Oil and Gas UpdatePermitting/Regulating IssuesGood News for West Virginia’s Oil and Gas ProducersApril 11, 2022 The 2022 legislative session resulted in the passage of two bills of significance to oil and gas operators. First, Senate Bill 650 was passed (effective June 30, 2022). With this bill, the 2018 Co-Tenancy Modernization and Majority Protection Act is modified to eliminate the requirement that there be seven or more cotenants in order to utilize the provisions of the Act. Thus, the Act is now… INJUNCTION ISSUED BY MONTANA COURT APPEARS TO PROHIBIT U.S. ARMY CORPS OF ENGINEERS FROM AUTHORIZING ANY UTILITY LINE ACTIVITIES UNDER NATIONWIDE PERMIT 12 UNTIL COMPLETION OF ENDANGERED SPECIES ACT REVIEWApril 20, 2020 In a case challenging the U.S. Army Corps of Engineers’ approval of the Keystone XL pipeline, a federal district court in Montana issued a sweeping injunction last week that, on its face, seems to prohibit the Corps from approving any activities under its Nationwide Permit 12 (“NWP 12”), which authorizes discharges of dredged or fill material associated with utility line activities, until it… Federal Court Rejects Use of Virginia County Flood Ordinance to Limit Natural Gas Pipeline ConstructionApril 2, 2020 A federal court in Virginia has ruled that a county’s attempt to impede an interstate gas pipeline with a floodplain ordinance is preempted by the federal Natural Gas Act. See Atlantic Coast Pipeline, LLC v. Nelson County Board of Supervisors, No. 3:18-00115 (W.D. Va. March 9, 2020). The Atlantic Coast Pipeline (“ACP”) holds a certificate from FERC under the Natural Gas Act to construct and operate… West Virginia Enhances Penalties for Trespass and Damages to Critical InfrastructureApril 1, 2020 The West Virginia Legislature has adopted a West Virginia Critical Infrastructure Protection Act. See W. Va. Code §61-10-34 (copy available at https://legiscan.com/WV/text/HB4615/2020). The new Act establishes three categories of criminal actions concerning “critical infrastructure”.
Pennsylvania Supreme Court Affirms Application of Rule of Capture to Hydraulic FracturingJanuary 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 Offices at Odds Over Response to FERC Greenhouse Gas InquiryAugust 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… Federal Court Upholds Constitutionality of Ohio's Forced Unitization Law - R.C. 1509.28June 17, 2018 In Kerns v. Chesapeake Exploration, LLC., N.D.Ohio No. 5:18 CV 389, 2018 WL 2952662, the United States District Court for the Northern District of Ohio held that unitization pursuant to R.C. 1509.28, Ohio’s “forced unitization” statute, did not constitute a taking under the Fifth Amendment, the Fourteenth Amendment, or 42 U.S.C. § 1983. In Kerns, landowners filed suit against Chesapeake… PA Supreme Court Rejects PADEP's Theory of Limitless Civil Penalties for "Continuing Violation" of Clean Streams LawApril 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 FurtherJanuary 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 certificationDecember 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 SpurOctober 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 LawsuitsSeptember 7, 2017 On August 23rd, 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… |
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