Shale Law Weekly Review – Week of February 1, 2021

Pipelines: Court of Appeals Affirms Lower Court’s Decision to Vacate Easement for Dakota Access Pipeline
On January 26, 2021, the U.S. Court of Appeals for the District of Columbia Circuit affirmed a lower court ruling vacating the subsurface easement used by Dakota Access Pipeline (DAPL) to traverse beneath Lake Oahe.  (Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, No. 20-1597).  Previously, on July 6, 2020, the U.S. District Court for the District of Columbia vacated the DAPL easement and ordered that the Dakota Access Pipeline be emptied and shut down within 30 days.  (District Court Case No. 16-1534.  The Court of Appeals agreed with the District Court’s ruling, stating that the U.S. Army Corps of Engineers violated National Environmental Policy Act (NEPA) by issuing the pipeline easement in 2017 without issuing an Environmental Impact Statement (EIS).   The Court of Appeals, however, reversed the District Court’s order that the pipeline be shut down and emptied. The Court of Appeals ruled that the Corps will need to develop an EIS to determine the pipeline’s environmental effects.

Public Lands: President’s Executive Order Pauses New Oil and Natural Gas Leases on Public Lands and Offshore Waters
On January 27, 2021, President Biden signed an Executive Order pausing new oil and natural gas leasing on public lands and offshore waters. (EO Sec 208).  The order titled, Executive Order on Tackling the Climate Crisis at Home and Abroad, pauses leasing indefinitely until the Secretary of the Interior conducts a review of current practices.  In addition to a review of permitting and leasing, the order instructs the Department of the Interior to examine royalties to potentially mitigate related costs of climate change.  Starting in Fiscal Year 2022, the Office of Management and Budget will remove fossil fuel subsidies from budget requests for federal funding.  According to the Executive Order, the policy purpose behind the order is to make climate change the focus for national security and foreign policy for the United States.

GHG Emissions: Largest U.S. Automaker Pledges to be Carbon Neutral by 2040
On January 28, 2021, General Motors (GM) announced plans to become carbon neutral by 2040.  Within the next fifteen years, GM also plans for all light-duty vehicles to be produced with no tailpipe emissions.  The company plans to invest $27 billion in the next five years to help develop battery technology and to update and build new manufacturing facilities.  GM plans to purchase carbon credits to offset their remaining carbon emissions.

Shale Law/Policy Resources of Interest:

George A. Bibikos, At the Well Weekly, Art. I, sec. 27 (Jan. 22, 2021)

Charles Sartain, Solar Beats Minerals in a Texas Accommodation Doctrine Battle (Jan. 26, 2021)

Michael Byrd & Shane Sullivan, Wait, What Am I Buying? (Jan. 2021)

John McFarland, Toxic Substance Or Water Supply? Lawmakers To Weigh Whether Wastewater From Oil Fields Could Replenish The State’s Aquifers (Jan. 24, 2021)

Jennifer Danis & Romany Webb, Will FERC’s New Chair Bring A New Approach To Natural Gas Pipeline Approvals? (Jan. 22, 2021)

Daniel J. Metzger, The Status Of Global Climate Change Litigation: A New Report (Jan. 26, 2021)

STATE ACTIONS – EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices (Pa. Bulletin Vol. 51, No. 5—Jan. 30, 2021):

51 Pa.B. 638 Department of Environmental Protection “Issuance of General Plan Approval and/or General Operating Permit for Natural Gas-Fired Combined Heat and Power Facilities” (Jan. 30, 2021)

51 Pa.B. 639 Department of Environmental Protection “Order of the Commonwealth Court of Pennsylvania dated January 6, 2021 in Marcellus Shale Coalition v. Department of Environmental Protection of the Commonwealth of Pennsylvania and Environmental Quality Board of the Commonwealth of Pennsylvania” (Jan. 30, 2021).

Pennsylvania Legislature:

SB 119 “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” Referred to Environmental Resources and Energy (Jan. 29, 2021).

House Committee for Environmental Resources and Energy:

“Informational meeting on the state of our natural gas economy in Pennsylvania and opportunities for growing our energy industry” on Monday, February 1, 2021 at 9:00 a.m.

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Jan. 25-29, 2021):

National Oceanic and Atmospheric Administration

86 FR 6878 Notice—issuance of Letter of Authorization “Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Oil and Gas Activities in Cook Inlet, Alaska” (Jan. 25, 2021)

86 FR 7074 Notice—extension of time to issue a decision “Federal Consistency Appeal by Jordan Cove Energy Project, L.P. and Pacific Connector Gas Pipeline, LP” (Jan. 26, 2021)

Federal Energy Regulatory Commission

86 FR 7086 Notice of Inquiry “Accounting and Reporting Treatment of Certain Renewable Energy Assets” (Jan. 26, 2021)

86 FR 7090 Notice “Port Arthur LNG Phase II, LLC; PALNG Common Facilities Company, LLC; Notice of Availability of the Environmental Assessment for the Proposed Port Arthur LNG Expansion Project” (Jan. 26, 2021)

