Shale Law Weekly Review – October 28, 2019

Pipelines: FERC Orders Immediate Suspension of All Construction Activities Relating to the Mountain Valley Pipeline
On October 15, 2019, the Federal Energy Regulatory Commission (FERC) issued a cease work order for certain activities relating to the construction of the Mountain Valley Pipeline following a stay of the 2017 U.S. Fish and Wildlife Service (FWS) Biological Opinion and Incidental Take Statement by the U.S. Court of Appeals for the Fourth Circuit (Wild Virginia, Inc. v. U.S. Dept. of the Interior, No. 19-1866).  The court issued the stay on October 11, 2019, to allow FWS and FERC to have a re-consultation to discuss project impacts on wildlife species.  Along with the stay, the court will hold the case in abeyance until January 2020.  This cease work order is immediate, but FERC will allow Mountain Valley to pursue any activity relating to right-of-way restoration and work area stabilization as long as such activity does not further impact wildlife species.  In addition, Mountain Valley must provide an updated interim right-of-way and work area stabilization plan for review and approval from the Director of the Office of Energy Projects.

Pipelines: South Dakota and ACLU Agree to Settlement in Riot Boosting Case
On October 24, 2019, the American Civil Liberties Union Foundation and South Dakota agreed to a stipulated settlement agreement relating to the state’s riot boosting statute (Dakota Rural Action v. Noem, 5:19-cv-5026-LLP).  The settlement allows some portions of the South Dakota statute to remain in effect, but it declares that other sections will not be enforced.  This agreement closely follows an order issued by the U.S. District Court for the District of South Dakota Western Division which temporarily enjoined the statute.  According to the court, these riot-boosting statutes were enacted by the South Dakota legislature as a way to address the costs of anticipated rioting resulting from construction of the Keystone XL pipeline.  For more information on the original South Dakota law, see the Shale Law in the Spotlight – South Dakota Governor Signs Pipeline Protest Legislative Package into Law

National Energy Policy: PHMSA Proposes Rulemaking Authorizing Shipment of LNG by Rail
On October 24, 2019, the Pipeline and Hazardous Materials Safety Administration (PHMSA), together with the Federal Railroad Administration (FRA), published a proposed rule which would amend regulations relating to the transportation of liquefied natural gas (LNG).  Currently, under the Hazardous Materials Regulations, LNG may not be transported in rail tank cars without a special permit issued by the Department of Transportation (DOT).  According to PHMSA, the number of LNG facilities in the U.S. has grown by 28.7 percent in the past decade, prompting a need for additional methods for LNG transportation.  The proposed rule would authorize the shipment of LNG by rail tank cars that meet certain DOT specifications.  This proposed rulemaking follows an Executive Order signed by President Trump on April 10, 2019, directing the Secretary of Transportation to update the Hazardous Materials Regulations to promote and expand the transportation infrastructure.

Climate Change: U.S. Supreme Court Declined to Hear Appeal in Climate Change Lawsuit
On October 22, 2019, the U.S. Supreme Court declined to hear an appeal of the U.S. District Court for the District of Maryland’s order to remand a case addressing climate change to state court (BP P.L.C. v. Mayor & City of Baltimore, No. 19A368).  In this case, the mayor and City of Baltimore filed a complaint in July 2018 before the Circuit Court for Baltimore City against 26 energy companies, including BP, Chevron, ConocoPhillips, Shell Oil, and Exxon Mobil, seeking to hold them responsible for damages caused by global warming. The plaintiffs allege that these companies were aware of the dangers of greenhouse gas pollution contributed by fossil fuels and yet these companies engaged in efforts to conceal this danger.  Defendants Chevron Corp. and Chevron U.S.A., Inc. removed the case from state court to the U.S. District Court for the District of Maryland . Plaintiffs filed a motion to remand the case to state court in September 2018 arguing that the city sought relief only under state law.  The U.S. District Court granted remand on June 10, 2019.  On June 13, 2019, defendants appealed the remand order to the U.S. Court of Appeals for the Fourth Circuit and filed a motion to stay the order until the Court of Appeals issued its ruling.  The U.S. Court of Appeals denied the motion for a stay on October 1, 2019, and defendants subsequently filed an appeal of the remand order with the U.S. Supreme Court.

