February 26, 2024

Shale Law Weekly Review—Week of February 26, 2024

Methane Emissions: DOE and EPA Announce Intent to Fund Methane Mitigation ⚡
On February 9, 2024, the Department of Energy (DOE) and the Environmental Protection Agency (EPA) announced their intent to make Inflation Reduction Act funds available for mitigating methane, a “super pollutant.” The Methane Emissions Reduction Program will seek to target the oil and natural gas supply chain by funding projects to reduce emissions at existing wells and assets, while also developing new mitigation technologies and measuring systems to aid in identifying and fixing methane leaks. These projects will include collaboration between the oil and gas sector and DOE National Laboratories, state agencies, and other nongovernmental organizations. According to the announcement, the purpose of this funding is to support the Investing in America agenda, which aims to create new jobs, increase data transparency, reduce inefficiencies in oil and gas operations, and improve public health by reducing climate pollution. Details about the anticipated application process and eligibility requirements can be found here.

Pipelines: D.C. Circuit Again Dismisses Mountain Valley Pipeline Challenge
On February 13, 2024, the U.S. Court of Appeals for the D.C. Circuit, on remand from the U.S. Supreme Court, again affirmed the dismissal of a challenge of the Mountain Valley Pipeline by Virginia landowners. This decision is the latest of multiple challenges brought against the natural gas pipeline project spanning 303 miles through West Virginia and Virginia. The dispute is centered around the Federal Energy Regulatory Commission’s (FERC’s) 2017 certificate grant to Mountain Valley Pipeline LLC, allowing them the use of eminent domain to condemn property that landowners refused to sell. The landowners filed suit in 2017, arguing that the nondelegation doctrine prevents Congress from delegating the power of eminent domain to federal agencies, like FERC. The district court dismissed the suit, finding they did not have jurisdiction, as the Natural Gas Act prevents district courts from reviewing FERC certificates after appellate courts have reviewed cases involving the same certificate. In this latest decision, the judges simply wrote that “the [landowners’] suit came too late.” Counsel for the landowners have since issued a press release stating that they will again be seeking certiorari from the U.S. Supreme Court.

Hydraulic Fracturing Bans: California Moves to Phase Out Hydraulic Fracturing
On February 9, 2024, the California Department (Department) of Conservation Geologic Energy Management Division (CalGEM) issued a proposed rule that would phase out well stimulation treatments (WST). The proposed rule would amend title 14, section 1780 of the California Code of Regulations to end the issuance of new WST permits for oil and gas wells. CalGEM notes that the proposed rule will serve the Governor’s public policy aim of preventing potential pollution of underground sources of drinking water (USDW) and reducing greenhouse gas (GHG) emissions. Public comments on the proposed rule will be accepted until 11:59 p.m. on March 27, 2024, via email to calgemregulations@conservation.ca.gov or physical mail to the Department. A public hearing on the proposed rule will be held via zoom on March 26, 2024, at 5:30 pm. Registration for the hearing can be done through the Department.

Offshore Drilling: API and Environmental Groups Each File Complaints in D.C. Circuit Appeals Court Seeking Judicial Review of 2024–2029 National Outer Continental Shelf Oil and Gas Leasing Program 
On February 12, 2024, the American Petroleum Institute (API) and various environmental groups, including Healthy Gulf, Friends of the Earth, and the Sierra Club, each filed lawsuits against the Department of the Interior (DOI) and the Bureau of Ocean Energy Management (BOEM) in the U.S. Court of Appeals for the D.C. Circuit. API is challenging the record of decision approving 2024–2029 National Outer Continental Shelf Oil and Gas Leasing Program, which notably scheduled three lease sales in the five year span of the program – the fewest since the Outer Continental Shelf Lands Act was passed in 1980. See generally, Congressional Research Service, Five-Year Offshore Oil and Gas Leasing Program: History and Background (2024), R44504. Concurrently, environmental organizations are also seeking judicial review over the five-year program. The cases are Am. Petroleum Inst. v. US Dep’t of Interior, D.C. Cir., No. 24-1023, petition filed 2/12/24 and Healthy Gulf v. Dep’t of Interior, D.C. Cir., No. 24-01024, petition filed 2/12/24.

