Shale Law Weekly Review—Week of July 24, 2023

State Regulation: PA Commonwealth Court Rules that PA DEP Does Not Have Jurisdiction to Review “Inaction” Under the Oil and Gas Act ⚡
On July 10, 2023, the Commonwealth Court of Pennsylvania found that, under Pennsylvania’s Oil and Gas Act, the inaction of the Pennsylvania Department of Environmental Protection (PA DEP) does not count as an “action” which the PA DEP has jurisdiction to review.  Glahn v. Dep’t of Envtl. Prot. (Envtl. Hearing Bd.). This case was brought as an appeal from an order of PA DEP’s Environmental Hearing Board (EHB), which had granted PA DEP’s motion to dismiss.  In July 2020, Petitioners Roger Glahn and Donna Gorencel requested that PA DEP investigate possible contamination of their water supply from local oil and gas operations.  On May 10, 2021, Petitioners filed a notice of appeal with the EHB seeking review of DEP’s failure to issue a determination regarding their complaint within 45 days pursuant to Section 3218(b) of the Oil and Gas Act, 58 Pa. C.S. § 3218(b).  The EHB found that it did not have subject matter jurisdiction to review Petitioner’s complaint; there was no “action” to review.  The Commonwealth Court affirmed; the Oil and Gas Act does not provide for review of inaction, even inaction that exceeds the 45-day statutory period.

Pipelines: Mountain Valley Pipeline Asks Supreme Court to Overrule 4^th Circuit’s Stay on Construction
On July 14, 2023, Mountain Valley Pipeline, LLC submitted an Emergency Application to Vacate the Stays of the U.S. Court of Appeals to the U.S. Supreme Court. Mountain Valley Pipeline, LLC, v. The Wilderness Society, et al., Nos. 23-1592, 23-1594, & 23-1384. Mountain Valley asked the Supreme Court to overrule the Fourth Circuit’s order halting construction on the Mountain Valley Pipeline, which received final approval from the Federal Energy Regulatory Commission (FERC) on June 28, 2023.  In the Application, Mountain Valley argues that the Fourth Circuit did not have the authority to halt construction because Congress stripped appellate courts of jurisdiction to review decisions of regulatory authorities related to the pipeline’s approval.

Pipelines: The U.S. Army Corps of Engineers Outlines Key Points of Analysis Required for Line 5 Pipeline Tunnel Project in the Straits of Mackinac
On June 28, 2023, the U.S. Army Corps of Engineers (USACE) released a memo outlining the scope of analysis required by the National Environmental Policy Act (NEPA), for the proposed Line 5 pipeline tunnel project by Enbridge Energy which would cross the Straits of Mackinac. It addresses specific concerns raised by the public, tribes, and agencies. The scope of analysis is limited to the proposed tunnel project and does not encompass the entire 645-mile Line 5 pipeline. The main focus is on evaluating the environmental impacts of tunnel construction, operation, and maintenance activities at the Straits crossing. Key points include project lifespan, environmental concerns, connected actions, affected environment, activities under consideration, disposal of material, supply and demand, cumulative impacts, safety and pipeline operation, energy needs, cultural resources, state liability, Section 106 of NHPA, and ownership of spoils.

 

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

Supreme Court asked to throw out court stays on Mountain Valley Pipeline [Oil and Gas Journal]

NextDecade Will Move Ahead With $18.4 Billion Texas LNG Project [Bloomberg]

Senate adds language blocking gas stove ban to appropriations bill [The Hill]

Venture Global Delays Contracted LNG Shipments Until End of 2024 [Bloomberg]

Army Corps limits scope of Line 5 tunnel environmental review [Michigan Advance]

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

Oil & Gas Law & Policy Resources:

Charles Sartain, Will the New Texas Business Court Impact Oil and Gas Cases? (Jul. 14, 2023)

Mohammed Hatem, Tanker arrives in Yemen to Start Risky Oil Pump Operation (Jul. 16, 2023)

John McFarland, Carbon Contracts for Farmers and Ranchers (Jul. 17, 2023)

John McFarland, PBEX v. Dorchester — Adverse Possession of a Non-Operating Working Interest (Jul. 18, 2023)

Charles Sartain, California Brings Legislative Muscle To Its Attack on Oil Drilling (Jul. 18, 2023)

Energy Connects, JERA and ADNOC sign cooperation agreement on clean hydrogen and ammonia (Jul. 18, 2023)

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S. DEPARTMENT OF ENERGY PRESS RELEASES

Biden- Harris Administration Announces $150 Million for States to Train Residential Energy Efficiency Contractors Through Investing in America (Jul. 17, 2023)

U.S. and India Advance Partnership on Clean Energy (Jul. 18, 2023)

U.S. ENVIRONMENTAL PROTECTION AGENCY PRESS RELEASES

Biden-Harris Administration Proposes Workplace Safety Requirements for Carbon Tetrachloride to Protect Worker Health, Fenceline Communities’ (Jul. 17, 2023)

EPA to Host Environmental Justice Caucus in Detroit on August 7 (Jul. 18, 2023)

FEDERAL EXECUTIVE AGENCIES (Federal Register Jul. 14 – Jul. 20, 2023)

