Maryland bans fracking

Maryland’s governor, Larry Hogan, on Tuesday signed into law a bill that bans hydraulic fracturing in the state. The move comes a week after the state’s legislature passed the bill.

Maryland currently has no fracking activity inside its borders, leading many to label the move political—that is, a play to constituents without much consequence. But the western part of the state sits atop a portion of the Marcellus Shale, and industry for a while now has considered the prospect of drilling in the state.

Environmentalists praise the governor’s actions, but opponents of the law defend fracking and its safety. They also point to the economic opportunities that could be lost as a result of the ban. The Marcellus is the largest source of natural gas in the United States, and the region has played a key role in the country’s recent energy boom.

Maryland becomes the third state to ban hydraulic fracturing, the first being Vermont and the second New York. Vermont banned the practice in 2012, New York in 2015. One difference between Maryland and its two predecessors: Maryland is the only state of the three with known natural gas reserves.

The law goes into effect October 1, when the state’s current moratorium on fracking expires.

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PA federal judge vacates controversial fracking verdict

In a win for industry, a Pennsylvania federal judge on Friday vacated a controversial fracking verdict in the highly publicized case Ely v. Cabot Oil and Gas Corp. The verdict was against the great weight of the evidence and shaded by the plaintiffs’ attorney’s missteps, said the court in its decision.

Last March, a Pennsylvania jury awarded the plaintiffs in the case $4.24 million for loss of the use and enjoyment of their property, namely their water supply, which injury the plaintiffs alleged stemmed from the defendant’s fracking operations in the surrounding area. On Friday, the court set aside that award as “extraordinarily high” and “by any measure excessive.”

The court cast into doubt too the viability of the plaintiffs’ case generally, which centers on the plaintiffs’ assertion that their water supply was contaminated when impurities, like methane, released by the defendant’s drilling operations compromised their wells.  The court noted the very narrow grounds on which the case was allowed to go to trial—only two of the plaintiffs’ many claims survived pre-trial motions (negligence and private nuisance), and only private nuisance reached the jury—and noted that despite this narrow road to recovery, plaintiffs persisted in presenting the case not as it was, but as they wished it to be, a “broadside attack” on the defendant’s oil and gas activities.

Attempting to overcome the “limited” nature of evidence in support of their nuisance claim, consisting mainly of speculative expert opinions linking drilling and the plaintiffs’ aquifers, plaintiffs in their presentation appealed to outside evidence, which the court had excluded by in limine pretrial rulings. In referencing excluded evidence, the plaintiffs “strayed into forbidden territory,” drawing objections from the defendant and ire from the court. The plaintiffs’ conduct “marred the trial from opening to close,” and the defendant’s objections and the court’s interventions encouraged the jury to “speculate that they were not receiving the whole story and that evidence was being improperly withheld from them.” This, the court found, was unfairly prejudicial to the defendant.

The court, although unwilling to render judgment in favor of the defendant outright, in light of what it perceived as some evidence that the defendant contributed to the conditions from which the plaintiffs suffered, ordered a new trial in the case.

Before a new trial can occur, though, the parties must mediate the dispute in front of another federal judge.

For continuing coverage of this case and other legal matters affecting fracking, subscribe to the Hydraulic Fracking Blog.

Trump tells US Interior to reconsider fracking rules

President Trump on Tuesday signed an executive order with broad implications for the oil and gas industry. Among its provisions, the order requires the US Department of the Interior to reanalyze its fracking regulations.

The executive order, entitled Promoting Energy Independence and Economic Growth, announces a shift in American environmental policy. It establishes as paramount in the new administration domestic energy production, economic growth, and American job creation. It requires that the executive branch review its regulations, policies, procedures, and the like to determine their effect on domestic energy growth. Where appropriate, it requires officials to suspend, revise, or rescind unduly burdensome restrictions.

The order calls for a review of the Environmental Protection Agency’s Clean Power Plan, which has been in litigation since its inception in August 2015. As well, it lifts the previous moratorium on coal leasing on federal lands. The moratorium had been in place for more than a year.

The order, as part of the bureaucracy’s review of regulations affecting oil and gas development, requires the Secretary of the Interior to revisit his Department’s final rule on hydraulic fracturing. The rule was issued in March 2015 and levies on owners and operators substantial requirements concerning well casing, storage of fluids, and disclosure of chemicals used in fracking on Federal and Indian lands.

A federal judge in Wyoming last year blocked the rule, denying the Department of the Interior’s authority to regulate fracking. The case is on appeal to the Tenth Circuit, but the order casts into doubt the prospect of any future disposition by the panel.

The Department will likely rescind the rule, but such action will take time.

For continuing coverage of legal matters affecting hydraulic fracturing, subscribe to the Hydraulic Fracking Blog.

PA DEP addresses possible link between local earthquakes and fracking

Pennsylvania’s environmental regulators last month addressed a potential link between a string of small local earthquakes and hydraulic fracturing in the Utica Shale. The state’s Department of Environmental Protection (DEP) released a report in February analyzing together four small-scale earthquakes, which occurred in April 2016 in Lawrence County, and fracking operations in the surrounding area.

