August 5, 2024
Shale Law Weekly Review—Week of August 5, 2024
National Energy Policy: Circuit Court Upholds EPA Regulation of Biogas Producers ⚡
On July 19, 2024, the U.S. Court of Appeals for the District of Columbia upheld EPA regulations on biogas producers after challenges from the Coalition for Renewable Energy. Coal. for Renewable Nat. Gas v. EPA, No. 23-1248, 2024 BL 246802 (D.C. Cir. July 19, 2024). The Coalition challenged the EPA’s recent regulation of renewable biomass, claiming the EPA’s regulations were arbitrary and lacked proper authority, claiming that 42 USC 7545: Regulation of fuels does not allow for regulation of biogas producers. The Court found in the EPA’s favor, stating that the regulation allows the EPA to verify renewable biogas in accordance with their mandate, and thus is not arbitrary, and that 42 USC 7545 includes the regulation of biogas producers.
State Regulation: DC Appeals Court Denies States’ Motion to Stay New EPA Standards
On July 19, 2024, the Court of Appeals for the DC Circuit unanimously denied a coalition of states’ motion to stay a final rule by the Environmental Protection Agency (EPA) that regulates greenhouse gas emissions from fossil fuel units. West Virginia v. EPA, 2024 U.S. App. LEXIS 17856 (D.C. Cir. July 19, 2024). The final rule in question is entitled, “New Source Performance Standards for Greenhouse Gas Emissions From New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating Units…” EPA published the rule under section 111 of the Clean Air Act. The motion to stay was brought by 27 state attorneys general, who argued that the recent Supreme Court ruling of Loper Bright Enterprises v. Raimondo made the EPA’s standards outside of their allowed purview. In their denial of the motion, the DC Court of Appeals stated that the plaintiffs, West Virginia et al, “have not shown they are likely to succeed on [their] claims given the record in this case.” They also stated that the EPA’s standards were appropriate for the EPA’s purpose of regulating environmental factors.
Oil and Gas Leasing: The District Court for the District of Columbia Remands Case Regarding Public Lands in Wyoming to the Bureau of Land Management
On July 16, 2024, the District Court for the District of Columbia remanded a case regarding oil and gas leasing on public lands in Wyoming to the Bureau of Land Management (BLM) without vacatur. Wilderness Soc’y v. U.S. Dep’t of Interior, No. 22-cv-1871 (2024). In its decision, the court explained that it had previously found that the BLM erroneously auctioned off acres of public land in Wyoming in violation of both the Administrative Procedure Act (APA) and the National Environmental Policy Act (NEPA). In its reasoning, the court used the “Allied-Signal” test to determine “the seriousness of the deficiencies” of the BLM’s “underlying agency action.” The court found that, even though the BLM made many mistakes in its analysis, it believed that the BLM could fix the deficiencies. Second in the “Allied-Prong” test, the court looked at whether remanding without vacatur is “’disruptive consequences of an interim change that may itself be changed.’” Ultimately, the court found that reversing the lease sales was improper, enjoining the BLM from continuing the process of approving new lease applications and requiring the BLM to complete a NEPA analysis within 180 days of the court’s order.
GHG Emissions: EPA Funds 25 Organizations to Help Reduce Emissions
On Monday, July 22, 2024, the Environmental Protection Agency (EPA) announced that $4.3 billion would be granted to various organizations with community-driven solutions relating to climate change. This project is funded by President Biden’s Investing in America agenda. Twenty-five different organizations were selected to receive the grants, including The Michigan Department of Environment, Great Lakes, and Energy (EGLE), the City of New Orleans, the Colorado Energy Office, and the Connecticut Department of Energy and Environmental Protection. The EPA hopes that, through these organizations’ work, the amount of greenhouse gas emissions will be reduced by up to 971 million metric tons by 2050.
Community Impacts: Pennsylvania Eastern District Court Issues Summary Judgement in Condemnation Lawsuit
On July 17, 2024, the United States District Court for the Eastern District of Pennsylvania granted a motion for summary judgement put forward by Adelphia Gateway LLC in a land condemnation case. Adelphia Gateway, LLC v. Temp. Easement for 0.022 Acres in City of Chester, No. 20-2069, 2024 U.S. Dist. LEXIS 125672 (E.D. Pa. July 17, 2024). Adelphia’s motion was part of a previous condemnation lawsuit that they brought against the owners of a tract of land that Adelphia needed to access to build, pursuant to obtaining approval from the Federal Energy Regulatory Commission, a pipeline. In the beginning of the proceedings, the landowners failed to respond to any of Adelphia’s communications, and the court granted summary judgement for Adelphia to give them right of way to build the pipeline. After the pipeline was built, Adelphia submitted a motion for summary judgement for the compensation in the fair market value loss of $170 that the pipeline’s construction caused. The court has granted the motion, and Adelphia pay $170 to the landowners.
