Shale Law Weekly Review – Week of April 12, 2021

GHG Emissions: U.S. Court of Appeals Vacates EPA Rule that Regulated Source Categories for Greenhouse Gas Emissions ⚡
On April 5, 2021, the U.S. Court of Appeals for the District of Columbia Circuit vacated an Environmental Protection Agency (EPA) Rule that regulated source categories for greenhouse gas (GHG) emissions. (State of California v. EPA, No. 21-1035).  The EPA rule titled, Pollutant-Specific Significant Contribution Finding for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units, and Process for Determining Significance of Other New Source Performance Standards Source Categories, was published in the Federal Register on January 13, 2021.  Several states had filed a Petition for Review of the EPA rule requesting that the court declare the Rule to be unlawful.  Eventually, EPA filed a Motion for Voluntary Vacatur and Remand stating that “it failed to provide any public notice or opportunity for comment on the central elements of the [] Rule, rendering it unlawful.”  The court granted the EPA’s Motion in a Per Curium Order.

GHG Emissions: U.S. Court of Appeals Approves Request to Pause Case Challenging Rule that Established Carbon Dioxide and Fuel Economy Standards
On April 2, 2021, the U.S. Court of Appeals for the District of Columbia Circuit paused a case challenging a Rule that established carbon dioxide and fuel economy standards. (Competitive Enterprise Institute v. National Highway Traffic Safety Admin., No. 20-1145).  The Rule titled, The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks, was published in the Federal Register on April 30, 2020.  On May 1, 2020, Petitioners, including the Competitive Enterprise Institute, filed a Petition for Review of the Rule arguing that the National Highway Traffic Safety Administration (NHTSA) and the Environmental Protection Agency (EPA) “failed to adequately consider the adverse traffic safety impacts of their chosen fuel economy standards.”  On February 19, 2021, NHTSA and EPA filed a Motion to hold the case in abeyance pending agency review of the rule in light of an Executive Order signed by President Biden on January 20, 2021.  The court granted the Motion and required the agencies to file status reports every 90 days and to notify the court of any agency action regarding the Rule.

Climate Change: U.S. Court of Appeals Dismisses Complaint Seeking Damages from Large Oil Companies for Climate Change
On April 1, 2021, the U.S. Court of Appeals for the Second Circuit dismissed a Complaint seeking global warming damages against several large oil companies. (City of New York v. Chevron Corp., No. 18-2188).  The Complaint alleged that the oil companies’ promotion and use of fossil fuels contributed to climate change impacts on New York City.  The Complaint explained that the City was injured from rising sea levels, increased temperatures, increased costs to protect water supply, and increased precipitation.  The U.S. District Court for the Southern District of New York originally dismissed the Complaint reasoning that federal law and the Clean Air Act displaced the City’s claims.  The District Court also found that the City’s claims interfered with the separation of powers and foreign policy.  The Court of Appeals dismissed the Complaint for the same reasons articulated by the District Court.  The Court of Appeals explained that global warming is an international issue related to federalism and federal policy.

Shale Law/Policy Resources of Interest:

Charles Sartain, Texas Supreme Court Weighs in on Post-Production Costs (April 6, 2021)

Charles Sartain, Climate Change for Energy Professionals – Part 3 (April 8, 2021)

Hillary Aidun, The Climate Leadership And Community Protection Act’s Environmental Justice Promise (April 2, 2021)

Margaret Barry and Korey Silverman-Koati, April 2021 Updates To The Climate Case Charts (April 9, 2021)

AGENCY PRESS RELEASES – STATE/FEDERAL

United States Department of Energy

DOE Announces $35 Million for Technologies to Reduce Methane Emissions (April 8, 2021)

DOE Announces $61.4 Million for Biofuels Research to Reduce Transportation Emissions (April 8, 2021)

United States Environmental Protection Agency

EPA Announces $100,000 in Funding to Kailua Small Business to Develop Low-Greenhouse Gas Fuel (April 7, 2021)

EPA proposes settlement with BNSF to resolve North Platte River oil spill in Wyoming (April 5, 2021)