Pipelines: Seventh Circuit Hears Enbridge Appeal of Pipeline Shutdown Order
On Monday, February 8, 2024, the Seventh Circuit Court of Appeals heard oral arguments by Enbridge Energy Company, Inc. and several other defendants in a case originally brought to the Western District of Wisconsin by the Chippewa Indians Bad River Band. Bad River Band of Lake Superior Tribe of Chippewa v. Naomi Tillison, et al (No. 23-2467). The defendants are appealing a ruling by the lower court that ordered Enbridge to shut down its pipeline within three years of the June 16, 2023, decision and to pay the tribe over $5 million for past trespass on tribal land. The pipeline in dispute runs across approximately 12 miles of the Bad River Band of Lake Superior Chippewa’s reservation. In their appeal brief, filed on September 11, 2023, Enbridge argues that the district court erred in ordering the shutdown of the pipeline and the $5 million payout to the tribe, citing to a mid-1970s treaty between the United States and Canada that allowed for “the unimpeded movement of Alaska petroleum across Canada to the lower forty-eight states.”

LNG Exports: Latest FERC Open Meeting Approves Two LNG Projects Focused on Natural Gas Exports
On Thursday, February 15, 2024, the Federal Energy Regulatory Commission (FERC) granted two motions filed in separate liquid natural gas (LNG) export projects. The first approval was for a three-year extension of time request filed by Driftwood LNG LLC with respect to its Driftwood Pipeline Project, which was authorized in April 18, 2019, and set to be completed by April 18, 2026. Driftwood’s reasons for requesting three more years to complete the project focus primarily on the unexpected impact of the COVID-19 pandemic on supply chains and markets. Finding that Driftwood “demonstrated good cause for delay,” FERC approved the extension request. In the same open meeting, FERC also authorized an application for a Presidential Permit sought by Seguro Connector Pipeline, LLC, which will allow the company to construct and operate its proposed 1,000-foot-long pipeline project near the Rio Grande River, starting in Hudspeth County, Texas and ending with a connection to another pipeline in Mexico. The pipeline, which “will have a design capacity of approximately 2.834 billion standard cubic feet per day,” will support facilities designed “for the export of natural gas at the International Boundary between the United States and Mexico.”

 

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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.

On March 2, 2024, from 9:00am–2:00pm, Eastern Snyder County will hold a Child Safety Awareness Meeting. From 9:00–10:00am, Staff Attorney Brook Duer will speak about on-farm negligence, gross negligence, and liability issues as part of the meeting located at the Snyder Co. Produce Auction, 6130 Susquehanna Trail Port, Trevorton, PA 17864.

On March 6, 2024, the Center for Agricultural and Shale Law will join the SBDC Agriculture Center of Excellence, and Penn State Extension to host an agritourism webinar, “Agritourism and On-Farm Markets & Events: Planning for Your Success in 2024.” Staff Attorney Jackie Schweichler will give a presentation on “Legal Considerations for Agritourism Operations.”

On Wednesday, March 6, 2024, from 9:00am–1:00pm, the PA Agricultural Ombudsman Program, in collaboration with the Penn State Center for Agricultural and Shale Law, Penn State Extension, and the Blair County Conservation District, will present “ACRE Law 101: Agriculture, Local Regulations, and Nutrient Management” at the Liberty Room in the US Hotel Tavern in Hollidaysburg, Pennsylvania. Guest speakers will be Robert Willig, Senior Deputy Attorney General for the Pennsylvania Office of the Attorney General, and Robb Meinen, Assistant Research Professor with Penn State Extension, joined by Brook Duer, Center Staff Attorney.

On March 8–9, 2024, Penn State Extension will host “Beginning Farmer Intensive: Land, Law, and Transition” at the Inn at Leola Village. On March 9, 2024, from 11:15pm–noon and 12:45pm–1:30pm, Staff Attorney Brook Duer will present “Legal and Tax Structures for Business and Land Ownership” as part of the program.

On March 15, 2024, from 2:00–4:00 pm (ET), Penn State Extension will present “Exploring Succession and Estate Planning: A Panel Discussion.” At 2:25pm, Brook Duer will present “Pros and Cons of Various Transition Methods/Tools” as part of the panel.

