June 12, 2023
Shale Law Weekly Review—Week of June 12, 2023
Municipal Regulation: Berkeley Petitions for Rehearing of Ninth Circuit’s Decision Striking Down Natural Gas Piping Prohibition ⚡
On May 31, 2023, the City of Berkeley, California, filed a petition requesting a rehearing en banc after an April 17th opinion in which the Ninth Circuit Court of Appeals found that a city may not ban the installation of natural gas equipment in new buildings. Berkeley had implemented an ordinance banning natural gas infrastructure in newly constructed buildings claiming that the ordinance would reduce environmental and health hazards associated with natural gas consumption. The California Restaurant Association (CRA) sued, arguing that the ordinance violated the Energy Policy and Conservation Act (EPCA). The district court dismissed the case. On appeal, the Ninth Circuit reversed, finding that Berkeley’s building code was preempted by the EPCA. The May 31st petition characterized the ruling as “seriously wrong and highly consequential,” alleging that it threatens other regulations enacted for the protection of health, safety, and the environment. If the City of Berkeley’s request is granted, the Ninth Circuit’s en banc process provides that the case will be reheard in front of a panel consisting of the Chief Judge and ten other randomly selected judges.
Public Lands: The Bureau of Land Management Withdraws Public Lands from Future Leasing and Mining Claims Surrounding New Mexico’s Chaco Culture National Historical Park
On June 7, 2023, the Bureau of Land Management (BLM) published a new public land order No. 7923 in the Federal Register which withdraws “approximately 336,404.42 acres of public lands” near Chaco Culture National Historical Park in New Mexico from mining and leasing activities for a period of 20 years. The Secretary of the Interior Deb Haaland made the announcement of the new Public Land Order on May 2, 2023, stating that the order is intended to “protect the cultural and historic resources surrounding Chaco Culture National Historical Park.” Any additional land purchased by the U.S. government near the park will also become unavailable for oil and gas development for the duration of the order. The withdrawal does not impact other laws governing the use of BLM-managed lands. The order is planned to expire in 2043, or 20 years after the effective date.
National Energy Policy: DOE Launches Latest Energy Earthshot Initiative to Reduce Emissions and Develop Cost-Effective Fuels and Products
On May 24, 2023, the U.S. Department of Energy (DOE) launched the Clean Fuels & Products Shot, which is an initiative created to reduce greenhouse gas emissions from carbon-based fuels and products. It focuses on developing sustainable feedstocks and conversion technology to achieve at least 85% lower emissions compared to fossil-based sources by 2035. The goal of the initiative is to meet the energy demand for “100% of aviation fuel; 50% of maritime, rail, and off-road fuel; and 50% of carbon-based chemicals by using sustainable carbon resources.”
Pipelines: US Federal Energy Regulatory Commission Approved TC Energy’s North Baja Pipeline
On May 26, 2023, US Federal Energy Regulatory Commission (FERC) sent a letter granting permission to Canadian energy company TC Energy Corp’s North Baja Pipeline LLC to commence operations of the North Baja natural gas pipeline expansion in Arizona and California. The expansion will supply more U.S. natural gas to Mexico, providing up to 340,000 dekatherms per day. On May 30, 2023, FERC submitted an additional letter to TC Energy Crop, confirming the May 26th approval includes approval for the full project capacity of up to 495,000 dekatherms per day.
Oil & Gas Law & Policy Resources of Interest:
John McFarland, “No form of energy is renewable.” (Jun. 1, 2023)
John McFarland, Texas Supreme Court Agrees to Hear Appeal of MIPA Case (Jun. 2, 2023)
Charles Sartain, Texas Supreme Court Rules on Suspension of Proceeds of Oil and Gas Production (Jun. 2, 2023)
Grant Smith, How Midnight OPEC Dealmaking Won Gulf Unity at Africa’s Expense (Jun. 5, 2023)
Charles Sartain, Appeals Court Revives Lessor’s Fraud Claims (Jun. 6, 2023)
Kenneth J. Markowitz, This Week’s Climate Policy Update (Jun. 6, 2023)
Jessica Wentz, Using Attribution Science to Evaluate the Effects of Oil and Gas Emissions on Endangered and Threatened Species (Jun. 6, 2023)
Kari Lundgren, Exxon CEO Tells Europe to Follow US Approach to Climate Action (Jun. 6, 2023)
FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S. DEPARTMENT OF ENERGY PRESS RELEASES
Biden-Harris Administration Announces $80 Million To Strengthen American Manufacturing (Jun. 7, 2023)
U.S. ENVIRONMENTAL PROTECTION AGENCY PRESS RELEASES
EPA and Congressional officials encourage grant applications for zero emission school buses (Jun. 5, 2023) Biden-Harris Administration Announces $8.8M for Cleanup and Assessment at Polluted Brownfields Sites in Connecticut (Jun. 5, 2023)
House Energy and Commerce Committee Actions:
H.R.1615 “Gas Stove Protection and Freedom Act” Reported to House (Jun. 5, 2023).
