Shale Law Weekly Review – March 23, 2020

Federal Lands: Ohio District Court Rules that Wayne National Forest Leasing Decisions Failed to Account for Impacts of Hydraulic Fracturing
On March 13, 2020, the U.S. District Court for the Southern District of Ohio ruled that the decision to lease land for mineral extraction in the Wayne National Forest (Forest) failed to account for the impacts of hydraulic fracturing. (Center for Biological Diversity v. U.S. Forest Service, No. 2:17-cv-372).  In October 2016, the Bureau of Land Management (BLM) issued an Environmental Assessment with a Finding of No Significant Impact on lands proposed for leasing in the Marietta Unit of the Forest.  In May 2017, environmental groups, including the Center for Biological Diversity, filed a complaint alleging the U.S. Forest Service’s (USFS) approval of the BLM lease proposals violated the National Environmental Policy Act by failing to prepare an Environmental Impact Statement before making the leasing decisions.  The court concluded that both USFS and BLM failed to take a hard look at the impacts of hydraulic fracturing in the Forest including: surface area disturbance, impacts on the Indiana Bat and the Little Muskingum River, and impacts on air quality.  The court will accept additional briefings from each of the parties to determine the appropriate remedy.

GHG Emissions: Massachusetts District Court Remands Climate Change Lawsuit Back to State Court
On March 17, 2020, the U.S. District Court for the District of Massachusetts ordered that a lawsuit against Exxon Mobil Corp. be remanded back to state court. (Commonwealth of Massachusetts v. Exxon Mobil Corp., No. 19-12430-WGY).  In their Complaint, the State of Massachusetts alleged that Exxon violated the Massachusetts Consumer Protection Act by misrepresenting climate change risks, making false and misleading statements to investors, failing to disclose the climate change risk of using its products, and promoting false and misleading greenwashing campaigns.  Exxon moved the case to federal district court, arguing that the case raised federal issues and that climate change suits fall under federal common law. Massachusetts argued that the Complaint did not raise any federal issues allowing federal court jurisdiction and that Exxon did not meet its burden to establish federal jurisdiction.  After hearing oral arguments on the matter of jurisdiction, the District Court ultimately ordered the case to be remanded back to state court.

Production and Operation: Colorado District Court Dismisses Case Challenging “Forced Pooling” Law
On March 18, 2020, the U.S. District Court for the District of Colorado dismissed a case challenging the “forced pooling” provision of the Colorado Oil and Gas Conservation Act. (Wildgrass Oil and Gas Comm. v. State of Colorado, No. 19-cv-00190-RBJ). Wildgrass Oil and Gas Committee filed the Complaint, alleging that the statute is unconstitutional, that Colorado Oil and Gas Conservation Commission is impairing non-consenting mineral owners’ due process rights, and that the statute allows unlawful trespass and violates the right to contract.  The District Court found that Wildgrass failed to state a due process claim, a contracts claim, or a First Amendment claim.  The court dismissed the case concluding that a federal court was not the appropriate forum to address issues of state law.

Infrastructure: Minnesota Supreme Court Will Review Decision Involving Utility’s Proposed Natural Gas Power Plant in Wisconsin
On March 17, 2020, the Minnesota Supreme Court granted a petition for review of a decision involving the Minnesota Public Utilities Commission’s approval of a proposed natural-gas power plant in Wisconsin. (In the Matter of Minnesota Power’s Petition for Approval of the EnergyForward Resource Package, Nos. A19-0688, A19-0704).  In the Court of Appeals Decision, the court reversed the Commission’s approval of Minnesota Power’s proposal to construct, operate, and purchase Nemadji Trail Energy Center in Superior, Wisconsin. Environmental advocacy groups previously petitioned the Commission to prepare an Environmental Assessment Worksheet before approving Minnesota Power’s proposal.  The Appellate Court’s reversal of the Commission’s approval requires the Commission to determine whether the proposal may have significant environmental impacts.  The Minnesota Supreme Court will review the Appellate Court’s decision.

LNG Infrastructure: FERC Issues Draft Environmental Impact Statement for Jordan Cove LNG Project
On March 29, 2020, the Federal Energy Regulatory Commission (FERC) issued a Draft Environmental Impact Statement for the Jordan Cove LNG project (Project).  FERC concluded that the Project would result in “temporary, long-term, and permanent impacts on the environment,” but that those impacts could be reduced to less-than-significant levels through mitigation measures.  FERC also concluded that the Project is likely to adversely affect some federally-listed species including: the marbled murrelet, northern spotted owl, and coho salmon.  The Project is proposed to consist of a liquified natural gas terminal in Coos County, Oregon with a pipeline designed to transport natural gas 229 miles from Malin, Oregon to the proposed terminal.  FERC is accepting public comments on the Draft Statement until July 5, 2020.

From the National Oil & Gas Law Experts:
Charles Sartain, Coronavirus and the Energy Industry: Drilling Into Force Majeure Clauses (Mar. 16, 2020)
Charles Sartain, Help for the Oil Patch Workforce in These Uncertain Times (Mar. 19, 2020)
John McFarland, A Little History of Gas Flaring in Texas (Mar. 18, 2020)

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Energy Press Releases:
No new releases Mar. 16–23, 2020.

