September 6, 2021

Shale Law Weekly Review – Week of September 6, 2021

GHG Emissions: Pennsylvania IRCC Approves Carbon Pricing Proposed Rulemaking
On September 1, 2021, the Pennsylvania Independent Regulatory Review Commission (IRCC) reviewed and approved a rulemaking proposed by the Environmental Quality Board (EQB). The proposed regulation (Reg. #7-559) was initially published in the Pennsylvania Bulletin on November 7, 2020 and would amend 25 Pa. Code Chapter 145 and establish a CO2 Budget Trading Program. The purpose of the program would be to restrict carbon emissions from fossil-fuel-fired electric generating units (EGU) through carbon pricing. In addition, Pennsylvania will join the Regional Greenhouse Gas Initiative (RGGI), a cooperative market-based cap-and-trade program composed of 10 other states besides Pennsylvania, including Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont, whose purpose is to reduce regional carbon emissions. In a Press Release, Pennsylvania Governor Tom Wolf stated, “Participating in RGGI is one more way for Pennsylvania, which is a major electricity producer, to reduce carbon emissions and achieve our climate goals.”

Pipelines: Minnesota Court of Appeals Affirms Decision Approving Section 401 Water Certification for the Line 3 Replacement Project in Minnesota
On August 30, 2021, the Minnesota Court of Appeals affirmed the decision of the Minnesota Pollution Control Agency (MPCA) that granted Enbridge Energy LP a Section 401 water quality certification for the Line 3 replacement project. In re Enbridge Line 3 Replacement Project Section 401 Water Quality Certification, Minn. Ct. App., A20-1513. The Line 3 replacement project would replace Enbridge’s Mainline System’s Line 3, stretching 1,097-mile from Edmonton, Alberta to Superior, Wisconsin, with a new 36-inch diameter pipeline. The MPCA approved in November 2020 Enbridge’s Section 401 certification application filed about one year earlier. A coalition of tribes and environmental non-profit organizations subsequently challenged MPCA’s approval, alleging that the decision was based on a legal error. The Minnesota Court of Appeals disagreed and ruled that MCPA’s decision was “supported by substantial evidence in the record.”

WOTUS: Arizona Federal Court Vacates 2020 Navigable Waters Protection Rule
On August 30, 2021, the U.S. District Court for the District of Arizona issued an order vacating and remanding the U.S. Environmental Protection Agency’s (EPA) 2020 Navigable Waters Protection Rule (NWPR) (85 FR 22250) which defined “Waters of the United States” (WOTUS) for the purposes of the Clean Water Act (CWA). Pasqua Yaqui Tribe v. EPA, No. 4:20-cv-00266. However, pursuant to the court’s order, the so-called 2019 “Repeal Rule,” which repealed the 2015 “Clean Water Rule” (80 FR 37053) and re-instated the pre-2015 regulations (84 FR 56626) defining WOTUS, remains in effect until further proceedings of the court on the lawsuit’s challenge to the 2019 Repeal Rule. The Arizona district court considered 1) “the seriousness of [EPA’s] errors in enacting the NWPR,” 2) “the likelihood that [EPA] will alter the NWPR,” and 3) “the possibility of serious environmental harm if the NWPR remains in place upon remand.” The court found that all three factors weighed in favor of vacating the NWPR. The court noted EPA’s agreement that there are “substantial concerns about certain aspects of the NWPR . . . including whether the NWPR adequately considered the CWA’s statutory objective and the effects of the NWPR on the integrity of the nation’s waters.” Last month, on July 15, 2021, the U.S. District Court for the District of South Carolina also remanded the NWPR but declined to vacate it. See ALWR—July 16, 2021,”WOTUS: Federal Court Grants EPA Request to Remand and Leaves Navigable Waters Protection Rule in Place.”

