April 24, 2023
Shale Law Weekly Review—Week of April 24, 2023
GHG Emissions: EPA Announces New Standards with Vehicle Emissions Reduction Goals ⚡
On Wednesday, April 12, 2023, the Environmental Protection Agency (EPA) announced new emissions standards for light-duty and medium-duty vehicles manufactured from 2027 to 2032. As proposed, these standards would become increasingly stringent across the six-year period, both for light- and medium-duty vehicles. The new standards also include revisions to other programs concerned with greenhouse gas emissions (GHG emissions), including carbon credits, zero-emissions and hybrid vehicles, and other vehicle compliance measures. Emissions resulting from the refueling of incomplete medium-duty vehicles are also subject to new standards, as well as new “battery durability and warranty requirements for light-duty and medium-duty plug-in vehicles.” Across all new proposals, the EPA emphasizes how significantly the estimated benefits exceed the estimated costs of the program, pointing specifically to the current and future impacts from light- and medium-duty vehicles, electric generating units, and refineries. The data spans from now to 2055, and it indicates a substantial decrease (ranging from –17% to –78%) in the net impact from carbon dioxide, methane, nitrous oxide, and several other pollutants if the EPA’s new standards are implemented. In terms of dollars, the EPA estimates the monetary benefits from the standards to range from $350 billion to $590 billion.
Municipal Regulation: Ninth Circuit Rules Berkeley’s Natural Gas Piping Prohibition Preempted by Federal Law
On Monday, April 17, 2023, the 9th Circuit Court of Appeals filed its decision on an appeal by the California Restaurant Association that was brought after its complaint against the City of Berkeley was dismissed by the Northern District Court of California. CRA v. City of Berkeley, No. 0:2021cv16278. The original complaint contends that an ordinance passed by the City of Berkeley, prohibiting the installation of natural gas piping in new buildings, was preempted by the Energy Policy and Conservation Act (EPCA). In its ruling, the circuit court agreed with the plaintiffs, holding that the EPCA “expressly preempts State and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens.” The court explains that Berkely attempted to circumvent this preemption but ultimately enacted a building code that violated federal preemption. The district court’s decision to dismiss the complaint was reversed and the case was remanded for further proceedings.
LNG Exports: DOE Reaffirms Order Authorizing Alaska LNG Project
On Thursday, April 13, 2023, the Department of Energy Office of Fossil Energy and Carbon Management (DOE) reaffirmed its order from August 20, 2020, which authorized Alaska LNG to export liquefied natural gas (LNG) produced in Alaska. Specifically, Order No. 3643-A allowed for Alaska-produced LNG to be exported to countries with which trade is not prohibited by law or otherwise modified by an already existing free trade agreement (FTA) between the United States and the country. The order allows Alaska LNG to export 929 billion cubic feet per year of natural gas from its Alaskan facility for a total of 33 years. This newest order from the DOE is one of several that have been issued in response to the Sierra Club’s request for a rehearing of the original order. It addresses the final supplemental environmental impact statement (Final SEIS) that the DOE published, which considered how the project would impact the environment in which it will be located. The DOE determined that the environmental impacts considered in the Final SEIS were insufficient to alter its finding that the exports to non-FTA countries resulting from the project would not be inconsistent with the public interest, as required by Section 3(a) of the Natural Gas Act. The new order does add one amendment to the 2020 order, which requires Alaska LNG to report monthly to the DOE on whether the venting of byproduct carbon dioxide into the atmosphere occurred during the process of LNG production. Such venting is only permissible in the event of an emergency or for maintenance purposes, and it must comply with the FERC Order for the project.
National Energy Policy: EPA Proposes Settlement with Center for Biological Diversity Over Endangered Species Act and RFS Complaint
On Monday, April 17, 2023, the Environmental Protection Agency (EPA) published a notice of a proposed settlement agreement with respect to its ongoing legal dispute with the Center for Biological Diversity. In their complaint, which was filed on July 20, 2022, Plaintiffs allege that the EPA failed to comply with the consultation requirements of the Endangered Species Act (ESA) when enacting the annual Renewable Fuel Standard (RFS) volume targets for biomass-based diesel fuel from 2020 to 2022. In the proposed settlement agreement, the EPA commits to conducting a complete ESA consultation (as outlined in Section 7(a)) before promulgating the RFS rule that will set the volume target from 2023 to 2025.
