Shale Law Weekly Review – September 18, 2020

Pipelines / Wildlife Habitat: U.S. Fish and Wildlife Service Issues New Report for Mountain Valley Pipeline Project
On September 4, 2020, the U.S. Fish and Wildlife Service issued a Biological Opinion and Incidental Take Statement considering the Mountain Valley Pipeline project’s impact on endangered and threatened species and their habitats.  This report, which replaces the report the Service issued in 2017, examined impacts the construction of the pipeline would have on five species: the Indiana bat and Northern long eared bat; two species of fish, the Roanoke logperch and candy darter; and a shrub, the Virginia spiraea.  The Service determined that completing the construction of the 304-mile pipeline, expected to impact approximately 6,951.71 acres of land, “is not likely to jeopardize the continued existence” of the various species reviewed.

Public Lands: Lawsuit Filed to Block Oil and Gas Leasing in Arctic National Wildlife Refuge
On September 9, 2020, fifteen states filed a federal lawsuit in the U.S. District Court for the District of Alaska seeking to stop the development of oil and gas in the Arctic National Wildlife Refuge.  (Case 3:20-cv-00224-JMK).  The Plaintiffs in State of Washington v. Bernhardt allege that Coastal Plain Oil and Gas Leasing Program in the Arctic Refuge violates the National Environmental Policy Act (NEPA), the National Wildlife Refuge System Administration Act, the Alaska National Interest Lands Conservation Act, the Administrative Procedure Act (APA), and the Tax Cuts and Jobs Act of 2017.  The lawsuit seeks an injunction to enjoin implementing the Coastal Plain Oil and Gas Leasing Program.  The states argue that, without an injunction, the states will suffer irreparable injury from environmental impacts such as greater emissions of greenhouse gasses, extreme weather, coastline erosion, and adverse effects on migratory birds.

Oil and Gas Leasing: President Trump Signs Order Barring Offshore Oil and Gas Drilling Along Florida’s Coastline Until 2032
On September 8, 2020, President Donald Trump signed an order extending a ban on exploring, developing, or producing oil and gas off the Atlantic coastline in Florida, Georgia, and South Carolina. (Memorandum on the Withdrawal of Certain Areas of the United States Outer Continental Shelf from Leasing Disposition).  Under the authority of the Outer Continental Shelf Lands Act, the order prevents areas of the continental shelf to be leased for oil and gas purposes until June 30, 2032.  The order does not affect the areas from being leased for conservation purposes protecting the environment, shores, beaches, wetlands, and habitats of wildlife.

Public Health: Delaware Files Climate Change Lawsuit Against Fossil Fuel Organizations
On September 10, 2020, Attorney General of Delaware, Kathleen Jennings, filed a lawsuit on Delaware’s behalf against thirty-one fossil fuel organizations seeking compensatory and punitive damages for damages the state claims it has incurred as the result of climate change.  (Case Number: N20C-09-097 AML CCLD).  The lawsuit, filed in the Superior Court of Delaware, alleges four state law claims including Negligent Failure to Warn, Trespass, Nuisance, and violations of the Delaware Consumer Fraud Act.  Delaware alleges that the fossil fuel organizations knew that their activities had a negative impact on the environment, yet they chose to conceal those effects from the public.

Pipelines: Judge Lifts Temporary Restraining Order Allowing Pipeline to Resume Operations In Straits of Mackinac
On September 9, 2020, Ingham County Circuit Court issued an order lifting the temporary restraining order from June 25, 2020, barring Enbridge from operating the east segment of its Line 5 pipeline running under the Straits of Mackinac.  On Friday, September 4, 2020, the U.S. Pipeline and Hazardous Material Safety Administration stated in a letter that its review of the previously damaged pipeline had not “identified any integrity issues” which resulted in the agency having no objection to operations of the pipeline resuming.  Despite the reversal of the restraining order, litigation remains pending with Michigan seeking to shut down the pipeline permanently, citing environmental and public safety concerns. (Nessel v Enbridge Energy LP, et al., Case No. 19-474).

From the National Oil & Gas Law Experts:
Chris Baronzzi, Sean Klammer,  and Matt Ambrose, Supreme Court Of Ohio To Decide Three Cases Regarding Subsurface Rights, (September 8, 2020)

Agency Press Releases – State/Federal 

Pennsylvania Department of Energy Press Releases:
DEP Orders Sunoco to Reroute Pipeline, Further Assess, Investigate Chester County Marsh Creek Lake Spill, Restore Impacted Resources, (September 11, 2020)
U.S. Environmental Protection Agency Press Releases:
George E Warren LLC and Gulf Oil LP Settle with EPA Over Alleged Violations of the Clean Air Act, (September 11, 2020)
EPA Administrator Talks Energy Dominance, Environmental Progress Under President Trump on Fox Business, (September 9, 2020)

