Shale Law Weekly Review—Week of October 30, 2023

Pipelines: 4th Circuit Court of Appeals Rules that Maryland Cannot Refuse Pipeline Construction on State Land ⚡
On Wednesday, October 11, 2023, the 4th Circuit Court of Appeals affirmed the district court’s decision to dismiss the State of Maryland’s case against Columbia Gas Transmission, LLC. Columbia Gas Transmission, LLC v. 0.12 Acres of Land, More or Less, in Washington, (No. 23-1069). The lower court held that Maryland cannot assert sovereign immunity as grounds to refuse a conveyance of land for the construction of a pipeline. The district court found that, based on the binding precedent in PennEast Pipeline Co. v. New Jersey, the Eleventh Amendment does not reinstate sovereign immunity in condemnation actions brought against Maryland. In the original lawsuit, a condemnation action was brought by Columbia after the Maryland Department of Natural Resources refused to authorize the conveyance of a portion of land in Washinton County that would be used to build a pipeline from Fulton County, PA to Morgan County, WV. Columbia was granted federal eminent domain power through a “certification of public convenience and necessity” issued by the Federal Energy Regulatory Commission. Ruling in favor of Columbia, the Appeals Court found that the federal government has the authority to “initiate condemnation proceedings … against state-owned property.” Furthermore, the Court found that, since the enactment of the Constitutional Convention, Maryland has consented to the exercise of federal eminent domain power in condemnation actions. The Eleventh Amendment, which was enacted long after the Convention, did not reinstate sovereign immunity from the exercise of such power, even when it is delegated to private parties. In light of these findings, the 4th Circuit affirmed the district court’s decision to dismiss Maryland’s lawsuit against Columbia.

Landowner Royalties: Pennsylvania District Court Deems Oil and Gas Dispute Not Ripe for Review
On Tuesday, October 10, 2023, the Pennsylvania Middle District Court granted a motion to dismiss filed by Blue Beck LTD, the defendant and lessor in a lease interpretation dispute brought by the plaintiff and lessee, SWN Production Company, LLC. SWN Production Company, LLC v. BlueBeck, LTD, (No. 22-cv-91). The original complaint was brought after several disputes over the alleged underpayment of royalties to the defendant occurred, and the plaintiff now seeks a declaratory judgment from the court as to the proper interpretation of the lease. Before dismissing the complaint as “not ripe,” the Court explained that because there was still conversation to be had between the parties as to the proper interpretation of the terms of the royalty provision, and because these conversations could further the parties’ common goal of profiting from the lease, the interests of the parties are not yet adverse. The Court went on to explain that because their interests are not yet adverse, a declaratory judgment in a court of law is an inappropriate remedy at this time. More specifically, the Court said that until the defendant chooses to terminate the lease, which can only occur after a ten-day cure period has passed, the likelihood of harm is not “sufficiently real and immediate” for the Court to make a ruling. Based on these facts, the Court found that the case is not yet ripe for review and granted the defendant’s motion to dismiss.

State Regulation: Railroad Commission of Texas Seeks Public Comment on Proposed Oil and Gas Waste Regulations
On October 2, 2023, the Railroad Commission of Texas (Commission) announced a Draft Rule for Informal Comment (Draft Rule) to amend and modernize Statewide Rule (SWR) 8 and 57 which governs oil and gas waste, as well as hydrocarbon waste and storage tank requirements. This Draft Rule would incorporate current waste management and oil and gas disposal pit permit requirements currently in “Commission staff guidance documents or [in] matters of practice” into official rules. These rules will “govern permissible locations for [disposal] pits” and outline rules for recycling drilling fluid. Additionally, operators of authorized disposal pits would be required to conduct “preliminary evaluations” of groundwater surrounding the pit site and subsequent evaluations depending on conditions to be specified in the final rule Public comments on the Draft Rule will be accepted until 6:00 p.m., Friday, November 3, 2023, EST. In addition, an in person hearing will be held at 11:00 a.m. on Thursday, October 26, 2023, EST, with a virtual hearing at 10:00 a.m. on Friday, October 27, 2023, EST. The Draft Rule will be published in the Texas Register once the comment period has ended and comments have been considered.

Municipal Regulation: Arapahoe County Colorado Amends Oil and Gas Facilities Regulations
On October 10, 2023, the Board of County Commissioners (the “Board”) of Arapahoe County Colorado approved proposed amendments to the county’s oil and gas facilities regulations. The county hopes that these amendments ensure that any oil and gas facility requiring a Colorado Oil and Gas Conservation Commission (“COGCC”) permit will first go through the county Special Review process. Under the amended regulations, Special Review applicants are required to hold neighborhood meetings and provide notice to all landowners within a mile radius of proposed oil and gas facilities. Regular meetings with the County Director of Public Works and Development must also be held to discuss the facility. A noted change is to facility setback requirements stating that all facilities must be 5,280 feet from water reservoirs, or 2,000 feet if the facility is downgradient from the reservoir. Additionally, the amendments address safety precautions such as requiring access roads maintained in conditions “suitable for emergency vehicle use,” requiring the “construct an alternative access road,” and requiring all access roads to be within local fire codes and standards set by the County Office of Emergency Management. More information about the amendments can be found in the county’s announcement, or the Board’s archived meeting agenda.