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks 

A political battle brews over natural gas exports (Pittsburgh Post-Gazette)

FERC greenlights projects that could unleash gas exports (Politico Pro)

A new satellite will use Google’s AI to map methane leaks from space (MIT Technology Review)

US drillers cut oil and gas rigs for second time in three weeks – Baker Hughes (Reuters)

US producers tout LNG growth outlook despite regulatory uncertainty (S&P Global)

Connect with us on Facebook.

Penn State Farmland Energy Legal Podcast: Listen to the latest episode here.

Oil & Gas Law & Policy Resources:

Bloomberg, Wall Street Warming to Big Shale After $250 Billion of Deals (February 17, 2024)

Sartain, Have You Recorded Your Saltwater Disposal Agreement? (February 20, 2024)

Bloomberg, Guyana Won’t Approve Drilling Near Venezuela Until Court Rules (February 21, 2024)

Bloomberg, Alaska Air Halts Oil Hedging Program, Leaving Few US Holdouts (February 21, 2024)

Bloomberg, Oil Edges Lower as Investors Weigh Tight Market and Soft Demand (February 23, 2024)

Bloomberg, Woodside to Sell $1.4 Billion Stake in Gas Project to Jera (February 23, 2024)

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S. ENVIRONMENTAL PROTECTION AGENCY PRESS RELEASES

EPA $19 Million Grant Will Put Clean School Buses on the Streets of New Jersey (February 22, 2024)

EPA, DOE announce $9.4M to spur development of advanced biofuels as part of President Biden’s Investing in America agenda (February 22, 2024)

EPA Deletes Portion of Universal Oil Products Superfund Site from the National Priorities List (February 20, 2024)

Biden-Harris Administration announces more than $200 Million for Pennsylvania drinking water, wastewater and stormwater infrastructure upgrades as part of President Biden’s Investing in America agenda (February 20, 2024)

EPA Announces $1.5 Million in Regional Source Reduction Assistance Grant Opportunities (February 20, 2024)

Biden-Harris Administration announces $5.8 billion from President Biden’s Investing in America agenda for drinking water, wastewater and stormwater infrastructure upgrades (February 20, 2024)

Biden-Harris Administration announces nearly $83 million in funding to expand air quality monitoring across the nation as part of Investing in America agenda (February 16, 2024)

FEDERAL EXECUTIVE AGENCIES (Federal Register February 17– February 23, 2023)

Environmental Protection Agency

89 FR 13622: Proposed Rule, Comments Close 3/25/24: “Air Plan Approval; OR; Regional Haze Plan for the Second Implementation Period” (February 23, 2024)

89 FR 13022: Proposed Rule, Comments Close 3/22/24: “Air Plan Disapproval; Pennsylvania; Reasonably Available Control Technology Case-by-Case Permits for Keystone, Conemaugh and Homer City Generating Facilities for the 1997 and 2008 Ozone National Ambient Air Quality Standards” (February 21, 2024)

Other Agencies

89 FR 13404: Proposed Rule, Comments Close 4/22/24: “Cybersecurity in the Marine Transportation System” (February 22, 2024)

U.S. HOUSE ENERGY AND COMMERCE COMMITTEE

H.R.6544 “Atomic Energy Advancement Act” Placed on the Union Calendar, Calendar No. 320. (February 16, 2024)

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPT. OF ENVIRONMENTAL PROTECTION PRESS RELEASES

DEP: Interim Report on a Full Year of Sampling Finds No Evidence of Contamination in Western Pennsylvania Related to the East Palestine Train Derailment (February 16, 2024)

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 8 – February 24, 2024)

Department of Environmental Protection

54 Pa.B. 1018: Notices: “Intent to Submit Pennsylvania State Implementation Plan Revisions to Environmental Protection Agency”

54 Pa.B. 1016: Notices: “Availability of the Non-Regulatory Agenda”

Pennsylvania Public Utility Commission

54 Pa.B. 1028: Notices: “Service of Notice of Motor Carrier Applications”

 

Written by:
Kendal Ashman, Research Assistant
Kole Zellers, Research Assistant
Dillon Lightfoot, Research Assistant
Jasmine Gunning, Research Assistant
Sergio Porras, Research Assistant
Jackie Schweichler, Staff Attorney