May 18, 2021
Shale Law Weekly Review – Week of May 17, 2021
Air Quality: EPA Rescinds Clean Air Act Benefit-Cost Rule ⚡
On May 14, 2021 the U.S. Environmental Protection Agency (EPA) posted in the Federal Register an interim final rule titled, “Rescinding the Rule on Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process” (86 FR 26406). The recission retracts the December 2020 rule promulgated by the previous administration (85 FR 84130). The December 2020 rule required the agency to include in the preamble of all proposed “significant” Clean Air Act regulations the results of a benefit-cost analysis demonstrating “a clear causal or likely causal relationship” linking pollutant exposure to a specific effect and emphasizing the uncertainty of the estimated benefits. EPA’s recission follows its review of the rule as directed by President Biden’s executive order, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis” (E.O. 13990 of Jan 20, 2021). Also announced by the agency, EPA found that the rule, which restated the agency’s existing Clean Air Act BCA activity, “imposed broad restrictions” on the agency’s ability to utilize the “best available” research, and is unnecessary for Clean Air Act enforcement. The rule is effective 30 days after publication and carries a comment period that ends June 14, 2021.
Pipelines: Court of Appeals Denies Request to Allow Continued Operation of Dakota Access Pipeline
On May 13, 2021, the U.S. Court of Appeals for the District of Columbia issued an order denying Dakota Access, LLC’s motion requesting the court to delay its mandate of the January 26, 2021 opinion vacating the company’s pipeline easement, pending Dakota Access’s petition for writ of certiorari. Standing Rock Sioux Tribe, et al v. United States Army Corps, No. 20-5201. The plaintiffs, including the Standing Rock Sioux Tribe and various other Tribes, submitted a motion in opposition. Dakota Access argued that a stay of the mandate, allowing the pipeline to remain in operation, would “preserve the status quo” and allow the court to retain jurisdiction should the company receive a shutdown order from a lower court. The court denied the request in a one-page order. For background, see SLWR—Feb. 1, 2021, “Court of Appeals Affirms Lower Court’s Decision to Vacate Easement for Dakota Access Pipeline.”
GHG Emissions: New Mexico Issues Proposed Rule Addressing Oil and Gas Emissions
On May 6, 2021, the New Mexico Environment Department issued a new proposed rule, “Oil and Gas Sector – Ozone Precursor Pollutants” (20.2.50 NMAC). The proposed rule applies to oil and gas operations such as wellhead sites, gathering sites, processing plants, and compressor stations. In order to determine whether this rule applies to their operation, a state licensed engineer must calculate the “Potential to Emit” (PTE) of each source. Within two years of this rule’s publication, the operator must attach an Equipment Monitoring Tag to the source unit that will provide a variety of identification information. Hearings on the proposed rule will be held between September 20, 2021, and October 1, 2021.
State Regulations: California Proposes Revisions to Energy Efficiency Standards for Buildings
On May 6, 2021, the California Energy Commission issued proposed revisions to the state’s energy efficiency standards for buildings. 2022 Energy Code Update Rulemaking, 21 BSTD-01. The stated purpose of the revisions is to reduce emissions and increase renewable energy options while maintaining cost efficiencies. The proposal would add new requirements for solar and batteries in nonresidential buildings. In addition, the rules would encourage electric heat technology and new standards for lighting, air conditioning, refrigeration, and other commercial building equipment. The proposed changes are set for publication by 2022, and if finalized, would become effective January 1, 2023.
Pipelines: Federal Court Upholds Standing for Bayou Bridge Pipeline Protestors
On May 5, 2021, the U.S. District Court for the Western District of Louisiana issued a memorandum ruling affirming the standing of Bayou Bridge Pipeline protestor-arrestee plaintiffs to challenge Louisiana’s R.S. 14:61, which imposes imprisonment up to five years and/or a $1000 fine for “unauthorized entry of a critical infrastructure.” White Hat v. Landry, No. 6:20-cv-00983. The plaintiffs were arrested, though not formally charged, after their 2018 protest on private property in St. Martin Parish. Despite receiving permission from the property owners to occupy the premises, the protestors were arrested for their proximity to “critical infrastructure,” defined by the statute to include a pipeline. Other plaintiffs challenging the statute included the property owners and several environmental advocacy organizations. The court upheld the arrestee plaintiffs’ standing to continue the suit, finding that they had demonstrated sufficient injury through their actual arrest and the existing threat of prosecution until September 2022—the expiration of the statute of limitations for the offense. Additionally, the court agreed that the arrested plaintiffs, who intend to participate in prospective demonstrations, had shown injury based upon the statute’s “chilling effect on future protests.” However, the court found that the property owners—who reside out of state and did not allege past or potential protest participation—along with the organizations, did not have standing, and granted the motion to dismiss their claims. For related developments, see SLWR—July 28, 2020, “Louisiana Appellate Court Awards Damages to Landowners for Pipeline Violation of Due Process Rights.
