Oil and Gas Update

Technological Advancements Raise Questions to Ownership of Produced Water from Hydraulic Fracturing

December 27, 2023

Produced water is a byproduct generated during hydraulic fracturing, or “fracking.” During the fracking process, the extracting party fractures bed rock by injecting water into the subsurface at a high pressure to extract oil and natural gas. Upon completion, a slurry byproduct remains known as “produced water.” Originally seen as a waste product with limited uses, the extracting party typically…

U.S. Supreme Court Allows Pipeline to Cross Appalachian Trail

July 13, 2020

In a major victory for natural gas pipeline development, the Supreme Court ruled 7-2 that the U.S. Forest Service had authority to grant a right-of-way to the Atlantic Coast Pipeline (“ACP”) to extend its pipeline under a portion of the Appalachian Trail (“AT”) located within the George Washington National Forest.  See U.S. Forest Service v. Cowpasture River Preservation Ass’n. and Atlantic Coast…

Pennsylvania Supreme Court Affirms Application of Rule of Capture to Hydraulic Fracturing

January 29, 2020

On January 22, 2020, the Supreme Court of Pennsylvania reached a long-awaited decision regarding hydraulic fracturing and affirming the principle known as the “rule of capture.” In Briggs v. Southwestern Energy Production Company, the Supreme Court concluded that the rule of capture is applicable where hydraulic fracturing is utilized, and that said use, absent evidence of physical invasion, is…

EPA Proposes to Reconsider New Source Performance Standards for Oil & Gas Emissions

October 24, 2018

In 2016, EPA finalized new source performance standards for emissions of greenhouse gases in the form of limitations on methane and volatile organic compounds (“VOC”) from the oil and natural gas sector.  We have written about that rule before: “Obama Announces New Rules on Oil & Gas Industry’s Methane Emissions,” “EPA Withdraws 2016 Information Request on Methane Emissions from the Oil and Gas…

EPA Offices at Odds Over Response to FERC Greenhouse Gas Inquiry

August 7, 2018

In December of 2017, FERC announced that it would review its policies on certification of natural gas pipeline projects. In particular, it announced that it would review its 1999 Policy Statement on Certification of New Interstate Natural Gas Pipeline Facilities (available at https://www.ferc.gov/legal/maj-ord-reg/policy-statements.asp). Then, on April 19, 2018, FERC initiated a "notice of…

PA Supreme Court Rejects PADEP's Theory of Limitless Civil Penalties for "Continuing Violation" of Clean Streams Law

April 25, 2018

We have previously written about a declaratory judgment action filed by a natural gas producer against the Pennsylvania Department of Environmental Protection (“PADEP”) challenging the agency’s interpretation of Pennsylvania’s Clean Streams Law. In that proceeding, the gas producer sought pre-enforcement judicial review of PADEP’s legal interpretation of what constitutes a “continuing violation”…

Supreme Court of Ohio Declines to Recognize Implied Covenant to Explore Further

January 9, 2018

In Alford v. Collins-McGregor Operating Co., 2018-Ohio-8, the Supreme Court of Ohio decided that Ohio does not recognize an implied covenant to explore further, separate and apart from the implied covenant of reasonable development. In Alford, the Appellants were landowners and lessors of an oil and gas lease with Appellees. The lease was held by the production of a single well drilled to the…

Sixth Circuit stays NEXUS pipeline construction in Green, Ohio pending review of Ohio EPA’s CWA §401 certification

December 19, 2017

On November 22, 2017, in one of many ongoing challenges to pipeline construction, a three-judge panel of the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”), in a 2-1 decision, granted an emergency stay of pipeline construction within the city of Green, Ohio (“Green”) pending a decision on the merits of Green’s petition seeking review of the Clean Water Act (“CWA”) §401…

FERC Sidesteps New York’s Denial of CWA §401 Certification Giving Go-Ahead to Millennium Pipeline Company Spur

October 10, 2017

“For any company desiring to construct a natural gas pipeline, all roads lead to FERC.” Millennium Pipeline Company, L.L.C. v. Seggos, 860 F.3d 696, 698 (D.C. Cir. 2017).

In a significant and already controversial decision issued in mid-September, the Federal Energy Regulatory Commission (“FERC”) granted approval for Millennium Pipeline Company L.L.C. (“Millennium”)…

One Project, Many Lawsuits

September 7, 2017

On August 23^rd, the federal Court of Appeals for the Third Circuit affirmed a decision by the Corps of Engineers to issue a Clean Water Act §404 permit to Tennessee Gas Pipeline Company to construct about 13 miles of “looped” pipeline in two counties in northeastern Pennsylvania (read the JK Energy & Environmental Monitor summary of Delaware Riverkeeper Network v. U.S. Army Corps of…

Sierra Club Links Up with Libertarian Landowners in Continued Opposition to Gas Development

September 7, 2017

Opponents of natural gas development do not have the resources to challenge individual well permits in the Marcellus and related shale gas basins. Instead, they understand that the future of the industry depends on assembling the rights to draw gas from fractionated ownership and on the ability to attract higher prices by building transmission pipelines to carry the gas to new markets.  So, the…

Third Circuit Rejects Challenge to Corps of Engineers’ Permit for Pipeline

September 6, 2017

On August 23, the Third Circuit Court of Appeals affirmed the Corps’ decision to issue a Clean Water Act § 404 “fill” permit to a pipeline developer for 13 miles of pipeline in Pennsylvania. See Delaware River Network v. U.S. Army Corps of Engineers, No. 17-1506 (3rd Cir. Aug. 23, 2017).  The Riverkeeper’s challenge was an original action filed in the 3rd Circuit pursuant to the…