Kevin A. Ewing

On July 31, 2017, the Federal Energy Regulatory Commission (“FERC”) staff issued new Guidelines for Reporting on Cultural Resources Investigations for Natural Gas Projects. The new guidelines include changes of potential interest and significance to developers (“project sponsors”). In addition to changes in the organization of reports and documents, the guidelines define more detailed expectations for project sponsors, particularly concerning engagement with tribes. It remains to be seen whether the changes lead to improved dialogue with tribes on cultural resources, or more divergence in...

As expected, one of President Trump’s first actions after being sworn in to office was to issue a memorandum outlining his administration’s plans for managing new or pending federal regulations. As shown in the Table below, the memorandum from President Trump’s Chief of Staff, Reince Priebus, to the heads of executive departments and agencies falls generally in line with the initial actions of several recent new Presidents, from Reagan to Obama. With a goal of allowing those in the Trump Administration an opportunity to review midnight regulations, the memorandum orders federal agencies to,...

Today, PHMSA released an advanced notice of proposed rulemaking (ANPRM), announcing that it is considering revising the Hazardous Materials Regulations (HMR) to establish vapor pressure limits for the transportation of crude oil and potentially all Class 3 flammable liquid hazardous materials. The ANPRM is in response to a petition for rulemaking from the New York Attorney General that requested PHMSA establish a nationwide vapor pressure standard for the transportation of crude oil by rail. Going beyond the scope of the NY AG’s petition, the ANPRM asks stakeholders whether any future...

With a new President on the White House doorstep, President Obama has announced a ban – ostensibly permanent – on offshore oil and gas drilling in federal waters along the Eastern seaboard and offshore Alaska. President Obama appears to be relying upon a seldom-used provision of the 1953 Outer Continental Shelf Lands Act (“OCSLA”) 43 U.S.C. §§ 1331 et seq.), which allows the President to withdraw any “unleased lands of the outer Continental Shelf.” Whether the ban proves permanent is likely to be tested politically and legally, as the Trump Administration takes office alongside a Republican-...

On October 19, a federal task force released a Final Report outlining recommendations for industry and government in the wake of the 2015 natural gas leak at Aliso Canyon in southern California. The Interagency Task Force on Natural Gas Storage Safety (“Task Force”), created by Congress in the Protecting our Infrastructure of Pipelines and Enhancing Safety (PIPES) Act of 2016 , convened to analyze the Aliso Canyon incident and to recommend ways to reduce the likelihood of future leaks from underground natural gas storage facilities. The Final Report sets out 44 recommendations for industry...

This week, the Pipeline and Hazardous Materials Safety Administration (PHMSA) released a General Policy Statement announcing its intent to make available to the public a Civil Penalty Policy Framework. Previously only available by request, the civil penalty framework provides insight into the factors PHMSA considers and the ranges of proposed penalties that the agency might issue in civil enforcement cases. Now, PHMSA will maintain the penalty framework on the agency’s website in an effort to provide “greater transparency” to operators and the public during the civil enforcement process...

On October 3, 2016, the Pipeline and Hazardous Materials Safety Administration (PHMSA) announced an Interim Final Rule (IFR) establishing when and how it will issue Emergency Orders to address imminent safety hazards across the oil and gas pipeline industry. See Pipeline Safety: Enhanced Emergency Order Procedures (Docket No. PHMSA-2016-0091). The new procedure allows PHMSA to impose restrictions, prohibitions, and safety measures without prior notice or an opportunity for a hearing. These measures can apply through all or part of the industry, not just to individual facilities or operators...

On June 21, 2016, the U.S. District Court for the District of Wyoming struck down the U.S. Bureau of Land Management’s (BLM’s) hydraulic fracturing regulations, finding that BLM “lacked Congressional authority to promulgate the regulations.” This decision is a win for industry and states’ rights, setting aside a federal rule that is unnecessarily duplicative, burdensome and beyond the scope of BLM’s statutory authority. This is yet another setback for the Obama Administration’s second term regulatory push, as previous industry challenges have resulted in the stay of other major new regulatory...