PA Impact Fee: Commonwealth Court Dismisses Repsol Oil’s Motion for Summary Judgement Regarding Contested Impact Fee
On July 23, 2024, the Commonwealth Court of Pennsylvania dismissed Repsol Oil and Gas’s (Repsol) motion for summary judgment in a case relating to a dispute over an impact fee payment. Repsol Oil & Gas USA, LLC v. Pa. PUC, 2024 Pa. Commw. Unpub. LEXIS 398 (Commw. Ct. July 23, 2024). In 2021, Rockdale owned and operated 72 unconventional gas wells, and paid the fees charged under Pennsylvania Consolidated Statutes Title 58, Chapter 23, Section 3202 (allowing municipalities to impose a fee on all unconventional gas wells). In September 2021, Rockdale filed for bankruptcy and sold the wells to Repsol. In February 2022, Rockdale was issued an impact fee statement by the Pennsylvania Public Utility Commission (PA PUC) for $1.4 million for the year 2021. Rockdale objected, claiming impact fees were not taxes entitled to priority under bankruptcy law. In November of 2022, PA PUC sent Repsol an impact fee statement for the same $1.4 million for the year 2021, marked “past due.” Repsol filed suit maintaining it is faced with the prospect of paying the Commission for fees it does not owe. PA PUC filed six preliminary objections to Repsol’s petition. The court only examined the first objection, which claimed Repsol failed to exhaust the available administrative remedies. The court reasoned that Repsol should have pursued agency action against the impact fee. If Repsol chose not to pursue that remedy, it must show that the remedy is inadequate. However, pursuing agency action provides minimal risk to Respol, and even if the hearing did not come out in Repsol’s favor, that decision could be appealed. As such, PA PUC’s objection was sustained, and Repsol’s petition for summary judgment was dismissed.
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CENTER PROGRAMS & RESOURCES
Ag Progress Days – the Penn State College of Agricultural Sciences will host its annual Ag Progress Days, “Pennsylvania’s largest outdoor agricultural exposition,” at the Russell E. Larson Agricultural Research Center in Pennsylvania Furnace. Throughout the event, the Penn State Center for Agricultural and Shale Law will host an information booth in the Horizon Farm Credit Exhibit Building at W. 6th Street & Main. Come visit us in booth A509!
- August 13-15, 2024. More information here
Solar Law Symposium – Penn State Extension will host its virtual Solar Law Sympium. As part of the symposium, Center Staff Attorney Brook Duer will co-present a session on Penn State research about the impact of solar development on rural areas. Registration available with optional CLE credits.
- August 20 @ 12:00 PM-4:30 PM (EST) More information and registration.
Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks
US oil/gas rig count rises in July in biggest monthly hike since Nov 2022 (Reuters)
Texas Crude Oil Pipelines Full to the Brim, Getting Worse (Bloomberg)
Power sector drives growth in US natural gas demand (Reuters)
Texas Oil Regulator Investigating Earthquakes (Rigzone)
Federal judges halt interstate gas line expansion, a win for environmentalists (New Jersey Monitor)
Connect with us on Facebook.
Penn State Farmland Energy Legal Podcast: Listen to the latest episode here.
Oil & Gas Law & Policy Resources:
Bloomberg, Oil Steadies Near Seven-Week Low With Demand Concerns Mounting (July 30, 2024)
Tuner, Nolette, So Your CPRG Application Didn’t Get Funded (August 1, 2024)
Bloomberg, Oil Jumps as Killing of Hamas Leader Stokes Geopolitical Risk (July 31, 2024)
Sappenfield, Guest Blog: Big Announcements About New York Offshore Wind Development Mark Small (but Important) Steps Toward Meeting 2035 Target (July 30, 2024)
Chin, Oil Extends Surge on Report Iran Orders Retaliatory Strike (Aug 1, 2024)
FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S. DEPARTMENT OF ENERGY PRESS RELEASES
DOE Announces $41 Million for Technologies to Expand the Use of Renewable Power (July 31, 2024)
U.S. ENVIRONMENTAL PROTECTION AGENCY PRESS RELEASES
EPA Region 7 Performs Removal Operations near Hillsboro, Missouri (August 1, 2024)
FEDERAL EXECUTIVE AGENCIES (Federal Register June 1, 2024 – June 7, 2024)
Environmental Protection Agency
89 FR 63101 Rule: “Massachusetts: Final Approval of State Underground Storage Tank Program Revisions, Codification, and Incorporation by Reference” (August 2, 2024)
Federal Energy Regulatory Commission
89 FR 63187 Notice: “Pacific Gas and Electric Company; Notice of Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Protests” (August 2, 2024)
Energy Department
89 FR 63187 Notice: “Pacific Gas and Electric Company; Notice of Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Protests” (August 2, 2024)
Pipeline and Hazardous Materials Safety Administration
89 FR 61237 Notice: “Hazardous Materials: Notice of Actions on Special Permits” (July 30, 2024)
Other Agencies
89 FR 63214 Notice (Fish and Wildlife Service): “Receipt of Incidental Take Permit Application for Participation in the General Conservation Plan for Oil and Gas Activities; Categorical Exclusion; Santa Barbara County, CA” (August 2, 2024)
U.S. HOUSE ENERGY AND COMMERCE COMMITTEE
H.R.9230 Bill: “To amend the Clean Air Act to establish a program to annually phasedown greenhouse gas emissions, and for other purposes.” (July 30, 2024)
U.S. SENATE ENERGY AND NATURAL RESOURCES COMMITTEE
S.4852 Bill: “A bill to prohibit oil and gas leasing on the Outer Continental Shelf off the coast of New England.” (July 30, 2024)
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPT. OF ENVIRONMENTAL PROTECTION PRESS RELEASES
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 31 – August 3, 2024)
Written by:
Victoria Dutterer, Research Assistant
Riley Amdor, Research Assistant
Caden Dean-Sauter, Research Assistant
Jose Rojas, Research Assistant
Samuel Sweeten, Research Assistant
Jackie Schweichler, Staff Attorney
