Shale Law Weekly Review – Week of June 21, 2021

Economic Development: Maine Passes Law Requiring State Divestment of Fossil Fuel Securities ⚡
On June 16, 2021, the Governor of Maine signed into law L.D. 99 (H.P. 65), titled “An Act to Require the State to Divest Itself of Assets Invested in the Fossil Fuel Industry.”  The act prohibits the Treasurer of State (Treasurer) from investing in the stocks, bonds, commercial paper, or securities of any fossil fuel company and requires the Treasurer to review the holdings of the Maine Public Employees Retirement System and completely divest any fossil fuel-related holdings by January 1, 2026.  The law requires the Treasurer and the Board of Trustees of the Maine Public Employees Retirement System to report annually on the progress of divestment by January 1 of each year until the final divestment date of January 1, 2026.    

Wildlife Habitat: Federal Court Enjoins Drilling in Wyoming and Montana Sage Grouse Habitat
On June 9, 2021, the U.S. District Court for the District of Idaho issued an order remanding to the Bureau of Land Management (BLM) the environmental assessments (EA) of four 2017 Wyoming and Montana oil and gas lease sales and enjoining all “further surface disturbing activities” on the properties.  Western Watersheds Project v. Zinke, No. 1:18-cv-00187.  The plaintiff, an environmental protection group, alleged that the oil and gas lease sales threatened the greater sage-grouse’s habitat and that BLM failed to adequately assess the environmental impacts of the lease sales in violation of National Environmental Policy Act (NEPA).  In their assessment, BLM considered two options,:“(1) no action; and (2) the proposed action of offering all leases.” According to the court, BLM should have also considered an alternative where greater sage-grouse habitat would be protected.  Stating that “[o]il and gas development is one of the greatest threats to greater sage-grouse,” the court remanded the EAs to the agency for reconsideration and enjoined all further drilling activities on the properties.

State Regulation: New Mexico Oil Conservation Commission Votes to Prohibit Oil and Gas Releases
On June 10, 2021, the New Mexico Oil Conservation Commission voted to approve amendments to rules 19.15.29.6, 19.15.29.8, and 19.15.29.15, prohibiting major and minor releases, or spills, of oil and gas during production and production-related activities.  WildEarth Guardians and Oil Conservation Division, Case No. 21834.  The amended rule imposes reporting, containment, and remediation requirements for releases, and allows the commission director to deny permits to non-compliant actors.

Hydraulic Fracturing: Federal Court Dismisses Case Challenging Delaware River Basin Fracking Ban
On June 11, 2021, the US District Court for the Eastern District of Pennsylvania issued a memorandum and order dismissing a suit against the Delaware River Basin Commission (Commission) for lack of standing.  Yaw v. The Delaware River Basin Commission, No. 2:21-cv-00119.  The case, filed by two Pennsylvania state senators, the Pennsylvania Senate Republican Caucus, and several municipalities, alleged that the Commission’s moratorium on natural gas fracking in the Delaware river basin drainage areas exceeded the Commission’s authority and comprised an “unconstitutional taking of private and public property.”  Rejecting the senators’ and party caucus’s argument that Pennsylvania state standing doctrine applies to federal court standing requirements, the court found that the senator and party caucus plaintiffs had failed to adhere to the “especially rigorous” standing requirements for legislators and dismissed their claims with prejudice.  The court found, however, that the municipalities might be able to specify a concrete injury incurred from the moratorium and allowed the municipality plaintiffs to file an amended complaint.

Pipelines: Minnesota Court of Appeals Upholds Enbridge Line 3 Replacement Permits
On June 14, 2021, the Minnesota Court of Appeals issued an opinion affirming the Minnesota Public Utilities Commission’s grant of certificate of need and routing permit for the replacement of Enbridge Energy’s Line 3.  In the Matter of the Application of Enbridge Energy, Limited Partnership, for a Certificate of Need and a Routing Permit for the Proposed Line 3 Replacement Project in Minnesota from the North Dakota Border to the Wisconsin Border, No. A20-1071.  The challenge, brought by several realtors, argued that the Commission’s decisions were arbitrary and capricious.  Emphasizing deference to the Commission’s “expertise and special knowledge,” the court found that the Commission had “adequately explained” its acceptance of the revised environmental impact statement (EIS), which analyzed potential effects of an oil spill in the Lake Superior watershed.  The court held that the Commission’s decisions were reasonable and affirmed the agency’s certificate and permitting grants.