State Actions – Executive/Legislative

Pennsylvania Executive Agencies—Actions and Notices:
SB 679 “An Act amending the act of November 26, 1978 (P.L.1375, No.325), known as the Dam Safety and Encroachments Act, further providing for definitions; and providing for programs for removing obstructions and flood-related hazards on streams.” Removed from table (September 8, 2020).
SB 763 “An Act amending the act of April 27, 1966 (1st Sp.Sess., P.L.31, No.1), known as The Bituminous Mine Subsidence and Land Conservation Act, further providing for compilation and analysis of data.” Removed from table (September 8, 2020).
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.” Signed in Senate (September 9, 2020).
SB 258 “An Act amending Title 66 (Public Utilities) of the Pennsylvania Consolidated Statutes, in service and facilities, providing for pipeline emergency management information.” (Memo: Pipeline Emergency Notification) Removed from table (September 9, 2020).
SB 284 “An Act amending the act of November 29, 2006 (P.L.1435, No.156), known as the Public Utility Confidential Security Information Disclosure Protection Act, further providing for definitions; providing for pipeline operation and emergency response plans; and further providing for prohibition.” Removed from table (September 9, 2020).
SB 950 “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.” Re-referred to Appropriations (September 9, 2020).
HB 2855 “An Act amending the act of November 30, 2004 (P.L.1672, No.213), known as the Alternative Energy Portfolio Standards Act, further providing for definitions and for alternative energy portfolio standards, providing for solar photovoltaic technology requirements, for contract requirements for solar photovoltaic energy system sources, for renewable energy storage report, for energy storage deployment targets and for contracts for solar photovoltaic technologies by Commonwealth agencies and further providing for portfolio requirements in other states; and making a related repeal.” Referred to Environmental Resources and Energy (September 9, 2020).
HB 2856 “An Act establishing the CO2 Budget Trading Program; providing for powers and duties of department; establishing the Energy Transition Fund; providing for revenue from sale of carbon allowances; establishing the Energy Transition Board; and providing for energy transition plan.” Referred to Environmental Resources and Energy (September 9, 2020).

Federal Actions – Executive/Legislative

Environmental Protection Agency
85 FR 56172 “West Virginia: Final Approval of State Underground Storage Tank Program Revisions, Codification, and Incorporation by Reference” Direct final rule  (September 11, 2020).
International Trade Administration
85 FR 56213 “Certain Oil Country Tubular Goods From India: Final Results of Antidumping Duty Administrative Review and Determination of No Shipments; 2018-2019” Notice (September 11, 2020).
U.S. Army Corps of Engineers
85 FR 55843 “Notice of Intent To Prepare an Environmental Impact Statement for an Easement to Cross Under Lake Oahe, North Dakota for a Fuel-Carrying Pipeline Right-Of-Way for a Portion of the Dakota Access Pipeline” Notice of intent  (September 10, 2020).
Federal Energy Regulatory Commission
85 FR 55846 “Trans-Foreland Pipeline Company, LLC; Notice of Availability of the Environmental Assessment for the Proposed Kenai LNG Cool Down Project” Notice (September 10, 2020).
85 FR 55444 “Transcontinental Gas Pipe Line Company, LLC; Notice of Request Under Blanket Authorization” Notice (September 8, 2020).
Fish and Wildlife Service
85 FR 55855 “Draft Environmental Assessment and Habitat Conservation Plan for the Endangered American Burying Beetle; City of Oklahoma City’s Second Atoka Pipeline Project, in Six Oklahoma Counties” Notice of availability; request for public comments (September 10, 2020) Written comments must be received or postmarked by October 13, 2020.
Bureau of Land Management
85 FR 55940 “Oil and Gas Site Security, Oil Measurement, and Gas Measurement Regulations” Proposed Rule (September 9, 2020) Comments on proposed rule due on or before November 9, 2020.
85 FR 55474 “ Notice of Proposed Reinstatement of Terminated Oil and Gas Leases WYW-178369, Wyoming” Notice (September 8, 2020).
Ocean Energy Management Bureau
85 FR 55861 “Outer Continental Shelf (OCS), Alaska Region (AK), Cook Inlet Planning Area, Proposed Oil and Gas Lease Sale 258” Notice of intent to prepare an Environmental Impact Statement and provide public scoping opportunities (September 10, 2020).
Department of Energy
85 FR 55672 “Alaska LNG Project LLC; Final Opinion and Order Granting Long-Term Authorization to Export Liquefied Natural Gas To Non-Free Trade Agreement Nations” Record of decision (September 9, 2020).
Pipeline and Hazardous Materials Safety Administration
85 FR 55738 “Pipeline Safety: Request for Special Permit; Tennessee Gas Pipeline Company, L.L.C.” Notice (September 9, 2020) Comments must be submitted by October 9, 2020.
85 FR 55575 “Pipeline Safety: Meeting of the Gas Pipeline Safety Advisory Committee” Notice of advisory committee meeting (September 8, 2020).
85 FR 55574 “Pipeline Safety: Request for Special Permit; Columbia Gas Transmission, LLC” Notice (September 8, 2020).
85 FR 55576 “Pipeline Safety: Request for Special Permit; Great Lakes Gas Transmission Company” Notice (September 8, 2020).

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
“Pa. Bill To Block RGGI Effort Faces Veto Threat” E&E News; Energywire
“Investment Giants Urge Texas to End Most Natural Gas Flaring” Bloomberg
“Enbridge to Restart Line 5’s East Segment” Oil & Gas Journal
“Oil And Gas Companies Track Methane Leaks On The Ground, In The Air And From Space” Houston Chronicle
“U.S. Shale Producers Race For Federal Permits Ahead Of Presidential Election” Reuters

Want to get updates, but prefer to listen? Check out the Shale Law Podcast! We can always be found on our Libsyn page, iTunes, Spotify, or Stitcher.

Written by:
Jackie Schweichler – Staff Attorney
Sarah Straub – Research Assistant