February 19, 2021
Shale Law Weekly Review – Week of February 15, 2021
National Energy Policy: Department of Justice Withdrawals Policies Precluding Use of Supplemental Environmental Projects in Settlement Agreements ⚡
On February 4, 2021, the U.S. Department of Justice Environment and Natural Resources Division (ENRD) issued a Memorandum withdrawing policies that precluded the use of Supplemental Environmental Projects (SEPs) in settlement agreements. The memo withdraws an SEP policy from August 2019 titled “Using Supplemental Environmental Projects in Settlements with State and Local Governments” and a policy from March 2020 titled “Supplemental Environmental Projects in Civil Settlements with Private Defendants.” SEPs are projects employed to mitigate the harms caused by violators of environmental laws. Pre-2019 settlement practices allowed ENRD to include a condition that violators may pay a smaller civil penalty in exchange for completing an SEP. The August 2019 and March 2020 policies, then, precluded the ENRD from offering SEPs as a way to lessen civil penalties for environmental violations. In addition to withdrawing the August 2019 and March 2020 SEP preclusion policies, the memo also withdrew a few other ENRD policies related to other environmental enforcement actions.
Pipelines: District Court Denies Preliminary Injunction Regarding Enbridge Line 3 Pipeline Project
On February 7, 2021, the U.S. District Court for the District of Columbia denied a Motion for Preliminary Injunction in a case regarding the Enbridge Line 3 pipeline replacement project. The plaintiffs, including Tribes and environmental groups, initially filed the motion on December 24, 2020, arguing that the Environmental Assessment for the pipeline project was deficient. Specifically, the plaintiffs stated that the U.S. Army Corps of Engineers did not properly assess the potential risk of oil spills created by the replacement project. The court ultimately denied the preliminary injunction, finding that the Corps properly assessed the risk of oil spills as required by federal law. The court concluded that the plaintiffs failed to show they would likely succeed on the merits of the case and that the plaintiffs’ argument was not enough to meet the irreparable harm standard needed to issue a preliminary injunction. For more information about recent litigation involving Enbridge Line 3, see the Shale Law Weekly Review for February 8, 2021.
National Energy Policy: Interior Departments Reopen Comment Period for Arctic Drilling Rule
On February 10, 2021, the U.S. Department of Interior, Bureau of Safety and Environment Enforcement (BSEE) and Bureau of Ocean Energy Management (BOEM) extended the comment period for a proposed arctic drilling rule. The Proposed Rule is titled “Oil and Gas and Sulfur Operations on the Outer Continental Shelf-Revisions to the Requirements for Exploratory Drilling on the Arctic Outer Continental Shelf.” The proposed rule seeks to amend the 2016 arctic regulations regarding pollution prevention, rig capabilities, and submission requirements for drilling plans, among other things. The proposed rule was first published in the Federal Register on December 9, 2020, with a comment period ending on February 8, 2021. The comment period has now been extended to April 9, 2021.
Federal Lands: Interior Department Delays Effective Date, Opens Comment Period for Federal Royalty Rule
On February 12, 2021, the U.S. Department of the Interior, Office of Natural Resources Revenue (ONRR) issued a delay of effective date and opening of comment period for a federal oil and gas royalty rule. The rule titled, ONRR 2020 Valuation Reform and Civil Penalty Rule, is meant to amend ONRR regulations determining how to value oil and gas for federal royalty calculations. The rule’s effective date is being delayed following a January 20, 2021 executive memo requesting reviews of regulations that have not yet become effective. The effective date for the final rule was moved from February 16, 2021, to April 16, 2021. The comment period for the final rule closes on March 15, 2021.
Penn State Shale Law Podcast: Listen to the latest episode here.
