Shale Law Weekly Review – January 20, 2020

Climate Change: Federal Court Dismisses Climate Change Lawsuit for Lack of Standing
On January 17, 2020, the U.S. Court of Appeals for the 9th Circuit dismissed the Juliana v. United States climate change case, sending it back to the district court on the grounds that the children and youth plaintiffs did not meet Article III standing requirements (Juliana et al. v. United States of America, No. 6:15-cv-01517).  In September 2015, a group of youth and children brought legal actions in the U.S. District Court for Oregon against the United States, alleging that the federal government failed to respond to climate change and should now be held responsible for the consequences of its negligence to take action.  In its opinion, the Court of Appeals “reluctantly conclude[d] . . . that the plaintiffs’ case must be made to the political branches or to the electorate at large.”  The court explained that the plaintiffs failed to meet standing requirements because the injuries claimed by the plaintiffs could not be resolved by the court.  In a Press Release issued on the same day, Plaintiffs’ Attorney Julia Olson declared that they will appeal this decision.

LNG: Attorneys General from 15 States Oppose PHMSA Proposed Rule Allowing LNG Shipment by Rail
On January 13, 2020, Attorney Generals from the states of Maryland, New York, California, Delaware, Illinois, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia submitted a public comment opposing a proposed rule allowing for additional liquefied natural gas shipments by rail.  The proposed rule, Hazardous Materials: Liquefied Natural Gas by Rail, was issued on October 24, 2019, by the Pipeline and Hazardous Materials Safety Administration (PHMSA).  The proposed rule would allow liquefied natural gas (LNG) to be shipped via rail tank cars, which is currently prohibited. The Attorneys General wrote that LNG shipment in rail tank cars would pose a serious threat to public safety, including to states’ residents and first responders.  According to the Attorneys General, PHMSA neglected to make a proper analysis of those risks and did not sufficiently assess climate change and environmental impacts of shipping LNG via rail tank cars.  Through the comment, the Attorneys General request that the agency withdraw the proposed rule and await the results of ongoing safety tests by the Federal Railroad Administration.

Pipelines: Appellate Court Asks Maine Supreme Court for Legal Clarification over State Law Preemption Doctrine
On January 10, 2020, the U.S. Court of Appeals for the First Circuit deferred to the Maine Supreme Judicial Court and requested clarification on the state law doctrine of preemption and matters of statutory interpretation in a case involving crude oil transportation from Canada to South Portland, Maine (Portland Pipe Line Corp. et al. v. City of So. Portland, et al., No. 18-2118).  In their initial lawsuit, Portland Pipe Line Corporation (Portland Pipe Line) objected to the City of South Portland’s Clear Skies Ordinance, enacted in July 2014, which prohibits the loading of crude oil in the South Portland harbor.  The ordinance effectively blocked Portland Pipe Line from transporting oil from Canada to South Portland, Maine.  Portland Pipe Line argued that this ordinance violates Maine’s Coastal Conveyance Act and federal constitutional law (Portland Pipe Line Corp. et al. v. City of So. Portland, et al., No. 2:15-cv-00054).  In that case, the court held that the ordinance did not impose excessive foreign or interstate commerce burdens.  Here, the Court of Appeals certified three questions to the Maine Supreme Judicial Court.  The questions focus on whether the City Ordinance is expressly or impliedly preempted by the Coastal Conveyance Act (CCA), which authorizes the issuance of licenses for oil transfers in state waters.

From the National Oil & Gas Law Experts:
Georges A. Bibikos, At the Well Weekly (Jan. 13, 2020)
John McFarland, Bluestone v. Randle – Another Case to Watch – Post-Production Costs (Jan. 15, 2020)
Charles Sartain, 2019 Bad Guys in Energy (Jan. 16, 2020)
U.S. Energy Information Agency, EIA expects U.S. energy-related CO2 emissions to decrease annually through 2021 (Jan. 17, 2020)
U.S. Energy Information Agency, EIA forecasts slower growth in natural-gas fired generation while renewable energy rises (Jan. 16, 2020)

Pennsylvania Department of Energy Press Releases:
DEP Issues $1.95 Million Penalty to Sunoco Over Violations at Raystown Lake (January 16, 2020)
DEP Orders Range Resources to Address Leaking Gas Well in Lycoming County (January 13, 2020).
DEP Approves Chrin Landfill’s Application for Expansion in Northampton County (January 9, 2020).

