Shale Law Weekly Review—Week of March 13, 2023

Pipelines: US Fish and Wildlife Service Finds Mountain Valley Pipeline Unlikely to Threaten Existence of Five Regional Species ⚡
On Monday, March 1, 2023, the United States Fish and Wildlife Service (FWS) published a revised impact assessment for the proposed Mountain Valley Pipeline, a 304-mile natural gas pipeline that will span from the Wetzel County region of West Virginia to the Pittsylvania County region of Virginia. In their assessment, the FWS’s conducts jeopardy analyses for five particular species of plant and animals that inhabit the region across which the pipeline will be constructed. The overall “rangewide status” of the species are considered as well as the condition of the species within the area of proposed action. The first species analyzed is the Virginia spiraea, a flowering plant for which the FWS found to be in stable condition and unlikely to be jeopardized by the project. The next two species analyzed are the Indiana bat and the Northern long-eared bat, both of which have a declining status across the region and in the area of proposed action. The assessment concludes that the action will unlikely have a jeopardizing effect on these species. Similarly, the FWS considers the impact on two regional species of fish, the Roanoke logperch and Candy darter, finding that neither will be jeopardized by the proposed action.

Community Impacts: DOE Provides $315 Million for Clean Energy Development in Rural and Remote Communities
On Wednesday, March 1, 2023, the Department of Energy (DOE) announced a total of $315 million that will be used to develop and promote clean energy projects in rural and remote communities. Of the funding, $300 million will be used for projects focused on energy affordability and climate resilience in rural or remote areas. The announcement organizes the funding by region, noting challenges like community reliance on fuel oil and listing options for transition to renewable energy. For single site demonstrations, these projects are eligible to receive anywhere from $5 to $100 million in funding. For single or multi-site demonstrations that serve more than one community, projects may receive up to $100 million. The remaining $15 million will be made available through a prize competition focused on partnerships and financing in rural or remote areas. Those selected to win the prize money will use it to implement effective strategies for accessing capital and developing “community ownership models.” These strategies will help build key partnerships between communities focused on the construction of clean energy projects.

GHG Emissions: EPA Proposes to Remove 1-psi Gasoline Volatility Waiver in Eight States
On Wednesday, March 1, 2023, the Environmental Protection Agency (EPA) responded to eight state governors requesting that the “1-psi volatility waiver for gasoline-ethanol blends containing 10 percent ethanol” be removed in their states. The EPA has proposed to remove the waiver in Illinois, Iowa, Minnesota, Missouri, Nebraska, Ohio, South Dakota, and Wisconsin. This proposal has been made following a showing by the governors that the waiver increases emissions in their respective states. The proposed rule also responds to stakeholders requesting that the EPA extend the effective date of the waiver removal to the summer of 2024, setting a proposed effective date for all states on April 28, 2024.

LNG Infrastructure: Sierra Club Sues FERC for Granting Deadline Extension to Freeport LNG
On Monday, March 6, 2023, the Sierra Club petitioned the D.C. Circuit Court for review of an order by the Federal Energy Regulatory Commission (FERC) granting a time extension request filed by Freeport LNG Development LP. The request was filed in relation to the company’s expansion project for an existing LNG terminal on the Texas Gulf Coast. In their petition, Sierra Club challenges the FERC order from October 13, 2022, which granted additional building time to the company. According to a Sierra Club press release, Freeport LNG has not made any progress on the project since May 2019. On this basis, the group has challenged the decision as an improper “rubber stamp” that has wrongfully allowed the project to move forward.

Oil and Gas Leasing: Five Environmental Groups Sue DOI and BOEM over Gas Lease Sale in Gulf of Mexico
On Monday, March 6, 2023, five environmental groups filed a complaint in the D.C. Circuit Court over an allegedly unlawful oil and gas lease sale that was held in the Gulf of Mexico. The complaint asserts that Gulf of Mexico Oil and Gas Lease Sale 259, which was held by the Department of the Interior (DOI) and the Bureau of Ocean Energy Management (BOEM), violated both the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA). Specifically, Plaintiffs argue that the Final Supplemental Environmental Impact Statement (Final SEIS) conducted by BOEM failed to adequately consider the significant impacts of the lease sale on endangered species, such as the Rice’s whale, through pollution and ship strikes. Further, they allege that the models relied upon in determining the lease sale will have a low impact on greenhouse gas emissions were problematic and assumptive. Similarly, Plaintiffs point to faulty modeling of projected oil spill impacts, asserting that the calculated risk is too low. Plaintiffs also make an environmental justice argument, contending that the Final SEIS “arbitrarily dismisses” particularly negative impacts on Gulf communities. With respect to NEPA, Plaintiffs assert that BOEM has failed to consider less impactful alternatives, thereby violating its legal obligations under the Act. In summary, Plaintiffs ask the court to vacate the lease sale in question and to enjoin the issuance of any lease sale pursuant to Lease Sale 259 until Defendants comply with the requirements of NEPA.

