Shale Law Weekly Review – Week of January 25, 2021

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Biofuels: Supreme Court to Hear Small-Refinery Exemption Appeal
On January 8, 2021, the U.S. Supreme Court granted a petition for writ of certiorari to hear an appeal of a January 24, 2020, decision from the U.S. Court of Appeals for the Tenth Circuit that invalidated the Environmental Protection Agency’s (EPA) grant of renewable fuel standard (RFS) small refinery exemptions.  HollyFrontier Cheyenne Refining, LLC, et al., Petitioners v. Renewable Fuels Association, et al., No. 20-472. (For background on the filing see “Court of Appeals Invalidates EPA Grant of Renewable Fuel Standard Waivers,” ALWR—January 30, 2020 and “EPA Requests Extension to Reply to U.S. Supreme Court Small Refinery Exemption Appeal,” ALWR—week ending November 6, 2020).  The petroleum refiners who filed the petition seek determination from the Court whether a small refinery must have been granted “uninterrupted, continuous [RFS] hardship exemptions” for each year dating back to 2011 in order to receive a current hardship exemption from the renewable fuel standards.  The Court also granted leave to The American Fuel & Petrochemical Manufacturers and Countrymark Refining and Logistics, LLC to file amicus briefs.  Oral argument dates have yet to be set.

Pipelines/Federal Lands: President Biden Signs Executive Order Revoking Keystone XL Pipeline Permit and Changing National Monument Boundaries
On January 20, 2021, President Biden signed an Executive Order titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The Executive Order revokes the March 2019 permit for the Keystone XL Pipeline.  President Trump originally granted the pipeline permit “to construct, connect, operate, and maintain pipeline facilities at the international border of the United States and Canada.” (Permit summary, EO Sec 6).  The Executive Order also requires a review of the Bears Ear, Grand Staircase-Escalante, and Northeast Canyons and Seamounts Marine National Monuments to determine if the pre-January 20, 2017, monument boundaries need to be restored. (Sec 3).  Further, the Executive Order places a temporary moratorium on the Coastal Plain Oil and Gas Leasing Program in the Arctic National Wildlife Refuge.  Other sections of the Executive Order focus on revoking or reviewing policies and activities that may have an adverse impact on the environment.

Public Lands: Department of the Interior Temporarily Suspends Fossil Fuel Leasing and Permitting
On January 20, 2021, the U.S. Department of the Interior signed an order that temporarily suspends delegated authority to issue fossil fuel leases or permits to drill.  Order number 3395 suspends the authority of Department Bureaus and Offices to issue any onshore or offshore fossil fuel authorization.  However, the order does not limit “existing operations under valid leases” and does not apply authorizations necessary to avoid threats to human health or “adverse impacts to public land or mineral resources.”  The order also suspends the authority to publish notices of proposed or final agency action related to the National Environmental Policy Act (NEPA).  Further, the Order halts authority to issue Resource Management Plans under the Federal Land Policy and Management Act and to approve any easements for ground-disturbing activities.  The order will remain in effect for 60 days.

Pipelines: BLM Issues Record of Decision Granting Right of Way and Permit for Mountain Valley Pipeline
On January 14, 2021, the U.S. Bureau of Land Management (BLM) issued a Record of Decision granting a right-of-way and temporary use permit for the Mountain Valley Pipeline and Equitrans Expansion Project.  The decision approved an amended Right-of Way application after the U.S. Court of Appeals for the Fourth Circuit vacated the previous 2017 Right-of-Way granted by BLM for failure to comply with the Mineral Leasing Act and the National Environmental Policy Act.  See Sierra Club, Inc. v. U.S. Forest Service, 897 F.3d 582 (4th Cir. 2018).  The decision authorizes a 30-year right-of-way and permits construction, operation, and maintenance of the pipeline.  The right-of way will allow the 303.5-mile pipeline to cross 3.5 miles of the Jefferson National Forest.  The Mountain Valley pipeline project is expected to “transport natural gas produced in the Appalachian Basin to markets in the Northeast, Mid-Atlantic, and Southeastern United States.”

Biofuels: Federal Appeals Court Issues Emergency Stay on EPA’s Small Refinery Exemptions
On January 21, 2021, the U.S. Court of Appeals for the District of Columbia Circuit granted an emergency stay on the Environmental Protection Agency’s (EPA) actions granting small refinery exemption petitions for 2018 and 2019. (Renewable Fuels Ass’n v. EPA, No. 21-1032).  The Renewable Fuels Association filed a Petition to review EPA’s January 19, 2021, actions granting the exemptions.  The Petition states that EPA failed to notify the public through a public decision document. EPA notified the public of the added exemptions though email and by adding the exemptions to their small refinery exemption dashboard.  The Court of Appeals granted the Petition to stay the exemptions and gave EPA until February 3, 2021, to file a response to the Petition.  The Renewable Fuels Association must file a reply brief by February 10, 2021.