Pennsylvania Executive Agencies—Actions and Notices:

Department of Labor and Industry
50 Pa.B. 283 “Liquefied Petroleum Gas Facility; Notice of Application” Notice (January 11, 2020).

Pennsylvania Legislature:
H.B. 2233 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in liquid fuels and fuels tax, further providing for definitions, providing for exempt entity use, sale and delivery of tax-free motor fuels and further providing for examination of records and equipment” Referred to Transportation [House] (January 17, 2020).
S.B. 790 “An Act relating to conventional wells and the development of oil, gas and coal; imposing powers and duties on the Department of Environmental Protection; providing for preliminary provisions, for general requirements, for enforcement and remedies, for related funds and for miscellaneous provisions; and making an appropriation” Re-referred to Appropriations (January 15, 2020).
H.B. 247  “This legislation will provide for a process and accounting mechanism to allow well bores to cross multiple units provided the operator has the right to drill wells on the units via leases with all landowners/members of the units.” Removed from table [House] (January 15, 2020).
S.B. 790 “An Act relating to conventional wells and the development of oil, gas and coal; imposing powers and duties on the Department of Environmental Protection; providing for preliminary provisions, for general requirements, for enforcement and remedies, for related funds and for miscellaneous provisions; and making an appropriation” Removed from table [House] (January 14, 2020).
H.B. 2198 “A Joint Resolution proposing an amendment to the Constitution of the Commonwealth of Pennsylvania, in restrictions on legislative power relating to legislation, providing for interstate compacts” Referred to State Government [House] (January 10, 2020).

Federal Executive Agencies—Actions and Notices:

Energy Department
85 FR 2419 “President’s Council of Advisors on Science and Technology Meeting [Feb. 3 & 4, 2020]” Notice (January 15, 2020).
85 FR 2120 “National Petroleum Council [Notice of Renewal]” Notice (January 14, 2020).

Environmental Protection Agency
85 FR 3306 “Control of Air Pollution From New Motor Vehicles: Heavy-Duty Engine Standards” Proposed Rule—Comment Period (January 21, 2020).
85 FR 3492 “Federal Implementation Plan for Managing Emissions From Oil and Natural Gas Sources on Indian Country Lands Within the Uintah and Ouray Indian Reservation in Utah” Proposed Rule—Comment Period (January 21, 2020).