 

Oil & Gas Law & Policy Resources:

Collins, After Judgment: Australian regulator compelled to act on climate following successful intervention (February 27, 2023)

Bloomberg, Oil Drops on China’s Cautious Growth Goal as Fed Concerns Linger (March 6, 2023)

Energy Connects, Eni and ADNOC sign deal to boost cooperation in clean energy and sustainability (March 6, 2023)

McFarland, Railroad Commission v. Apache – The Issue of Standing (March 8, 2023)

Bloomberg, Oil Holds Loss as Hawkish Powell Spurs Flight From Risk Assets (March 8, 2023)

Bloomberg, Oil Set for Weekly Loss as Fed Tightening Fears Pummel Markets (March 10, 2023)

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks March 4– March 10, 2023:

Sierrra Club sues FERC over Freeport LNG expansion (PoliticoPro)

TikTok opposition to oil project builds as Biden mulls decision (PoliticoPro)

Biden admin works on ‘green’ natural gas as U.S. vies for top LNG spot (Reuters)

US LNG Export Sector Plowing Ahead on Several Fronts (Energy Intelligence)

Approval of EU’s 2035 combustion engine ban postponed (Politico)

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

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S. DEPARTMENT OF ENERGY

Biden-Harris Administration Announces $6 Billion To Drastically Reduce Industrial Emissions and Create Healthier Communities (March 8, 2023)

Statement by Energy Secretary Granholm on The President’s Fiscal Year 2024 Budget (March 9, 2023)

U.S. ENVIRONMENTAL PROTECTION AGENCY

EPA Reaches Settlement with Two Indiana Companies to Halt Sales of Illegal Vehicle Emission Defeat Devices (March 8, 2023)

Biden-Harris Administration Proposes Stronger Limits on Water Pollution from Power Plants (March 8, 2023)

U.S. Department of Energy and Environmental Protection Agency Partner to Support Reliable Electricity (March 9, 2023)

FEDERAL EXECUTIVE AGENCIES (Federal Register March 4–March 10, 2023):

Energy Department

88 FR 14153: Notice: “International Energy Agency Meetings” (March 7, 2023)

Environmental Protection Agency

88 FR 14362: Notice, Comments Close 3/13/23: “Clean Water Act; Contractor Access to Confidential Business Information” (March 8, 2023)

88 FR 14049: Rule: “Air Plan Approval; North Dakota; Revisions to Permitting Rules; and Correction” (March 7, 2023)

88 FR 14163: Notice: “Issuance of the National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges From Hydrostatic Testing of New and Existing Vessels in New Mexico (NMG270000), Oklahoma (OKG27F000), and Indian Country Within the States of Texas, Oklahoma, New Mexico, and Louisiana (TXG27I000, OKG27I000, NMG27I000, & LAG27I000)” (March 7, 2023)

88 FR 14095: Proposed Rule, Comments Close 4/6/23: “Determination of Attainment by the Attainment Date But For International Emissions for the 2015 Ozone National Ambient Air Quality Standard; El Paso-Las Cruces, Texas-New Mexico” (March 7, 2023)

88 FR 13956: Rule: “National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units-Revocation of the 2020 Reconsideration and Affirmation of the Appropriate and Necessary Supplemental Finding” (March 6, 2023)

88 FR 13758: Proposed Rule, Comments Close 4/20/23: “Request From States for Removal of Gasoline Volatility Waiver” (March 6, 2023)

Federal Energy Regulatory Commission

88 FR 14613: Notice: “Combined Notice of Filings” (March 9, 2023)

88 FR 14360: Notice: “Combined Notice of Filings” (March 8, 2023)

88 FR 14156: Notice: “Combined Notice of Filings” (March 7, 2023)

88 FR 13816: Notice: “Combined Notice of Filings” (March 6, 2023)

Safety and Environmental Enforcement Bureau

88 FR 14175: Notice: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Oil and Gas Well-Completion Operations” (March 7, 2023)

Other Agencies

88 FR 14986: Notice: “Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico” (March 10, 2023)

88 FR 14979: Notice: “Foreign-Trade Zone (FTZ) 3, Notification of Proposed Production Activity; Phillips 66 Company; (Renewable Fuels and By-Products); Rodeo, California” (March 10, 2023)

