October 22, 2023
Shale Law Weekly Review—Week of October 23, 2023
Infrastructure: DOE Announces Phase 1 Award Winners in Buildings UP Program ⚡
On October 11, 2023, the Department of Energy (DOE) Office of Energy Efficient and Renewable Energy (EERE) announced $22 million in awards through its Buildings Upgrade Prize (Buildings UP). The Building Up program awards groups developing building upgrades focusing on energy efficiency and greenhouse gas reduction, among other goals. These most recent awards were distributed under Building Up Phase 1 which identified groups, governments, and businesses developing “building energy upgrades.” Phase 1 winners were designated to either Equity-Centered Innovation or Open Innovation groups and will move on to Phase 2. In Phase 2, Equity-Centered Innovation groups will develop implementable models for “building energy upgrades” geared towards disadvantaged/ underserved communities, while Open Innovation groups will address barriers to “building energy upgrades.” More information on the Phase 1 winner can be found on the EERE website.
GHG Emissions: California Requiring Large Businesses to Report Greenhouse Gas Emissions
On October 7, 2023, Climate Corporate Data Accountability Act (S.B. 253) was approved by the Governor of California, requiring large businesses in California to disclose greenhouse gas emissions (GHGs). S.B. 253, 2023 Leg., Reg. Sess. (Cal. 2023) (enacted) (the “Act”). Under the Act, any company doing business in California with more than 1 billion dollars in revenue will need to report their emissions. S.B. 253, sec. 2(b)(2). The scope of the reporting includes direct emissions from fuel combustion and indirect emissions from heating/cooling. The scope will also include indirect upstream/downstream emissions from outside sources such as “purchased goods and services, business travel, employee commutes, and processing and use of sold products.” S.B. 253, sec. 2(b)(3)-(5). Reporting will begin for some emissions in 2026 and all emissions reporting will begin in 2027. S.B. 253, sec. 2(c)(1).
Community Impacts: Repsol Gas USA Receives DEP Violation Notice after Gas Venting Incident
On Thursday, September 21, 2023, the Department of Environmental Protection (DEP) filed a report after a routine inspection into an uncontrolled venting incident that occurred at a well pad operated by Repsol Oil & Gas USA, LLC in Williamsport, PA. In the report, the DEP first notes that Repsol violated Title 25 Section 78a.73(a) of the Pennsylvania Code by failing to maintain the integrity of the well in a manner that protected “health, safety, environment, and property.” Additionally, the report notes that Repsol prevented the DEP agents from independently documenting the condition of the well following the incident, opting to provide their own photos of the damage instead. This interference did not result in a citation, but Repsol was also found to have violated the cement standards for oil and gas wells defined under 25 Pa. Code § 78a.85(a)(5) and the pre-operation inspection requirements under 58 Pa. C.S. § 3258(a.1).
Surface Owner Rights: Ohio Appeals Court Says Oil and Gas Rights Were Not Reserved in Property Conveyance
On Tuesday, October 3, 2023, the 7th District Ohio Court of Appeals affirmed the district court’s decision to grant summary judgment in favor of Faith Ranch & Farms Fund, Inc., the plaintiff party in a dispute over the ownership of oil and gas rights underneath several parcels of land in Germany and Rumley Townships. Faith Ranch & Farms Fund, Inc. v. PNC Bank, Natl. Assn., (No. 2023-Ohio-3608). The defendants are several trustees with an interest in the surface above the area where the mineral rights are disputed. At the trial level, the court interpreted a deed of conveyance from 1953 to reserve the coal rights under the property but not the oil and gas rights. On appeal, Defendants argued that the trial court improperly interpreted the term “other minerals” in the reservation clause not to include oil and gas because the surrounding language shows that the grantors intended to reserve this interest to their heirs. The appeals court disagreed, holding that the language of the reservation clause suggests that “other minerals” refers only to the mining of coal and other similar minerals, not to drilling for oil and gas. Specifically, the use of words and phrases like “vein” and “mining methods,” along with the lack of references to drilling, supported the conclusion that the grantors did not intend to reserve an interest in oil and gas. Based on these findings, the appeals court affirmed the ruling of summary judgment in favor of the plaintiffs.