Environmental Protection Agency

88 FR 45276 Proposed Rule – Comment Period: “Air Quality State Implementation Plans; Approvals and Promulgations: California; 1997 Annual Fine Particulate Matter Serious and Clean Air Act Section 189(d) Nonattainment Area Requirements; San Joaquin Valley, CA” (Jul. 14, 2023)

88 FR 45205 Notice: “Environmental Impact Statements; Notice of Availability” (Jul. 14, 2023)

88 FR 45416 Notice – Comment Period: “Proposed Consent Decree, Clean Air Act Citizen Suit” (Jul. 17, 2023)

88 FR 45373 Proposed Rule – Comment Period: “Air Plan Approval and Operating Permit Program Approval; Connecticut; Revision to Definitions” (Jul. 17, 2023)

88 FR 45418 Notice – Comment Period: “Proposed Stipulated Partial Settlement Agreement, Endangered Species Act Claims” (Jul. 17, 2023)

88 FR 45900 Notice – Comment Period: “Proposed Settlement Agreement, Clean Water Act and Administrative Procedure Act Claims” (Jul. 18, 2023)

88 FR 46795 Notice: “Notice of July 2023 Denial of Petitions for Small Refinery Exemptions Under the Renewable Fuel Standard Program” (Jul. 20, 2023)

Federal Energy Regulatory Commission

88 FR 45202 Notice: “Florida Gas Transmission Company, LLC; Notice of Scoping Period Requesting Comments on Environmental Issues for the Proposed South Louisiana Project” (Jul. 14, 2023)

88 FR 45200 Notice: “Daybreak Power, Inc.; Notice of Surrender of Preliminary Permit” (Jul. 14, 2023)

88 FR 45200 Notice: “National Fuel Gas Supply Corporation; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (Jul. 14, 2023)

88 FR 45198 Notice: “Columbia Gas Transmission, LLC; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (Jul. 14, 2023)

88 FR 45897 Notice: “Combined Notice of Filings (Natural Gas and Oil Pipeline Refund Report)” (Jul. 18, 2023)

88 FR 46792 Notice: “Columbia Gas Transmission, LLC; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (Jul. 20, 2023)

Energy Department

88 FR 44118 Notice: “President’s Council of Advisors on Science and Technology” (Jul. 11, 2023)

U.S. Army Corps of Engineers

88 FR 44293 Notice: “Board on Coastal Engineering Research” (Jul. 12, 2023)

Land Management Bureau

88 FR 46177 Notice – Comment Period: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Geothermal Resource Leases and Unit Agreements” (Jul. 19, 2023)

Forest Service

88 FR 45388 Notice – Comment Period: “Missoula Resource Advisory Committee” (Jul. 17, 2023)

Department of Justice

88 FR 45448 Notice: “Notice of Lodging of Proposed Consent Decree Under the Resource Conservation and Recovery Act, the Clean Air Act, the Comprehensive Environmental Response, Compensation, and Liability Act, and the Emergency Planning and Community Right-To-Know Act” (Jul. 17, 2023)

Safety and Environmental Enforcement Bureau

88 FR 44834 Notice – Comment Period: “Agency Information Collection Activities; Renewable Energy and Alternate Uses of Existing Facilities on the Outer Continental Shelf” (Jul. 13, 2023)

Ocean Management Bureau

88 FR 45444 Notice – Comment Period: “Agency Information Collection Activities; Geological and Geophysical (G&G) Explorations of the Outer Continental Shelf” (Jul. 17, 2023)

U.S. HOUSE ENERGY AND COMMERCE COMMITTEE

H.R.4678 “To direct the Chairman of the Nuclear Regulatory Commission, the Administrator of the Federal Aviation Administration, and the Administrator of the Federal Emergency Management Agency to establish procedures for the deployment of microreactors at airports, and for other purposes.” Referred to the Committee on Transportation and Infrastructure, and in addition to the Committee on Energy and Commerce. (Jul. 17, 2023)

H.R.4692 “To amend the Federal Food, Drug, and Cosmetic Act to prevent the use of patents, trade secrets, or other intellectual property to inhibit competition.” Referred to the House Committee on Energy and Commerce. (Jul. 17, 2023)

H.R.4760 “To amend the Internal Revenue Code of 1986 to increase excise taxes on fuel used by private jets, and for other purposes.” Referred to the Committee on Ways and Means, and in addition to the Committees on Transportation and Infrastructure, and Energy and Commerce (Jul. 19, 2023)

H.R.4761 “To amend title 49, United States Code, to provide additional safety measures for motor vehicles, and for other purposes.” Referred to the House Committee on Energy and Commerce. (Jul. 19, 2023)

U.S. SENATE ENERGY AND NATURAL RESOURCES COMMITTEE 

S.2389 “A bill to require the Secretary of the Interior to conduct certain offshore lease sales under the Outer Continental Shelf Lands Act.” Read twice and referred to the Committee on Energy and Natural Resources. (Jul. 19, 2023)

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 27—Jul. 15, 2023)

Department of Envrionmental Protection

53 Pa.B. 3710 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”

Pennsylvania Public Utility Commission

53 Pa.B. 3808 Notice: “Natural Gas Service (Pine-Roe Natural Gas Company, Inc.)”

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).

 

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