December 27, 2023
Shale Law Weekly Review—Week of December 25, 2023
State Regulation: Massachusetts Orders Gas Companies to Consider Non-gas Pipeline Alternatives ⚡
On December 6, 2023, the Massachusetts Department of Public Utilities (DPU) issued Order 20-80 which, according to the DPU, will guide local gas distribution companies (LDCs) in the Commonwealth’s efforts to reach net zero GHG emissions by 2050. The Order emphasizes the use of “non-gas pipeline alternatives” such as “electrification, thermal networked systems, targeted energy efficiency and demand response, and behavior change and market transformation” by LCDs. Further, the Order requires LCDs seeking cost recovery for the promotion of natural gas to prove that non-gas pipeline alternatives “were adequately considered and found to be non-viable or cost prohibitive” to receive full cost recovery. Lastly, the Order requires all LCDs to submit “Climate Compliance Plans” to the DPU every five years beginning in 2025 to monitor LCD’s alignment with the DPU’s climate targets. LCDs will also be able to propose climate-based performance metrics during their “upcoming performance-based regulation filings.” More information and statements on the order can be found in the DPU press release.
Pipelines: District Court Enjoins Enforcement of Iowa County Level Carbon Dioxide Pipeline Ordinances
On December 4, 2023, the U.S. District Court for the Southern District of Iowa issued orders granting summary judgment in favor of Summit Carbon Solutions, LLC (Summit) barring the enforcement of ordinances promulgated by Shelby (order) and Story (order) Counties to regulate the constructions of carbon dioxide pipelines. Couser et al v. Shelby County, Iowa et al, No. 1:22-cv-00020; Couser et al v. Story County, Iowa et al, No. 4:22-cv-00383. Summit filed suit against Shelby (complaint) and Story (complaint) County separately in November 2022 when they each published ordinances regulating the placement of carbon dioxide pipelines for which Summit has already obtained federal and state approval. Summit claimed these ordinances were preempted by federal law, the Pipeline Safety Act (PSA), and regulations promulgated by the Iowa Utilities Board (IUB). In both cases, the court determined that parts of the ordinances were preempted by both state and federal law. The court noted that regulations promulgated by the IUB preempted the ordinances’ placement requirements. The court stated that were the ordinances to be enforced, situations could arise where the IUB could authorize pipeline construction, yet there could be no authorized place to construct it within a given county. Further, the court noted that emergency plan provisions of the ordinances were preempted Secretary of Transportation’s “authority to enact emergency response plans.” Further, the court determined that the ordinance’s safety and setback requirements, such as directing pipelines to be placed certain distances from cities or schools, intruded on and were preempted by the Pipeline and Hazardous Materials Safety Administration’s (PHMSA) authority to dictate setback requirements and the Secretary’s authority to “prescribe minimum safety standards for pipeline transportation.” The court directed the counties to cease enforcement of the ordinances within ten days of the order.
Climate Change: 195 Parties to the Paris Agreement Approve Global Pact to Transition Away from Fossil Fuels
On Wednesday, December 13, 2023, the 195 Parties to the Paris Agreement approved a draft decision proposed by the President of the Conference, which outlines a plan to transition away from the use of fossil fuels over the next several decades. In the second section of the 21-page draft, the President categorizes several objectives of the parties’ “collective progress towards achieving the purpose and longterm goals of the Paris Agreement.” Under the mitigation subsection, bullet 28 of the decision recognizes the urgent need to rapidly reduce greenhouse gas emissions in order to meet the parties’ goal of limiting global warming to 1.5 degrees Celsius. To achieve net zero by 2050, the draft emphasizes that a collective effort must be made by all parties, which includes, among other things, a “transitioning away from fossil fuels in energy systems.” Also included under this section are global efforts to triple renewable energy capacity and to double the “average annual rate of energy efficiency” by 2030. The specified goals described phasing out coal power and accelerating the use of “zero- and low-emission technologies,” such as renewable and nuclear energy.
