The Pennsylvania Supreme Court has ruled that several critical provisions of Act 13, the General Assembly’s 2012 comprehensive update to the former Oil and Gas Act, are unconstitutional. In addition to invalidating a key section of Act 13 placing limits on the regulatory authority of local governments, the Court’s ruling also struck down a number of the legislation’s well location restrictions administered by the Department of Environmental Protection (DEP).
The Commonwealth Court, in a 4-3 decision, had declared the limits on the authority of local governments in Section 3304 unconstitutional on the grounds that they violated substantive due process, holding that it allowed incompatible uses in zoning districts, was inconsistent with municipal comprehensive plans, did not protect the interests of neighboring property owners, altered the character of the neighborhood, and made irrational classifications. The Supreme Court affirmed, albeit on different grounds. The majority opinion held that the limits on local governments violated Article 1, Section 27 of the Pennsylvania Constitution, commonly known as the “Environmental Rights Amendment.” The Supreme Court also invalidated Section 3303 of Act 13, which provided that “environmental acts” are of statewide concern and preempt local regulation of oil and gas operations regulated by such acts. Sections 3305 through 3309 were enjoined to the extent that they enforced any section of Act 13 found to be invalid.
Additionally, the Commonwealth Court held Section 3215(b)(4) to be null and void because it gave the DEP insufficient guidance to waive setback requirements and allowed the DEP to make legislative policy judgment. Upon review, the Supreme Court affirmed. However, the Supreme Court held that all of Section 3215(b), including the setbacks from waters of the Commonwealth, is invalid because the waiver provision was not severable from the remainder of that section. The implications of this are unclear, as the DEP and well permit applicants now have no defined setbacks from surface waters or wetlands under Act 13 or any other statute. The Supreme Court also found that Section 3215(d), which allowed the DEP to consider comments from municipalities in its permitting decisions, were invalid and that Sections 3215(c) and (d) are invalid to the extent that they enforce Sections 3215(b) and (d).
For a more in-depth analysis, see Babst Calland’s recent Administrative Watch.
On August 26, 2013, Hilcorp Energy Company (Hilcorp) filed a complaint and application requesting that the Pennsylvania Environmental Hearing Board (PAEHB) issue an order to establish well spacing and drilling units pursuant to the Oil and Gas Conservation Law of 1961 for a 3,267 acre reservoir of natural gas in the Utica-Point Pleasant formation beneath Mercer and Lawrence counties, known as the “Pulaski Accumulation”, since Hilcorp was unable to obtain leases from all property owners in this parcel. After conducting a prehearing conference and considering legal memoranda by the Pennsylvania Department of Environmental Protection (PADEP) and Hilcorp regarding whether the PAEHB had original jurisdiction to issue well spacing and drilling unit orders under the Oil and Gas Conservation Law, the PAEHB’s Chief Judge Renwand issued an opinion and order on November 20, 2013 dismissing Hilcorp’s well spacing and drilling unit application because the PADEP, and not the PAEHB, has original jurisdiction to issue well spacing and drilling unit orders under the Oil and Gas Conservation Law. Chief Judge Renwand’s opinion noted that the Oil and Gas Conservation Commission, the since-abolished entity established by the Oil and Gas Conservation Law to issue well spacing and drilling unit orders, “was a very specialized and technical agency” with the “power to file enforcement actions”, issue permits, hold public hearings, and conduct other regulatory type actions. According to Chief Judge Renwand, these powers, duties, and responsibilities of the former Oil and Gas Conservation Commission are analogous to the current powers, duties, and responsibilities of the PADEP and not related to the PAEHB’s role “as an independent quasi-judicial agency” that is “completely independent of the [former, now PADEP] Department of Environmental Resources.” Judge Mather wrote a concurring opinion noting that the PADEP currently has “effective and binding regulations” at 25 Pa. Code Chapter 79 that implement the Oil and Gas Conservation Law and direct the PADEP “to issue orders establishing well spacing and drilling units, in the first instance, that can then be appealed to the Board.”
