May 25, 2021
Shale Law Weekly Review – Week of May 24, 2021
GHG Emissions: Supreme Court Remands Baltimore Climate Change Suit Back to Court of Appeals ⚡
On May 17, 2021, the U.S. Supreme Court issued an opinion remanding back to the U.S. Court of Appeals for the Fourth Circuit a Maryland climate change suit brought by the Mayor and City of Baltimore against multiple oil companies, including BP, Chevron, CITGO, ConocoPhillips, Marathon Petroleum, and Shell Oil. BP P.L.C., et al., Petitioners v. Mayor and City Council of Baltimore, No. 19-1189. The oil companies had petitioned for a writ of certiorari after unsuccessfully attempting to remove the case from Maryland state court to federal court. See SLWR—March 16, 2020, “Fourth Circuit Remands Climate Change Suit to State Court.” The Supreme Court found that the Fourth Circuit—which had previously determined that it lacked jurisdiction to hear the case under the federal officer (28 USC § 1442) and civil rights removal statutes (28 USC § 1443)—had incorrectly read the statute to exclude the defendants’ bases for removal that did not fall under the federal officer and civil rights statutes, and remanded the case back to the Fourth Circuit to determine whether it should be removed to federal court as requested by the defendant oil companies. Mayor and City Council of Baltimore v. BP P.L.C., No. 19-1644.
Pipelines: Federal District Court Denies Motion to Force Shutdown of Dakota Access Pipeline
On May 21, 2021, the U.S. District Court for the District of Columbia denied a motion from the Standing Rock Sioux Tribe and other tribal entities that had requested an injunction to shut down the Dakota Access Pipeline as the U.S. Army Corps of Engineers (Corps) completes an environmental review. In July 2020, the court ordered the Dakota Access Pipeline to shut down as the Corps prepared an Environmental Impact Statement. By August 2020, the U.S. Court of Appeals, District of Columbia Circuit had reversed the shutdown order. The plaintiffs appealed and the present court denied the motion for a permanent injunction. According to the court, the plaintiffs were unable to demonstrate that the risk of harm was likely and not just merely possible. As such, the plaintiffs did not meet the standards to establish irreparable harm and, therefore, they did not meet the criteria for an injunction.
GHG Emissions: Executive Order Requires Strategy to Measure Financial Impacts of Transition to Zero Emissions
On May 20, 2021, the executive order, Climate-Related Financial Risk, was published in the Federal Register. This order requires the development of a comprehensive strategy to measure the financial risks to the United States as a result of climate change. The strategy will be prepared in part by the Secretary of the Treasury who will prepare a financial assessment on the impact of the transition to net-zero greenhouse gas emissions were the U.S. to succeed in achieving this goal by 2050. The strategy must also include a review of insurance coverage, federal lending, as well as savings and pensions, principally in locations where climate change is more likely to have a negative impact. The stated purpose of the order is to measure these risks in order to prepare for and manage federal investments to mitigate impacts of the transition away from “carbon-intensive energy sources.”
Shale Law/Policy Resources of Interest:
George A. Bibikos, At the Well Weekly: Oil + Gas Update—Pipeline Cyberattacks, O+G Lease Abandonment, and Royalty Clauses in PA (May 18, 2021).
Charles Sartain, A Big Decision on Texas PSA and Allocation Wells? Not so Fast. (May 19, 2021).
AGENCY PRESS RELEASES – STATE/FEDERAL
Pennsylvania Department of Environmental Protection
DEP To Host Virtual Public Hearing on Hercules Cement Application for Quarry Expansion in Northampton County (May 18, 2021).
DEP Issues Code Orange Air Quality Action Day for Ozone for Thursday, May 20, 2021, in Southcentral Counties and Lehigh Valley-Berks Area (May 19, 2021).
United States Department of Energy
DOE’s Better Buildings Initiative Saves $13.5 Billion in Energy Costs (May 17, 2021).
Secretary Granholm Unveils National Actions to Increase Energy Efficiency for Homes and Buildings and Save Costs for Consumers (May 17, 2021).
DOE Announces $40 Million to Reduce Fuel Waste From Advanced Nuclear Reactors (May 19, 2021).
Secretary Granholm Announces G7 Initiative to Decarbonize Heavy Industry (May 21, 2021).
United States Environmental Protection Agency
Through Public-Private Partnerships, EPA Helps to Advance Efficiency and Reduce Emissions of American Homes and Buildings (May 17, 2021).
EPA Administrator Regan Presses for Action on Climate and Environmental Justice at G7 Environment Ministers Meeting (May 21, 2021).
STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies—Actions and Notices (Pa. Bulletin Vol. 51, No. 21—May 22, 2021)
Department of Environmental Protection
51 Pa.B. 2878 Notice: “Bid Opportunity: Abandoned Mine Reclamation Project, Upper Two Lick West, White Township, Indiana County.”
51 Pa.B. 2881 Notice: “PA Clean Streams Law, the Dam Safety and Encroachments Act, and the Oil and Gas Act Public Notice of Settlement via Federal Consent Decree.”