Natural Gas Storage: DEP and Equitrans Settle Unintentional Natural Gas Venting Case
On Thursday, April 13, 2023, the Pennsylvania Department of Environmental Protection (DEP) and Equitrans, L.P. resolved a dispute arising from an incident at the company’s Rager Mountain Storage Facility, which led to the unintentional venting of an estimated 1.29 billion cubic feet of natural gas per day into the atmosphere from November 6 to November 19, 2022. As part of the settlement, Equitrans withdrew its appeal of the DEP order from December, which ordered the company to plug the leaking wells and cease all natural gas injections into the Rager Field until it complied with its requirements. In their appeal, Equitrans argued that the DEP’s regulatory authority was preempted by the “federal Pipeline Safety Act and/or Natural Gas Act.” Equitrans will now work with the Pipeline and Hazardous Materials Safety Administration to understand why this massive leak occurred and how to prevent it in the future. The settlement requires Equitrans to keep the DEP updated throughout this process.
Oil & Gas Law & Policy Resources:
Energy Connects, QatarEnergy signs MoU with Namibia to enhance energy cooperation (April 17, 2023)
Bloomberg, China’s Crude Oil Refiners Smash Record on Recovery, Expansion (April 18,
2023)
Energy Connects, Shell completes restart of operations at the Pierce Field in the UK North Sea (April 18, 2023)
Sartain, Insurance Coverage Not Limited by a Texas Service Agreement (April 18, 2023)
Mallen, et al., Ninth Circuit Reverses City of Berkeley Ban on New Natural Gas Hookups in Buildings (April 19, 2023)
Bloomberg, Keystone Oil Pipeline Spill Was Caused by a Fatigue Crack, TC Energy Says (April 21, 2023)
Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks April 15 – April 21, 2023:
Ag, biofuels and retail groups sue state over Minnesota’s zero-emissions mandate [AGWEEK]
Court throws out Berkeley, California’s ban on natural gas [AP]
U.S. greenlights exports from Alaska LNG project, sparks environmentalists’ reactions [Offshore Energy]
G7 commits to faster clean energy transition [The Hill]
Berkeley’s landmark gas ban overturned, ripple effects may be limited [Canary Media]
Connect with us on Facebook.
Penn State Farmland Energy Legal Podcast: Listen to the latest episode here.
FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S. DEPARTMENT OF ENERGY
Statement on Civil Nuclear Fuel Cooperation Between the United States, Canada, France, Japan, and the United Kingdom (April 17, 2023)
Biden-Harris Administration Announces $250 Million to Accelerate Electric Heat Pump Manufacturing Across America (April 18, 2023)
Biden-Harris Administration Announces New Investments to Support and Accelerate Community Solar Across America (April 20, 2023)
DOE Announces New Effort to Power Colorado’s Federal Facilities with 100% Clean Energy by 2030 (April 21, 2023)
U.S. ENVIRONMENTAL PROTECTION AGENCY
The Williams Companies and Related Entities Resolve Clean Air Act Violations at Alabama Natural Gas Processing Plant and 14 Other Facilities (April 20, 2023)
EPA and Justice Department Announce Clean Air Act Settlements with Three Natural Gas Processors (April 20, 2023)
EPA Releases Framework for the Implementation of the Greenhouse Gas Reduction Fund as Part of President Biden’s Investing in America Agenda (April 19, 2023)
FEDERAL EXECUTIVE AGENCIES (Federal Register April 15–April 21, 2023):
Environmental Protection Agency
88 FR 23598: Proposed Rule, Comments Close 5/18/23: “Air Plan Approval and Air Quality Designation; KY; Redesignation of the Kentucky Portion of the Louisville, KY-IN 2015 8-Hour Ozone Nonattainment Area to Attainment” (April 18, 2023)
Federal Energy Regulatory Commission
88 FR 24405: Notice: “Combined Notice of Filings” (April 20, 2023)
88 FR 24184: Notice: “New England Winter Gas-Electric Forum; Supplemental Notice of Second New England Winter Gas-Electric Forum” (April 19, 2023)
Safety and Environmental Enforcement Bureau
88 FR 23569: Rule: “Risk Management, Financial Assurance, and Loss Prevention-Decommissioning Activities and Obligations” (April 18, 2023)