On November 18, 2013, the Third Circuit affirmed a summary judgment ruling out of the Middle District of Pennsylvania in favor of Shell Western Exploration and Production, LP (Shell) in a case captioned as George W. Linder, et al. v. SWEPI, LP, a/k/a Shell Western Exploration and Production, LP; Case No. 13-1674 (3d Cir. November 19, 2013). The plaintiffs conveyed their oil and gas rights for 338 acres to Shell’s predecessor-in-interest via a lease (the Lease). The Lease had a primary term of ten years and, by its terms, would continue in effect past the primary term if productive activity continued on the leasehold. Shell’s predecessor-in-interest unitized an area of 526.94 acres, which included 137.81 acres of the plaintiffs’ 338-acre leasehold. The primary term of the Lease expired in September 2010, but the parties agreed that the Lease continued in effect because Shell continued to engage in productive activity on the leasehold. However, the plaintiffs demanded a delay rental payment for the non-unitized portion of the Lease based on the Lease’s Unitization Clause which provided: “If the total unitized Leasehold acreage is less than 50 percent of the total Leasehold acreage, Delay Rental will continue to be paid on the non-unitized acreage.” Shell agreed to pay the delay rentals for the non-unitized acreage. Both parties then changed their positions a number of times as to whether the Lease remained in effect for the 200.19 acres that were never unitized. The plaintiffs ultimately filed a lawsuit in state court seeking a declaratory judgment that the Lease expired as to the non-unitized acreage. Shell removed the case to the United States District Court for the Middle District of Pennsylvania, and moved for summary judgment in its favor. The District Court granted summary judgment finding that, as a matter of law, the Lease did not expire with respect to the non-unitized acreage.
The plaintiffs then appealed to the Third Circuit with their principal argument being that “upon the occurrence of unitization of less than 50 percent of the entire leasehold, there are as a matter of law two leasehold parcels.” The Third Circuit affirmed the ruling of the District Court holding that the plaintiffs’ position is an “untenable reading of the Lease.” In so holding, the Third Circuit relied upon the “obvious reading” of the Lease terms finding that the Lease continues in effect while operations are conducted on the leasehold, and the Lease refers to the leasehold as a single, undivided entity that is 338 acres in size. Moreover, the Third Circuit quickly dismissed the plaintiffs’ argument that the Lease’s Unitization Clause supports their interpretation. In this regard, the Third Circuit held that this language does nothing to separate the unitized and non-unitized acreages—rather, it simply obligated Shell to pay a delay rental on the non-unitized acreage. Additionally, citing to Pennsylvania case law, the Third Circuit held that Shell’s failure to timely pay the delay rental did not constitute a material breach of the Lease because a brief delay in payment where the Lease contains no “time-is-of-the-essence” provision does not amount to a material breach. Lastly, the Third Circuit held that Shell did not surrender the non-unitized acreage by initially agreeing in a letter to do so, because the Lease’s surrender clause requires the recording of a Surrender of Lease as a necessary prerequisite to the legal surrender of any rights. Accordingly, based on what it viewed as the obvious interpretation of the Lease provisions, the Third Circuit affirmed the District Court’s decision to grant summary judgment in favor of Shell.
The Pittsburgh Post-Gazette reports that Allegheny County Council rejected a proposed three-year moratorium on natural gas drilling within county parks. The measure failed 2-9, with four council members abstaining because of conflicts of interest. The bill was originally proposed by Barbara Daly Danko, D-Regent Square, in September.
On October 24, 2013, the U.S. District Court for the Middle District of Pennsylvania denied Columbia Gas Transmission, LLC’s (Columbia) request to use the eminent domain authority provided in the Natural Gas Act to acquire new pipeline easements from certain landowners in York County, Pennsylvania. Columbia filed the request to facilitate its efforts to replace and relocate portions of an existing gas pipeline in order to comply with the Pipeline and Hazardous Materials Safety Administration’s integrity management program requirements in Subpart O of 49 C.F.R. Part 192. Although the company’s efforts obtain the necessary easements through private negotiation had proved unsuccessful, the Court concluded that Columbia had not shown that the Federal Energy Regulatory Commission’s regulations for performing activities under a blanket certificate would allow the easements to be acquired through the use of eminent domain.
