 Vaccination (Jan. 15, 2021)

Department of Energy Seeks Industry Input on FY21 Sales of Crude Oil from the Strategic Petroleum Reserve (Jan. 14, 2021)

United States Environmental Protection Agency:

Big West Oil, LLC Resolves Chemical Risk Management Violations At North Salt Lake Facility (Jan. 14, 2021)

EPA Reduces Regulatory Burden and Emissions From Large Storage Tanks By Allowing Alternative Inspection Method (Jan. 11, 2021)

STATE ACTIONS – EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices (Pa. Bulletin Vol. 51, No. 3—Jan. 16, 2021)

51 Pa.B. 283 Environmental Quality Board “Air Quality Fee Schedule Amendments” (Jan. 16, 2021)

Pennsylvania Legislature:

H.B. 72 “An Act amending the act of June 25, 1982 (P.L.633, No.181), known as the Regulatory Review Act” Referred to Environmental Resources and Energy (Jan. 11, 2021).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

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

Federal Energy Regulatory Commission

86 FR 1954 Notice—Comments Period “Northern Natural Gas Company; Notice of Availability of the Environmental Assessment for the Proposed South Sioux City to Sioux Falls A-Line Replacement Project” (Jan. 11, 2021)

86 FR 4045 Notice “Columbia Gas Transmission, LLC; Notice of Request for Extension of Time” (Jan. 15, 2021)

Energy Department

86 FR 2243 Rule—Policy Statement “Including Short-Term Export Authority in Long-Term Authorizations for the Export of Natural Gas on a Non-Additive Basis” (Jan. 12, 2021)

86 FR 2664 Notice “Fuels of the Future Advisory Board” (Jan. 13, 2021)

Environmental Protection Agency

86 FR 2542 Final Rule “Pollutant-Specific Significant Contribution Finding for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units, and Process for Determining Significance of Other New Source Performance Standards Source Categories” (Jan. 13, 2021)

86 FR 3827 Notice—Rule “Final Anti-Backsliding Determination for Renewable Fuels and Air Quality” (Jan. 15, 2021)

86 FR 3928 Proposed Rule “Extension of 2019 and 2020 Renewable Fuel Standard Compliance and Attest Engagement Reporting Deadlines” (Jan. 15, 2021)

86 FR 4067 Notice “Environmental Impact Statements; Notice of Availability” (Jan. 15, 2021)

Army Corps of Engineers

86 FR 2744 Final Rule “Reissuance and Modification of Nationwide Permits” (Jan. 13, 2021)

Ocean Energy Management Bureau

86 FR 2452 Notice—Comments Period “Agency Information Collection Activities; Pollution Prevention and Control” (Jan. 12, 2021)

86 FR 4116 Notice—Area Identification “Notice of Availability of the Area Identification for the Proposed Cook Inlet Oil and Gas Lease Sale 258” (Jan. 15, 2021)

86 FR 4117 Notice—Comments Period “Draft Environmental Impact Statement on the Cook Inlet Lease Sale 258” (Jan. 15, 2021)

Pipeline and Hazardous Materials Safety Administration

86 FR 2210 Final Rule; Withdrawal of Enforcement Discretion “Pipeline Safety: Gas Pipeline Regulatory Reform” (Jan. 11, 2021)

86 FR 1745 Final Rule “Revisions to Civil Penalty Amounts” (Jan. 11, 2021)

86 FR 2029 Notice—Comments Period “Pipeline Safety; Request for Special Permit; Natural Gas Pipeline Company of America, L.L.C.” (Jan. 11, 2021)

86 FR 3839 Notice—Comments Period “Pipeline Safety: Frequently Asked Questions on the Gas Transmission Rule” (Jan. 15, 2021)

86 FR 3956 Proposed Rule—Comments Period “Pipeline Safety: Operator Qualification Frequently Asked Questions” (Jan. 15, 2021)

House Energy and Commerce Committee Actions:

H.R. 314 “To authorize the Administrator of the Environmental Protection Agency to enter into cooperative agreements with States to carry out grant programs to assist in remediation and relocation efforts relating to hazardous air pollution, and for other purposes” Referred to House Committee on Energy and Commerce (Jan. 13, 2021)

H.R. 309 “To require the Federal Energy Regulatory Commission to revoke a certificate of public convenience and necessity issued under section 7 of the Natural Gas Act as such certificate applies to the Weymouth Compressor Station, and for other purposes” Referred to House Committee on Energy and Commerce (Jan. 13, 2021)

H.R. 283 “To amend the Clean Air Act to give States the option of monitoring covered criteria air pollutants in designated areas by greatly increasing the number of air quality sensors in exchange for greater regulatory flexibility in the methods of monitoring, and for other purposes” Referred to House Committee on Energy and Commerce (Jan. 12, 2021)

H.R. 245 “To amend sections 111, 169, and 171 of the Clean Air Act to clarify when a physical change in, or change in the method of operation of, a stationary source constitutes a modification or construction, and for other purposes” Referred to House Committee on Energy and Commerce (Jan. 11, 2021)

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks Jan. 11 – 15, 2021:

“Texas Governments Collect $13.9B from Oil and Gas Industry” Rigzone

“Sage Grouse Review Done, But Scant Time For Trump’s Changes” AP

“U.S. Oil Exports Set 71-Year Record” E&E News

“Questions Loom Over The Future Of Natural Gas In Oregon” Oregon Public Broadcasting

“Mountain Valley Pipeline Forest Crossing Draws Legal Challenge” Bloomberg Law

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Written by:
Jackie Schweichler – Staff Attorney
Sarah Straub – Research Assistant