Air Quality: Texas Court Orders New Hearing on Air Quality Permitting for Gulf Coast Oil Terminal
On Saturday, November 30, 2023, the Travis County District Court filed a final judgment in a case brought against the Texas Commission on Environmental Quality (TCEQ) after an air quality permit was issued to Max Midstream, LLC for a proposed oil terminal in the Gulf Coast. Wilson et al. v. Tex. Comm’n on Envtl. Quality et al. (No. D-1-GN-22-002153). The judgment, which reversed the approval and issuance of the air quality permit, was filed after the Court heard arguments in the case on November 8, 2023. In accordance with this judgment, the plaintiffs will now have an opportunity to contest the issuance of Air Quality Permit No. 162941 in a hearing before the TCEQ.
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CENTER PROGRAMS & RESOURCES
Understanding Agricultural Law – A free monthly Zoom webinar series for all agricultural and rural business advisors. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. Recordings and materials from the series, more information, and registration available here.
- January 12, 2023, noon – 1 pm (ET). Understanding the Basics of the Perishable Agricultural Commodities Act. (Register)
- January 26, 2024, noon – 1 pm (ET). Understanding the Basics of the Perishable Agricultural Commodities Act. (Register)
On February 8–10, 2024, PASA Sustainable Agriculture will hold their 2024 Sustainable Agriculture Conference at the Lancaster County Convention Center in Lancaster, Pennsylvania. On Friday, February 9, 2024, from 4:00–5:00pm, Staff Attorney Brook Duer will present “Protecting Your Farm’s Food Business with Product Liability Insurance” with the Small Business Development Center as part of the conference.
February 9, 2024, 4 – 5 pm (ET). Protecting Your Farm’s Food Business with Product Liability Insurance (Register)
Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks
Independent Fiscal Office Estimates 2023 Act 13 Shale Gas Drilling Impact Fee Revenue Will Drop By Nearly $105 Million, While Almost 400 New Wells Were Drilled So Far In 2023 (PA Environment Digest)
Cop28 president says his firm will keep investing in oil (The Guardian)
IEA Says Evidence of a Slowdown in Oil Demand is Mounting (Rigzone)
US awards up to $890 million to carbon capture projects at gas, coal plants (Reuters)
Alternative aviation fuel credit guidance issued by Biden administration bolsters ethanol industry (The Hill)
Connect with us on Facebook.
Penn State Farmland Energy Legal Podcast: Listen to the latest episode here.
Oil & Gas Law & Policy Resources:
Energy Connects, QatarEnergy signs production sharing contracts for Suriname offshore blocks (December 18, 2023)
Tigre & Barry, Sabin Center Publishes Report on Climate Litigation in 2023 (December 19, 2023)
Bloomberg, Oil Holds Gains as Red Sea Attacks Cause Panic Among Shippers (December 19, 2023)
Elder, et al., Trends in Oil & Gas: 2023 and the Year Ahead (December 20, 2023)
Shumway, Observations from COP28 on the Loss and Damage Fund (December 20, 2023)
Sartain, What Happened at COP28? (December 21, 2023)
Fralick & Stephens, An Opportunity to Strengthen Climate Risk Management in the Derivatives Market (December 21, 2023)
FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S. DEPARTMENT OF ENERGY PRESS RELEASES
Biden-Harris Administration Announces $530 Million for Building Energy Efficiency and Resilience to Cut Consumer Costs (December 18, 2023)
How Consumers Are Harmed by the Lack of Transmission (December 20, 2023)
Biden-Harris Administration Announces $40 Million to Train the Clean Energy Workforce (December 20, 2023)
U.S. Department of Energy Top Clean Energy Accomplishments in 2023 (December 21, 2023)
U.S. ENVIRONMENTAL PROTECTION AGENCY PRESS RELEASES
EPA Moved Further and Faster Than Ever Before in 2023 (December 21, 2023)