Shale Law/Policy Resources of Interest:
Jeremy Mercer, “At The Wellhead” Royalty Language Authorizes Net-back Method In Pennsylvania (May 13, 2021)
Charles Sartain and Rusty Tucker, A Long-Running Dispute Over an Acquisition Agreement is Returned to the Trial Court (May 11, 2021)
John McFarland, Collateral Attacks on Tax Foreclosure Sales vs. Due Process — Two Cases from El Paso Court of Appeals (May 10, 2021)
John McFarland, Travis County Court Holds Railroad Commission Has No Authority to Issue Permits for Allocation and Production Sharing Wells (May 12, 2021)
Jaap Spier, Guest Commentary: A Ground-breaking Judgment In Germany (May 10, 2021)
AGENCY PRESS RELEASES – STATE/FEDERAL
Pennsylvania Department of Environmental Protection
DEP Report Finds Clean Energy Workforce Development Will Boost Job Creation, Economy (May 12, 2021)
United States Department of Energy
DOE Welcomes New Biden-Harris Appointees (May 10, 2021)
DOE Invests $35 Million to Dramatically Reduce Carbon Footprint of Biofuel Production (May 14, 2021)
United States Environmental Protection Agency
EPA Announces Public Listening Sessions and Trainings on Upcoming Oil and Natural Gas Methane Rule (May 14, 2021)
EPA Relaunches Climate Indicators Website Showing How Climate Change is Impacting Peoples’ Health and Environment (May 12, 2021)
EPA Issues Fuel Waiver for Twelve States and the District of Columbia Impacted by Colonial Pipeline Shutdown (May 11, 2021)
STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Legislature
HB 1353 “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 10, 2021)
HB 1354 “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 10, 2021)
HB 1355 “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 residual waste, further providing for disposal, processing and storage of residual waste and providing for exempt special wastes; and making an editorial change” Referred to Environmental Resources and Energy (May 10, 2021)
HB 1397 “An Act amending the act of November 29, 2006 (P.L.1435, No.156), known as the Public Utility Confidential Security Information Disclosure Protection Act” Referred to Consumer Affairs (May 14, 2021)
HB 1398 “An Act amending Title 66 (Public Utilities) of the Pennsylvania Consolidated Statutes, in restructuring of electric utility industry, further providing for energy efficiency and conservation program” Referred to Consumer Affairs (May 14, 2021)
HN 1400 “An Act amending Title 58 (Oil and Gas) of the Pennsylvania Consolidated Statutes, providing for an impact fee for natural gas and oil pipelines; establishing the Pipeline Impact Fund; and imposing powers and duties on the Pennsylvania Public Utility Commission” Referred to Environmental Resources and Energy (May 14, 2021)
HB 1401 “An Act amending Title 66 (Public Utilities) of the Pennsylvania Consolidated Statutes, in service and facilities, providing for information regarding transmission of hazardous liquids near school buildings” Referred to Consumer Affiars (May 14, 2021)
HB 1403 “An Act amending Title 66 (Public Utilities) of the Pennsylvania Consolidated Statutes, in powers and duties of commission, providing for pipeline siting review” Referred to Consumer Affairs (May 14, 2021)
HB 1405 “An Act amending Title 66 (Public Utilities) of the Pennsylvania Consolidated Statutes, in service and facilities, providing for pipeline safety valves” Referred to Consumer Affairs (May 14, 2021)
HB 1407 “An Act amending Title 66 (Public Utilities) of the Pennsylvania Consolidated Statutes, in service and facilities, providing for pipeline emergency management information.” Referred to Consumer Affairs (May 14, 2021)
HB 1409 “An Act amending Title 15 (Corporations and Unincorporated Associations) of the Pennsylvania Consolidated Statutes, in corporate powers, duties and safeguards, further providing for additional powers of certain public utility corporations” Referred to Consumer Affairs (May 14, 2021)
Pennsylvania Executive Agencies—Actions and Notices (Pa. Bulletin Vol. 51, No. 20—May 15, 2021)