H.R.3818 “To prohibit the Secretary of Energy from finalizing a proposed rule related to consumer conventional cooking products, and for other purposes.” Referred to the House Committee on Energy and Commerce (Jun. 5, 2023).
H.R.3849 “To amend the Farm Security and Rural Investment Act of 2002 to modify provisions relating to the rural energy savings program.” Referred to the Committee on Agriculture (Jun. 6, 2023).
Senate Energy and Natural Resources Committee Actions:
S.1859 “A bill to prohibit the Secretary of Energy from finalizing, implementing, or enforcing the proposed rule entitled “Energy Conservation Program: Energy Conservation Standards for Consumer Conventional Cooking Products”, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources (Jun. 6, 2023).
FEDERAL EXECUTIVE AGENCIES (06–12, 2023)
Environmental Protection Agency
88 FR 36524 Proposed Rule: “Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Other Solid Waste Incineration Units Review; Withdrawal of Proposed Provision Removing Pyrolysis/Combustion Units” (Jun. 5, 2023)
88 FR 36481 Rule: “Approval and Promulgation of Implementation Plans; New York; Particulate Matter Control Strategy” (Jun. 5, 2023)
88 FR 36654 Final Rule: “Federal “Good Neighbor Plan” for the 2015 Ozone National Ambient Air Quality Standards” (Jun. 5, 2023)
Federal Energy Regulatory Commission
88 FR 36576 Notice: “Combined Notice of Filings, Natural Gas & Oil Pipeline Rate and Refund Report” (Jun. 6, 2023)
88 FR 37062 Notice: “Columbia Gas Transmission, LLC; Notice of Schedule for the Preparation of an Environmental Assessment for the Lucas and Pavonia Wells Abandonment Project” (Jun. 6, 2023)
88 FR 37056 Notice: “Great Basin Gas Transmission Company; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (Jun. 6, 2023)
88 FR 37053 Notice: “Southern Star Central Gas Pipeline, Inc.; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (Jun. 6, 2023)
88 FR 37050 Notice: “East Tennessee Natural Gas, LLC; Notice of Schedule for the Preparation of an Environmental Assessment for the System Alignment Program Project” (Jun. 6, 2023)
88 FR 37239 Notice: “Southern Star Central Gas Pipeline, Inc.; Notice of Application and Establishing Intervention Deadline” (Jun. 7, 2023)
Energy Department
88 FR 36573 Notice: “Notice of Intent to Prepare an Environmental Impact Statement for High-Assay Low-Enriched Uranium (HALEU) Availability Program Activities in Support of Commercial Production of HALEU Fuel” (Jun. 5, 2023)
International Trade Commission
88 FR 37014 Notice: “Certain Hardwood Plywood Products From the People’s Republic of China: Continuation of the Antidumping and Countervailing Duty Orders” (Jun. 6, 2023)
Homeland Security Department
88 FR 36921 Notice: “Ratification of Security Directives, Cybersecurity for owners of Oil and Gas Pipelines” (Jun. 6, 2023)
Foreign Assets Control Office
88 FR 36942 Rule: “Publication of Belarus Sanctions Regulations Web General License 2 and Subsequent Iterations” (Jun. 6, 2023)
National Oceanic and Atmospheric Administration
88 FR 37390 Notice – Comments Close 07/07/23: “Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Marine Geophysical Survey of the Blake Plateau in the Northwest Atlantic Ocean” (Jun. 7, 2023)
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 22 June 3, 2023)
53 Pa.B. 2972 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 LEGISLATURE H.B. 652 “An Act amending Title 27 (Environmental Resources) of the Pennsylvania Consolidated Statutes, providing for issuance of permits in environmental justice areas.”
Re-committed to House Rules Committee. (Jun. 6, 2023) H.B. 718 “An Act amending the act of July 7, 1980 (P.L.380, No.97), known as the Solid Waste Management Act, in general provisions, further providing for powers and duties of the department.” Third consideration and final passage (Jun. 7, 2023).
Written by:
Lonzie Helms, Research Assistant
Mary Johnson, Research Assistant
Josh Narey, Research Assistant
Jackie Schweichler, Staff Attorney
