Shale Law Weekly Review—Week of July 03, 2023

Post-Production Costs: Title: District Court Denies Diversified’s Motion for Judgment on the Pleadings in Abandoned Wells Class Action Suit ⚡
On Thursday, June 1, 2023, the United States District Court for the Northern District of West Virginia denied Defendant Diversified Energy Co.’s (Diversified) Motion for Judgment on the Pleadings in the case of McEvoy v. Diversified Energy Co. PLC.  Plaintiffs had filed a class action against Diversified, alleging Diversified had a duty to plug and decommission thousands of abandoned gas wells in West Virginia.  On May 10, 2023, Diversified filed a Motion for Judgment on the Pleadings for Failure to Join Required Parties; Diversified claimed that West Virginia’s Department of Environmental Protection (WV DEP) was a necessary party to the action because WV DEP gives authorization for plugging wells.  Diversified also claimed that thousands of mineral owners in West Virginia were necessary parties, as Diversified alleged that their interests would “be terminated as a result of plaintiffs’ claims.”  The court found that neither party was necessary and indispensable. WV DEP was not necessary and indispensable because plaintiffs’ claims are for monetary damages, thus WV DEP’s authorization of plugging wells is not required.  The mineral owners were not necessary parties because plaintiffs’ claims only apply to abandoned, nonproducing wells.

Trespass by Fracture: Pennsylvania Drilling Trespass Claim Barred By Claim Preclusion
On Tuesday, June 20, 2023 the United States District Court for the Middle District of Pennsylvania granted defendant Southwestern Energy Production Company’s (Southwestern) motion to dismiss in the case of Briggs v. SW. Energy Prod. Co.  Plaintiffs live next to a natural gas unit owned by Southwestern and containing several wells, where Southwestern extracts natural gas via hydraulic fracturing.  Plaintiffs alleged that Southwestern committed trespass and conversion when it extracted natural gas from a Marcellus Shale formation located under plaintiffs’ land.  The court held that plaintiffs’ claim is barred by claim preclusion, as plaintiffs had previously brought a claim arising from the same facts, which was decided by the Pennsylvania Supreme Court. In this case, however, the plaintiffs focused on the physical intrusion of the hydraulic fracturing fluid entering their property. The court did not find these new details to be persuasive and dismissed the case.  For background, see SLWR— January 27, 2020, “Pennsylvania Supreme Court Addresses Trespass by Hydraulic Fracturing.”

Climate Change: Multnomah County in Oregon Files Lawsuit Against Oil and Gas Companies for Damages Caused by Heatwaves
On June 22, 2023, the County of Multnomah in Oregon filed a lawsuit in the Oregon Circuit Court against several oil companies. The county, which is home to Oregon’s largest city, Portland, is seeking relief for $50 million in actual damages caused by the extreme heat wave event in June 2021, along with $1.5 billion in future damages to help weatherproof the county for future heat waves. The heat wave event resulted in loss of life, health issues, property damage, and financial burden on the citizens of Multnomah County. The lawsuit claims that the oil companies knew their fossil fuel products cause carbon pollution that could lead to deadly heat waves but that the companies deliberately chose to withhold that information for financial gain. The County is arguing that the heat wave of June 2021 would not have happened if not for the carbon pollution from the companies’ products.

Pipelines: Mountain Valley Pipeline Project Receives Required Permit from the U.S. Army Corps of Engineers
On June 23, 2023, the U.S. Army Corps of Engineers issued a permit to commence construction of the Mountain Valley Pipeline project. The project was approved by the Department of the Interior on May 24, 2023, which granted the project a right-of-way and temporary use permit. The project must also receive a permit from the Army Corps of Engineers for the pipeline to cross over water, such as streams and rivers under Section 404 of the Clean Water Act. The project needed the water crossing permit to start construction because the project involves the “discharge of dredged and/or fill material” into streams, wetlands, and forested areas, as well as the installation of pipeline crossings under several rivers. The issued permit allows the permittee and any future transferees to perform certain activities in accordance with the specified terms and conditions of the permit.

Infrastructure: $1.7 Billion in Funding for Public Transportation with Fewer Emissions
On June 26, 2023, the U.S. Department of Transportation’s Federal Transit Administration (FTA) made the announcement that it will be granting 130 awards to transit projects in 46 states and territories, to improve transportation infrastructure. The awards amount to nearly $1.7 billion in funding. The funding is part of the Biden Administration’s infrastructure agenda, which includes over 1,700 American-built buses, with nearly half of those buses being zero-emission models. The awards prioritize standardized buses to expedite delivery and reduce costs. According to the FTA, the purpose of the investment is to improve domestic transit, job creation, and promote a cleaner and more sustainable transportation system in the United States.

 

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.

July 28, 2023, noon–1 pm (ET). Understanding the Basics of USDA Commodity Programs. (Register)

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks

Gassco granted consent for first phase of Valemon rich gas pipeline disposal [Oil and Gas Journal]

Fracking impact fees’ revenue jumped 19% in a record-breaking 2022, new PUC data shows [Pittsburgh Post-Gazette]

Shale Driller Civitas Enters Permian With $4.7 Billion Deal [Bloomberg]

Offshore oil spending to rise more than 20% this year, SLB says [Reuters]

Connect with us on Facebook.