U.S. Department of Energy
Department of Energy Executes On Direction of President Trump, Announces Solicitation to Purchase Crude Oil for the SPR to Provide Relief to American Energy Industry (Mar. 19, 2020)

U.S. Environmental Protection Agency
No new releases Mar. 16-22, 2020.

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices:
No new actions Mar. 22, 2020.

Pennsylvania Legislature:
No new actions Mar. 22, 2020

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies—Actions and Notices:

Energy Department
85 FR 15442 “Texas LNG Brownsville, LLC; Opinion and Order Granting Long-Term Authorization to Export Liquefied Natural Gas to Non-Free Trade Agreement Nations” Notice (Mar. 18, 2020)
85 FR 15442 “Eagle LNG Partners Jacksonville, LLC; Opinion and Order Granting Long-Term Authorization to Export Liquefied Natural Gas to Non-Free Trade Agreement Nations” Notice (Mar. 18, 2020)
85 FR 15443 “Annova LNG Common Infrastructure, LLC; Opinion and Order Granting Long-Term Authorization to Export Liquefied Natural Gas to Non-Free Trade Agreement Nations” Notice (Mar. 18, 2020)
85 FR 15443 “Rio Grande LNG, LLC; Opinion and Order Granting Long-Term Authorization to Export Liquefied Natural Gas to Non-Free Trade Agreement Nations” Notice (Mar. 18, 2020)
85 FR 15444 “Venture Global Plaquemines LNG, LLC; Opinion and Order Granting Long-Term Authorization to Export Liquefied Natural Gas to Non-Free Trade Agreement Nations” Notice (Mar. 18, 2020)
85 FR 15769 “Cameron LNG, LLC; Application for Blanket Authorization to Export Liquefied Natural Gas to Non-Free Trade Agreement Countries on a Short-Term Basis” Notice (Mar. 19, 2020)

Environmental Protection Agency
85 FR 15729 “Amendments to Federal Implementation Plan for Managing Air Emissions From True Minor Sources in Indian Country in the Oil and Natural Gas Production and Natural Gas Processing Segments of the Oil and Natural Gas Sector” Rule (Mar. 19, 2020)

Federal Energy Regulatory Commission
85 FR 15160 “Apex Oil Company, Inc. FutureFuel Chemical Company v. Colonial Pipeline Company; Notice of Complaint” Notice (Mar. 17, 2020)
85 FR 15160 “Explorer Pipeline Company; Notice of Petition for Declaratory Order” Notice (Mar. 17, 2020)
85 FR 15165 “Texas Eastern Transmission, LP; Notice of Schedule for Environmental Review of the Lilly Compressor Units Replacement Project” Notice (Mar. 17, 2020)
85 FR 15446 “Magnum Gas Storage, LLC; Notice of Motion to Partially Vacate Certificate Authorization or in the Alternative, Motion to Amend Certificate Authorization” Notice (Mar. 18, 2020)
85 FR 15713 “Natural Gas Pipelines; Project Cost and Annual Limits” Rule (Mar. 19, 2020)
85 FR 15772 “Columbia Gas Transmission, LLC; Notice of Request Under Blanket Authorization” Notice (Mar. 19, 2020)
85 FR 15774 “Enable Gas Transmission, LLC, Enable Gulf Run Transmission, LLC; Notice of Application” Notice (Mar. 19, 2020)

Foreign-Trade Zones Board
85 FR 16054 “Foreign-Trade Zone (FTZ) 116-Port Arthur, Texas, Notification of Proposed Production Activity, Port Arthur LNG, LLC (Liquefied Natural Gas Processing), Port Arthur, Texas” Notice (Mar. 20, 2020)

Justice Department
85 FR 15815 “Notice of Lodging of Proposed Consent Decree Under the Clean Water Act, the Oil Pollution Act of 1990, and the Pipeline Safety Laws” Notice (Mar. 19, 2020)

House Energy and Commerce Committee Actions:
No new actions Mar. 16-23, 2020.

Senate Energy and Natural Resources Committee Actions:
No new actions Mar. 16-23, 2020.

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
“Science Advisory Board to Review Methane, Water Rules,” Greenwire
“Shale Drillers Seek Jones Act Waiver to Ease Price Pain,” Rigzone
“Coronavirus Fallout Could Be the “Nail in the Coffin’ for Smaller Oil Companies,” Grist
“Judge Strikes Down Ohio Fracking on NEPA Grounds,” Energywire
“Proposal to Split PennEast into Two Phases Faces New Objections at FERC,” S&P Global
“Coronavirus Lowers Energy Demand and Energy Prices Fall,” Institute for Energy Research
“The Russia/Saudi Impasse Will Have Major Impacts on U.S. Shale,” Shale Mag
“Trump’s Oil Buy Could Help Hundreds of Shale Drillers,” Rigzone
“Judge Promises Fast Answer on Shutting Down Dakota Access,” Energywire
“Minn. Supreme Court to Review Natural Gas Climate Fight,” Energywire

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Written by:
Sara Jenkins – Research Assistant
Jackie Schweichler – Staff Attorney
Brennan Weintraub – Research Assistant