Shale Law/Policy Resources of Interest:

Charles Sartain and Travis Nadalini, Try Title vs. Quieting Title: What’s the Difference? (June 16, 2021).

Aaron Powell, Lyle v. Midway Solar, LLC: The Accommodation Doctrine and Surface-Use Disputes Between Mineral Owners and Solar Developers (June 14, 2021).

AGENCY PRESS RELEASES – STATE/FEDERAL

Pennsylvania Department of Environmental Protection

No announcements June 14–18, 2021.

U.S. Department of Energy

DOE Welcomes New Biden-Harris Appointees (June 15, 2021).

DOE Announces $12 Million For Direct Air Capture Technology (June 15, 2021).

ICYMI: Secretary Granholm, Industry Leaders Discuss Public-Private Sector Efforts to Develop Domestic Battery Supply Chains (June 14, 2021).

DOE Announces Winners of Annual Collegiate Wind Competition (June 14, 2021).

U.S. Environmental Protection Agency

EPA Announces $569 Million WIFIA Loan for Flood, Climate Resilience in the Fargo-Moorhead Metropolitan Area (June 18, 2021).

EPA Announces Selections of Charter Members to the Clean Air Scientific Advisory Committee (June 17, 2021).

EPA Continues to Protect Community by Requiring Additional Monitoring of Emissions from Limetree Bay Refinery on St. Croix (June 17, 2021).

EPA Announces $11 Million for Farm-Focused Projects to Improve Water Quality and Environmental Education (June 16, 2021).

EPA Accepting Applications for $9M in Great Lakes Restoration Initiative Funding (June 16, 2021).

EPA Names 2021 Top Cities for ENERGY STAR Certified Buildings (June 15, 2021).

EPA Announces Winners of the 2021 Green Chemistry Challenge Awards (June 15, 2021).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices (Pa. Bulletin Vol. 51, No. 25—June 19, 2021)

51 Pa.B. 3395 Notice: “Pennsylvania’s 2021 Annual Ambient Air Monitoring Network Plan [Seeking Public Comment].”

Pennsylvania Legislature

HB 591 “An Act amending . . . The Clean Streams Law, in other pollutions and potential pollution, further providing for potential pollution. [Allows for waiver applications for National Pollutant Discharge Elimination System permit on projects one to five acres in size.]” Re-committed to RULES, June 15, 2021 [House] (June 15, 2021).

SB 545 “An Act amending . . . The Clean Streams Law, in other pollutions and potential pollution, providing for notice of discharge endangering public health or environment.” First consideration, June 15, 2021 [Senate] (June 15, 2021).

SB 302 “An Act prohibiting the use of certain class B firefighting foams under certain circumstances and providing for warning labels; and imposing powers and duties on the Pennsylvania Emergency Management Agency and the State Fire Commissioner.” First consideration, June 15, 2021 [Senate] (June 15, 2021).

SB 284 “An Act amending Title 27 (Environmental Resources) of the Pennsylvania Consolidated Statutes, in environmental protection, providing for bonding for alternative energy production projects; and, in special programs, providing for solar forced labor prevention.” First consideration, June 15, 2021 [Senate] (June 15, 2021).

Public hearing on Pennsylvania CO2 and Climate. Held by the Environmental Resources & Energy Committee (June 22, 2021, 9:00 a.m.).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register June 14–17, 2021):

Department of State

86 FR 32303 Notice: “Clean Energy Resources Advisory Committee [Advisory committee Establishment]” (June 17, 2021).

Energy Department

86 FR 31491 Notice: “DOE-Hosted Workshop on the Future of Building Energy Codes [Workshops on Tuesday, June 22 and Thursday, June 24]” (June 14, 2021).

