October 2, 2023

Shale Law Weekly Review—Week of October 2, 2023

Oil and Gas Leasing: Louisiana District Court Orders BOEM to Hold Offshore Lease Sale Without Additional Protections for Endangered Whales ⚡
On Thursday, September 21, 2023, the West District Court of Louisiana granted a Motion for Preliminary Injunction filed by the state of Louisiana and three oil companies in their lawsuit against the government and several environmental justice groups. The suit arose after the Bureau of Ocean Energy Management (BOEM) withdrew six million acres from Lease Sale 261, a proposed lease on the Outer Continental Shelf in the Gulf of Mexico, and restricted “vessel activity in the lease area” to protect the Rice’s whale under the Endangered Species Act. In their motion, the plaintiff’s ague, among other things, that BOEM’s new restrictions violate the Inflation Reduction Act’s “Five-Year Plan for oil and gas leasing.” In granting the motion, the Court reasoned that both the state of Louisiana and the oil and gas companies would be subject to “substantial risk of irreparable economic harm if the injunction is not granted.” On balance, the Court held that justification offered by BOEM to require the new restrictions be implemented before the lease sale’s statutory deadline of September 27, 2023, is outweighed by the risk for irreparable economic harm to the plaintiffs. On September 22nd, the Interior Department appealed this injunction in the Fifth Circuit Court of Appeals.

Climate Change: California Sues Oil Industry Corporations for “Concealments and Misrepresentations” on Fossil Fuels and their Impact on Climate Change
On September 16, 2023, the California Attorney General filed a lawsuit in San Francisco Superior Court, against the oil industry for “concealments and misrepresentations regarding the dangers of fossil fuel products[,] encouraged continued use of fossil fuels[,] and discouraged concerted action on greenhouse gas emissions.” Major oil corporations, Exxon Mobil, Shell, Chevron, ConocoPhillips, their subsidiaries, and the American Petroleum Institute are named defendants to the lawsuit. The complaint contains seven causes of action: (1) “Public Nuisance;” (2) “Equitable Relief For Pollution, Impairment, And Destruction of Natural Resources;” (3) “Untrue or Misleading Advertising;” (4) “Misleading Environmental Marketing;” (5) “Unlawful, Unfair, or Fraudulent Business Practices;” (6) “Strict Products Liability;” (7) “Negligent Products Liability.”

 

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.

Quarterly Dairy Legal Webinar – Penn State Law’s Center for Agricultural and Shale Law will conduct the latest installment in its Quarterly Dairy Legal Webinar series.  Each quarter’s free one-hour webinar covers the legal and regulatory developments in the U.S. dairy industry from the preceding quarter, as well as including an in-depth look at a single focus topic of law, regulation, or government policy of interest to dairy professionals of all kinds.

On Wednesday, October 25, 2023, from 1:00–2:00pm ET, Center Staff Attorney Brook Duer will present a webinar entitled, “Where Will Pennsylvania’s Solar Future Be Located and How Will It Get There?” More information here can be found on the WeConservePA website.

  • October 25, 2023, 1 pm – 2 pm (ET). Where Will Pennsylvania’s Solar Future Be Located and How Will It Get There? (Register)

On Wednesday, October 25, 2023, from 1:00–3:00pm ET, PA Farm Link, in collaboration with the Penn State Center for Agricultural and Shale Law, Sustainable Agricultural Research & Education Program, and the Pennsylvania Department of Agriculture, will present “Medicaid Look-back Ag Professional Continued Education Program” with guest speaker MacGregor Brillhart, attorney at Stock & Leader. More information is available on the PA Farm Link event page.

  • October 25, 2023, 1 pm – 3 pm (ET). Medicaid Look-back Ag Professional Continued Education Program. (Register)

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks 

Climate action shifts to the courts as lawsuits proliferate worldwide (PoliticoPro)

Looming government shutdown could force FERC down to three. That might not be a bad thing. (PoliticoPro)

FERC approves Port Arthur LNG Phase 2, other natural gas projects (Oil & Gas Journal)

Chevron appeals to labor market regulator to resolve LNG strike (Oil & Gas Journal)

FERC outlines ‘catastrophic’ gas, grid threats (E&E News)

Connect with us on Facebook.

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

Oil & Gas Law & Policy Resources:

Bloomberg, Appeals Court Blocks Biden Bid to Limit Oil Drilling Auction (September 26, 2023)

Energy Connects, Samsung Engineering awarded FEED contract for Saudi petrochemical project (September 27, 2023)

Bloomberg, Fake Coordinates and Tanker Tricks Expose Shadowy Russian Oil Trade (September 27, 2023)

Eisenson, Experts Identify Best Practices for Negotiating and Drafting Community Benefits Agreements (September 27, 2023)

Webb, The Evolving Legal Landscape for Ocean-Based Carbon Dioxide Removal (September 28, 2023)

Sartain & Sartain, “Floating” Beats “Fixed ” in Texas Royalty Reservation (September 28, 2023)

Akin Gump, Akin Advises Energy Harbor on Asset Sales for Transition to Carbon Free Energy (September 28, 2023)

Bloomberg, Oil Steady After Technical Resistance Stalled Blistering Rally (September 29, 2023)

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S. DEPARTMENT OF ENERGY PRESS RELEASES

Biden-Harris Administration Announces $22 Million to Support Smart Manufacturing at Small- and Medium-sized Facilities Across the Nation (September 27, 2023)

U.S. Department of Energy Announces $38 Million to Deploy Clean Energy Technology in American Indian and Alaska Native Communities (September 28, 2023)

