November 27, 2023

Shale Law Weekly Review—Week of November 27, 2023

Oil and Gas Leasing: Alaska Court Rules in Favor of Willow Project, Permitting ConocoPhillip to Explore and Develop on the National Petroleum Reserve in Alaska ⚡
On November 9, 2023, the United States District Court for the District of Alaska upheld ConocoPhillips’s authorization to explore and develop oil on its leases in the National Petroleum Reserve in Alaska (NPR-A). Sovereign Iñupiat for a Living Arctic et al. v. Bureau of Land Management et al., No. 3:23-cv-00058-SLG (D. Alaska Nov. 9, 2023) (unpublished); see also U.S. Dep’t of the Interior, Bureau of Land Mgmt., Record of Decision for the Willow Master Development Plan SEIS (March 2023), DOI-BLM-AK-0000-2018-0004-EIS (Willow Project SEIS). The opinion merges two outstanding cases filed by Sovereign Iñupiat for a Living Arctic and Center for Biological Diversity against the Bureau of Land Management (BLM), ConnocoPhillips, and others. The court held that BLM’s Supplemental Environmental Impact Statement (SEIS) considered sufficient alternative route options and provided satisfactory environmental analysis which met National Environmental Protection Act (NEPA) requirements. On similar grounds, court held that BLM met the Naval Petroleum Reserves Production Act requirements by thoroughly explaining its reasoning “for rejecting further consideration of alternatives” relating to downstream emissions and reduction of carbon emissions. Lastly, the court held that the plaintiff’s failed to show the government violated the Endangered Species Act by disregarding evidence relating to the taking of polar bears and other endangered species.

Offshore Drilling: 5th Circuit Authorizes Gulf of Mexico Lease Sale Without BOEM Protections for Rice Whales
On Tuesday, November 14, 2023, the Fifth Circuit Court of Appeals an appeal from the Louisiana’s Western District Court filed by several government agencies and climate advocacy groups in a lawsuit concerning the legality of amendments to Lease Sale 261, an oil-and-gas lease sale scheduled to occur in the Gulf of Mexico nearly two months ago. Louisiana v. Deb. Haaland (No. 23-30666.) The amendments to the lease sale, which, among other things, reduced the acreage of the lease sale, were created by the Bureau of Ocean Energy Management (BOEM) in an effort to protect the critically endangered Rice’s whales in the area. At the district level, the court granted a preliminary injunction against the changes, finding that, on balance, the risk of irreparable economic harm to the plaintiff oil and gas companies outweighed the justifications for the additional protections offered by BOEM. In their order dismissing the appeal, the Fifth Circuit found, similar to the lower court, that BOEM failed to show that the alleged injury to the Rice’s whale was “certainly impending,” as required to justify the striking down of the preliminary injunction. In accordance with this dismissal, Lease Sale 261 is now scheduled to take place, without additional protection requirements, within thirty-seven days of November 14. 2023.

Climate Change: The U.S. and China Reaffirm Commitments to Address Climate Change
On November 14, 2023, the U.S. Department of State announced a renewed partnership with China to address previous commitments made in previous joint statements to address climate change. Both countries previously agreed to partner on issues posed by climate change in joint statements issues at Glasgow in 2020 and in April 2021 after meetings in Shanghai. Highlighted in the reaffirmed commitments are energy transitions. Both countries aim to “triple renewable energy capacity” and “accelerate renewable energy deployment” with an eye towards using renewables to “substitut[e] for coal, oil and gas generation.” Additionally, the statement emphasized the need to develop plans and set joint targets for methane and other GHG emission reductions. The countries stated that they hope to further these commitments, and others, at the upcoming COP 28.

Methane Emissions: EU Regulators Propose New Methane Emissions Requirements on Oil and Gas Importers
On November 15, 2023, the European Council and European Parliament announced a proposed regulation that would impose new methane emissions requirements on oil and gas producers. The proposed regulation is a part of the EU’s Fit for 55 regulatory effort to “reduce net greenhouse gas emissions by at least 55% by 2030.” This regulation would require oil and gas producers importing their products into the EU to submit a series of reports within the first 48 months of the regulation’s implementation. The required reports are: 1) within 18 months, a report containing “quantification of source-level methane emissions,” 2) within 24 months, a report containing “direct measurements quantification of source-level methane emissions for operated assets,” 3) within 36 months and by May 31st of each subsequent year, a report outlining “direct-measurements quantification of source-level methane emissions,” and 4) within 48 months and also by May 31st of each subsequent year, a report on “direct measurements quantification of source-level methane emissions for non-operated assets.” All reports will be submitted to a “competent authority” as designated by each member state. These competent authorities will also conduct regular inspections of the producer’s facilities to ensure compliance, with the first inspections to take place within 21 months of the proposed regulation’s effective date. The Council and Parliament both describe this process of report submissions as three phases, with the first phase focusing on collecting data and developing monitoring mechanisms and the second and third phases focusing on implementing these mechanisms to achieve “maximum methane intensity values by 2030.” This proposed regulation will next need to be formally approved by both the Council and Parliament before an effective date is determined.

 

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CENTER PROGRAMS & RESOURCES

Understanding Agricultural Law – A free monthly Zoom webinar series for all agricultural and rural business advisors. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. Recordings and materials from the series, more information, and registration available here.