Shale Law/Policy Resources of Interest:

Charles Sartain, Pennsylvania Rule of Capture Still Bars Subsurface Trespass Claim (Jan. 20, 2021)

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

Hillary Aidun, Sabin Center Launches Climate Reregulation Tracker As President Biden Takes Office (Jan. 2021)

Hillary Aidun, Local Governments Across The Country File Legal Brief Challenging Clean Cars Rollback (Jan. 21, 2021)

Jennifer Danis & Romany Webb, Will Ferc’s New Chair Bring A New Approach To Natural Gas Pipeline Approvals? (Jan. 22, 2021)

AGENCY PRESS RELEASES – STATE/FEDERAL

United States Department of Energy

Department of Energy Announces New Senior Leaders (Jan. 21, 2021)

United States Environmental Protection Agency

EPA Welcomes Members of the Biden-Harris Leadership Team (Jan. 21, 2021)

STATE ACTIONS – EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices (Pa. Bulletin Vol. 51, No. 4—Jan. 23, 2021):

51 Pa.B. 435 Pennsylvania Utilities Commission “Amended Policy Statement on Diversity at Major Jurisdictional Utility Companies” (Jan. 23, 2021)

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Jan. 18-22, 2021):

Environmental Protection Agency

86 FR 5013 Final Rule “Standards of Performance for Volatile Organic Liquid Storage Vessels (Including Petroleum Liquid Storage Vessels) for Which Construction, Reconstruction, or Modification Commenced After July 23, 1984” (Jan. 19, 2021)

86 FR 5186 Notice—Comments Period “Proposed Information Collection Request; Renewal; EPA’s Methane Challenge Program” (Jan. 19, 2021)

86 FR 5182 Notice—Comments Period “Notice of Receipt of Petitions for a Waiver of the 2019 and 2020 Renewable Fuel Standards” (Jan. 19, 2021)

86 FR 6591 Proposed Rule—Comments Period “Air Plan Approval; Maine; Infrastructure State Implementation Plan Requirements for the 2015 Ozone Standard and Negative Declaration for the Oil and Gas Industry for the 2008 and 2015 Ozone Standards” (Jan. 22, 2021)

Federal Energy Regulatory Commission

86 FR 6420 Notice of Proposed Rulemaking—Comments Period “Managing Transmission Line Ratings” (Jan. 21, 2021)

86 FR 6642 Notice—Comments Period “Columbia Gas Transmission, LLC.; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (Jan. 21, 2021)

Labor Department

86 FR 5253 Notice of Availability—Comments Period “Agency Information Collection Activities; Submission for OMB Review; Comment Request; Division of Energy Employees Occupational Illness (DEEOIC) Authorization Forms” (Jan. 19, 2021)

Land Management Bureau

86 FR 6362 Notice of Proposed Reinstatement “Proposed Reinstatement of Terminated Oil and Gas Lease NMNM 119276, New Mexico” (Jan. 21, 2021)

National Oceanic and Atmospheric Administration

86 FR 5322 Final Rule “Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico” (Jan. 19, 2021)

Ocean Energy Management Bureau

86 FR 6365 Notice of Availability of a Record of Decision “Gulf of Mexico, Outer Continental Shelf (OCS), Oil and Gas Lease Sale 257” (Jan. 21, 2021).

Pipeline and Hazardous Materials Safety Administration

86 FR 5313 Notice—Comments Period “Pipeline Safety: Request for Special Permit; Tennessee Gas Pipeline, L.L.C.” (Jan. 19, 2021)

86 FR 6737 Notice—Comments Period “Pipeline Safety: Request for Special Permit; Southern Natural Gas Company, L.L.C.” (Jan. 21, 2021)

House Energy and Commerce Committee Actions:

H.R. 425 “To amend the Energy Independence and Security Act of 2007 to reauthorize the Energy Efficiency and Conservation Block Grant Program, and for other purposes.” Referred to House Committee on Energy and Commerce (Jan. 21, 2021)

H.R. 407 “To require a notification relating to the nationally determined contribution of the United States prior to any submission with respect to such contribution under article 4 of the Paris Agreement, and for other purposes.” Referred to House Committee on Energy and Commerce (Jan. 21, 2021)

Senate Energy and Natural Resources Committee

1. 28 “A bill to include the State of Florida in the Gulf of Mexico outer Continental Shelf revenue sharing program, to extend the moratorium on oil and gas leasing in certain areas of the Gulf of Mexico, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources (Jan. 22, 2021)

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks Jan. 18-22, 2021:

“Great Lakes Pipeline Adds Heat to U.S.-Canada Energy Tensions” Wall Street Journal

“Critics, Supporters Weigh In On Gas Pipeline That Would Travel Through Luzerne County” The Citizens’ Voice

“The Solution To Preventing Oil And Gas Pipeline Spills: Research And Innovation” The Hill

“Outgoing Trump Administration Warns of U.S. Economic Disaster if Fracking Banned” Natural Gas Intelligence

“Keystone XL Puts Biden In A Tough Spot With Unions” Energywire

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Written by:
Jackie Schweichler – Staff Attorney
Sara Jenkins – Research Assistant
Sarah Straub -Research Assistant
Audry Thompson – Research Assistant