Biden-Harris Administration Delivers More Than $167 Million in Grid Resilience Formula Grants to States and Tribes Across the Country (September 28, 2023)

U.S. ENVIRONMENTAL PROTECTION AGENCY PRESS RELEASES

Judicial Settlement with Transocean Offshore Deepwater Drilling, Inc. Resolves Clean Water Act Violations (September 28, 2023)

Biden-Harris Administration Announces $100 Million in Grants to Support Manufacturers of Cleaner Construction Materials as Part of Investing in America Agenda (September 28, 2023)

EPA and Justice Department File Complaint Alleging Environmental Violations by eBay (September 27, 2023)

EPA and Lincoln University Expand Partnership to include PA Department of Environmental Protection (September 22, 2023)

FEDERAL EXECUTIVE AGENCIES (Federal Register September 23– Sept. 29, 2023)

Environmental Protection Agency

88 FR 66733: Proposed Rule, Comments Close 10/30/2023: “Approval of Air Quality Implementation Plans; New Jersey; Exemptions To Improve Resiliency, Air Toxics Thresholds, PM2.5 and Ammonia Emission Statement Reporting, and PM2.5 in Air Permitting” (September 28, 2023)

88 FR 66742: Proposed Rule, Comments Close 10/30/2023: “Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Proposed Rule” (September 28, 2023)

88 FR 66336: Proposed Rule, Comments Close 11/13/2023: “Review of Final Rule Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act” (September 27, 2023)

Federal Energy Regulatory Commission

88 FR 66835: Notice: “Combined Notice of Filings” (September 28, 2023)

Energy Department

88 FR 67458: Proposed Rule, Comments Close 11/28/2023: “Energy Conservation Program for Appliance Standards: Certification Requirements, Labeling Requirements, and Enforcement Provisions for Certain Consumer Products and Commercial Equipment” (September 29, 2023)

88 FR 66152: Rule: “Energy Conservation Program: Test Procedure for Commercial Refrigerators, Refrigerator-Freezers, and Freezers” (September 26, 2023)

Land Management Bureau

88 FR 66695: Rule: “Minerals Management: Adjustment of Cost Recovery Fees” (September 28, 2023)

Natural Resources Conservation Office

88 FR 66049: Notice, Comments Close 10/26/2023: “Agency Information Collection Activities: Outer Continental Shelf (OCS) Net Profit Share Payment” (September 26, 2023)

Susquehanna River Basin Commission

88 FR 66120: Notice: “Actions Taken at September 14, 2023 Meeting” (September 26, 2023)

Other Agencies

88 FR 67053: Proclamation: “National Public Lands Day, 2023” (September 28, 2023)

88 FR 66409: Notice: “Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico” (September 27, 2023)

88 FR 66123: Notice, Comments Close 11/27/2023: “Proposed Collection; Comment Request for Forms 1065, 1066, 1120, 1120-C, 1120-F, 1120-H, 1120-ND, 1120-S, 1120-SF, 1120-FSC, 1120-L, 1120-PC, 1120-REIT, 1120-RIC, 1120-POL, and Related Attachments” (September 26, 2023)

88 FR 65940: Proposed Rule: “Listing Endangered or Threatened Species; 12-Month Finding on a Petition To Revise the Critical Habitat Designation for the North Pacific Right Whale” (September 26, 2023)

U.S. HOUSE ENERGY AND COMMERCE COMMITTEE

H.R.5809 “To amend the Energy Policy Act of 2005 to remove a limitation on amounts provided under the clean school bus program, and for other purposes.” Referred to the House Committee on Energy and Commerce. (September 28, 2023)

H.R.5750 “To direct the Nuclear Regulatory Commission, the Secretary of Energy, and the Secretary of Agriculture to collaborate to determine the feasibility of creating the Green Nuclear Fertilizer 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. (September 27, 2023)

H.R.5744 “To create a Carbon Dividend Trust Fund for the American people in order to encourage market-driven innovation of clean energy technologies and market efficiencies which will reduce harmful pollution and leave a healthier, more stable, and more prosperous Nation for future generations.” Referred to the Committee on Ways and Means, and in addition to the Committees on Energy and Commerce, and Foreign Affairs, 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. (September 27, 2023)

H.R.5718 “To require the Secretary of Energy to establish a Nuclear Fuel Security Program, expand the American Assured Fuel Supply Program, and for other purposes.” Referred to the Committee on Energy and Commerce, and in addition to the Committee on Science, Space, and Technology, 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. (September 26, 2023)

H.R.5482 “Energy Poverty Prevention and Accountability Act of 2023” Referred to the Subcommittee on Forestry. (September 26, 2023)

H.Res.726 “Supporting the designation of the week of September 25 through September 29, 2023, as “National Clean Energy Week”.” Referred to the House Committee on Energy and Commerce. (September 26, 2023)

H.R.5191 “Renewable Energy for U.S. Territories Act” Referred to the Subcommittee on Commodity Markets, Digital Assets, and Rural Development. (September 25, 2023)

U.S. SENATE ENERGY AND NATURAL RESOURCES COMMITTEE 

S.2965 “A bill to establish a critical mineral environmental processing and mining cleanup program, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources. (September 28, 2023)

S.2915 “Enhancing Electric Grid Resilience Act” Read twice and referred to the Committee on Energy and Natural Resources. (September 26, 2023)

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 39—September 30, 2023)

Department of Environmental Protection

53 Pa.B. 6115: Notice: “Availability of National Pollutant Discharge Elimination System General Permit for Discharges from Petroleum Product Contaminated Groundwater Remediation Systems (PAG-05)”

 

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