Federal Energy Regulatory Commission
85 FR 3366 “Combined Notice of Filings #1 [Innovative Solar 42, LLC.; Oklahoma Wind, LLC.; Sooner Wind, LLC.; Pacific Gas and Electric Company; Southwest Power Pool, Inc.; High Desert Power Project, LLC; Tri-State Generation and Transmission Association, Inc.; Duke Energy Progress, LLC; Tucson Electric Power Company; Appalachian Power Company, PJM Interconnection, L.L.C.]” Notice—Comment Periods (January 21, 2020).
85 FR 3363 “Combined Notice of Filings [Transcontinental Gas Pipe Line Company, LLC; East Tennessee Natural Gas, LLC; Dominion Energy Carolina Gas Transmission LLC; Equitrans, L.P.; Guardian Pipeline, L.L.C.; Midwestern Gas Transmission Company; OkTex Pipeline Company, L.L.C.; Viking Gas Transmission Company]” Notice—Comment Periods (January 21, 2020).
85 FR 3365 “Combined Notice of Filings #1 [Refresh Wind, LLC; Exelon Generation Company, LLC; Axium Modesto Solar, LLC; Constellation Power Source Generation, LLC; Handsome Lake Energy, LLC; Rhode Island Engine Genco, LLC; Midcontinent Independent System Operator, Inc.; ISO New England Inc.; MidAmerican Energy Company; Emera Maine; Source Power & Gas LLC; Tri-State Generation and Transmission Association, Inc.; Baltimore Gas and Electric Company, PJM Interconnection, L.L.C.]” Notice—Comment Periods (January 21, 2020).
85 FR 3367 “Combined Notice of Filings [Rockies Express Pipeline LLC; Adelphia Gateway, LLC]” Notice—Comment Periods (January 21, 2020).
85 FR 2733 “Combined Notice of Filings #1 [Southwest Power Pool, Inc.; Southern California Edison Company; PJM Interconnection, L.L.C.; ITC Midwest LLC; ]” Notice—Comment Periods (January 16, 2020).
85 FR 2733 “Questar Southern Trails Pipeline Company; Notice of Filing” Notice—Comment Period (January 16, 2020).
85 FR 2731 “Portland Natural Gas Transmission System; Notice of Schedule for Environmental Review of the Westbrook Xpress Project” Notice (January 16, 2020).
85 FR 2420 “Combined Notice of Filings #1 [PJM Interconnection, L.L.C.; ISO New England Inc.; PacifiCorp] Notice—Comment Periods (January 15, 2020).
85 FR 2420 “Combined Notice of Filings [Gas Transmission Northwest LLC; Rockies Express Pipeline LLC; Spire STL Pipeline LLC; NEXUS Gas Transmission, LLC; Equitrans, L.P. ] Notice—Comment Periods (January 15, 2020).
85 FR 2420 “Notice of Filing [Enable Mississippi River Transmission, LLC] Notice (January 15, 2020).
85 FR 2126 “Commission Information Collection Activities (FERC-577); Comment Request; Extension [Natural Gas Facilities: Environmental Review and Compliance]” Notice—Comment Period (January 14, 2020).
85 FR 2123 “Dominion Energy Questar Pipeline, LLC; Notice of Application” Notice—Comment Periods (January 14, 2020).
85 FR 2126 “Combined Notice of Filings #1 [El Paso Electric Company, Sun Jupiter Holdings LLC; ISO New England Inc.; New York State Electric & Gas Corporation, New York Independent System Operator, Inc.]” Notice—Comment Periods (January 14, 2020).
85 FR 2126 “Combined Notice of Filings [Florida Gas Transmission Company, LLC; Millennium Pipeline Company, LLC; Enable Mississippi River Transmission, LLC]” Notice—Comment Periods (January 14, 2020).
85 FR 2124 “Combined Notice of Filings #2 [Midcontinent Independent System Operator, Inc.; Duke Energy Carolinas, LLC; GridLiance Heartland LLC; Emera Maine; Southern California Edison Company; Public Service Company of Colorado; Midcontinent Independent System Operator, Inc., ITC Midwest LLC; North Jersey Energy Associates, A Limited Partnership; Pacific Gas and Electric Company]” Notice—Comment Periods (January 14, 2020).
85 FR 2127 “Combined Notice of Filings #1 [Northeast Energy Associates, A Limited Partnership, North Jersey Energy Associates, A Limited Partnership, Vistra Energy Corp., NextEra Energy, Inc.; Virginia Electric and Power Company, Dominion Energy Generation Marketing, Inc.; Appalachian Power Company, PJM Interconnection, L.L.C.; Actual Energy, Inc.; PacifiCorp; Arizona Public Service Company; PJM Interconnection, L.L.C.; AEP Texas Inc.; Dominion Energy South Carolina, Inc.; El Paso Electric Company]” Notice—Comment Periods (January 14, 2020).
85 FR 2124 “Actual Energy, Inc.; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization” Notice (January 14, 2020).
85 FR 2128 “Idaho Power Company; Notice of Offer of Settlement” Notice (January 14, 2020).

Internal Revenue Service
85 FR 3486 “Credit for Indian Coal Production and Inflation Adjustment Factor for Calendar Years 2018 and 2019” Notice (January 21, 2020).

International Trade Administration
85 FR 2110 “Renewable Energy and Energy Efficiency Advisory Committee [Feb. 6, 2020]” Notice (January 14, 2020).

International Trade Commission
85 FR 3419 “Oil Country Tubular Goods (OCTG) From India, Korea, Turkey, Ukraine, and Vietnam; Scheduling of Full Five-Year Reviews” Notice (January 21, 2020).

