Shale Law Weekly Review – Week of March 29, 2021

Pipelines / Water Quality: Court of Appeals Denies Review of FERC Order Regarding Water Quality Certification for Natural Gas Pipeline Project ⚡
On March 23, 2021, the U.S. Court of Appeals for the Second Circuit denied a petition to review a Federal Energy Regulatory Commission (FERC) order regarding the water quality certification for the Northern Access 2016 pipeline project (Pipeline Project).  (New York State Dep’t of Envt’l Conservation v. FERC, No. 19-1610).  The New York State Department of Environmental Conservation (DEC) filed a petition for review after FERC ordered that DEC waived their authority to rule on water quality certification for the Pipeline Project under the Clean Water Act.  The Clean Water Act requires that a state must rule on a request for water quality certification within one year of receiving the request.  National Fuel Gas Supply Corporation and Empire Pipeline, Inc., the owners of the Pipeline Project, had previously entered into an agreement with DEC that essentially extended the one-year requirement by 36 days.  The court concluded that the agreement between the parties could not extend the one-year requirement.  The court found that DEC waived its authority to rule on the water quality certification because they did not act within the one-year requirement.

Pipelines / GHG Emissions: FERC Authorizes Northern Pipeline Replacement Project
On March 22, 2021, the Federal Energy Regulatory Commission (FERC) authorized the Northern Natural Gas Company (Northern) to abandon segments of its A-line pipeline and to replace and expand parts of the pipeline and facilities.  (Docket No. CP20-487-000).  Northern’s A-line pipeline and facilities were initially constructed in the 1940s.  As part of its analysis of the impact that the replacement project would have on the environment, FERC also considered the impact of the project on greenhouse gas emissions (GHG) and climate change.  FERC compared the replacement project’s foreseeable greenhouse gas emissions to total GHG emissions for the whole country and found that the replacement project’s contribution to climate change would not be significant.  FERC ultimately determined that Northern’s proposal to replace parts of the A-line pipeline “would not constitute a major federal action significantly affecting the quality of the human environment.”

Pipelines: FERC Denies Request for Rehearing and Stay of Order Allowing Mountain Valley Pipeline Construction to Move Forward
On March 24, 2021, the Federal Energy Regulatory Commission (FERC) denied a request for rehearing and stay of a previous order allowing Mountain Valley Pipeline (MVP) construction to proceed.  (Docket No. CP16-10-008).  FERC previously lifted stop work orders on MVP to allow construction on all segments of the pipeline except for an exclusion zone located within the Jefferson National Forest.  Several environmental groups filed a request for rehearing and stay of FERC’s decision arguing that FERC violated Condition 9 in its initial certificate of public convenience and necessity for MVP construction.  Petitioners argued that Condition 9 of the initial certificate requires MVP to obtain all federal permits before construction could continue.  FERC determined that Condition 9 did not prevent them from lifting the stop work orders and subsequently denied Petitioners’ requests.  FERC Commissioners Richard Glick and Allison Clements filed a joint dissenting opinion stating that MVP construction should not continue without having obtained all federal authorizations.

Shale Law/Policy Resources of Interest:

Charles Sartain, Texas Court Parses Three Retained-Acreage Clauses – Part 1 (March 23, 2021)

Charles Sartain, Texas Court Parses Three Retained-Acreage Clauses – Part 2 (March 24, 2021)

Brooke Sizer, Josh Downer and Anna Boyer, Supreme Court Sides With Lessors On Post-production Costs, But Lessee Not Out Of Fuel Just Yet (March 24, 2021)

John McFarland, BlueStone v. Randle — A Win for Royalty Owners on Post-Production Costs (March 24, 2021)

John McFarland, Warren Buffett group lobbying Texas lawmakers for deal to build $8 billion worth of power plants for emergency use (from Texas Tribune) (March 25, 2021)

Romany Webb, NYPSC Asked To Require Utilities To Plan For Climate Impacts (March 22, 2021)

AGENCY PRESS RELEASES – STATE/FEDERAL

Pennsylvania Department of Environmental Protection

Gov. Wolf Announces Largest Government Solar Energy Commitment in the U.S. (March 22, 2021)

United States Department of Energy

DOE Announces Goal to Cut Solar Costs by More than Half by 2030 (March 25, 2021)

United States Environmental Protection Agency

EPA announces oil cleanup to begin at the Cline Avenue Ditch Site in Gary, Indiana (March 25, 2021)

Settlement with Merit Energy resolves violations of oil pollution prevention regulations in Wyoming (March 24, 2021)

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Legislature

SB 435 “An Act amending Title 66 (Public Utilities) of the Pennsylvania Consolidated Statutes, in restructuring of electric utility industry, providing for transportation fueling infrastructure development” First Consideration (March 23, 2021)

HB 989 “An Act establishing the CO2 Budget Trading Program” Referred to Environmental Resources and Energy (March 22, 2021)

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register March 22-26, 2021):

