Methane emissions are a chief concern across the oil and gas value chain. Gary Steinbauer and Sean McGovern, both shareholders with Babst Calland, discuss methane mitigation and how players in the energy space can best handle it in this video, divided into three segments.
In the first segment, Steinbauer discusses the Biden administration’s approach to methane emissions in the energy sector, including proposed regulatory changes in the EPA’s Methane Rule.
In the second segment McGovern discusses abandoned and orphaned wells, how they are being plugged, and the help that operators can receive from the Bipartisan Infrastructure Law that passed in 2021.
In the final segment, both attorneys offer step-by-step advice to operators in Appalachia trying to navigate a slew of updated regulations.
View the three-part video, here.
On April 12, 2018, the Fourth Circuit Court of Appeals became the second federal appellate court to recognize the so-called groundwater “conduit theory” of liability under the Clean Water Act. The decision in Upstate Forever v. Kinder Morgan Energy Partners, L.P., No. 17-1640, has broad implications for many industries. Please read more about the decision in this alert.
In Woodhouse Hunting Club, Inc. v. Hoyt, an unpublished opinion filed February 2, 2018, the Pennsylvania Superior Court upheld the practice of “title washing” of unseated land in Pennsylvania. Prior to January 1, 1948, title washing occurred through a tax sale of unseated land from which oil, gas and/or minerals (the “subsurface estate”) had been previously severed. If the subsurface estate had not been separately assessed, the tax sale of the unseated land would extinguish the prior severance and vest the tax sale purchaser with full ownership in the surface and subsurface estates. If the oil and gas had been separately assessed, then the tax sale of the surface would have no effect on the subsurface estate. After January 1, 1948, mineral estates were no longer separately assessed from the surface in Pennsylvania and title washing could no longer occur. In 2016, the Pennsylvania Supreme Court upheld the practice of “title washing” of unseated or unimproved land in Pennsylvania. Herder Spring Hunting Club v. Keller, 143 A.3d 358 (Pa. 2016).
Prior to the Superior Court ruling, the trial court had quieted title in favor of Woodhouse Hunting Club, Inc. based upon the Club’s argument that Hoyt did not own subsurface mineral rights due to a 1902 title wash. In issuing its ruling in Hoyt, the Superior Court noted that the Herder Spring decision addressed and disposed of all of Hoyt’s issues in the case. Therefore, the Superior Court relied on the holding in Herder Spring in affirming the trial court’s decision to grant summary judgment and quiet title in favor of Woodhouse Hunting Club, Inc.
Since its enactment in 1972, the federal agencies who administer the Clean Water Act (the Act), the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (the Corps), have taken the position that the definition of “waters of the United States” governed by the Act (also known as “jurisdictional waters”) does not include groundwater. Regulation of groundwater therefore falls outside the scope of the Act. To read more: click here.
On January 22, 2018, the U.S. Supreme Court unanimously held that lawsuits challenging the Obama administration’s 2015 Clean Water Rule (Rule) – a landmark revision to the definition of “waters of the United States” (WOTUS) that arguably expanded the scope of the federal government’s authority under several regulatory programs, including those associated with wastewater discharges and dredge/fill activities under the Clean Water Act (CWA) – must be filed in federal district courts instead of the federal courts of appeal. Nat’l Assoc. of Mfrs. v. Dept. of Def., No. 16-299 (Jan. 22, 2018) (NAM). While the Supreme Court’s decision in NAM did not address the merits of the lawsuits challenging the Rule, it did determine the appropriate forum for those legal challenges. To read more: click here.
On November 13, 2017, the Pennsylvania Environmental Hearing Board issued its second opinion analyzing Article I, Section 27 of the Pennsylvania Constitution, commonly known as the Environmental Rights Amendment, in light of the Pennsylvania Supreme Court’s June 20, 2017 decision in Pennsylvania Environmental Defense Foundation v. Commonwealth (PEDF). In Friends of Lackawanna v. DEP and Keystone Sanitary Landfill, EHB Dkt. No. 2015-063-L (November 10, 2017) the EHB applied the principles set out in PEDF and upheld a landfill permit renewal.
Read more.
On October 14, 2017, the DEP published notices of availability for a trio of draft Technical Guidance Documents (TGD) in the Pennsylvania Bulletin. Each of these TGDs proposes policy departures from current practices in both the form and substance of the respective TGD. Two of them, Policy for the Development and Publication of Technical Guidance and Policy for the Development and Review of Regulations, are significantly less detailed than their predecessor TGDs. For instance, the draft TGDs omit internal procedural steps and checkpoints involved in the DEP’s promulgation of new technical guidance documents and regulations. The revisions, if finalized, will affect those regulated and public entities who routinely participate in the DEP’s TGD and regulatory development process.
Read more.
The Pennsylvania Supreme Court declared the last remaining challenged sections of Act 13 of 2012 to be invalid in an opinion issued September 28, 2016 in the Robinson Township v. Commonwealth line of cases. Read more about it in our Administrative Watch.