Land Management Bureau
85 FR 2757 “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Oil and Gas Facility Site Security” Notice—Comment Period (January 16, 2020).

Maritime Administration
85 FR 2808 “Deepwater Port License Application: Texas COLT LLC; Correction” Notice—Comment Period (January 16, 2020).

Mine Safety and Health Administration
85 FR 2064 “Electronic Detonators” Proposed Rule—Comment Period (January 14, 2020).
85 FR 2022  “Electronic Detonators” Rule—Comment Period (January 14, 2020).

Pipeline and Hazardous Materials Safety Administration
85 FR 2812 “Hazardous Materials: Notice of Actions on Special Permits” Notice—Comment Period (January 16, 2020).
85 FR 2813 “Hazardous Materials; Notice of Applications for New Special Permits” Notice—Comment (January 16, 2020).

House Energy and Commerce Committee Actions:
H.R.5430 “United States-Mexico-Canada Agreement Implementation Act” Message on Senate action sent to the House (January 16, 2020).
H.R.5545 “NO EXHAUST Act of 2020” Forwarded by Subcommittee to Full Committee by Voice Vote (January 9, 2020).
H.R.5542 “To require the Secretary of Energy to establish a grant program for States to provide incentives to natural gas distribution companies for the improvement of natural gas distribution systems, and for other purposes” Forwarded by Subcommittee to Full Committee by Voice Vote (January 9, 2020).
H.R.5541 “Tribal Power Act” Forwarded by Subcommittee to Full Committee by Voice Vote (January 9, 2020).
H.R.5527 “21st Century Power Grid Act” Forwarded by Subcommittee to Full Committee by Voice Vote (January 9, 2020).
H.R.5518 “To require the Secretary of Energy to carry out a Clean Cities Coalition Program, and for other purposes” Forwarded by Subcommittee to Full Committee by Voice Vote (January 9, 2020).
H.R.3361 “Reliable Investment in Vital Energy Reauthorization Act” Forwarded by Subcommittee to Full Committee by Voice Vote (January 9, 2020).
H.R.3079 “Energy Savings Through Public-Private Partnerships Act of 2019” Forwarded by Subcommittee to Full Committee by Voice Vote (January 9, 2020).
H.R.2906 “Clean Commute for Kids Act of 2019” Forwarded by Subcommittee to Full Committee by Voice Vote (January 9, 2020).
H.R.1426 “Timely Review of Infrastructure Act” Forwarded by Subcommittee to Full Committee by Voice Vote (January 9, 2020).

Senate Energy and Natural Resources Committee Actions:
S.3202 “A bill to discourage speculative oil and gas leasing and to promote enhanced multiple use management of public land and National Forest System land, and for other purposes” Read twice and referred to the Committee on Energy and Natural Resources  (January 16, 2020).

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
“The battle over pipelines, population and property rights in Texas’ Hill Country,” The Daily Climate
“Oil Producers Are Setting Billions of Dollars on Fire,” The Wall Street Journal
“PE Boss Says Shale Will Deliver Returns This Year,” Rigzone
“Permian Oil and Gas Employs 87,000 People in 2019,” Rigzone
“Texas RRC Staff Sets Record Processing Standard Drilling Permits in 2019,” Oil & Gas Journal
“U.S. Coal-fired Power Plants Closing Fast Despite Trump’s Pledge Of Support For Industry,” Reuters
“Environmentalists, Oregon senators oppose DOT increasing transport of natural gas by rail,” The Hill
“Marcellus Shale: Pa. Orders Gas Well Plugged In Fight Over Methane,” Energy Wire
“Emissions: Documents Reveal Utilities’ Methane Plan,” Energy Wire
“Oil, Gas Supermajors Living Beyond their Means,” Rigzone
“Bill Would Restore Criminal Sanctions for Birds Killed By Oil Operations,” Oil & Gas Journal
“U.S. Energy Exports to Climb As China Pledges Ramp-up In Purchases,” Reuters
“Pipeline Foes: Congress Alone can OK Trail Crossing,” Energy Wire
“South Dakota: After KXL Conflict, Tribe Seeks More Outreach From Lawmakers,” Greenwire

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