May 10, 2021
Shale Law Weekly Review – Week of May 10, 2021
Pipelines: North Carolina DEQ Reissues Clean Water Act Certification Denial for Mountain Valley Pipeline’s Southgate Project ⚡
On April 29, 2021, the North Carolina Department of Environmental Quality’s (DEQ) Division of Water Resources announced its second denial of 401 Water Quality Certification and Jordan Lake Buffer Authorization for the Southgate Extension of the Mountain Valley Pipeline (MVP). DEQ’s reissuance of denial follows the U.S. Court of Appeals for the Fourth Circuit’s March 2021 vacatur and remand of the agency’s August 2020 denial, which instructed DEQ to “explain why the Department chose denial over conditional certification.” Mountain Valley Pipeline, LLC v. North Carolina Dep’t of Envtl. Quality, No. 20-1971. In reissuing the denial, DEQ reiterated that it “is not bound by the Hearing Officer’s [alternative] recommendation[]” to issue conditional approval dependent on the resolution of “all legal ambiguities presently surrounding the mainline pipeline” and the attainment of “all necessary permits and authorizations,” and noted the Fourth Circuit’s holding that its previous denial was “consistent with the State’s regulations and the Clean Water Act.” According to the denial letter, the agency found the recommended provisions “too vague to be enforceable” and stated that “a conditional approval in these circumstances does not provide the reasonable assurance of compliance with water quality requirements.” For background, see SLWR—March 22, 2021, “Court of Appeals Vacates Denial of Clean Water Act Certification for Mountain Valley Pipeline’s Southgate Project.
Pipelines: Army Corps of Engineers Reaffirms Position Against Dakota Access Pipeline Injunction
On May 3, 2021, the U.S. Army Corps of Engineers filed a status report with the U.S. District Court for the District of Columbia regarding the progress of the Corps’ Environmental Impact Statement (EIS) analysis of the Dakota Access Pipeline (DAPL). The status update included the Corps’ position on whether the court should issue an injunction or whether the pipeline should remain active during its EIS analysis. Standing Rock Sioux Tribe v. United States Army Corps of Engineers, No. 1:16-cv-01534. According to the Corps’ status report, the agency estimates that it will finish the EIS by March 2022. Additionally, the Corps states that it “is not aware of information that would cause it to evaluate the injunction factors differently than in its [November 2020] previous filing.” In that filing, the Corps argued against an injunction on the ground that the plaintiffs had failed to demonstrate their likelihood of irreparable injury due to the pipeline’s continued operations. For background, see SLWR—Feb. 1, 2021, “Court of Appeals Affirms Lower Court’s Decision to Vacate Easement for Dakota Access Pipeline.”
Methane Emissions: U.N. Environment Programme Issues Report Analyzing Costs and Benefits of Mitigating Methane Emissions
On May 6, 2021, the United Nations Environment Programme announced the publication of a report titled, “Global Methane Assessment: Benefits and Costs of Mitigating Methane Emissions.” The report, a joint effort between the U.N. Environment Programme and the Climate & Clean Air Coalition, states that a 45% reduction in human-caused methane emissions is possible over the current decade, equaling a 180-million-ton reduction per year by 2030 and preventing approximately 0.5˚ Fahrenheit of global warming by 2045. The report distinguishes methane, which disintegrates quickly, from CO2, which can remain in the atmosphere for centuries, and notes that reductions in methane can amount to near elimination of the gas in the atmosphere within ten years. The report identifies fossil fuels, waste, and agriculture as the three sectors that comprise the majority of human-caused methane-emitting activities, with oil and gas extraction accounting for 23% of emissions. The report states that half of the targeted measures needed to reduce methane emissions in the oil and gas industry have “negative costs,” meaning they “pay for themselves quickly by saving money.” The researchers noted that the “greatest potential for negative cost abatement is in the oil and gas sector where captured methane adds to revenue instead of being released to the atmosphere.” Targeted measures include detecting and repairing leaks, recovering and employing vented gas, and securing control over inadvertent emissions. The report also recommends expanded use of renewable energies, prices on emissions, changes in production methods, new regulations, and calls for changes in consumer consumption. According to the report, “a [45%] reduction would prevent 260,000 premature deaths, 775,000 asthma-related hospital visits, 73 billion hours of lost labour from extreme heat, and 25 million tonnes of crop losses annually.”