Wildlife Habitat: Federal District Court in Idaho Enjoins the 2019 BLM Sage-Grouse Plan Amendments from Becoming Effective for Six Western States
On October 16, 2019, the U.S. District Court for the District of Idaho issued an order granting a preliminary injunction to prevent the Bureau of Land Management (BLM) from implementing the 2019 BLM Sage-Grouse Plan Amendments for the states of Idaho, Wyoming, Colorado, Utah, Oregon, and Nevada/Northeastern California, until the court resolves the case (Western Watersheds Project et al. v. Schneider et al., No. 1:16-cv-00083).  In early 2016, the Western Watersheds Project, Wildearth Guardians, Center for Biological Diversity and Prairie Hills Audubon Society brought a legal action against BLM challenging numerous Environmental Impact Statements (EIS) governing western states.  This matter, however, was put on hold following President Trump’s order to review and revise the 2015 BLM-Sage Grouse Plans.  In March 2019, BLM issued amendments to the 2015 BLM-Sage Grouse Plans as well as six EISs for Idaho, Wyoming, Colorado, Utah, Oregon, and Nevada/Northeastern California.  On April 19, 2019, plaintiffs sought a preliminary ruling from the court to enjoin the six EISs from becoming effective. According to plaintiffs, BLM did not consider the science behind sage-grouse and thus failed to fully evaluate the environmental consequences of such amendments in its analysis.

From the National Oil & Gas Law Experts:
Georges A. Bibikos, At the Well Weekly (October 18, 2019)
Stephen M. Boom Jr. et al., Rundown of Recent Developments in Covenant Running with the Land Tension (October 24, 2019)

National Legislation

Engineers Corps
Final Rule; Definition of “Waters of the United States” – Recodification of Pre-Existing Rules 84 FR 56626 (October 22, 2019)

Federal Energy Regulatory Commission
Final Rule; Revision to Policy Statement on Consultation with Indian Tribes in Commission Proceedings, 84 FR 56940 (October 24, 2019)

Pipeline and Hazardous Materials Safety Administration
Notice of Proposed Rulemaking; Hazardous Materials: Liquefied Natural Gas by Rail, 84 FR 56964 (October 24, 2019)

Pennsylvania Legislation
Senate Bill 694: this bill would allow well bores to cross multiple units (in the House, first consideration & laid on the table; Oct. 22, 2019)
Senate Bill 790: this bill would create separate regulations for conventional oil and gas operations (referred to Environmental Resources and Energy on Oct. 22, 2019)
Senate Bill 258: this bill would require public utility facilities to meet with the county emergency coordinator in the event of a natural gas spill (laid on the table & removed Oct. 23, 2019)

Pennsylvania Actions and Notices

Department of Environmental Protection
Applications, Actions and Special Notices (October 26, 2019)

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
“Flaring Concerns Rise Again Before Texas Railroad Commissioners,” Hart Energy
“Fossil Fuels on Trial: Where the Major Climate Change Lawsuits Stand Today,” Inside Climate News
“Another Delay, Cost Increase for Mountain Valley Pipeline,” The Roanoke Times
“North Dakota Regulators Approve Study of Natural Gas,” Associated Press
“Chevron Sees ‘Boom Boom Boom’ Despite Signs of Slowdown,” Energy Wire
“PennEast Calls for Redo in Eminent Domain Fight,” Energy Wire
“Mountain Valley Pipeline Completion Date Delayed Again,” Shale Gas Reporter
“ExxonMobil Faces Trial Over Allegations of Misleading Investors on Climate Crisis,” The Guardian
“California Ditched Coal. The Gas Company is Worried It’s Next,” Los Angeles Times
“Pittsburgh International Airport to Build Mini Power Plant Dependent on Natural Gas and Solar Energy,” CBS Pittsburgh

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