The United States District Court for the Western District of Pennsylvania has accepted in part the recommendations of a magistrate judge, and has granted the motion to certify two classes of plaintiffs in Pollock v. Energy Corp. of America. A third class was denied certification. In February, District Judge Joy Flowers Conti ruled on a summary judgment motion.
The plaintiffs, owners of various oil and gas interests under lease to Energy Corporation of America (ECA), brought suit for the alleged miscalculation of royalty payments by ECA. The classes, as certified, now encompass two groups: 1) “all Pennsylvania lessors holding an oil and gas lease with ECA for which interstate pipeline service charges were deducted prior to March 26, 2012;” and 2) “all Pennsylvania lessors holding an oil and gas lease with ECA for which marketing fees were deducted from royalties prior to March 26, 2012.” The third requested class, based on the failure to pay royalties on gas used as plant fuel, was denied.
As we reported back in May of this year, a review team assembled by the State Review of Oil & Natural Gas Environmental Regulations (“STRONGER”) completed an in-state review of Pennsylvania’s Oil and Gas Regulatory Program. STRONGER’s review team recently published its final written report regarding its May 2013 review on its website that highlights the strengths of Pennsylvania’s program and identifies several recommendations for the program to consider moving forward. Some strenths of Pennsylvania’s program included its increase of “staff levels to address additional permitting, inspection, and enforcement activities related to increased unconventional well development,” as well as its initiation of a “comprehensive evaluation of radiation levels specificially associated with unconventional gas development” (generally referred to as the “TENORM Study”). In addition to recommending that Pennsylvania complete its TENORM Study, the STRONGER report also included a recommendation that Pennsylvania “maintain consistent standardized data for tracking vioaltions and enforcement actions.” According to the Pennsylvania Department of Environmental Protection’s press release, the Department will work to implement these recommendations in addition to other recommendations made in STRONGER’s final report.
Utilizing technologies that created the Marcellus Shale boom in Western Pennsylvania, smaller operators in the region are beginning to rework their shallow wells, as well as drill new ones, to explore and produce shallower formations. Rather than drilling to depths up to or greater than one mile to reach the oil and gas in the unconventional shale plays like the Marcellus and the Utica Shale, some companies are stopping at shallower depths, and continuing to produce the once robust conventional sandstones, such as the Elk Sandstone and the Upper Devonian Shale.
While the production isn’t as great as the more compact and larger Marcellus Shale, the cost to drill (or rework) a shallow well is markedly cheaper, potentially coming in at under $1 million (versus the nearly $10 million it costs to drill a horizontal Marcellus well). Similarly, the shallow wells, thanks in part to the rock into which the wells are drilled being more porous, require far less fluids – shallow wells are using, on average, less than 3% of the frac fluid during the drilling process.
The shallow formations, once the only known formations for area drillers, are seeing a renewed interest thanks in part to the technology and processes that allowed larger companies to drill much deeper into the Marcellus Shale. Early results on the shallow wells is difficult to analyze, as reporting requirements for conventional wells only compel companies to release production data once per year.
U.S. EPA recently revised its oil spill prevention, control, and countermeasure (SPCC) program guidance to help promote consistency in the way SPCC rules are administered by different EPA regions. The SPCC rules mandate the implementation of professionally-developed, facility-wide spill prevention plans, and apply to facilities that meet all of the following: (1) store, transfer, use or consume oil or oil products; (2) store more than 1,320 gallons in above-ground containers or more than 42,000 gallons in buried containers; and (3) have a reasonable potential to discharge oil or oil products to waterbodies or adjoining shorelines. EPA revised the program guidance in response to criticism from EPA’s inspector general. Earlier this year, the inspector general found that EPA regions lacked guidance or direction on coordinating regional responses to oil spills. The regulated community may comment on the revised guidance. Additional information is available here.