Shale Law/Policy Resources of Interest:
Charles Sartain, A Different Lesson in Property Stipulations (May 4, 2021)
Thompson & Knight, LLP, Fixed or Floating? Another Texas Case Tackles Interpreting NPRIs (May 5, 2021)
John McFarland, Texas Legislature’s Overhaul of ERCOT Board Would Replace Experts With Political Appointees (May 4, 2021)
Margaret Barry and Korey Silverman-Koati, May 2021 Updates To The Climate Case Charts (May 7, 2021)
AGENCY PRESS RELEASES – STATE/FEDERAL
Pennsylvania Department of Environmental Protection
DEP to Receive Comments, Host Virtual Public Hearing on Amendment Applications for Mariner East 2 Pipeline, Chester County (May 7, 2021)
United States Department of Energy
DOE Launches Initiatives to Accelerate Solar Deployment in Underserved Communities (May 4, 2021)
DOE Announces $12 Million to Advance Geothermal Energy Technologies (April 30, 2021)
STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Legislature
HB 139 “An Act providing for the administration of permits by State agencies, for a tracking system for permit applications, for the establishment of permit programs and for annual reports” Referred to Intergovernmental Relations (May 5, 2021)
HB 1144 “An Act relating to conventional wells and the development of oil, gas and coal; imposing powers and duties on the Department of Environmental Protection” Removed from Table (May 5, 2021)
HB 1358 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in liquid fuels and fuels tax, further providing for definitions and providing for electric vehicle road use fee; and making editorial changes” Referred to Transportation (May 7, 2021)
SB 644 “An Act amending Title 58 (Oil and Gas) of the Pennsylvania Consolidated Statutes, in development, further providing for relationship to solid waste and surface mining” Referred to Environmental Resources and Energy (May 7, 2021)
SB 645 “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 definitions; in applications and permits, further providing for permit and license application requirements; and making an inconsistent repeal” Referred to Environmental Resources and Energy (May 7, 2021)
Pennsylvania Executive Agencies—Actions and Notices (Pa. Bulletin Vol. 51, No. 19—May 8, 2021)
51 Pa.B. 2611 Pennsylvania Public Utilities Commission “Natural Gas Service” (May 8, 2021)
FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies (Federal Register May 3-7 2021):
Pipeline and Hazardous Materials Safety Administration
86 FR 23241 Final Rule “Civil Penalty Amounts” (May 3, 2021)
Environmental Protection Agency
86 FR 23963 Notice “Disclosure of Information Claimed as, or Determined by EPA To Be, Confidential Business Information in Renewable Fuel Standard (RFS) Small Refinery Exemption Petitions and All RFS Related Information in EPA’s Moderated Transaction System (EMTS)” (May 5, 2021)
Land Management Bureau
86 FR 23980 Notice—Comments Period “Agency Information Collection Activities; Oil and Gas, or Geothermal Resources: Transfers and Assignments” (May 5, 2021)
Bureau of Safety and Environmental Enforcement
86 FR 23606 Final Rule “Oil and Gas and Sulfur Operations on the Outer Continental Shelf-Civil Penalty Inflation Adjustment” (May 4, 2021)
International Trade Administration
86 FR 24587 Notice of an Open Meeting “Renewable Energy and Energy Efficiency Advisory Committee” (May 7, 2021)
Office and Management and Budget
86 FR 24669 Notice—Comments Period “Notice of Availability and Request for Comment on ‘Technical Support Document: Social Cost of Carbon, Methane, and Nitrous Oxide Interim Estimates Under Executive Order 13990’” (May 7, 2021)
Federal Energy Regulatory Commission
86 FR 23713 Notice—Comments Period “ConocoPhillips Company, Direct Energy Business Marketing, LLC, Exelon Corporation, NextEra Energy Marketing, LLC v. Panhandle Eastern Pipe Line Company, LP; Notice of Complaint” (May 4, 2021)
86 FR 23708 Notice—Comments Period “Venture Global CP2 LNG, LLC; Venture Global CP Express, LLC; Notice of Scoping Period Requesting Comments on Environmental Issues for the Planned CP2 LNG and CP Express Project and Notice of Public Scoping Sessions” (May 4, 2021)
86 FR 24397 Notice “Records Governing Off-the-Record Communications; Public Notice” (May 6, 2021)
Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks May 3-7, 2021:
“Texas Legislature Advances Bills To Shield Oil And Gas From Climate Initiatives” The Texas Tribune
“New Mexico Nets Record-breaking $109 Million In April Oil And Gas Production On State Land” Carlsbad Current Argus
“Biden Admin Holds Firm On Trump-era Dakota Access Defense” Energywire
“Abandoned Wells A Drag On Arkansas” Northwest Arkansas Democrat Gazette
“U.S. Supreme Court Tackles Pipeline Company’s Bid To Seize New Jersey Land” Reuters
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Written by:
Audry Thompson, Research Assistant
Jackie Schweichler, Staff Attorney
Sarah Straub, Research Assistant