Pennsylvania Legislature
HB 1364 “An Act establishing the Pipeline Early Detection and Warning Board in the Department of Community and Economic Development; establishing the Pipeline Early Detection and Warning System Fund; providing for grants to municipalities; and imposing a fee.” Referred to Consumer Affairs [House] (May 17, 2021).
HB 1402 “An Act amending . . . the Gas and Hazardous Liquids Pipelines Act, in pipeline operators, providing for approval of construction or development of pipelines.” Referred to Consumer Affairs [House] (May 17, 2021).
HB 1404 “An Act amending . . . the Gas and Hazardous Liquids Pipelines Act, in pipeline operators, providing for inspection before resumption of operations.” Referred to Consumer Affairs [House] (May 17, 2021).
HB 1406 “An Act amending . . . the Gas and Hazardous Liquids Pipelines Act, in pipeline operators, providing for public risk assessments.” Referred to Consumer Affairs [House] (May 17, 2021).
HB 1408 “An Act establishing the Pipeline Safety and Communication Board and providing for its powers and duties; and making a related repeal.” Referred to Consumer Affairs [House] (May 17, 2021).
FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies (Federal Register May 17–21 2021):
Federal Energy Regulatory Commission
86 FR 26716 Notice: “Combined Notice of Filings [Texas Gas Transmission, LLC, Cameron Interstate Pipeline, LLC, et al.]” (May 17, 2021).
86 FR 26914 Notice: “Records Governing Off-the-Record Communications; Public Notice” (May 18, 2021).
86 FR 27589 Notice—Comment Period: “Commission Information Collection Activities (FERC-537); Comment Request; Extension” (May 21, 2021).
Labor Department
86 FR 27479 Notice—Comment Period: “Agency Information Collection Activities; Submission for OMB Review; Comment Request; Proximity Detection Systems for Continuous Mining Machines in Underground Coal Mines” (May 20, 2021).
Occupational Safety and Health Administration
86 FR 27338 Proposed Rule—Comment Period: “Hazard Communication Standard” (May 20, 2021).
86 FR 27332 Proposed Rule—Comment Period: “Walking-Working Surfaces” (May 20, 2021).
86 FR 27482 Notice: “Preparations for the 40th Session of the UN Sub-Committee of Experts on the Globally Harmonized System of Classification and Labelling of Chemicals (UNSCEGHS)” (May 20, 2021).
Pipeline and Hazardous Materials Safety Commission
86 FR 27009 Notice—Comment Period: “Hazardous Materials: Information Collection Activities” (May 18, 2021).
86 FR 27500 Notice—Comment Period: “Pipeline Safety: Request for Special Permit; Colorado Interstate Gas Company, LLC” (May 20, 2021).
Surface Mining Reclamation and Enforcement Office
86 FR 26941 Notice: “Loss of State Jurisdiction To Administer the Surface Mining Control and Reclamation Act of 1977 Within the Exterior Boundaries of the Muscogee (Creek) Nation Reservation in the State of Oklahoma” (May 18, 2021).
House Energy and Commerce Committee Actions:
H.R.3319 “To direct the Administrator of the Environmental Protection Agency to amend regulations relating to exemptions for engines and equipment for purposes of national security, and for other purposes.” Referred to the House Committee on Energy and Commerce (May 18, 2021).
H.R.3311 “To rebuild the Nation’s infrastructure, provide a consumer rebate to the American people, assist coal country, reduce harmful pollution, and for other purposes.” Referred to the Subcommittee on Water Resources and Environment (May 19, 2021).
Senate Energy and Natural Resources Committee:
S.1682 “A bill to prohibit certain provisions of an Executive Order relating to land conservation from taking effect, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources (May 18, 2021).
S.Res.224 “A resolution expressing the sense of the Senate that the United States must seize the opportunity to create millions of jobs, become a net exporter of clean energy, and secure a better, more equitable future by accelerating the electrification of households, buildings, and businesses in the United States, modernizing the United States electricity grid, and continuing on the path towards decarbonizing electricity generation in the United States by 2035.” Referred to the Committee on Energy and Natural Resources (May 18, 2021).
S.1673 “A bill to preserve access to Federal land, control fires, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources (May 18, 2021).
S.1740 “A bill to require the Secretary of the Interior to make energy transition payments to States, counties, and Indian Tribes to replace Federal mineral revenues lost as a result of changes in Federal policy, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources (May 20, 2021).
Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks May 17-21, 2021:
Appalachia’s Northeast Natural Aiming to Certify Natural Gas as Responsibly Sourced, Natural Gas Intelligence
PipEline Operator Says ‘Normal Operations’ Have Resumed, Pittsburgh Post-Gazette
Biden Admin Set to Waive Sanctions on Gazprom Pipeline, Rigzone
Pipeline Exec Confirms Ransom Payment to Hackers, Rigzone
Will the Colonial Episode Spur a Pipeline Rethink?, Rigzone
Supreme Court Sides with Oil Companies in Baltimore Case, The Hill
TSA Pipeline Oversight Faces Scrutiny After Colonial Hack, The Wall Street Journal
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Written by:
Audry Thompson, Research Assistant
Jackie Schweichler, Staff Attorney