Last week, global research firm IHS released a report regarding the economic impact of U.S. unconventional oil and gas production, Bloomberg reported. According to the IHS report entitled America’s New Energy Future: The Unconventional Oil and Gas Revolution and the Economy – Volume 3: A Manufacturing Renaissance, in 2012, unconventional oil and gas activity increased disposable income by an average of $1,200 per U.S. household. This study examined the full energy value chain (upstream, midstream and downstream energy and energy-related chemicals) and the overall contributions on the manufacturing sector and U.S. economy. Based on this examination, U.S. oil and natural gas production has supported 2.1 million jobs and has added nearly $75 billion in federal and state revenues.
The Pennsylvania Environmental Quality Board, the Commonwealth’s environmental rulemaking body, will consider proposed rulemaking to Subchapter C to Chapter 78 of Pennsylvania’s oil and gas regulations during its next meeting on August 27, 2013.
As expected, the recent increase in shale production and exploration has caused a major increase in job creation in the oil and gas industry, recent reports show. According to data released by the Energy Information Administration and the U.S. Department of Labor, over a six year period ending in 2012, industry employment jumped 40%, or approximately 162,000 jobs. By comparison, the entire private sector in America grew by just 1%, or approximately one million jobs.
The Labor Department numbers show that the job creation seen in the “extraction” and “support” subcategories of the industry have grown the most. Extraction jobs, which range from exploration through some aspects of production, grew by nearly 40%. Similarly, support jobs, which are limited to areas like excavation and well construction and maintenance, and do not include housing and manufacturing data, grew by approximately 55% between 2007 and 2012.
The growth in industry employment is necessary to sustain the nation’s rising energy production; over the same six-year period, domestic crude oil production grew 39%, while natural gas production increased by 25%.
As reported by the Pittsburgh Business Times, Pennsylvania Representative Michele Brooks (R-Crawford) issued a memorandum on August 12, 2013 to all House members regarding her intent to introduce two pieces of legislation regarding pooling in the near future. She stated that the legislation would repeal the pooling provisions of the Oil and Gas Conservation Law (Act 359 of 1961) and Section 2.1 of the Oil and Gas Lease Act (Act 60 of 1979 as amended by Act 66 of 2013). Section 2.1 of the Oil and Gas Lease Act authorizes an oil and gas operator to combine contiguous leased acreage for more efficient development unless any such lease expressly prohibits unitization or pooling. Representative Brooks did not indicate when she will introduce the legislation.
The Beaver County Commissioners have approved the creation of a 325-acre tax-exempt zone aimed at enticing Shell to proceed with the construction of an ethane cracker plant in the region. According to one commissioner, “It’s an important piece of the puzzle, but it still doesn’t guarantee a final decision.” Not only would Shell be exempt from property taxes, but also, its earned income, net profits, business privilege, and mercantile taxes would be abated. Read more here.
The Superior Court of Pennsylvania upheld the trial court’s decision in Humberston v. Chevron U.S.A. to grant preliminary objections in favor of Chevron U.S.A., Inc. and Keystone Vacuum, Inc., holding that Chevron and Keysone had the right under the oil and gas lease to construct a fresh-water impoundment and to utilize hydraulic fracturing on the landowner’s property. The landowners argued that Chevron and Keystone violated the terms of the lease because hydraulic fracturing was never contemplated by the parties and the water impoundment was impermissible because it would service neighboring drilling sites.
Looking at several key provisions of the lease, the Superior Court found that the landowner’s arguments were in conflict with the clear and unambiguous language of the contract. The trial court determined that, “[t]he lease clearly provides that the lessee has the right to use as much [of] the surface as is ‘necessary or convenient’ to lessee to explore for, develop and produce oil and gas.” In addition the lease “provides that lessee, in its efforts to explore for, develop and produce oil and gas from the subject premises and from lands which adjoin the subject premises, may use ‘methods and techniques which are not restricted to current technologies.’” The Superior Court agreed that this language leaves no room for doubt that the lease permitted hydraulic fracturing and water impoundments.