The relevant well pad, the report states, is located within five miles of most of the reported epicenters of the earthquakes. Fracking began at the pad almost a month before seismic activity was recorded in nearby townships.

Says the DEP in the report, “There is no definitive geologic association of events,” but there is “a marked temporal/spatial relationship” between the microseismic events and fracking operations.

The earthquakes, which ranged in magnitude from 1.8 to 2.3 on the Richter Scale and were largely unexperienced by humans, prompted the owner of the well pad to voluntarily cease operations at the wells. The company later indefinitely discontinued its fracking and stimulation operations at the pad—also voluntarily.

Should the owner wish to renew operations at the site, the DEP recommended that it change its method of stimulation, abandoning zipper fracturing, and employ a more stringent reporting schedule for similar seismic events. The company has agreed to adopt these recommendations.

DEP regulators also recommend that the company adopt these same measures in relation to any new permit requests it makes, and that other operators also adopt these measures in the area where the earthquakes occurred.

“Induced seismicity is a relatively new and complex technical issue,” said DEP Acting Secretary Patrick McDonnell. “This report reflects our commitment to understand what occurred, through extensive review with scientific and industry partners, and to formulate procedures to reduce seismic risk going forward.”

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PA Department of Environmental Protection’s negotiating power fracked

Pennsylvania Department of Environmental Protection (DEP) may see new challenges in negotiating settlements with purported violators of Pennsylvania’s Clean Stream Law.  A recent Pennsylvania appellate court ruled that ongoing penalties are impermissible for a single waterway leak from fracking activities under the state’s Clean Streams Law.  The Clean Stream Law punishes violators for pollution released into state waters.

In EQT Production Co. v. DEP, a natural gas production company sued the DEP for interpreting the Clean Stream Law to allow the DEP the ability to impose a minimum $1.2 million penalty for a leak from a gas well pad that entered a state waterway.  The $1.2 million penalty was proposed as a settlement in lieu of what the DEP asserted as the “continuing violation theory”; under this theory,  the DEP argued that the Clean Stream Law permitted larger, on-going penalties for each day the contamination remained in state waters.

The company, which has fixed the site of the leak and is engaging in ongoing cleanup efforts, rejected the settlement amount and sought to litigate the issue.  In response, the DEP filed a complaint with the state’s Environmental Hearing Board seeking a $4.5 million penalty instead.

The company fought back, arguing that this ongoing penalty theory was unfair and unlawful—the Clean Stream Law authorized punishing the “entr[y]” of wastes into state waters, not its movement after initial entry.  The appellate court agreed, stating:

“[A] violation of Section 301 occurs when a person or municipality does what is prohibited—i.e., allows industrial waste to enter into the waters of the commonwealth—and once it ceases that conduct, violations cease.”

This ruling is important, because instead of fearing never-ending and unquantifiable liability, companies can concentrate more on cleanup efforts and improving industrial procedures.

The DEP has the right to appeal the appellate court’s decision to the Pennsylvania Supreme Court.  For more information on this issue, please follow the Hydraulic Fracking Blog.

Challenge to UK planning permission for fracking

Community group ‘Preston New Road Action Group’ (PNRAG) has taken further action to challenge the government’s decision to allow fracking of shale gas at a site near Little Plumpton, Lancashire (the Plumpton Site).

As reported in our blog of 21 October 2016, PNRAG sent a letter before action last month to the Secretary of State for Communities and Local Government, Sajid Javid, requesting that the government reconsider its decision to allow a planning permission for fracking at the Plumpton Site.

Javid has refused to reconsider the government’s position and PNRAG has now issued formal legal proceedings at the High Court. PNRAG has applied for a statutory review of the decision under section 288 of the Town and Country Planning Act 1990.

A spokesperson for PNRAG said the group intends to prove the government’s decision as unlawful and will invoke further legal routes to this end.

The hearing is expected to take place in the High Court early next year.

A challenge has also been brought by Frack Free Ryedale and Friends of the Earth against North Yorkshire County Council’s decision on 23 May 2016 to grant Third Energy permission to frack in Ryedale, North Yorkshire. An application for a judicial review of the decision has been made to the High Court. The case will be heard at the Royal Courts of Justice on 22-23 November 2016.

Challenge to UK planning permission for fracking

Community group ‘Preston New Road Action Group’ (PNRAG) has taken further action to challenge the government’s decision to allow fracking of shale gas at a site near Little Plumpton, Lancashire (the Plumpton Site).

As reported in our blog of 21 October 2016, PNRAG sent a letter before action last month to the Secretary of State for Communities and Local Government, Sajid Javid, requesting that the government reconsider its decision to allow a planning permission for fracking at the Plumpton Site.

Javid has refused to reconsider the government’s position and PNRAG has now issued formal legal proceedings at the High Court. PNRAG has applied for a statutory review of the decision under section 288 of the Town and Country Planning Act 1990.

A spokesperson for PNRAG said the group intends to prove the government’s decision as unlawful and will invoke further legal routes to this end.

The hearing is expected to take place in the High Court early next year.

