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Oil and Gas Update

Pipelines

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

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

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

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

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…

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

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…

Virginia Supreme Court Largely Affirms Right of Pipeline to Conduct Property Surveys and Examinations without Landowner Approval

The Virginia Supreme Court issued two opinions on July 13, 2017, addressing the rights of pipelines to survey property without landowner permission. In the first, Chaffins v. Atlantic Coast Pipeline, LLC, the Court considered what constitutes adequate prior notice by a pipeline company to gain access for surveys and property evaluation in the absence of landowner approval. In the second, Palmer…

California Plaintiffs Seek to Address Climate Change Via State Tort Suits

On July 17, 2017, the governments of California’s Marin and San Meteo counties, as well as the city of Imperial Beach, filed three separate complaints in California Superior Court in their respective counties against 37 oil, gas, and coal companies. We have previously written about similar suits filed by citizen groups, states, and cities in federal court here.

Although most of these suits…

EPA Reconsidering Methane Rule

In an April 18, 2017 letter to oil and gas industry leaders, Environmental Protection Agency (“EPA”) Administrator Scott Pruitt announced that the agency will reconsider its June 3, 2016 methane emissions rule following a petition from three oil and gas industry associations. See EPA Letter here. The industry petition raised objections concerning provisions for receiving an alternative…

Delaware Riverkeeper Asks Third Circuit to Expedite Review of Corps-Issued Permit for Pipeline

We have written before about the effect of the Natural Gas Act on environmental permits issued for pipelines.   Generally, the Natural Gas Act preempts the effect of many local laws on pipelines, but preserves obligations to obtain permits under the Clean Air and Clean Water Acts.  Nonetheless, in 2005, Congress amended the Natural Gas Act to provide that challenges to those permits are to be heard…

South Carolina Federal Court Upholds Distinction Between Point Source and Non-Point Source Pollution

On April 20, 2017, a South Carolina federal district court dismissed an environmental group’s Clean Water Act (“CWA”) citizen suit against Plantation Pipe Line Company, Inc. (“PPL”) and its parent company, Kinder Morgan Energy Partner, L.P., which own a 3,100 mile petroleum pipeline.  The pipeline leaked 369,000 gallons in December 2014.  The leak was repaired within a few…

 

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