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

Oil & Gas Law & Policy Resources:

John McFarland, Carbon Capture and Underground Storage (Jun. 20, 2023)

John McFarland, Colors of Hydrogen (Jun. 22, 2023)

Vinícius Andrade, Petrobras Is Said to Plan First Dollar Bond Sale Since 2021 (Jun. 23, 2023)

Charles Sartain, Texas Tax Man Catches up with Leasehold Seller (Jun. 23, 2023)

Grace Nishikawa, Japanese Courts Admit the Operation of New Coal-Fired Power Plants in Kobe (Jun. 26, 2023)

Charles Sartain, How to Lose Your Working Interest in 26 Annual Steps (Jun. 28, 2023)

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S. DEPARTMENT OF ENERGY PRESS RELEASES

Biden-Harris Administration Invests $25 Million to Expand Weatherization Assistance Program and Cut Costs for More Americans (Jun. 27, 2023)

DOE Report Finds Clean Energy Jobs Grew in Every State In 2022 (Jun. 28, 2023)

U.S. ENVIRONMENTAL PROTECTION AGENCY PRESS RELEASES

EPA Settles with Shipping Companies over Claims of Clean Water Act Violations (Jun. 28, 2023)

EPA Resolves Clean Air Act Violations with Didion Ethanol LLC Facility in Cambria, Wisconsin (Jun. 28, 2023)

FEDERAL EXECUTIVE AGENCIES (Federal Register 23-29, 2023)

Environmental Protection Agency

88 FR 41361 Proposed Rule – Comment Period: “National Emission Standards for Hazardous Air Pollutants: Reciprocating Internal Combustion Engines and New Source Performance Standards: Internal Combustion Engines; Electronic Reporting” (Jun. 26, 2023)

88 FR 41834 Rule: “National Oil and Hazardous Substances Pollution Contingency Plan; Product Schedule Listing and Authorization of Use Requirements” (Jun. 28, 2023)

Federal Energy Regulatory Commission

88 FR 41394 Notice: “Combined Notice of Filings (Natural Gas & Oil Pipeline Rate and Refund Report)” (Jun. 26, 2023)

88 FR 41612 Notice: “Combined Notice of Filings (Natural Gas & Oil Pipeline Rate and Refund Report)” (Jun. 29, 2023)

Energy Department

88 FR 41391 Notice: “Nuclear Energy Advisory Committee” (Jun. 26, 2023)

U.S. Army Corps of Engineers

88 FR 40230 Notice: “Inland Waterways Users Board Meeting Notice” (Jun. 21, 2023)

Natural Resources Revenue Office

88 FR 42102 Notice – Comment Period: “Agency Information Collection Activities; Suspensions Pending Appeal and Bonding”

Justice Department

88 FR 41983 Notice: “Notice of Lodging of Proposed Consent Decree Under the Clean Water Act” (Jun. 28, 2023)

Susquehanna River Basin Commission

88 FR 41462 Notice – Comment Period: “Actions Taken at June 15, 2023 Meeting” (Jun. 26, 2023)

Ocean Energy Management Bureau

88 FR 42136 Proposed Rule – Comment Period: “Risk Management and Financial Assurance for OCS Lease and Grant Obligations” (Jun. 29, 2023)

U.S. HOUSE ENERGY AND COMMERCE COMMITTEE

H.R.4141 “To provide that certain communications projects are not subject to requirements to prepare certain environmental or historical preservation reviews, and for other purposes.” Subcommittee Hearings Held (Jun. 22, 2023)

H.R.4351 “To amend the Rural Electrification Act of 1936 to improve access to broadband telecommunications services in rural areas, including by encouraging the provision of broadband loans and grants to increase broadband service in rural ports, and for other purposes.” Referred to the Committee on Agriculture, and in addition to the Committee on Energy and Commerce (Jun. 23, 2023)

U.S. SENATE ENERGY AND NATURAL RESOURCES COMMITTEE 

S.2202 “A bill to amend the Omnibus Public Land Management Act of 2009 to authorize the modification of transferred works to increase public benefits and other project benefits as part of extraordinary operation and maintenance work, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources. (Jun. 22, 2023)

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPT. OF ENVIRONMENTAL PROTECTION PRESS RELEASES

Poor Air Quality Conditions Persist Across Pennsylvania (Jun. 29, 2023)

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 25—Jun. 24, 2023)

Department of Envrionmental Protection

53 Pa.B. 3380 Notice: “Alternative Fuels Incentive Grant Program; Opportunity Notice”

53 Pa.B. 3332 Notice: “APPLICATIONS FOR NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) PERMITS AND WATER QUALITY MANAGEMENT (WQM) PERMITS UNDER THE CLEAN STREAMS LAW AND FEDERAL
CLEAN WATER ACT”

53 Pa.B. 3380 Notice: “Bid Opportunity”

Environmental Quality Board

53 Pa.B. 3309 Rule: “National Pollutant Discharge Elimination System (NPDES) Schedules of Compliance”

PENNSYLVANIA LEGISLATURE 

SB 198 “An Act amending the act of July 13, 1988 (P.L.530, No.94), known as the Environmental Hearing Board Act, further providing for definitions and for jurisdiction.”
Referred to ENVIRONMENTAL RESOURCES AND ENERGY (Jun. 22, 2023).

SB 199 “An Act amending the act of July 13, 1988 (P.L.530, No.94), known as the Environmental Hearing Board Act, further providing for Environmental Hearing Board.”
Referred to ENVIRONMENTAL RESOURCES AND ENERGY (Jun. 22, 2023).

 

Written by:
Lonzie Helms, Research Assistant
Mary Johnson, Research Assistant
Josh Narey, Research Assistant
Jackie Schweichler, Staff Attorney