WOTUS: Massachusetts Federal Court Remands 2020 Navigable Waters Protection Rule, Cites Arizona Federal Court Ruling
On September 1, 2021, the U.S. District Court for the District of Massachusetts issued an order remanding the Environmental Protection Agency’s (EPA) 2020 Navigable Waters Protection Rule (NWPR) definition of “Waters of the United States” (85 FR 22250) and dismissing the case. Conservation Law Foundation v. EPA, No. 1:20-cv-10820. Noting the rule’s vacatur earlier the same week by the U.S. District Court for the District of Arizona, the court stated, “[g]iven the progress of related litigation elsewhere . . . [t]he most orderly means for me to assist in resolving the larger dispute over the Rule at issue is to remand this case to the agencies and correlatively dismiss it without separately addressing the merits as to which the litigation is in an advanced stage in the District of Arizona.” For background, see ALWR—Week Ending June 11, 2021, “EPA Requests Remand and Announces Intent to Rewrite WOTUS Definition.”

Shale Law/Policy Resources of Interest:

Charles Sartain and David Leonard, New Mexico Solar Developer Fails to Establish Prescriptive Easement (September 3, 2021).

Hillary Aidun, Ama Francis, and Michael Gerrard, Using New York Law to Advance Equity in the Transportation & Climate Initiative Program: New Report (September 2, 2021).

Michael B. Gerrard, Environmental Rights in State Constitutions (August 31, 2021).

Romany M. Webb and Korey Silverman-Roati, Removing Carbon Dioxide Through Ocean Alkalinity Enhancement: Legal Challenges and Opportunities (August 30, 2021).

AGENCY PRESS RELEASES – STATE/FEDERAL

Pennsylvania Department of Environmental Protection

DEP Approves Environmentally Protective Methods for Land Application of Food Processing Residual (September 2, 2021).

Independent Regulatory Review Commission Approves CO2 Budget Final Rulemaking (September 1, 2021).

U.S. Department of Energy

DOE Authorizes Strategic Petroleum Reserve Exchange to Support Region Impacted by Hurricane Ida (September 3, 2021).

DOE Awards $30M to Secure Domestic Supply Chain of Critical Materials (September 2, 2021).

DOE Releases New Reports Highlighting Record Growth, Declining Costs of Wind Power (August 30, 2021).

U.S. Environmental Protection Agency

EPA Report Shows Disproportionate Impacts of Climate Change on Socially Vulnerable Populations in the United States (September 2, 2021).

EPA Announces First Validated Laboratory Method to Test for PFAS in Wastewater, Surface Water, Groundwater, Soils (September 2, 2021).

EPA Fines Companies in Iowa and Nebraska for Alleged Vehicle ‘Defeat Device’ Violations (August 31, 2021).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices (Pa. Bulletin Vol. 51, No. 36—September 4, 2021)

No Relevant Actions.

Pennsylvania Legislature

Upcoming Meeting: House Environmental Resources and Energy Meeting on Monday, September 27, 2021.

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register August 30–September 3, 2021):

Energy Department

86 FR 49266 Proposed Rule: “Energy Conservation Program: Energy Conservation Standards for Certain Commercial and Industrial Equipment; Early Assessment Review; Commercial and Industrial Pumps” (September 2, 2021).

Environmental Protection Agency

86 FR 49482 Rule: “Approval and Promulgation of State Plans for Designated Facilities [Municiple Waste Combustors]; New York” (September 3, 2021).

86 FR 49501 Proposed Rule: “Approval and Promulgation of State Plan for Designated Facilities and Pollutants: New Hampshire; 111(d)/129 Revised State Plan for Existing Large and Small Municipal Waste Combustors” (September 3, 2021).

Federal Energy Regulatory Commission

86 FR 49526 Notice: “EQT Energy, LLC v. Texas Eastern Transmission, LP; Notice of Complaint” (September 3, 2021).

86 FR 49011 Notice: “ANR Pipeline Company; Notice of Intent to Prepare an Environmental Impact Statement for The Proposed Wisconsin Access Project, Request for Comments on Environmental Issues, and Schedule for Environmental Review” (September 1, 2021).