Pipelines: Emergency Motion for Injunctive Relief to Halt Progress on the Mountain Valley Pipeline Denied by the D.C. Appeals Court
On October 16, 2023, Virginia landowners (“Plaintiffs”) filed an emergency motion for injunctive relief to halt progress on the Mountain Valley Pipeline (“MVP”) while the United States Court of Appeals for the District of Columbia reviews constitutional challenges remanded to the Appeals Court by the Supreme Court. Cletus Bohon, et al v. FERC, et al, (No. 20-05203). Specifically, Plaintiffs seek to enjoin the Federal Energy Regulatory Commission (“FERC”) and MVP (collectively “Defendants”) from “exercising Congress’s legislative powers, including the power of eminent domain” until the Appeals Court’s decision. This case raises Non-Delegation Doctrine issues as Plaintiffs challenge the FERC’s assistance of MVP in land acquisition for the project through the use of eminent domain. Plaintiffs assert that since the April 24, 2023, Supreme Court Ruling vacating the Appeals Court’s affirmation of dismissal for lack of jurisdiction, Defendants continue to prolong the Appeals Court’s decision by filing for extensions. In appealing for the injunction, Plaintiffs assert their likelihood to succeed in the case on the grounds of jurisdiction and the on-Delegation Doctrine, as well as assert “irreparable harm” from the loss of private land and trespass at the hands of MVP. On October 24, 2023, the Appeals Court issued a per curium opinion denying Plaintiff’s motion.

 

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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.

• November 17, 2023, noon – 1pm (ET). Understanding the Basic of the Fair Labor Standards Act. (Register)

On October 31, 2023, 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.”

• October 31, 2023, noon – 1 pm (ET). Part 2 of Legal Considerations for Retail Farm Markets. (Register)

On Thursday and Friday, November 2-3, 2023, PennAg and Penn State Extension will hold the 2023 Keystone Crops and Soil Conference at the Grantville Holiday Inn in Grantville, Pennsylvania. On Thursday, November 2, 2023 at 2:00pm ET, Center Staff Attorney Brook Duer will present “PA Fertilizer Law—What You Need to Know to be Compliant” as part of the conference. More information is available here.

• November 2, 2023, 2 pm – 3 pm (ET).  PA Fertilizer Law—What You Need to Know to be Compliant (Register)

On November 6, 2023, part 1 of “Making Laws Work for You, Part 1: Ag Security Areas, Farmland Preservation, and Clean & Green—Brook Duer with SBDC Ag Center of Excellence” educational session will be held by The University of Scranton SBDC, the PA SBDC Agriculture Center of Excellence, and the Penn State Center for Agricultural and Shale Law. 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.

• November 6, 2023, noon – 1:30 pm. Making Laws Work for You, Part 1: Ag Security Areas, Farmland Preservation, and Clean & Green—Brook Duer with SBDC Ag Center of Excellence. (Register)

On Thursday, November 16, 2023, the University of Maryland Agriculture Law Education Initiative will hold the 2023 Annual Agricultural and Environmental Law Conference at the Crowne Plaza Hotel in Annapolis. From 12:45 pm–1:50 pm, Center Staff Attorney Brook Duer will present, “HPAI: How Can We Miss You, If You Won’t Go Away?” as part of the conference.

• November 16, 2023, 12:45 pm – 1:50 pm. HPAI: How Can We Miss You, If You Won’t Go Away? (Register)

 

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks 

Alaska offering royalty-free lease terms to stimulate Cook Inlet gas development (Anchorage Daily News)

EIA: US natural gas production to grow on high Permian well productivity, crude oil prices (Oil & Gas Journal)

Equitrans delays Mountain Valley pipeline startup to Q1 2024, costs rise (Oil & Gas Journal)

CER Commission recommends approval of NorthRiver Midstream Connection Project (Oil & Gas Journal)

Feds OK natural gas pipeline expansion in Pacific Northwest over environmentalist protests (AP)

Connect with us on Facebook.

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

Oil & Gas Law & Policy Resources:

Sartain, Defense of a Deed Signed by a 12-Year-Old Fails (October 23, 2023)

Bloomberg, Nigeria Fends Off $11 Billion Award as UK Judge Finds Fraud (October 23, 2023)

Akin Gump, OFAC Issues Venezuela Sanctions Relief Package Focused on Oil, Gas and Gold Sectors and Secondary Market Trading in Response to Election Commitments (October 24, 2023)

Bloomberg, Oil Steady After Three-Day Streak of Losses as War Fears Ease (October 25, 2023)

Sartain, Louisiana Oilfield Settlement Agreement Fails to Release Non-Party (October 27, 2023)

Bloomberg, War Fears Drive Gold and Oil Higher; S&P 500 Drops: Markets Wrap (October 27, 2023)

