Shale Law Weekly Review – July 13, 2020

Pipelines: Supreme Court Issues Order Regarding Nationwide Permit 12 Pipeline Approvals
On July 6, 2020, the U.S. Supreme Court issued an Order regarding the Army Corps of Engineers Nationwide Permit 12 (NWP 12) pipeline approvals. (U.S. Army Corps of Engineers v. Northern. Plains Res. Council, No. 19A1053).  The Supreme Court’s order stays a May 2020 district court order that had put a hold on NWP 12 approvals for new pipeline construction.  Although the Supreme Court stayed the injunction on NWP 12 approvals in general, it did not lift the injunction that the May 2020 order placed specifically on the Keystone XL pipeline NWP 12 approval.  The Supreme Court’s order will remain in place pending a decision on the appeal with the Court of Appeals for the Ninth Circuit and a Writ of Certiorari if filed with the Supreme Court.  To read more about another recent case decision involving the Keystone XL pipeline project, check out our update here.

Pipelines: District Court Orders Shut Down of Dakota Access Pipeline Pending Creation of Environmental Impact Statement
On July 6, 2020, the U.S. District Court for the District of Columbia ordered that the Dakota Access Pipeline be shut down pending the creation of an Environmental Impact Statement (EIS). (Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, No. 16-1534 (JEB)).  In an earlier decision, the court concluded that the Army Corps of Engineers (Corps) violated the National Environmental Policy Act (NEPA) when it failed to create an EIS outlining the impacts of a potential oil spill from the pipeline into Lake Oahe.  The purpose of the court’s most recent order was to determine an appropriate remedy while the parties waited an estimated 13 months for the Corps to produce the EIS.  The court explained that while there would be economic disruption from the pipeline shutdown, the shutdown was necessary to incentivize the Corps to finish the EIS in a timely manner.  Energy Transfer, operator of the Dakota Access pipeline, issued a press release on the court’s ruling stating that they would pursue a stay of the decision and an expedited appeal. Dakota Access, LLC has since filed an Emergency Order to Stay the court’s decision.

LNG Exports: Department of Energy Issues Final Order Approving Jordan Cove LNG Exports
On July 6, 2020, the U.S. Department of Energy issued a final order granting approval for Jordan Cove Energy Project L.P. to export liquified natural gas (LNG) from its terminal in Coos Bay, Oregon.  According to a press release issued by the Department of Energy, the terminal is authorized to export 1.08 billion cubic feet of LNG per day.  The order allows export of LNG from the Jordan Cove terminal to any country that does not have a free trade agreement with the United States and which is not otherwise prohibited by law.  The authorization will last for 20 years and includes natural gas sourced from the U.S. and Canada.

Public Health: Federal Appellate Court Rules State Court is the Proper Forum for Climate Case
On July 7, 2020, the U.S. Court of Appeals for the Tenth Circuit ruled that state court was the proper forum for the “global warming”-related case. (Board of County Comm’rs of Boulder County v. Suncor Energy (U.S.A.) Inc., No. 19-1330).  Three local Colorado government entities initially filed suit in state court seeking damages from fossil fuel-related activities.  Suncor Energy and Exxon Mobile filed to remove the case to federal court.  Suncor and Exxon’s request was denied, and they filed an appeal with the Tenth Circuit.  The Tenth Circuit held that they were limited by statute to consider only one basis for moving a case to federal court, the Federal Officer Removal Statute.  However, the court ultimately concluded that the energy companies failed to establish grounds to allow for federal officer removal and dismissed the appeal.  The court also affirmed the previous district court’s decision to remand the case back to state court for further proceedings.

Pipelines: Energy Companies Announce Cancellation of Atlantic Pipeline Construction
On July 5, 2020, Dominion Energy and Duke Energy (Companies) announced that they would be cancelling construction of the Atlantic Coast pipeline.  The Companies cited uncertainty with delays and increasing costs as some of the reasons for the cancellation.  The initial cost of the project was estimated to be $4.5 to $5 billion and completion was slated for 2018.  The current estimates of the project put the cost at $8 billion with a completion date of 2022.  In the announcement, the Companies discussed litigation challenges to the project and concerns over NWP 12 permit approvals.  However, the Companies’ announcement was released a day before the Supreme Court issued the order allowing NWP 12 approvals to move forward.  The Companies’ decision also follows a June 2020 ruling by the Supreme Court which allowed the Atlantic Coast pipeline to be granted a permit to cross the Appalachian Trail.  To read more about the Supreme Court’s June 2020 ruling in the Atlantic Coast pipeline case, check out our update here.

