Category Archives: Regulatory

Subscribe to Regulatory RSS Feed

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), … 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 … 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 … 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 … 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 … Continue Reading

More on Methane: Adjacency, Consistency, and a Major Source of Confusion

On Tuesday, August 18, 2015, the U.S. Environmental Protection Agency (“EPA”) issued a package of four proposals to control methane emissions from the oil and gas industry. By far, EPA’s proposed New Source Performance Standards (“NSPS”) have garnered the most attention. And, in many respects, the attention is warranted. The NSPS would require the aggressive deployment of costly controls … Continue Reading

EPA’s Estimate of the “Social Cost of Methane” Used to Justify New Source Performance Standards for the Oil and Natural Gas Industry

On Tuesday, August 18, 2015, the U.S. Environmental Protection Agency (“EPA”) issued proposed New Source Performance Standards (“NSPS”) under the Clean Air Act covering methane and volatile organic compound (“VOC”) emissions for certain equipment, processes, and activities in the oil and natural gas source category—including hydraulic fracturing and refractured oil wells that can contain natural … Continue Reading

Hydraulic Fracturing: State Regulatory Roundup Vol. 44

Fracking Insider Readers: We are pleased to bring you Volume 44 of our State Regulatory Roundup, including updates in California, Louisiana, and Maryland. 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 … Continue Reading

OSHA Intensifies Its Focus On the Upstream Oil & Gas Industry

Partner Wayne D’Angelo and associate Catherine Wilmarth authored the IPAA Access Magazine Summer 2015 article “Workplace Safety: OSHA Ramps Up Investigations and Enforcement in the Upstream Industry.” The article discusses the U.S. Occupational Health Administration’s increased focus on the upstream oil and gas industry as shown by the sector’s inclusion in the Severe Violator Enforcement … Continue Reading

Fish & Wildlife Service Issues Notice of Intent to Regulate Incidental Take of Migratory Birds

On May 26, 2015, the U.S. Fish and Wildlife Service (“FWS”) published a notice of its intent to evaluate potential ways to regulate incidental takes of migratory birds under the Migratory Bird Treaty Act (“MBTA”). The Notice of Intent specifically named oil, gas, and wastewater disposal pits and methane and other gas burner pipes as … Continue Reading

EPA’s Long-Awaited Study Finds that Fracking Can be Conducted Safely, Responsibly, and Without Adversely Impacting Drinking Water

After five years, the U.S. Environmental Protection Agency announced that its long-awaited  assessment of the potential impacts of hydraulic fracturing on drinking water resources identified no “widespread”  or “systemic” impacts. The assessment (completed pursuant to Congressional mandate) follows water through all fracking phases—water acquisition, chemical mixing, well injection, collection of wastewater, and wastewater treatment and … Continue Reading

Obama Administration Releases First Installment of the Quadrennial Energy Review

The Obama Administration released the first installment of its Quadrennial Energy Review (“QER”), which focuses on energy transmission, storage, and distribution (“TS&D”). The QER was first launched in Obama’s Climate Action Plan in June 2013, and is designed to provide an overview of and guidance for federal energy policy. The QER takes the form of … Continue Reading

Federal Government Releases Regulations for Fracking on Federal Lands

Last Friday, the Department of Interior released its final rule updating the regulations that govern hydraulic fracturing on federal public and American Indian lands. It covers standards for wells and well construction, disposal of wastewater, and disclosure of chemicals used in the fracking process. These regulations have been in the works since 2012, and Interior … Continue Reading

Critical Habitat Designations Pose Substantial Threat to Oil and Gas Development

The federal government can restrict access to public lands for oil and gas drilling purposes through a number of means. Recently, President Obama’s proposal to designate millions of acres of land in Alaska as wilderness made the national press, as did his recent designation of forestlands in California as a national monument and his outright … Continue Reading

Enviros Sue to Subject E&P Industry to Chemical Release Reporting Regime

Several environmental groups have sued EPA, seeking a decision on a 2012 petition (“2012 Petition”) they filed with the agency, which requests that EPA add oil and gas exploration wells to the list of facilities required to report releases of toxic chemicals to the Toxics Release Inventory (“TRI”) pursuant to the Emergency Planning and Community … Continue Reading

EPA’s National Enforcement Initiative Data Tracks Agency Action in the Energy Industry

Recently released data from the Environmental Protection Agency (EPA)’s National Enforcement Initiative demonstrate how intensely EPA’s enforcement program is focused on the oil and gas industry, especially within key shale plays and basins.[1] More specifically, this map overlays the location of concluded enforcement actions and inspections and evaluations between fiscal years 2011 and 2014 over … Continue Reading