June 15, 2021

Shale Law Weekly – Week of June 14, 2021

Pipelines: Court of Appeals Denies Abeyance of Jordan Cove Pipeline Challenge ⚡
On June 7, 2021, the U.S. Court of Appeals for the District of Columbia Circuit issued an order denying a motion to put the Jordan Cove Pipeline case on hold. Deborah Evans, et al v. FERC, No. 20-01161; FERC Nos. CP17-494-000 and CP17-495-000. Jordan Cove Energy Project L.P. (Jordan) and Pacific Connector Gas Pipeline, LP’s (Pacific) put forward a motion to hold in abeyance the case challenging the Federal Energy Regulatory Commission’s (FERC) March 2020 authorization of the Jordan Cove liquefied natural gas export terminal and Pacific Gas connector pipeline project in Coos County, Oregon. The case, brought by several Oregon landowners, requests vacatur of FERC’s authorization granting the Pembina Pipeline Corp subsidiaries eminent domain on grounds that the agency improperly assessed the “public convenience and necessity” and “public interest” required for such a grant and also that the agency failed to “reasonably analyze” the environmental impacts of the project. On April 22, 2021, after failing to obtain the required Clean Water Act and Coastal Zone Management Act clearances from the state of Oregon, Jordan and Pacific moved to hold the case in abeyance and FERC filed a brief requesting dismissal for lack of standing, which Jordan and Pacific joined. In its single-page order, the court denied Jordan and Pacific’s motion to place the case in abeyance and held effective the briefing order timeline issued December 2020, which requires the parties to submit their final briefs by July 6, 2021.

Pipelines: FERC Approves North Bakken Expansion Project
On June 1, 2021, the Federal Energy Regulatory Commission (FERC) granted an order issuing a certificate of “public convenience and necessity” to WBI Energy Transmission, Inc., authorizing construction of the company’s North Bakken Expansion Project in northwestern North Dakota. FERC Nos. CP20-52-000 and CP20-52-001. Once completed, the 93.6-mile Williston Basin pipeline will provide as much as 250,000 dekatherms per day of natural gas transportation service from WBI’s Tioga Compressor Station in Williams County, North Dakota to Burke, Mountrail, and McKenzie Counties. The project, which WGI estimates will cost $260.5 million, will temporarily affect 1,470 acres of land, although once finished, the project will only occupy 595 acres. WGI states that it expects construction to last approximately seven months, beginning in July 2021 with completion anticipated in December 2021.

PA Impact Fee: Pennsylvania Utility Commission Announces $146 Million in 2020 Gas Drilling Impact Fees, Down $54 Million from 2019
On June 14, 2021, the Pennsylvania Public Utility Commission (PUC) announced the availability of the 2020 Act 13 natural gas drilling disbursements and impact fees, totaling $146.2 million. This amount is approximately $54 million less than that collected in 2019 due to the fifty-five-cent average price difference—$2.08/MMBtu in 2020 versus $2.63/MMBtu in 2019. The $146.2 million amount will be distributed as follows: $71.5 to drilling-affected county and municipal governments, $51 million to the Marcellus Legacy Fund, and $23.7 million to state agencies. PUC states that it has shared the information with the Pennsylvania Department of Treasury and expects payments to be delivered in July.

Shale Law/Policy Resources of Interest:

Jeremy Mercer, “‘Stranger to the Deed’ Not a Defense to Rights of First Refusal in West Virginia” (June 11, 2021).

John McFarland, BPX v. Strickhausen: When does Acceptance of Royalty Constitute Ratification of a Pooled Unit? (June 11. 2021).

Micah Brown, Considering Carbon: Overview of Carbon Market Composition (June 8, 2021).

Charles Sartain and Brittany Blakey, “Predecessors” Does Not Include Predecessors-in-Title, Says Court (June 8, 2021).

AGENCY PRESS RELEASES – STATE/FEDERAL

U.S. Department of Energy

DOE Awards $54 Million to 235 American Small Businesses Developing Novel Clean Energy and Climate Solutions (June 9, 2021).

DOE Announces Actions to Bolster Domestic Supply Chain of Advanced Batteries, (June 8, 2021).

Secretary Granholm Launches Energy Earthshots Initiative to Accelerate Breakthroughs Toward a Net-Zero Economy (June 7, 2021).

U.S. Environmental Protection Agency

Enforcement of Clean Air Act Results in Settlement with Atlantic County Utilities Authority (June 11, 2021).

EPA to Reexamine Health Standards for Harmful Soot that Previous Administration Left Unchanged (June 10, 2021).

EPA, Army Announce Intent to Revise Definition of WOTUS (June 9, 2021).

EPA Reverses 2020 Rule, Restoring Key Functions of Environmental Appeals Board, Promoting Fairness and Integrity in Decision-Making (June 9, 2021).

