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…
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…
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…
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…
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”.
Trespass: It is a misdemeanor to “willfully and knowingly … enter[] property containing a critical infrastructure…
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…
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…
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…
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…
In a decision which may have severe consequences on oil and gas operations not only in Pennsylvania, but nationwide, the Superior Court of Pennsylvania held on April 2, 2018, in Briggs. v. Southwestern Energy Production Company, 2018 PA Super 79 (Apr. 2, 2018) that the “rule of capture” would not preclude liability for trespass of oil and gas operations due to hydraulic fracturing.
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”…