Federal Energy Regulatory Commission

86 FR 32258 Notice: “Combined Notice of Filings #1 [Electric Corporate Filings]” (June 17, 2021).

86 FR 32254 Notice: “Mountain Valley Pipeline, LLC; Notice of Schedule for the Preparation of an Environmental Assessment for the Proposed Amendment to the Certificate of Public Convenience and Necessity for the Mountain Valley Pipeline Project” (June 17, 2021).

86 FR 32257 Notice: “Iroquois Gas Transmission System, L.P.; Notice of Availability of the Draft Environmental Impact Statement for the Proposed Enhancement by Compression Project” (June 17, 2021).

86 FR 32031 Notice: “Combined Notice of Filings [Natural Gas Pipeline Rate and Refund Report Filings]” (June 16, 2021).

86 FR 32033 Notice: “Combined Notice of Filings #1 [Exempt Wholesale Generator Filings]” (June 16, 2021).

86 FR 31707 Notice: “Combined Notice of Filings #1 [Exempt Wholesale Generator Filings]” (June 15, 2021).

86 FR 31710 Notice: “Combined Notice of Filings [Natural Gas Pipeline Rate and Refund Report Filings]” (June 15, 2021).

86 FR 31706 Notice: “Resource Adequacy Developments in the Western Interconnection; Supplemental Notice of Technical Conference [Meeting Wednesday, June 23 and Thursday, June 24]” (June 15, 2021).

86 FR 31708 Notice: “Sunshine Act Meetings” (June 15, 2021).

86 FR 31705 Notice: “Equitrans, L.P.; Notice of Request under Blanket Authorization and Establishing Intervention and Protest Deadline” (June 15, 2021).

86 FR 31703 Notice: “Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline; Northern Natural Gas Company” (June 15, 2021).

86 FR 31492 Notice: “Combined Notice of Filings #1 [Electric Corporate Filings]” (June 14, 2021).

86 FR 31494 Notice: “Elephant Energy, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization” (June 14, 2021).

International Trade Administration

86 FR 31698 Notice: “Solar Photovoltaic (PV) Panel Value Chain Industry Roundtable [Roundtable Tuesday, June 29]” (June 15, 2021).

Pipeline and Hazardous Materials Safety Commission

86 FR 31571 Notice: “Pipeline Safety: Request for Special Permit; Tennessee Gas Pipeline Company, LLC” (June 14, 2021).

House Energy and Commerce Committee Actions:

H.R.3979 “To establish a refund effective date for rates and charges under the Natural Gas Act, and for other purposes.” Referred to the House Committee on Energy and Commerce. (June 17, 2021).

H.R.2467 “PFAS Action Act of 2021” Forwarded by Subcommittee to Full Committee by the Yeas and Nays: 16 – 7. (June 16, 2021).

H.R.3886 “To direct the Secretary of the Treasury to issue Clean Energy Victory Bonds.” Referred to the Committee on Ways and Means, and in addition to the Committees on Energy and Commerce, and Science, Space, and Technology. . . (June 15, 2021).

H.R.3814 “To amend the National Environmental Policy Act of 1969 to impose time limits on the completion of certain required actions under the Act, and for other purposes.” Referred to the Subcommittee on Water Resources and Environment. (June 14, 2021).

Senate Energy and Natural Resources Committee:

S.2130 “A bill to modify the disposition of certain outer Continental Shelf revenues and to open Federal financial sharing to heighten opportunities for renewable energy, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources. (June 17, 2021).

S.2066 “A bill to require the Secretary of Energy to establish an energy efficiency revolving loan fund capitalization grant program, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources. (June 15, 2021)

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks June 14–18, 2021:

In Europe, Biden Seeks to Reassert U.S. Climate Leadership, The Hill

Biden’s Electric Trucks Hard on Infrastructure, Institute for Energy Research

Cheniere to Work with Natural Gas Producers to Measure Carbon Emissions, Reuters

Dakota Access Foes Seek Environmental Review Updates from US, Associated Press

Gas is so Scarce in Europe that Coal is Making a Comeback, Bloomberg

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Written by:
Noah Gochnauer, Research Assistant
Audry Thompson, Research Assistant
Jackie Schweichler, Staff Attorney