U.S. EPA Penalizes Hawaii Fuel Storage Facility for Violating Oil Spill Prevention Requirements (June 8, 2021).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies—Actions and Notices (Pa. Bulletin Vol. 51, No. 24—June 12, 2021)

No relevant actions June 7–11.

Pennsylvania Legislature

HB 637 “An Act authorizing the Department of Environmental Protection to conduct a public comment process on and submit to the General Assembly a measure or action intended to abate, control or limit carbon dioxide emissions by imposing a revenue-generating tax or fee on carbon dioxide emissions.” Re-committed to RULES [House] June 8, 2021.

HB 668 “An Act amending the act of May 31, 1945 (P.L.1198, No.418), known as the Surface Mining Conservation and Reclamation Act, further providing for Mining and Reclamation Advisory Board.” Re-committed to RULES [House] June 8, 2021.

Public hearing on Pennsylvania CO2 and Climate. Held by the Environmental Resources & Energy Committee (June 22, 2021, 9:00 a.m.).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register June 7–11 2021):

Energy Department

86 FR 30453 Notice: “Change in Control [of LNG Entities]” (June 8, 2021).

Environmental Protection Agency

86 FR 31172 Final Rule: “Revisions to the Permit Appeals Process to Restore the Organization and Function of the Environmental Appeals Board [Reverting Several 2020 Changes]” (June 11, 2021).

86 FR 30793 Final Rule–Correction: “Air Plan Approval; Maine; Infrastructure State Implementation Plan Requirements for the 2015 Ozone Standard and Negative Declaration for the Oil and Gas Industry for the 2008 and 2015 Ozone Standards; Correction” (June 10, 2021).

Federal Energy Regulatory Commission

86 FR 31301 Notice: “Combined Notice of Filings #1 [Exempt Wholesale Generator Filings]” (June 11, 2021).

86 FR 31302 Notice: “Combined Notice of Filings [Natural Gas Pipeline Rate and Refund Report Filings]” (June 11, 2021).

86 FR 31305 Notice: “Combined Notice of Filings [Natural Gas Pipeline Rate and Refund Report Filings]” (June 11, 2021).

86 FR 31306 Notice: Combined Notice of Filings #1 [Electric Corporate Filings]” (June 11, 2021).

86 FR 30931 Notice of Complaint: “City of Las Cruces, New Mexico and City of Mesa, Arizona v. El Paso Natural Gas Company, LLC; Notice of Complaint” (June 10, 2021).

86 FR 30927 Notice of Complaint: “Tucson Electric Power Company and UNS Gas, Inc. v. El Paso Natural Gas Company, LLC; Notice of Complaint” (June 10, 2021).

86 FR 30926 Notice: “Columbia Gas Transmission, LLC; Notice of Request Under Blanket Authorization and Establishing Intervention and Protest Deadline” (June 10, 2021).

86 FR 30929 Notice: “Modernizing Electricity Market Design; Notice Inviting Post-Technical Conference Comments” (June 10, 2021).

86 FR 30932 Notice: “Texas Eastern Transmission, L.P.; Notice of Availability of the Environmental Assessment for the Proposed Perulack Compressor Units Replacement Project” (June 10, 2021).

86 FR 31002 Notice: “Pipeline Safety: Statutory Mandate to Update Inspection and Maintenance Plans to Address Eliminating Hazardous Leaks and Minimizing Releases of Natural Gas from Pipeline Facilities” (June 10, 2021).

86 FR 30598 Notice of Complaint: “Southwest Gas Corporation v. El Paso Natural Gas Company, LLC; Notice of Complaint” (June 9, 2021).

86 FR 30457 Notice: “Pacific Gas and Electric Company; Notice of Intent to File License Application, Filing of Pre-Application Document, Approving Use of the Traditional Licensing Process” (June 8, 2021).

86 FR 30314 Notice: “Climate Change, Extreme Weather, and Electric System Reliability; Supplemental Notice of Technical Conference” (June 7, 2021).

86 FR 30312 Notice: “Combined Notice of Filings #1 [Electric Corporate Filings]” (June 7, 2021).

86 FR 30314 Notice: “Combined Notice of Filings [Natural Gas Pipeline Rate and Refund Report Filings] (June 7, 2021).

86 FR 30371 Notice: “Hazardous Materials: The New York State Department of Environmental Conservation Requirements on Gasoline Transport Vehicles” (June 7, 2021).

Land Management Bureau

86 FR 30548 Final Rule: “Onshore Oil and Gas Operations and Coal Trespass-Annual Civil Penalties Inflation Adjustments” (June 9, 2021).

Senate Energy and Natural Resources Committee:

No relevant actions June 7–11.

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In 2020, Natural Gas Exports and Natural Gas for Electricity Reached Record Highs, US Energy Information Administration