On December 11, 2023, at 12:00 pm, The University of Scranton SBDC, the PA SBDC Agriculture Center of Excellence, and the Penn State Center for Agricultural and Shale Law are co-sponsoring a webinar titled “Making Laws Work for You, Part 2: Right to Farm, ACRE, and the Agritourism Activity Protection Act—Brook Duer with SBDC Ag Center of Excellence.” This webinar series will provide plain-language examples of how five Pennsylvania laws—the Agricultural Area Security Law; the Agricultural Conservation Easement Purchase Program; Clean & Green Taxation; Right to Farm Law; the Agriculture, Communities and Rural Environment (ACRE) law; and the Agritourism Activity Protection Act—can help you preserve and protect your farm’s economic vitality and viability.

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks 

Judge deals blow to legal effort to halt Virginia’s RGGI withdrawal (Bay Journal)

MAWC halts fracking at reservoir as part of water conservation plan (TribLive)

FERC orders Colonial Pipeline to redraw rates from Gulf Coast after overcharge claim (Houston Chronicle)

Williams, TC Energy get FERC approval for three pipeline expansions (Oil & Gas Journal)

Oil or Water? Midland Says Disposal Wells Could Threaten Water Supply (Inside Climate News)

Connect with us on Facebook.

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

Oil & Gas Law & Policy Resources:

Bloomberg, Oil Spill Dumped 26,000 Barrels in Gulf of Mexico (November 20, 2023)

Sartain, Pushback Against Climate Hysteria (November 21, 2023)

Akin Gump, SEC Turning Up the Heat: SolarWinds and Its CISO Charged with Fraud Regarding Cyber-related Disclosures (November 21, 2023)

Bloomberg, Oil Dragged Lower as OPEC+ Discord Forces Delay to Key Meeting (November 23, 2023)

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S. DEPARTMENT OF ENERGY PRESS RELEASES

DOE Announces $42 Million To Strengthen Reliability, Resiliency, And Affordability of America’s Power Grid (November 21, 2023)

U.S. ENVIRONMENTAL PROTECTION AGENCY PRESS RELEASES

EPA finalizes action on Fairbanks air plan, partners with state on new one, provides $10 million for more woodstove change-outs & natural gas expansion in Fairbanks, North Star Borough (November 22, 2023)

EPA Announces $150 Million to Fund Environmental and Climate Justice Community Change Grants for Alaska Native Villages (November 21, 2023)

Biden-Harris Administration Announces $2 Billion to Fund Environmental and Climate Justice Community Change Grants as Part of Investing in America Agenda (November 21, 2023)

FEDERAL EXECUTIVE AGENCIES (Federal Register November 18 – November 23, 2023)

Environmental Protection Agency

88 FR 82350: Notice: “EPA Determinations of Compliance and Applicability Under CAA 111, 112, and 129 Dashboard: EPA Formal Responses to Inquiries Concerning Compliance With the Clean Air Act Stationary Source Program (Since May 2019)” (November 24, 2023)

88 FR 82287: Proposed Rule, Comments Close 1/8/24: “Decabromodiphenyl Ether and Phenol, Isopropylated Phosphate (3:1); Revision to the Regulation of Persistent, Bioaccumulative, and Toxic Chemicals Under the Toxic Substances Control Act (TSCA)” (November 24, 2023)

88 FR 80655: Proposed Rule, Comments Close 12/20/2023: “Approval and Promulgation of Air Quality Implementation Plans; New Hampshire; Regional Haze State Implementation Plan for the Second Implementation Period” (November 20, 2023)

Energy Department

88 FR 82343: Notice: “National Petroleum Council” (November 24, 2023)

88 FR 81385: Notice: “Energy Conservation Program: Decision and Order Granting a Waiver to Norlake, Inc., dba Refrigerated Solutions Group, From the Department of Energy Walk-In Coolers and Walk-In Freezers Test Procedure” (November 22, 2023)

Natural Resources Conservation Office

88 FR 81432: Notice: “States’ Decisions on Participating in Accounting and Auditing Relief for Federal Oil and Gas Marginal Properties” (November 22, 2023)

Ocean Energy Management Bureau

88 FR 80750: Notice: “Gulf of Mexico Outer Continental Shelf Oil and Gas Lease Sale 261” (November 20, 2023)

88 FR 80760: Notice, Comments Close 12/20/23: “Agency Information Collection Activities; Geological and Geophysical Explorations of the Outer Continental Shelf” (November 20, 2023)

Other Agencies

88 FR 81443: Notice, Comments Close 12/6/23: “Pacific Gas and Electric Company; Diablo Canyon Nuclear Power Plant, Unit 2” (November 22, 2023)

88 FR 81184: Rule: “2022 Liquid Chemical Categorization Updates” (November 21, 2023)

U.S. HOUSE ENERGY AND COMMERCE COMMITTEE

H.R.6473: “To amend the Rural Electrification Act of 1936 to reauthorize the Community Connect Grant Program, and for other purposes” Referred to the Committee on Agriculture, and in addition to the Committee on 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. (November 21, 2023)

H.R.6464: “To amend the Atomic Energy Act of 1954 to provide for more efficient hearings on nuclear facility construction applications, and for other purposes.” Referred to the House Committee on Energy and Commerce. (November 21, 2023)

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 45—November 11, 2023)

 

Written by:
Kendal Ashman, Research Assistant
Kole Zellers, Research Assistant
Dillon Lightfoot, Research Assistant
Sergio Porras, Research Assistant
Jackie Schweichler, Staff Attorney