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.
- October 27, 2023, noon – 1 pm (ET). Understanding the Basics of Federal & State Seed Laws. (Register)
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)
On Thursday, October 26, 2023, from 10:30am–1:30pm, the PA Agricultural Ombudsman Program, in collaboration with the Penn State Center for Agricultural and Shale Law and Pysher & Associates, Inc., will present “ACRE Law 101: Agriculture, Stormwater, and Local Regulations with PA Agricultural Ombudsman Program” with guest speaker Robert Willig, Senior Deputy Attorney General for the Pennsylvania Office of the Attorney General, joined by Brook Duer, Center Staff Attorney. More information available here.
- October 26, 2023, 10:30 am – 1:30 pm (ET). ACRE Law 101: Agriculture, Stormwater, and Local Regulations with PA Agricultural Ombudsman Program.
On Tuesday, October 31, 2023, from 12:00pm – 1 pm, Brook Duer will join the Pennsylvania Small Business Development Center, the Ag Center of Excellence, and Gannon University for “Part 2 of Legal Considerations for Retail Farm Markets.” More information is available here.
- October 31, 2023, 12:00 pm – 1:00 pm. Part 2 of Legal Considerations for Retail Farm Markets. (Register)
Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks
The Biden Administration Has Begun Regulating 400,000 Miles of Gas ‘Gathering Lines.’ The Industry Isn’t Happy (Inside Climate News)
Mountain Valley Pipeline construction – and protests – continue (The Roanoke Times)
Colorado County votes to restrict oil and gas drilling near reservoirs (OK Energy Today)
U.S. to ease sanctions on Venezuelan oil for freer presidential election (The Washington Post)
ExxonMobil Guyana lets FEED contract for Whiptail development project (Oil & Gas Journal)
Connect with us on Facebook.
Penn State Farmland Energy Legal Podcast: Listen to the latest episode here.
Oil & Gas Law & Policy Resources:
Sartain, Merger Clause Defeats Claim to the Farmhouse (October 16, 2023)
Akin Gump, Texas Lawbook Quotes Jessica Hammons on Energy M&A (October 17, 2023)
Akin Gump, Akin Intelligence – October 2023 (October 18, 2023)
Lockman, Permitting CO2 Pipelines: Overcoming State and Federal Barriers to CO2 Pipeline Networks (October 18, 2023)
Bloomberg, Shell Agrees to Buy Gas From Qatar for Netherlands Past 2050 (October 18, 2023)
Sartain, Fifth Circuit Punts Postproduction Cost Question to Louisiana Supreme Court (October 19, 2023)
Akin Gump, Akin Advises Saxum Energy Partners in its Inaugural $435 Million Partnership (October 19, 2023)
Burger & Hanawalt, The Major Questions Doctrine is a Fundamental Threat to Environmental Protection. Should Congress Respond? (October 19, 2023)
Bloomberg, China National Chem to Build Angola’s $6 Billion Lobito Refinery (October 19, 2023)
Bloomberg, US Suspends Some Sanctions on Venezuelan Oil, Gas, Gold Sectors (October 19, 2023)
FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S. DEPARTMENT OF ENERGY PRESS RELEASES
U.S. DEPARTMENT OF ENERGY AWARDS NEARLY $1 MILLION TO STRENGTHEN COMMUNITY ENERGY RESILIENCE FOR PUERTO RICO (October 17, 2023)
Biden-Harris Administration Opens Low-Income Communities Bonus Credit Program for Clean Energy Projects Benefitting Underserved Communities (October 19, 2023)
U.S. ENVIRONMENTAL PROTECTION AGENCY PRESS RELEASES
Kansas Ethanol Producer Agrees to Pay Penalty for Alleged Environmental Law Violations (October 18, 2023)
EPA Determines that Lead Emissions from Aircraft Engines Cause or Contribute to Air Pollution (October 18, 2023)
Biden-Harris Administration Makes Over $2.1 Million Grant Investments in Innovative Reuse and Refill Program in Hilo, Hawaiis (October 13, 2023)