Ocean Energy Management Bureau
88 FR 24629: Notice: “Outer Continental Shelf Official Protraction Diagrams and Official Protraction Aliquot Diagrams” (April 21, 2023)
Other Agencies
88 FR 24115: Rule: “Marine Mammals; Incidental Take of Northern Sea Otters During Specified Activities; the Gulf of Alaska” (April 19, 2023)
88 FR 24058: Rule: “Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Testing and Training Operations in the Eglin Gulf Test and Training Range” (April 18, 2023)
88 FR 23403: Notice: “Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico” (April 17, 2023)
U.S. HOUSE ENERGY AND COMMERCE COMMITTEE
H.R.2779 “To repeal the corporate average fuel economy standards.” Referred to the House Committee on Energy and Commerce. (April 20, 2023)
H.R.2778 “To repeal the renewable fuel program of the Environmental Protection Agency.” Referred to the House Committee on Energy and Commerce. (April 20, 2023)
H.R.2751 “To require the Secretary of Energy to establish a program to increase participation in community solar programs and the receipt of associated benefits, and for other purposes.” Referred to the Committee on Energy and Commerce, and in addition to the Committee on Oversight and Accountability, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned. (April 20, 2023)
H.R.2750 “To amend the Federal Power Act to authorize the allocation of the costs of certain interstate electric power transmission lines and electric power transmission lines that are located offshore, and for other purposes.” Referred to the House Committee on Energy and Commerce. (April 20, 2023)
H.R.2749 “To facilitate the generation and delivery of power from affordable and reliable renewable generation projects and energy storage projects.” Referred to the House Committee on Energy and Commerce. (April 20, 2023)
H.R.2747 “To support the sustainable aviation fuel market, and for other purposes.” Referred to the Committee on Energy and Commerce, and in addition to the Committees on Transportation and Infrastructure, Armed Services, Science, Space, and Technology, and Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned. (April 20, 2023)
U.S. SENATE ENERGY AND NATURAL RESOURCES COMMITTEE
S.1215 “A bill to require assessments of opportunities to install and maintain floating photovoltaic solar panels at Bureau of Reclamation and Corps of Engineers projects, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources. (April 19, 2023)
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 16 April 22, 2023)
DEPARTMENT OF ENVIRONMENTAL PROTECTION
53 Pa.B. 2266: Notice: “Interstate Pollution Transport Reduction; Final 2023 Ozone Season Nitrogen Oxide Emission Limits for Nonelectric Generating Units”
53 Pa.B. 2266 “Federal Consistency under the Coastal Zone Management Act; Packer Marine Terminal Turning Basin Dredged Material Disposal at the Fort Mifflin Confined Disposal Facility”
SUSQUEHANNA RIVER BASIN COMMISSION
53 Pa.B. 2280: Notice: “Grandfathering Registration Notice”
53 Pa.B. 2282: Notice: “Projects Approved for Minor Modifications”
PENNSYLVANIA LEGISLATURE
HB 914 “An Act amending the act of July 7, 1980 (P.L.380, No.97), known as the Solid Waste Management Act, in general provisions, further providing for definitions; providing for drill cuttings; and abrogating regulations.” Referred to ENVIRONMENTAL RESOURCES AND ENERGY [House] (April 17, 2023)
HB 925 “An Act amending Title 27 (Environmental Resources) of the Pennsylvania Consolidated Statutes, providing for decommissioning of solar energy facilities.” Referred to CONSUMER PROTECTION, TECHNOLOGY AND UTILITIES. [House] (April 17, 2023)
HB 952 “Adopting zero-emission standards for space and water heaters” Referred to HOUSING AND COMMUNITY DEVELOPMENT [House] (April 17, 2023)
HB 962 “Conventional Oil and Gas Well Bonding” Referred to ENVIRONMENTAL RESOURCES AND ENERGY [House] (April 19, 2023)
Written by:
Kole Zellers, Research Assistant
Kendal Ashman, Research Assistant
Jackie Schweichler, Staff Attorney