Earlier today, the Obama Administration adopted an expansive set of mitigation requirements for all its natural resource management agencies. Under the voluntary policy, the Department of Defense, Department of the Interior, Department of Agriculture, Environmental Protection Agency, and National Oceanic and Atmospheric Administration will aim "to avoid and then minimize harmful effects to land, water, wildlife, and other ecological resources (natural resources) caused by land- or water-disturbing activities, and to ensure that any remaining harmful effects" are effectively mitigated. The...

A new $1.3 million Clean Air Act penalty action by U.S. EPA and the Michigan Department of Environmental Quality against AK Steel Corporation has received significant public and media attention this week. The proposed consent decree, filed with the court and opened for public comment on May 19th, includes significant cash penalties and supplemental environmental project requirements, along with burdensome obligations to establish an environmental management system, perform third party audits, and install costly new pollution controls. Less often mentioned in this week's stories about the...

Ruling on a pipeline project and a mine project, two different federal courts issued decisions Monday affirming limits on the scope of environmental review. The pipeline case was a challenge to Enbridge's Flanagan South pipeline, designed to transport tar sands crude from Illinois to Oklahoma. The mine case involved Raven Crest Contracting's Boone North No. 5 coal mine in West Virginia. Neither decision breaks new ground; their significance lies in reaffirming that NEPA analysis should be confined to the scope of the federal agencies' control over the project in question. These cases...

The Supreme Court has agreed to hear a case that could have far-ranging implications for agency proclamations that impact the business community. On Monday, June 16, 2014, the Supreme Court granted certiorari in Nickols v. Mortgage Bankers Assoc. , No. 13-1052. The Supreme Court will address "[w]hether agencies subject to the Administrative Procedure Act are categorically prohibited from revising their interpretative rules unless such revisions are made through notice-and-comment rulemaking." Interpretative rules (also called interpretive rules) are those that "simply state[] what the...

On March 17, 2014, the State of Oklahoma sued the U.S. Department of the Interior, taking aim at the U.S. Fish and Wildlife Service's habit of settling large Endangered Species Act cases with Environmental Non-Governmental Organizations. The lawsuit signals an important escalation in the fight against such settlements. ESA lawsuits have become a key tool to prevent or delay project development activities, including in the oil and gas industry. Over the last several years, FWS has repeatedly settled NGO lawsuits with consent agreements in which FWS commits to prioritize the NGOs' chosen...

On September 10, 2013, the U.S. Coast Guard published an Advance Notice of Proposed Rulemaking (APNRM) in the Federal Register stating its intent to propose regulations that will require vessels engaged in exploration, development or production activities on the Outer Continental Shelf (OCS) to develop, implement, and maintain a vessel-specific Safety and Environmental Management System (SEMS). The proposed rulemaking would be far-reaching as the Coast Guard estimates that approximately 2,200 foreign and domestic vessels engaged in OCS activities could be affected by this regulatory action,...

EPA's new GHG Inventory Rule is now final and will require prompt attention by many business sectors to help ensure compliance effective January 2010. The rule establishes the most sweeping monitoring and reporting regime in memory and will serve as the basis for future policies and legislation aimed at reducing greenhouse gas emissions. Companies and large institutions need to assess the rule applicability on a facility-by-facility basis and, if applicable, will need to integrate the new requirements into existing environmental management systems and budgets.

In U.S. v. Apex Oil , a three-judge panel of the Seventh Circuit ruled 3-0 that EPA's cleanup injunction against the corporate successor to a chemical company was not discharged in Chapter 11 because the injunction does not create a right to payment and, consequently, is not a "˜debt' under the Bankruptcy Code. In essence, Apex had argued that the injunction would require the company to incur costs upward of $150 million and that the purpose of the restructuring would be defeated if these costs had to be incurred. Judge Posner's opinion turns on the fact that the order required cleanup and...