FEDERAL EXECUTIVE AGENCIES (Federal Register October 13– October 20, 2023)
Environmental Protection Agency
88 FR 72461: Notice: “California State Nonroad Engine Pollution Control Standards; Ocean-Going Vessels At-Berth; Notice of Decision” (October 20, 2023)
88 FR 72372: Rule: “Finding That Lead Emissions From Aircraft Engines That Operate on Leaded Fuel Cause or Contribute to Air Pollution That May Reasonably Be Anticipated To Endanger Public Health and Welfare” (October 20, 2023)
88 FR 72216: Proposed Rule, Comments Close 12/18/2023: “Phasedown of Hydrofluorocarbons: Management of Certain Hydrofluorocarbons and Substitutes Under Subsection (h) of the American Innovation and Manufacturing Act of 2020” (October 19, 2023)
88 FR 71761: Rule: “Non-Hazardous Secondary Material Standards; Response to Petition” (October 18, 2023)
Federal Energy Regulatory Commission
88 FR 72461: Notice: “Combined Notice of Filings” (October 20, 2023)
88 FR 72054: Notice: “Combined Notice of Filings” (October 19, 2023)
88 FR 71546: Notice: “Sunshine Act Meetings” (October 17, 2023)
88 FR 71345: Notice: “Combined Notice of Filings” (October 16, 2023)
Susquehanna River Basin Commission
88 FR 71391: Notice: “Projects Approved for Consumptive Uses of Water” (October 16, 2023)
88 FR 71392: Notice: “Public Hearing” (October 16, 2023)
Other Agencies
88 FR 72528: Notice: “Request for Information To Inform the Orphaned Wells Program Office’s Development of Regulatory Improvement Grants Under the Bipartisan Infrastructure Law” (October 20, 2023)
88 FR 71932: Rule, Comments Close 12/4/2023: “Implementation of 2022 Wassenaar Arrangement Decisions and Request for Comments on License Exception Eligibility for Certain Supersonic Aero Gas Turbine Engine Component Technology” (October 18, 2023)
88 FR 71338: Notice: “Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico” (October 16, 2023)
U.S. SENATE ENERGY AND NATURAL RESOURCES COMMITTEE
S.3099 “A bill to require the Secretary of Energy to further develop and support the adoption of a voluntary streamlined permitting and inspection process for authorities having jurisdiction over the permitting of qualifying distributed energy systems, and for other purposes” Read twice and referred to the Committee on Energy and Natural Resources. (October 19, 2023)
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPT. OF ENVIRONMENTAL PROTECTION PRESS RELEASES
DEP Responds to Oil Spill on Cumberland County Waterway (October 17, 2023)
DEP Awards Over $3.8 Million to Projects Restoring the Health of Local Watersheds (October 19, 2023)
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 42—October 21, 2023)
Department of Environmental Protection
Pennsylvania Energy Development Authority
Pennsylvania Public Utility Commission
53 Pa.B. 6678: Notices: “Natural Gas Service”
Pennsylvania Legislature
HB 1476 “An Act providing for reporting requirements for qualifying crypto-asset mining operations and for an impact study; and imposing duties on the Department of Environmental Protection.” Laid on the table. [House] (October 16, 2023)
HR 185 “A Resolution directing the Joint State Government Commission to conduct a study on the feasibility of using geothermal energy technologies that utilize abandoned mining locations and operations in this Commonwealth and issue a report of its findings and recommendations to the House of Representatives.” Reported as committed. [House] (October 16, 2023)
Written by:
Kendal Ashman, Research Assistant
Kole Zellers, Research Assistant
Dillon Lightfoot, Research Assistant
Sergio Porras, Research Assistant
Jackie Schweichler, Staff Attorney