Pennsylvania Governor Tom Wolf announced on Friday that he accepted the resignation of John Quigley as Secretary of the Department of Environmental Protection. The Governor thanked Mr. Quigley for his service to the commonwealth and stated that, effective immediately, Patrick McDonnell will serve as Acting Secretary of the DEP. Most recently, Mr. McDonnell was the DEP’s director of policy.
On February 3, 2016, the Pennsylvania Environmental Quality Board (EQB) adopted significant revisions to the Commonwealth’s oil and natural gas regulations by a vote of 15 to 4. EQB’s vote formally splits current Chapter 78 (Oil and Gas Wells) into new Chapter 78 (Conventional Oil and Gas Wells) and Chapter 78a (Unconventional Wells). Most of the significant revisions in the rulemaking package address Subchapter C (Environmental Protection Performance Standards), but the final rulemaking amends other Subchapters within Chapter 78 as well. Specifically, the revisions would alter or create new obligations for permit applications and renewals, water supply replacement, predrilling surveys and reviews, erosion and sediment control, water management plans, emergency response plans, wastewater management, disposal of drill cuttings, site restoration, spills and releases, and production reporting. In addition, the rulemaking includes 25 different requirements for electronic applications, electronic notifications, and electronic submittals.
Several amendments were offered from the floor but defeated.
If the rulemaking successfully completes review at the Pennsylvania Independent Regulatory Review Commission, the appropriate legislative standing committees, and the Attorney General’s Office, the revisions will become effective upon publication in the Pennsylvania Bulletin.
The Ohio Oil and Gas Commission rendered a decision on August 12, 2015, affirming two orders of the Chief of the Division of Oil and Gas Resources Management that suspended operation of an injection well operated by American Water Management Services in Trumbull County, Ohio. The orders, issued in September, 2014, were based upon two seismic events near the well that were not felt on the surface and caused no property damage. American Water argued on appeal that the orders exceeded the Chief’s authority to suspend permits in the absence of regulatory violations and were unreasonable given the low magnitude of the events and American Water’s proposal to resume operations under a comprehensive plan to monitor seismic events and cease operations if seismic events occur at specified levels. The Commission rejected those contentions, finding that the Chief has inherent authority to suspend permits to protect public health and safety even where the permit holder has not violated applicable regulatory requirements. The Commission also found that the Chief acted reasonably due to a justifiable concern that the two low-level seismic events may be predictive of larger events that may jeopardize public health and safety.
Ohio EPA, the Ohio Division of Oil and Gas Resources Management, and the Ohio Department of Health, on November 17, 2014, jointly issued a four-page guidance letter on how Ohio regulates the landfill disposal of oil and gas production waste. The letter addresses what waste is defined as solid waste that must be disposed in landfills, classification of certain drill cuttings as not constituting regulated solid waste, and substances classified as TENORM that must be analyzed for radioactivity prior to landfill disposal. The letter can be accessed on Ohio EPA’s website at http://epa.ohio.gov/Portals/0/Drilling%20Waste%20Ltr.pdf.
Veteran attorneys Timothy Miller from Robinson & McElwee, and Christopher ‘Kip” Power, Mychal Schulz and Robert Stonestreet from the Charleston office of Dinsmore & Shohl have joined forces with Babst Calland in providing senior-level legal counsel in key practice areas including environmental, litigation and employment. The addition of the new attorneys and staff will double the size of Babst Calland’s Charleston office which opened in 2011. For more information, please visit the firm’s website.
Pennsylvania Senate Bill 1378 was recently referred to the Senate’s Environmental Resources and Energy Committee. If adopted, the bill would require the Environmental Quality Board to differentiate regulations between those relating to conventional oil and gas wells and those relating to unconventional gas wells under Title 58 of the Pennsylvania Consolidated Statutes and other related laws. The Bill defines “conventional oil and gas well” as including any of the following:
(i) a well drilled to produce oil;
(ii) a well drilled to produce natural gas from formations other than shale formations;
(iii) a well drilled to produce natural gas from shale formations located above the base of the Elk Group or its stratigraphic equivalent;
(iv) a well drilled to produce natural gas from shale formations located below the Elk Group where natural gas can be produced at economic flow rates or in economic volumes without the use of vertical or non-vertical well bores stimulated by hydraulic fracture treatments or by using multilateral well bores or other techniques to expose more of the formation to the well bores; and
(v) irrespective of formation, a well drilled for collateral purposes, such as monitoring, geologic logging, secondary and tertiary recovery or disposal injection.
The Bill defines an “unconventional gas well” in the same manner as in the Oil and gas Act of 2012 (Act 13), which is a bore hole drilled for the purpose of producing gas from an unconventional formation (existing below the base of the Elk Sandstone or geologic stratigraphic equivalent where natural gas generally cannot be produced at economic flow rates or in economical volumes except by vertical or horizontal well bores stimulated by hydraulic fracture treatments or by using multilateral well bores or other techniques to expose more of the formation to the well bore).
The Ohio Department of Health has issued guidelines for sampling and analysis of Technologically Enhanced Naturally Occurring Radioactive Material (TENORM) commonly found in drilling wastes. The guidelines were issued in conjunction with Ohio House Bill 59, which required the Director of Health to adopt rules establishing requirements governing TENORM.