Federal Energy Regulatory Commission

86 FR 15218 Notice—Comments Period “Columbia Gulf Transmission, LLC; Notice of Availability of the Environmental Assessment for the Proposed East Lateral Xpress Project” (March 22, 2021)

86 FR 15215 Notice—Comments Period “Mountain Valley Pipeline, LLC; Notice of Scoping Period and Requesting Comments on Environmental Issues for the Proposed Amendment to the Certificate of Public Convenience and Necessity for the Mountain Valley Pipeline Project” (March 22, 2021)

86 FR 16200 Notice—Comments Period “Transcontinental Gas Pipe Line Company, LLC; Notice of Request for Extension of Time” (March 26, 2021)

86 FR 16206 Notice—Comments Period “Transcontinental Gas Pipe Line Company, LLC; Notice of Request for Extension of Time” (March 26, 2021)

Energy Information Administration

86 FR 16199 Notice—Comments Period “Agency Information Collection Proposed Extension” (March 26, 2021)

Environmental Protection Agency

86 FR 15636 Proposed Rule “South Carolina: Final Approval of State Underground Storage Tank Program Revisions, Codification, and Incorporation by Reference” (March 24, 2021)

86 FR 15596 Direct Final Rule “South Carolina: Final Approval of State Underground Storage Tank Program Revisions, Codification, and Incorporation by Reference” (March 24, 2021)

National Oceanic and Atmospheric Administration

86 FR 15199 Notice—Comments Period “Notice of Availability of the Deepwater Horizon Oil Spill Regionwide Trustee Implementation Group Draft Restoration Plan #1/Environmental Assessment: Birds, Marine Mammals, Oysters, and Sea Turtles” (March 22, 2021)

Ocean Energy Management Bureau

86 FR 15495 Notice—Comments Period “Agency Information Collection Activities; Leasing of Minerals Other Than Oil, Gas, and Sulfur in the Outer Continental Shelf” (March 23, 2021)

Susquehanna River Basin Commission

86 FR 16140 Notice of Proposed Rulemaking—Comments Period “Review and Approval of Projects” (March 26, 2021)

House Energy and Commerce Committee Actions:

H.R. 2263 “To require the Secretary of Energy to establish a clean energy manufacturing grant program, and for other purposes” Referred to the House Committee on Energy and Commerce (March 26, 2021)

H.R. 2245 “To establish the White House Council on Energy Transitions within the Executive Office of the President, and for other purposes” Referred to the Committee on Energy and Commerce (March 26, 2021)

H.R. 2202 “To repeal the exemption for hydraulic fracturing in the Safe Drinking Water Act, and for other purposes” Referred to the House Committee on Energy and Commerce (March 26, 2021)

H.J. Res. 34 “Providing for congressional disapproval under chapter 8 of title 5, United States Code, of a rule submitted by the Environmental Protection Agency relating to ‘Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review’” Referred to the House Committee on Energy and Commerce (March 26, 2021)

H.R. 2164 “To amend the Safe Drinking Water Act to require testing of underground sources of drinking water in connection with hydraulic fracturing operations, and for other purposes” Referred to the House Committee on Energy and Commerce (March 23, 2021)

H.R. 2132 “To require regulation of wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal energy under the Solid Waste Disposal Act, and for other purposes” Referred to the House Committee on Energy and Commerce (March 23, 2021)

H.R. 2102 “To eliminate certain subsidies for fossil-fuel production” Referred to the Subcommittee on Railroads, Pipelines, and Hazardous Materials (March 22, 2021)

Senate Energy and Natural Resources Committee Actions:

1. 1011 “A bill to amend the Natural Gas Act to provide for expanded natural gas exports” Read twice and referred to the Committee on Energy and Natural Resources (March 25, 2021)
2. 1065 “A bill to increase collaboration between offices within the Department of Energy to develop and deploy technology to assist the mission of the Office of Environmental Management” Read twice and referred to the Committee on Energy and Natural Resources (March 25, 2021)
3. 1015 “A bill to require the Federal Energy Regulatory Commission to initiate a rulemaking to reform the interregional transmission planning process, and for other purposes” Read twice and referred to the Committee on Energy and Natural Resources (March 25, 2021)

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks March 22-26, 2021:

“60 Largest Banks In The World Invested $3.8 Trillion In Fossil Fuels: Report” The Hill

“Texas, Montana Lead 21 GOP-Run States In Suing Biden Admin Over Keystone XL Suspension” Forbes

“Biden’s Dilemma: Land For Renewables” Energywire

“Can Natural Gas Be Part of a Low-Carbon Future?” Scientific American

“U.S. LNG Exports On Track To Hit Record High In March” Reuters

Connect with us on Facebook.  Every week we post the CASL Ledger detailing our publications and activities from the week. 

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Written by:
Sara Jenkins – Research Assistant
Jackie Schweichler – Staff Attorney
Sarah Straub – Research Assistant