From the National Oil & Gas Law Experts:
Charles Sartain, The Oil Producer and Premises Liability During Covid-19 (July 9, 2020).
Charles Sartain, What’s New in the Fracking Fracas (July 7, 2020).
Brooke Sizer, A Wrinkle in Time: Texas Supreme Court Takes on the Rule Against Perpetuities (July 6, 2020).
Michael Joyce and Euan Strachan, An Emerging Economy (July, 2020).
John McFarland, Chesapeake Bankruptcy – The Rise and Fall of a 21st Century Wildcatter (July 7, 2020).
Tiffany Challe, Hawaiʻi Supreme Court Said Public Utilities Commission Improperly Limited Consideration of LNG Projects’ Greenhouse Gas Impacts (July 8, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Energy Press Releases:
Capping Carbon Pollution Would Save Hundreds of Lives and Billions of Dollars (July 8, 2020).

U.S. Department of Energy
Secretary Brouillette Issues Statement On Dakota Access Pipeline (July 6, 2020).
U.S. Department of Energy Issues LNG Export Approval to Jordan Cove (July 6, 2020).
Department of Energy Announces $132 Million for High Energy Physics Research (July 6, 2020).

U.S. Environmental Protection Agency
No relevant actions July 6 – July 13.

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices:
50 Pa.B. 3406 “Commonwealth Leadership in Addressing Climate Change through Electric Sector Emissions Reductions” Executive Order No. 2019-07 As Amended (July 11, 2020).
50 Pa.B. 3560 “Projects Approved for Consumptive Uses of Water” Susquehanna River Basin Commission (July 11, 2020).

Pennsylvania Legislature:
HB 2025 “An Act authorizing the Department of Environmental Protection to conduct a public comment process on and submit to the General Assembly a measure or action intended to abate, control or limit carbon dioxide emissions by imposing a revenue-generating tax or fee on carbon dioxide emissions.” Passed in House (July 8, 2020), Referred to Senate Environmental Resources and Energy (July 13, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies—Actions and Notices:
Bureau of Safety and Environmental Enforcement
85 FR 40677 “Open and Nondiscriminatory Access to Oil and Gas Pipelines Under the Outer Continental Shelf Lands Act” Notice (July 7, 2020).

Environmental Protection Agency
85 FR 41486 “Deletion of the American Crossarm and Conduit Co. Superfund Site” Proposed Rule (July 10, 2020).
85 FR 41487 “Deletion of the Annapolis Lead Mine Superfund Site” Proposed Rule (July 10, 2020).
85 FR 41585 “Deepwater Horizon Oil Spill Louisiana Trustee Implementation Group Final Supplemental Restoration Plan; Cypremort Point State Park Improvements Project Modification and Finding of No Significant Impact” Notice (July 10, 2020).
85 FR 40906 “National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Deletion of the DuPage County Landfill/Blackwell Forest Superfund Site” Rule (July 8, 2020).
85 FR 40740 “Organic Liquids Distribution (Non-Gasoline) Residual Risk and Technology Review” Rule (July 7, 2020).

National Oceanic and Atmospheric Administration
85 FR 40250 “Takes of Marine Mammals Incidental to Specified Activities: Construction of Two Liquefied Natural Gas Terminals, TX” Notice (July 6, 2020).

Pipeline and Hazardous Material Safety Administration
85 FR 40132 “Pipeline Safety; Safety of Gas Transmission Pipelines: Maximum Allowable Operating Pressure Reconfirmation, Expansion of Assessment Requirements, and Other Related Amendments: Response to a Joint Petition for Reconsideration” Rule (July 6, 2020).

House Energy and Commerce Committee Actions:
No relevant actions July 6 – July 13.

Senate Energy and Natural Resources Committee Actions:
No relevant actions July 6 – July 13.

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
“2 Oil States Split On Methane As Epa Halts Rule,” EE News
“Chatterjee, Glick Press Congress After Pipeline Court Ruling,” Reuters
“N.M. Leaders Call For Delay To Stricter Methane Rules,” Carlsbad Current-argus
“Pipeline Order Puts The Bakken’s Future In The Balance,” Yahoo/Bloomberg
“Virginia Seeks More Fines Against Mountain Valley Pipeline,” AP News
“Major Oil And Gas Pipeline Projects, Backed By Trump, Flounder As Opponents Prevail In Court,” Washington Post
“Over 5,600 Fossil Fuel Companies Have Taken At Least $3bn In Us Covid-19 Aid,” The Guardian

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