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S. DEPARTMENT OF ENERGY PRESS RELEASES

DOE Announces $18.5 Billion In Energy Savings and Celebrates First Year Results of Better Climate Challenge (October 23, 2023)

Biden-Harris Administration Announces $45 Million for Energy Efficiency Building Upgrades for Nonprofits (October 25, 2023)

DOE Announces $36 Million To Advance Marine Carbon Dioxide Removal Techniques and Slash Harmful Greenhouse Gas Pollution (October 26, 2023)

U.S. Department of Energy Announces Energy Savings Performance Contracting Campaign (October 26, 2023)

U.S. ENVIRONMENTAL PROTECTION AGENCY PRESS RELEASES

EPA Launches Prize Challenge to Showcase Electric Transportation in Action (October 27, 2023)

EPA Launches Online Tool Providing Energy Use Data and Insights from ENERGY STAR® Portfolio Manager® (October 25, 2023)

Biden-Harris Administration Announces Nearly $128 Million for Environmental Justice Projects in Communities Across the Country as Part of Investing in America Agenda (October 24, 2023)

State of Alaska, Fairbanks North Star Borough receive $10M EPA grant to improve air quality (October 23, 2023)

FEDERAL EXECUTIVE AGENCIES (Federal Register October 20 – October 27, 2023)

Environmental Protection Agency

88 FR 73840: Notice: “Environmental Impact Statements; Notice of Availability” (October 27, 2023)

88 FR 73098: Rule: “Phasedown of Hydrofluorocarbons: Restrictions on the Use of Certain Hydrofluorocarbons Under the American Innovation and Manufacturing Act of 2020” (October 24, 2023)

88 FR 72826: Proposed Rule, Comments Close 12/22/2023: “Guideline on Air Quality Models; Enhancements to the AERMOD Dispersion Modeling System” (October 23, 2023)

Federal Energy Regulatory Commission

88 FR 73833: Notice, Comments Close 12/26/2023: “Project-Area Wage Standards in the Labor Cost Component of Cost-of-Service Rates” (October 27, 2023)

Land Management Bureau

88 FR 73616: Notice, Comments Close 12/11/2023: “Notice of Realty Action: Modified Competitive Sale of Public Land in Emery County, Utah” (October 26, 2023)

Safety and Environmental Enforcement Bureau

88 FR 73870: Notice: “Oil and Gas Decommissioning Activities on the Pacific Outer Continental Shelf” (October 27, 2023)

Other Agencies

88 FR 73322: 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 25, 2023)

88 FR 72996: 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 24, 2023)

88 FR 72739: 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 23, 2023)

U.S. HOUSE ENERGY AND COMMERCE COMMITTEE

H.R.6089 “To prohibit States or local governments from prohibiting the connection, reconnection, modification, installation, or expansion of an energy service based on the type or source of energy to be delivered, and for other purposes.” Referred to the House Committee on Energy and Commerce. (October 26, 2023)

H.R.6076 “To establish the Financing Energy Efficient Manufacturing Program at the Department of Energy to provide financial assistance to promote energy efficiency and onsite renewable technologies in manufacturing facilities, and for other purposes.” Referred to the Committee on Science, Space, and Technology, 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. (October 26, 2023)

H.R.5997 “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.” Referred to the House Committee on Energy and Commerce. (October 25, 2023)

H.R.5964 “To reduce methane emissions from flaring and venting natural gas during oil and natural gas production activities, and for other purposes.” Referred to the Committee on Science, Space, and Technology, 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. (October 25, 2023)

H.R.5718 “Nuclear Fuel Security Act of 2023” Forwarded by Subcommittee to Full Committee by Voice Vote. (October 25, 2023)

H.R.4045 “Hydropower Clean Energy Future Act” Forwarded by Subcommittee to Full Committee (Amended) by the Yeas and Nays: 16 – 12. (October 25, 2023)

H.R.995 “Global Nuclear Energy Assessment and Cooperation Act” Forwarded by Subcommittee to Full Committee (Amended) by Voice Vote. (October 25, 2023)

U.S. SENATE ENERGY AND NATURAL RESOURCES COMMITTEE 

S.3156 “A bill to establish the Financing Energy Efficient Manufacturing Program at the Department of Energy to provide financial assistance to promote energy efficiency and onsite renewable technologies in manufacturing facilities, and for other purposes.” Read twice and referred to the Committee on Energy and Natural Resources. (October 26, 2023)

S.3122 “A bill to amend the Federal Land Policy and Management Act of 1976 to provide for the denial of certain applications for solar or wind energy development projects right-of-way applications.” Read twice and referred to the Committee on Energy and Natural Resources. (October 25, 2023)

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPT. OF ENVIRONMENTAL PROTECTION PRESS RELEASES

Six Counties Return to Normal and 15 Counties Remain in Drought Watch or Drought Warning (October 20, 2023)

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 43—October 28, 2023)

Department of Environmental Protection

53 Pa.B. 6781: Notice: “Availability of Grants through the Abandoned Mine Land and Abandoned Mine Draining Grant Program”

 

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