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Legislature

HB 1124 “An Act amending the act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code of 1971, in sales and use tax, further providing for exclusions from tax” Referred to Finance Committee (April 7, 2021)

HB 1138 “An Act amending the act of May 22, 1933 (P.L.853, No.155), known as The General County Assessment Law, in subjects of taxation and exemptions, further providing for exemptions from taxation” Referred to Finance Committee (April 7, 2021)

HB 604 “An Act amending the act of April 9, 1929 (P.L.177, No.175), known as The Administrative Code of 1929, providing for environmental permits and plan approvals; making related repeals; and abrogating regulations” Referred to Environmental Resource and Energy (April 8, 2021)

HB 1144 “An Act relating to conventional wells and the development of oil, gas and coal; imposing powers and duties on the Department of Environmental Protection; and providing for preliminary provisions, for general requirements, for underground gas storage, for enforcement and remedies, for related funds, parties and activities and for miscellaneous provisions” Referred to Environmental Resource and Energy (April 8, 2021)

SB 534 “An Act relating to conventional wells and the development of oil, gas and coal; imposing powers and duties on the Department of Environmental Protection; and providing for preliminary provisions, for general requirements, for underground gas storage, for enforcement and remedies, for related funds, parties and activities and for miscellaneous provisions” Referred to Environmental Resources and Energy (April 8, 2021)

SB 545 “An Act amending the act of June 22, 1937 (P.L.1987, No.394), known as The Clean Streams Law, in other pollutions and potential pollution, providing for notice of discharge endangering public health or environment” Referred to Environmental Resources and Energy (April 9, 2021)

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register April 5-9 2021):

Environmental Protection Agency

86 FR 17594 Notice—Comments Period “Alternative Method for Calculating Off-Cycle Credits Under the Light-Duty Vehicle Greenhouse Gas Emissions Program: Application From Fiat Chrysler Automobiles NV (FCA)” (April 5, 2021)

Federal Energy Regulatory Commission

86 FR 17831 Notice—Comments Period “Continental Resources, Inc. v. Northern Border Pipeline Company; Notice of Complaint” (April 6, 2021)

86 FR 17828 Notice—Comments Period “Cactus II Pipeline LLC; Notice of Petition for Declaratory Order” (April 6, 2021)

86 FR 18054 Notice—Comments Period “Transcontinental Gas Pipe Line Company, LLC; Notice of Petition for Declaratory Order” (April 7, 2021)

86 FR 18526 Notice—Comments Period “Texas Eastern Transmission, LP; Notice of Request Under Blanket Authorization” (April 9, 2021)

National Resources Revenue Offices

86 FR 18072 Notice “Major Portion Prices and Due Date for Additional Royalty Payments on Gas Produced From Indian Lands in Designated Areas That Are Not Associated With an Index Zone” (April 7, 2021)

National Oceanic and Atmospheric Administration

86 FR 18476 Final Rule; correction “Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico; Correction” (April 9, 2021)

Ocean Energy Management Bureau

86 FR 17636 Notice of Information Collection—Comments Period “Agency Information Collection Activities; Commercial Prospecting, Noncommercial Geological and Geophysical Exploration, and Scientific Research for Minerals Other Than Oil, Gas, and Sulfur on the Outer Continental Shelf” (April 5, 2021)

Pipeline and Hazardous Materials Safety Administration

86 FR 18117 Notice of Public Meeting “Pipeline Safety: Pipeline Leak Detection, Leak Repair, and Methane Emission Reductions Public Meeting” (April 7, 2021)

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks April 5-9, 2021:

“Biden Fleshes Out Plans For Fossil Subsidies, Renewables” Energywire

“Phillips 66 Pulls Out Of Deferred Liberty Pipeline Project” S&P Global

“Canada’s Biggest Oil Producers Plan New Emissions Targets, No Pivot to Renewables” Hart Energy

“Biden Administration Asks Court To Toss Kids’ Climate Lawsuit” The Hill

“U.S. LNG Export Bonanza Reshapes Energy Map In Asia” Reuters

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