Biden-Harris Administration Selects California-Based Social and Environmental Entrepreneurs, Inc. to Receive $50 Million to Fund Environmental Justice Projects (December 20, 2023)
Biden-Harris Administration selects Denver-based JSI Research and Training Institute to receive $50M to fund Environmental Justice projects as part of Investing in America Agenda (December 20, 2023)
EPA report: US fuel economy marks a new record high; CO2 emissions reach record lows, and all large manufacturers meet greenhouse gas standards (December 20, 2023)
EPA New England advances three air permits for offshore wind farm projects (December 19, 2023)
EPA Awards Nearly $2.2M to Small Businesses to Advance Innovative Environmental Technologies (December 19, 2023)
EPA’s Annual Enforcement Results Shows Significant Increase in Enforcement Activity to Protect Communities from Pollution (December 18, 2023)
Biden-Harris Administration Announces $350 Million to 14 States to Reduce Methane Emissions from Oil and Gas Sector as Part of Investing in America Agenda (December 15, 2023)
FEDERAL EXECUTIVE AGENCIES (Federal Register December 16 – December 22, 2023)
Environmental Protection Agency
88 FR 87988: Proposed Rule, Comments Close 1/19/24: “Clean Air Plans; Contingency Measures for the Fine Particulate Matter Standards; San Joaquin Valley, California” (December 20, 2023)
Energy Department
88 FR 87502: Rule: “Energy Conservation Program: Energy Conservation Standards for Consumer Furnaces” (December 18, 2023)
Susquehanna River Basin Commission
88 FR 88696: Notice: “Actions Taken at December 14, 2023 Meeting” (December 22, 2023)
Other Agencies
88 FR 88338: Proposed Rule, Comments Close 2/20/24: “Endangered and Threatened Wildlife and Plants; Threatened Species Status for Coal Darter With Section 4(d) Rule” (December 21, 2023)
88 FR 88148: Notice: “Self-Regulatory Organizations; MIAX PEARL, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Exchange Rule 404, Series of Option Contracts Open for Trading” (December 20, 2023)
88 FR 87904: Rule: “Safety Program for Surface Mobile Equipment” (December 20, 2023)
88 FR 87822: Notice: “Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 404, Series of Option Contracts Open for Trading” (December 19, 2023)
U.S. HOUSE ENERGY AND COMMERCE COMMITTEE
H.R.6878 “To amend the Clean Air Act to exempt nonroad engines and vehicles that are used for agricultural purposes from the emission standards of that Act, and for other purposes.” Referred to the House Committee on Energy and Commerce. (December 19, 2023)
H.R.6872 “To require the Secretary of Energy to establish a grant program to support hydrogen-fueled equipment at ports and to conduct a study with the Secretary of Transportation and the Secretary of Homeland Security on the feasibility and safety of using hydrogen-derived fuels, including ammonia, as a shipping fuel.” Referred to the Committee on Energy and Commerce, and in addition to the Committee on Transportation and Infrastructure, 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. (December 19, 2023)
H.Res.941 “Condemning the final agreement at the United Nations Climate Change Conference that encourages “transitioning away from fossil fuels”.” Referred to the Committee on Energy and Commerce, and in addition to the Committee on Foreign Affairs, 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. (December 19, 2023)
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 51—December 23, 2023)
Department of Environmental Protection
53 Pa.B. 8039: Notices: “Environmental Assessment Approvals for PENNVEST Funding Consideration”
Pennsylvania Public Utility Commission
53 Pa.B. 7935: Statements of Policy: “Electric Utility Rate Design for Electric Vehicle Charging”
53 Pa.B. 8041: Notices: “Service of Notice of Motor Carrier Applications”
Written by:
Kendal Ashman, Research Assistant
Kole Zellers, Research Assistant
Dillon Lightfoot, Research Assistant
Jackie Schweichler, Staff Attorney