Shale Law/Policy Resources of Interest:
George A. Bibikos, At the Well Weekly (Feb 5, 2021)
Charles Sartain, Red River Statutory Rivalry: Texas Lien Statute is Fatal to Texas Producers’ Security Interests (Feb. 11, 2021)
Romany Webb, The Legal Framework For Offshore Carbon Capture And Storage In Canada: New Sabin Center White Paper (Feb. 10, 2021)
Margaret Barry and Korey Silverman-Roati, February 2021 Updates To The Climate Case Charts (Feb. 11, 2021)
AGENCY PRESS RELEASES – STATE/FEDERAL
Pennsylvania Department of Environmental Protection
Range Resources Paid $294,000 in Penalties After DEP Received Inaccurate and Conflicting Information Regarding Well Activity Status (Feb. 10, 2021)
United States Department of Energy
DOE Announces Notice of Sale of Crude Oil from the Strategic Petroleum Reserve (Feb. 11, 2021)
United States Environmental Protection Agency
Draft Water Permits for Bulk Petroleum Storage Facilities Will Help Protect Chelsea River and Local Communities (Feb. 11, 2021)
EPA Settlement With Fleur De Lis Resolves Oil Spills Affecting Surface Waters In Wyoming (Feb. 10, 2021)
EPA Penalizes Shell For Anacortes Refinery Release (Feb. 10, 2021)
STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Legislature
HB 471 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in liquid fuels and fuels tax, further providing for refunds” Referred to Transportation (Feb. 9, 2021)
HB 481 “An Act amending the act of November 10, 1999 (P.L.491, No.45), known as the Pennsylvania Construction Code Act, in Uniform Construction Code, further providing for adoption by regulations” to provide for Electric Vehicle Charging Infrastucture Referred to Labor & Industry (Feb. 9, 2021)
HB 218 “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” regarding Sales and Use Tax Exemption for Solar Energy Referred to Finance (Feb. 11, 2021)
HB 524 “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” regarding “Green Drivers Incentives Package” Referred to Finance (Feb. 11, 2021)
HB 525 “An Act amending Title 74 (Transportation) of the Pennsylvania Consolidated Statutes, in turnpike, further providing for collection and disposition of tolls and other revenue” regarding “Green Drivers Incentives Package” Referred to Transportation (Feb. 11, 2021)
FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies (Federal Register Feb. 8-12, 2021):
Environmental Protection Agency
86 FR 8631 Notice—Comments Period “Alternative Method for Calculating Off-Cycle Credits Under the Light-Duty Vehicle Greenhouse Gas Emissions Program: Applications From Nissan North America, Inc.” (Feb. 8, 2021)
86 FR 8868 Final Rule “Air Plan Approval; Virginia; Negative Declarations Certification for the 2008 Ozone National Ambient Air Quality Standard Including the 2016 Oil and Natural Gas Control Techniques Guideline” (Feb. 10, 2021)
86 FR 9332 Notice “Approval of the Application by the State of Texas for Partial National Pollutant Discharge Elimination System (NPDES) Program Authorization for Oil and Gas Discharges” (Feb. 12, 2021)
86 FR 9339 Notice—Comments Period “Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2019″ (Feb. 12, 2021)
Natural Resources Revenue Office
86 FR 9286 Final rule—delay of effective date and opening of comment period “ONRR 2020 Valuation Reform and Civil Penalty Rule: Delay of Effective Date; Request for Public Comment” (Feb. 12, 2021)
Federal Energy Regulatory Commission
86 FR 8615 Notice—Comments Period “Texas Eastern Transmission, LP; Notice of Application and Establishing Intervention Deadline” (Feb. 8, 2021)
86 FR 8615 Notice “Texas Eastern Transmission, LP; Notice of Waiver Period for Water Quality Certification Application” (Feb. 8, 2021)
86 FR 8774 Notice “Transwestern Pipeline Company, LLC; Notice of Schedule for the Preparation of an Environmental Assessment for the Linam Ranch Project” (Feb. 9, 2021)
86 FR 8777 Notice—Comments Period “ANR Pipeline Company; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (Feb. 9, 2021)
86 FR 8855 Final Rule “Annual Update to Fee Schedule for the Use of Government Lands by Hydropower Licensees” (Feb. 10, 2021)
86 FR 9331 Notice—Comments Period “Columbia Gas Transmission, LLC; Notice of Request for Extension of Time” (Feb. 12, 2021)
Ocean Energy Management Bureau
86 FR 8878 Proposed Rule—Extended Comments Period “Oil and Gas and Sulfur Operations in the Outer Continental Shelf-Revisions to the Requirements for Exploratory Drilling on the Arctic Outer Continental Shelf; Reopening of Comment Period” (Feb. 10, 2021)
Bureau of Safety and Environmental Enforcement
86 FR 8878 Proposed Rule—Extended Comments Period “Oil and Gas and Sulfur Operations in the Outer Continental Shelf-Revisions to the Requirements for Exploratory Drilling on the Arctic Outer Continental Shelf; Reopening of Comment Period” (Feb. 10, 2021)
House Energy and Commerce Committee Actions:
H.R. 1033 “To authorize certain long-term contracts for Federal purchases of energy” Referred to the Committee on Energy and Commerce (Feb. 11, 2021)
Senate Energy and Natural Resources Committee:
- Res. 60“An original resolution authorizing expenditures by the Committee on Energy and Natural Resources”Referred to the Committee on Rules and Administration (Feb. 13, 2021)
Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks Feb. 8-12, 2021:
“Equinor Sells U.S. Bakken Shale Assets, Posts Record Loss For 2020” Reuters
“Big Oil Does U-turn On Gas Flaring” Energywire
“Biden Drilling Ban Forces Democratic-led New Mexico To Reckon With Oil Dependence” Reuters
“Dem Sen. Manchin Asks Biden To Reverse Keystone XL Rejection” AP
“Fracking Ban For Delaware River Basin Heads To A Showdown In Federal Court” The Philadelphia Inquirer
Connect with us on Facebook. Every week we post the CASL Ledger detailing our publications and activities from the week.
Written by:
Sara Jenkins – Research Assistant
Jackie Schweichler – Staff Attorney
Sarah Straub – Research Assistant