51 Pa.B. 2629 Delaware River Basin Commission “Comprehensive Plan and Special Regulations with Respect to High Volume Hydraulic Fracturing; Rules of Practice and Procedure Regarding Project Review Classifications and Fees” (May 15, 2021)
FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies (Federal Register May 10-14 2021):
Federal Energy Regulatory Commission
86 FR 24858 Notice—Comments Period “Luna Valley Solar I, LLC v. Pacific Gas and Electric Company and California Independent System Operator Corporation; Notice of Complaint” (May 10, 2021)
86 FR 24856 Notice “Atlantic Coast Pipeline, LLC; Eastern Gas Transmission and Storage, Inc. Notice of Intent To Prepare a Supplemental Environmental Impact Statement and Notice of Schedule for Environmental Review for the Proposed Atlantic Coast Pipeline Disposition and Restoration Plan And Supply Header Project Restoration Plan” (May 10, 2021)
86 FR 25848 Notice—Comments Period “Kern River Gas Transmission Company; Notice of Application and Establishing Intervention Deadline” (May 11, 2021)
86 FR 26020 Notice—Comments Period “Spire Marketing Inc. v. Panhandle Eastern Pipe Line Company, LP; Notice of Complaint” (May 12, 2021)
86 FR 26022 Notice—Information Collection “Commission Information Collection Activities (Ferc-552); Comment Request; Extension” (May 12, 2021)
86 FR 26150 Rule “Limiting Authorizations To Proceed With Construction Activities Pending Rehearing” (May 13, 2021)
Environmental Protection Agency
86 FR 26181 Final Rule “Air Plan Approval; Maine; Infrastructure State Implementation Plan Requirements for the 2015 Ozone Standard and Negative Declaration for the Oil and Gas Industry for the 2008 and 2015 Ozone Standards” (May 13, 2021)
Pipeline and Hazardous Materials Safety Commission
86 FR 26600 Notice—Comments Period “Pipeline Safety; Information Collection Activities” (May 14, 2021)
House Energy and Commerce Committee Actions:
H.R. 3200 “To amend the Energy Policy and Conservation Act to establish a program to provide loans to implement cost-effective energy efficiency measures, and for other purposes” Referred to the House Committee on Energy and Commerce (May 13, 2021)
H.R. 3139 “To require the Secretary of Energy to submit to Congress an annual report on peaker plants in the United States and to provide financial incentives for replacing peaker plants with technology that receives, stores, and delivers energy generated by renewable energy resources, and for other purposes” Referred to the Committee on Energy and Commerce (May 12, 2021)
H.R. 3078 “To require the Secretary of Energy to carry out a program relating to physical security and cybersecurity for pipelines and liquefied natural gas facilities” Referred to the House Committee on Energy and Commerce (May 11, 2021)
H.R. 3039 “To amend the Internal Revenue Code of 1986 to eliminate certain fuel excise taxes and impose a tax on greenhouse gas emissions to provide revenue for maintaining and building American infrastructure, and for other purposes” Referred to the Subcommittee on Highways and Transit (May 10, 2021)
Senate Energy and Natural Resources Committee:
- 1639 “A bill to amend the Energy Independence and Security Act of 2007 to reauthorize the energy efficiency and conservation block grant program” Read twice and referred to the Committee on Energy and Natural Resources (May 13, 2021)
- 1632 “A bill to amend the Energy Policy and Conservation Act to establish a program to provide loans to implement cost-effective energy efficiency measures, and for other purposes” Read twice and referred to the Committee on Energy and Natural Resources (May 13, 2021)
Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks May 10-14, 2021:
“Company Defies Michigan Governor’s Order To Close Pipeline” AP
“Biden Says East Coast Fuel Shortages To End In Days As Pipeline Reopens” Reuters
“Pipeline Hack Points to Growing Cybersecurity Risk for Energy System” New York Times
“US DOT Considers Jones Act Waivers To Mitigate Colonial Outage” Oil and Gas Journal
“Airlines Start To Feel Colonial Pipeline Pinch” The Hill
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Written by:
Audry Thompson – Research Assistant
Jackie Schweichler – Staff Attorney