88 FR 14598: Notice: “Foreign-Trade Zone (FTZ) 124, Notification of Proposed Production Activity; Valero Refining-New Orleans, LLC; (Renewable Fuels and By-Products); Norco, Louisiana” (March 9, 2023)

88 FR 14794: Rule: “Endangered and Threatened Wildlife and Plants; Threatened

Species Status With Section 4(d) Rule for Longsolid and Round Hickorynut and Designation of Critical Habitat” (March 9, 2023)

88 FR 14517: Proposed Rule, Comments Close 5/8/23: “Land Uses; Special Uses; Cost Recovery, Strict Liability Limit, and Insurance” (March 9, 2023)

U.S. HOUSE ENERGY AND COMMERCE COMMITTEE

H.R.1520 “To amend the Energy Independence and Security Act of 2007 to reauthorize the Energy Efficiency and Conservation Block Grant Program, and for other purposes.” Referred to the House Committee on Energy and Commerce. (March 9, 2023)

H.R.1497 “To provide that, for a 3-year period, applications for the exportation of natural gas to member countries of the North Atlantic Treaty Organization be granted without modification or delay, and for other purposes.” Referred to the House Committee on Energy and Commerce. (March 9, 2023)

H.R.1484 “To amend title 49, United States Code, to establish a penalty for causing a defect in pipeline infrastructure, and for other purposes.” Referred to the Committee on Transportation and Infrastructure, and in addition to the Committees on Energy and Commerce, and the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned. (March 9, 2023)

H.R.1448 “To amend the Defense Production Act of 1950 to prohibit investment by foreign adversaries in United States real estate suitable for renewable energy or renewable fuels production, and for other purposes.” Referred to the Committee on Financial Services, and in addition to the Committees on Foreign Affairs, and Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned. (March 8, 2023)

H.R.1435 “To amend the Clean Air Act to prevent the elimination of the sale of internal combustion engines.” Referred to the House Committee on Energy and Commerce. (March 8, 2023)

H.R.1389 “To provide the Secretary of Energy with the authority to enter into contracts and cooperative agreements to improve the resilience of defense critical electric infrastructure and reduce the vulnerability of critical defense facilities to the disruption of the supply of electric energy to those facilities.” Referred to the House Committee on Energy and Commerce. (March 7, 2023)

U.S. SENATE ENERGY AND NATURAL RESOURCES COMMITTEE

S.763 “A bill to prohibit the importation into the United States of unirradiated low-enriched uranium that is produced in the Russian Federation or by a Russian entity, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources. (March 9, 2023)

STATE ACTIONS—EXECUTIVE & LEGISLATIVE

PENNSYLVANIA DEPT. OF ENVIRONMENTAL PROTECTION PRESS RELEASES
53 Pa.B. 1400: 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. 1479: Notice: “Availability of the Non-Regulatory Agenda”

53 Pa.B. 1480: Notice: “Bond Rate Guidelines for the Calculation of Land Reclamation Bonds on Coal Mining Operations”

53 Pa.B. 1482: Notice: “Bond Rate Guidelines for the Calculation of Land Reclamation Bonds on Noncoal Mining Operations”

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 10 March 11, 2023)

PENNSYLVANIA LEGISLATURE

S.R. 9 “A Resolution urging the President of the United States to restart and expedite the completion of the Keystone XL pipeline.” Transmitted as directed, March 6, 2023 [Senate] (March 6, 2023)

S.B. 143 “An Act amending Title 53 (Municipalities Generally) of the Pennsylvania Consolidated Statutes, in preemptions, providing for restrictions on utility services prohibited.”
Referred to LOCAL GOVERNMENT, March 8, 2023 [House] (March 8, 2023)

H.B. 55 “An Act providing for the leasing of subsurface rights on State forest and park property for oil and natural gas development; establishing a restricted account within the Oil and Gas Lease Fund; making an appropriation; and abrogating an executive order and other orders and administrative policies.” Referred to ENVIRONMENTAL RESOURCES AND ENERGY, March 7, 2023 [House] (March 7, 2023)

S.B. 35 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in liquid fuels and fuels tax, further providing for definitions.” Referred to FINANCE, March 7, 2023 [House] (March 7, 2023)

S.B. 115 “An Act amending the act of July 7, 2008 (P.L.654, No.55), known as the Bituminous Coal Mine Safety Act, in diesel-powered equipment, further providing for schedule of maintenance.” Referred to TRANSPORTATION, March 7, 2023 [House] (March 7, 2023)

 

Written by:
Kole Zellers, Research Assistant
Kendal Ashman, Research Assistant
Jackie Schweichler, Staff Attorney