86 FR 49014 Notice: “Florida Gas Transmission Company, LLC; Notice of Intent to Prepare an Environmental Impact Statement for The Proposed Big Bend Project, Request for Comments on Environmental Issues, and Schedule for Environmental Review” (September 1, 2021).

86 FR 49017 Notice: “Kern River Gas Transmission Company; Notice of Intent to Prepare an Environmental Impact Statement for the Proposed Delta Lateral Project, Request for Comments on Environmental Issues, and Schedule for Environmental Review” (September 1, 2021).

86 FR 48672 Notice: “Texas Eastern Transmission, LP; Notice of Application and Establishing Intervention Deadline [For Replacement of Certain Compressor Units in Pennsylvania]” (August 31, 2021).

86 FR 48671 Notice: “City and County of San Francisco; Notice of Filing [Requesting Order for Interconnection and Transmission]” (August 31, 2021).

Health and Human Services Department

86 FR 48745 Notice: “Establishment of the Office of Climate Change and Health Equity” (Augus 31, 2021).

National Highway Traffic Safety Administration

86 FR 49602 Proposed Rule: “Corporate Average Fuel Economy Standards for Model Years 2024-2026 Passenger Cars and Light Trucks” (September 3, 2021).

National Institute of Standards and Technology

86 FR 48984 Notice: “National Cybersecurity Center of Excellence (NCCoE) Automation of the Cryptographic Module Validation Program (CMVP) [Seeking Letters of Interest on Available Products and Technical Advice” (September 1, 2021).

Nuclear Regulatory Commission

86 FR 49572 Notice: “Southern Nuclear Operating Company Inc; Vogtle Electric Generating Plant, Units 3 and 4 [License Amendment Application]” (September 3, 2021).

Small Business Administration

86 FR 49590 Notice: “Presidential Declaration of a Major Disaster for the State of Louisiana” (September 3, 2021).

Tennessee Valley Authority

86 FR 49088 Notice: “Charter Renewal of the Regional Energy Resource Council” (September 1, 2021).

House Energy and Commerce Committee Actions:

H.R.5135 “GRID Act of 2021 [‘To direct the Secretary of Defense to carry out a pilot program on the implementation of mitigating actions to address vulnerabilities to critical defense facilities and associated defense critical electric infrastructure, and for other purposes.’] Referred to the Committee on Armed Services, and in addition to the Committee on Energy and Commerce. . . (August 31, 2021).

H.Res.614 “Condemning the Biden administration’s Executive actions imposing a moratorium on oil and gas leases on Federal lands and waters, given the administration has also called for increased importation of crude oil from OPEC+ countries and refused to implement congressionally mandated sanctions on the builders of the Russian Nord Stream 2 pipeline.” Referred to the Committee on Energy and Commerce, and in addition to the Committees on Natural Resources, Transportation and Infrastructure, and Foreign Affairs. . . (August 31, 2021).

Senate Energy and Natural Resources Committee:

No relevant actions.

Follow us on Twitter @AgShaleLaw—Top #ShaleLaw HotLinks August 30–September 3, 2021:

Texas Upstream Employment Increases, Rigzone

Texas Eastern Restart Buoys Appalachian Cash Market in Mounting Risk to Storage, S&P Global Platts

Oil and Gas Permitting Activity Picks up in Pa., W. Va. During Week Ended Aug. 15, Shale Gas Reporter

Oil Producers Push Democrats to Preserve Key Drilling Deduction, The Hill

Shannon LNG Tries for Another Permission, Faces Opposition, Offshore Energy

Venture Global, Cheniere Move Closer to Starting Up Louisiana LNG Projects, Natural Gas Intelligence

EY Analysis Reveals How Devastating 2020 Was for US Oil and Gas, Oil & Gas Journal

Connect with us on Facebook. Every week we post the CASL Ledger detailing our publications and activities from the week.

Penn State Shale Law Podcast: Listen to the latest episode here.