86 FR 7084 Notice—Comments Period “Columbia Gas Transmission, LLC; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (Jan. 26, 2021)

86 FR 7286 Notice—Comments Period “Gas Transmission Northwest, LLC; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (Jan. 27, 2021)

86 FR 7373 Notice—Comments Period “Gulf South Pipeline Company, LLC; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (Jan. 28, 2021)

86 FR 7377 Notice—Comments Period “Southern Star Central Gas Pipeline, Inc.; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (Jan. 28, 2021)

86 FR 7379 Notice—Comments Period “Transcontinental Gas Pipe Line Company, LLC; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (Jan. 28, 2021)

86 FR 7380 Notice—Comments Period “Transcontinental Gas Pipe Line Company, LLC; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (Jan. 28, 2021)

Justice Department

86 FR 7418 Notice—Comments Period “Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Clean Water Act (CWA), and the Oil Pollution Act (OPA) and Notice of Availability of Draft Restoration Plan/Environmental Assessment of Restoration Project Incorporated Into Proposed Consent Decree” (Jan. 28, 2021)

Pipeline and Hazardous Materials Safety Administration

86 FR 6963 Notice—Comments Period “Pipeline Safety: Request for Special Permit; El Paso Natural Gas Company, L.L.C.” (Jan. 25, 2021)

86 FR 7182 Notice—Comments Period “Pipeline Safety: Request for Special Permit; Natural Gas Pipeline Company of America, LLC” (Jan. 26, 2021)

86 FR 7334 Notice—Comments Period “Pipeline Safety: Request for Special Permit; Natural Gas Pipeline Company of America, LLC” (Jan. 27, 2021)

Presidential Documents

86 FR 7037 Executive Order “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis” (Jan. 25, 2021)

House Energy and Commerce Committee Actions:

H.R. 575 “To establish a more uniform, transparent, and modern process to authorize the construction, connection, operation, and maintenance of international border-crossing facilities for the import and export of oil and natural gas and the transmission of electricity” Referred to the Committee on Energy and Commerce (Jan. 28, 2021)

H.R. 501 “To direct the Administrator of the Environmental Protection Agency to establish a program to award grants to eligible entities to purchase, and as applicable install, zero emissions port equipment and technology, and for other purposes” Referred to the House Committee on Energy and Commerce (Jan. 28, 2021)

H.R. 448 “To direct the Secretary of Energy to carry out a grant program to improve the energy resilience, energy democracy, and security of communities, prioritizing environmental justice communities, and for other purposes” Referred to the Committee on Energy and Commerce (Jan. 25, 2021)

H.R. 425 “To amend the Energy Independence and Security Act of 2007 to reauthorize the Energy Efficiency and Conservation Block Grant Program, and for other purposes” Referred to the House Committee on Energy and Commerce (Jan. 21, 2021)

Senate Energy and Natural Resources Committee

1. 76 “A bill to prohibit the President from issuing moratoria on leasing and permitting energy and minerals on certain Federal land, and for other purposes” Read twice and referred to the Committee on Energy and Natural Resources (Jan. 28, 2021)
2. 69 “A bill to amend the Outer Continental Shelf Lands Act to require annual lease sales in the Gulf of Mexico region of the outer Continental Shelf, and for other purposes” Read twice and referred to the Committee on Energy and Natural Resources (Jan. 27, 2021)
3. 58 “A bill to amend the Outer Continental Shelf Lands Act to permanently prohibit the conduct of offshore drilling on the outer Continental Shelf off the coast of California, Oregon, and Washington” Read twice and referred to the Committee on Energy and Natural Resources (Jan. 27, 2021)
4. 28 “A bill to include the State of Florida in the Gulf of Mexico outer Continental Shelf revenue sharing program, to extend the moratorium on oil and gas leasing in certain areas of the Gulf of Mexico, and for other purposes” Read twice and referred to the Committee on Energy and Natural Resources (Jan. 22, 2021)

EC96 “A communication from the Acting Chief, Bureau of Safety and Environmental Enforcement, Department of the Interior, transmitting, pursuant to law, the report of a rule entitled ‘Oil and Gas and Sulfur Operations in the Outer Continental Shelf-Reaffirmation of Standard Editions Related to the Manual of Petroleum Measurement Standards’” Referred to Senate Energy and Natural Resources (Jan. 26, 2021)

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks Jan. 25-29, 2021:

“Eminent Domain Lets Pipeline Developers Take Land, Pay Little, Say Black Property Owners” Inside Climate News

“What Will Biden’s Paris Decision Mean for US Oil and Gas?” Rigzone

“Report outlines 40% gas flaring cut without Biden” Energywire

“Biden’s pause on oil cause for big concern in New Mexico” AP

“New stream-crossing permits sought in an attempt to finish Mountain Valley Pipeline” The Roanoke Times

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