A challenge has also been brought by Frack Free Ryedale and Friends of the Earth against North Yorkshire County Council’s decision on 23 May 2016 to grant Third Energy permission to frack in Ryedale, North Yorkshire. An application for a judicial review of the decision has been made to the High Court. The case will be heard at the Royal Courts of Justice on 22-23 November 2016.

Researchers zero in on how fracking can cause earthquakes

A new academic study reveals two ways hydraulic fracturing by oil and gas operators can cause earthquakes in Alberta, Canada. Researchers at the University of Calgary’s Department of Geoscience have discovered that tremors induced by hydraulic fracturing can occur through pore pressure increases and by stress changes.  The study “Fault Activation by Hydraulic Fracturing” has been published in Science, one of the world’s leading peer‑reviewed academic journals.

The study has been described as revealing an “exquisitely detailed picture” of the timing and dynamics of seismic events in an area about 30 kilometers west of the town of Fox Creek, Alberta. The area has recently had small earthquakes which researchers and regulators believe are attributable to extensive hydraulic fracturing of oil and gas wells in the area.

The study’s authors, Professor David Eaton and Dr. Xuewei Bao, collected and analyzed seismic data from public and private seismograph stations and reportedly were able to link seismic events to specific operations at individual wells. They also discovered a previously undetected fault system running parallel to two horizontally drilled wells.  Their analysis showed that small earthquakes were triggered when hydraulic fracturing of those wells imposed mechanical stresses on the rocks underlying the hydrocarbon-bearing zone, causing slippage in the fault.  This seismicity ended when the hydraulic fracturing ended.  However, more than two weeks later, a magnitude 3.9 earthquake occurred.  The research indicates that that event appears to have been associated with the subsequent infiltration of the fracture fluids into part of the fault.

This research may lead to new ways to assess risk and to mitigate the hazards of earthquakes caused by hydraulic fracturing, as well as to help regulators develop regulations informed by science.

Green light for more UK exploratory shale gas wells

Nottinghamshire County Council’s Planning and Licensing Committee (the Committee) has approved plans to drill the county’s first exploratory shale gas wells. The approval which permits drilling two wells to explore the rock geology near Misson was approved by a majority of seven votes to four.

Island Gas Ltd (IGas) submitted its planning application for the works in October 2015. The Committee’s decision on 15 November 2016, comes after an extensive period of consultation involving over 40 organisations and 2,600 individual representations. The chair of the Committee, John Wilkinson, commented that ultimately, the Committee were satisfied that IGas had demonstrated they could address key issues associated with the works such as potential impacts on local residents, traffic, noise, access, opening hours and impacts on wildlife, flooding, heritage and archaeology.

The Committee attached 40 conditions to the planning permission. These include a requirement for IGas to put up a restoration bond and additional noise, water and air quality level testing to be undertaken throughout the development period. The approval is also subject to the completion of a section 106 agreement requiring a designated route for heavy goods vehicles servicing the site, adherence to a drivers code of conduct and an obligation to remedy any highway damage caused during the operations.

The decision has been welcomed by the Chief Executive of IGas, Stephen Bowler, and by the industry body, UK Onshore Oil and Gas (UKOOG) as providing “positive momentum” to the shale gas industry. The Misson site is the third to receive approval for shale gas exploration after decisions in Yorkshire and Lancashire earlier this year.

IGas will need to submit a further planning application if it wishes to use fracking to exploit any identified reserves as the permission is solely for exploratory work. Nottinghamshire County Council has not yet received a planning application for fracking in the county. However it is currently processing a planning application from Dart Energy for a similar proposal for exploratory drilling at a site near Barnby Moor, Nottinghamshire. The Committee is expected to consider Dart Energy’s application on 20 December 2016.

Community Group challenges UK Government’s fracking decision

As reported in our blog post dated 7 October 2016, the Government recently ‎overturned Lancashire County Council’s refusal of planning permission for fracking at a site near Little Plumpton in Lancashire.

The appeal was granted by the Secretary of State for Communities and Local Government on 6 October 2016 allowing the appellant, Cuadrilla, to carry out drilling and hydraulic fracturing at the site; a decision on a second site at Roseacre Wood was deferred so as to allow more time to consider the scheme’s traffic impacts.

Now, community group ‘Preston New Road Action Group’ is seeking to challenge the Government’s decision to allow the appeal. In a letter before action, it has requested that the Government reconsiders its decision; otherwise, the Group will consider bringing a statutory challenge under section 288 of the Town and Country Planning Act 1990.

The Group claim that the decision is fundamentally flawed in its misapplication of planning laws and policy. It is also claimed that the Government did not properly consider the allegedly disproportionate effect that fracking on the site would have on vulnerable residents such as the elderly and school children nearby.

By way of update to our blog post dated 12 July 2016, the judicial review of the decision by North Yorkshire County Council to allow fracking at a site in Kirby Misperton near the North Yorks Moors National Park will be heard in‎ the High Court on 22-23 November 2016. The challenge is being brought by community group ‘Frack Free Rydeale’ and Friends of the Earth.

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