UPDATE: Texas RRC Agrees Earthquakes Not Caused by EnerVest, XTO Injection Wells

In a November 3 decision, the Texas Railroad Commission (RRC) agreed with an administrative law judge (ALJ) that two wastewater injection wells, one operated by EnerVest Operating LLC and the other by Exxon Mobil Corp. subsidiary XTO Energy Inc., did not cause a series of earthquakes near the towns of Reno and Azle from late 2013 through spring of 2014. (See our coverage of the EnerVest case here and the XTO case here.) The Commissioners’ unanimous decision found there was not enough evidence to link the wells to the seismic activity, and determined that the companies should be allowed to maintain their well permits. Continue Reading

Compliance with the Clean Air Act Increasingly Unlikely to Protect Companies from Nuisance Suits

A recent decision out of the Sixth Circuit found that the Clean Air Act (“CAA”) does not preempt common law claims brought against an emitter based on the law of the state in which the emitter operates. This decision, Merrick v. Diageo Americas Supply, Inc., No. 14-6198, 2015 WL 6646818 (6th Cir. Nov. 2, 2015), highlights the increasingly fractured regulatory landscape of preemption protection from state-law nuisance claims. Continue Reading

Sage Grouse Non-Listing Decision Highlights New Challenges to Industry

On September 22, 2015, the U.S. Fish and Wildlife Service (“FWS”) announced its determination that the greater sage-grouse does not warrant protection under the Endangered Species Act (“ESA”) – i.e., the sage grouse does not face the risk of extinction now or in the foreseeable future. While initially appearing to be a win for industry and landowner groups, many have questioned whether the onerous land use restrictions required to obtain the not warranted decision portend a more troubling approach to listing decisions. Continue Reading

EPA Issues Final Residual Risk Rule for Refineries

On September 29, 2015, the U.S. Environmental Protection Agency (EPA) issued groundbreaking new regulations to control hazardous air pollutant (HAP) emissions from petroleum refineries, including a first ever requirement for fenceline monitoring and public reporting of monitoring data. The final rule arises from the “residual risk and technology” review of existing HAP standards for refineries as mandated by the Clean Air Act.

The chief new requirement requires continuous monitoring of benzene concentrations at the fenceline of refinery facilities to ensure that refineries appropriately manage fugitive source emissions (e.g., from leaking equipment and wastewater treatment). Monitors must encircle the facility to better identify sources of pollution under any wind direction. Alternative monitoring methods may be considered in the future as technology advances. Monitoring data will be available to the public through a new EPA database. Corrective action will be required if emissions detected by the fenceline monitoring exceed prescribed levels. Continue Reading

EPA Denies Petition to Regulate Carbon to Address Ocean Acidification under TSCA

The U.S. Environmental Protection Agency (EPA) promptly rejected a petition by the Center for Biological Diversity (CBD) requesting that the agency undertake a novel expansion of its authority under the Toxic Substances Control Act (TSCA) to regulate carbon dioxide to address ocean acidification (OA). Specifically, the CBD petition, filed on June 30, 2015, requested EPA to find that carbon dioxide posed an unreasonable risk, particularly due to OA concerns, and initiate a rulemaking to regulate emissions under TSCA Section 6, or, alternatively, to issue a TSCA Section 4 rule to require testing to determine toxicity, persistence, and other characteristics of carbon dioxide emissions that affect human health and the environment. Continue Reading

Hydraulic Fracturing: State Regulatory Roundup Vol. 45

Fracking Insider Readers: We are pleased to bring you Volume 45 of our State Regulatory Roundup, including updates in Michigan, Pennsylvania, and Texas. As we explained in earlier volumes, we designed the Roundup to provide quick overviews on state regulatory activity. If you have any questions on any of these summaries, please do not hesitate to ask. Continue Reading

Second Railroad Commission Decision Agrees Injection Well Not Likely Contributor to Earthquakes

Texas Railroad Commission examiners have determined that a well operated by EnerVest Operating LLC likely did not contribute to a series of earthquakes in the state, mirroring a similar determination made on August 31 in a proceeding involving Exxon Mobil Corp. subsidiary XTO Energy Inc. (see our coverage of the XTO case here). Continue Reading

Railroad Commission Examiners Find Injection Well Not Likely Contributor to Earthquakes

The controversy around whether wastewater injection wells cause earthquakes was finally put to legal scrutiny in a recent proceeding before administrative hearing examiners (Examiners) with the Texas Railroad Commission, which regulates oil and gas production in the state. The Examiners found that an injection well owned by XTO Energy Inc. likely did not influence a series of earthquakes that occurred near the towns of Reno and Azle from late 2013 through spring of 2014. The Examiners recommended that the permits held by XTO, an ExxonMobil subsidiary, not be revoked. Continue Reading