Buford Pollett The University of Tulsa

1. TU – a premier integrated energy institute
HYDRAULIC FRACTURING & PRODUCTION
CHEMICALS 2022
REGULATORY UPDATE CONCERNING
ENHANCED RECOVERY TECHNIQUES IN
SHALE WELLS
1

2. REGULATORY UPDATE
Agenda
◼ Jurisdiction
◼ Protection of Habitat and Species
◼ Water Use and Discharge
◼ Air emissions
◼ Recent Developments
◼ Naturally Occurring Radioactive Material
◼ Takeaways
2

3. REGULATORY UPDATE
Jurisdiction
3

4. REGULATORY UPDATE
Jurisdiction
◼ Federal Jurisdiction – Limited Jurisdiction
◼ State Jurisdiction – General Jurisdiction
◼ Jurisdiction at the same level of government (i.e.
which governmental agency has jurisdiction?)
4

5. REGULATORY UPDATE
Protection of Habitat and Species
5

6. Environmental Regulations
Protection of Habitat and Species –
Federal Law
◼ National Environmental Policy Act (NEPA)
◼ Noise Control Act
◼ Endangered Species Act
◼ Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA)
◼ Resource Conservation and Recovery Act
6

7. REGULATORY UPDATE
National Environmental Policy Act
(NEPA)
◼ Established a national environmental policy and goals for the
protection, maintenance, and enhancement of the environment.
◼ NEPA (42 USC 4321 et seq.) required that federal agencies
establish procedures for evaluating the impacts of their actions on
the natural and human environment, and established the
President’s Council on Environmental Quality (CEQ).
◼ Federal agencies must involve stakeholders in the NEPA process.
◼ NEPA regulations promulgated by the CEQ - 40 CFR 1500-
1508
Source: http://teeic.indianaffairs.gov/er/oilgas/legal/index.htm
7

8. REGULATORY UPDATE
National Environmental Policy Act (NEPA)
Source: http://www.boem.gov/Environmental-Assessment-Section/
8

9. REGULATORY UPDATE
Noise Control Act (NCA)
◼ Congress the NCA in 1972 and amended NPA
in 1978, and under NCA (42 USC 4901-4918)
the U.S. Environmental Protection Agency
(EPA) initially implemented the NCA.
◼ Nonetheless, the primary responsibility for
regulating noise has been delegated to state and
local governments.
Source: http://teeic.indianaffairs.gov/er/oilgas/legal/index.htm
9

10. Environmental Regulations
Noise Control Act (NCA)
◼ Noise control regulations promulgated by the
EPA for establishing noise control standards for
transportation equipment, motor carriers, low-
noise-emission products, and construction
equipment are available at 40 CFR 201-211.
Source: http://teeic.indianaffairs.gov/er/oilgas/legal/index.htm
10

11. REGULATORY UPDATE
Noise Control Act (NCA)
Source: http://appvoices.org/tag/hydraulic-fracturing/
11

12. REGULATORY UPDATE
Endangered Species Act (ESA)
◼ Lists native animal and plant species as
endangered and gives their habitats limited
protection.
◼ The ESA (16 USC 1531 et seq.) is jointly
administered by U.S. Fish and Wildlife Service
(USFWS) and the National Oceanic and
Atmospheric Administration, National Marine
Fisheries Service (NMFS).
Source: http://teeic.indianaffairs.gov/er/oilgas/legal/index.htm
12

13. REGULATORY UPDATE
Endangered Species Act (ESA)
◼ The Act requires federal agencies, in consultation with
the USFWS and/or the NMFS, to ensure that their
actions are not likely to jeopardize the continued
existence of any listed species or result in adverse effects
on designated critical habitat of such species.
◼ ESA regulations promulgated by:
◼ USFWS – 50 CFR 17
◼ NMFS - 50 CFR 216-296
Source: http://teeic.indianaffairs.gov/er/oilgas/legal/index.htm
13

14. REGULATORY UPDATE
Endangered Species Act (ESA)
Source: https://www.allaboutbirds.org/five-things-you-need-to-know-about-
greater-sage-grouse-and-the-endangered-species-act/
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15. REGULATORY UPDATE
Endangered Species Act (ESA)
◼ When Congress passed the Endangered Species Act
(ESA) in 1973, it recognized that our rich natural
heritage is of "esthetic, ecological, educational, recreational,
and scientific value to our Nation and its people.“
◼ It further expressed concern that many of our nation's
native plants and animals were in danger of becoming
extinct.
Quoting https://www.fws.gov/endangered/laws-policies/
15

16. REGULATORY UPDATE
Endangered Species Act (ESA)
◼ The purpose of the ESA is to protect and recover imperiled species and the
ecosystems upon which they depend.
◼ It is administered by the U.S. Fish and Wildlife Service (Service) and the
Commerce Department's National Marine Fisheries Service (NMFS).
◼ The Service has primary responsibility for terrestrial and freshwater
organisms, while the responsibilities of NMFS are mainly marine wildlife
such as whales and anadromons fish such as salmon.
Quoting https://www.fws.gov/endangered/laws-policies/
16

17. REGULATORY UPDATE
Endangered Species Act (ESA)
◼ Under the ESA, species may be listed as either endangered or threatened.
"Endangered" means a species is in danger of extinction throughout all or a
significant portion of its range.
◼ "Threatened" means a species is likely to become endangered within the
foreseeable future.
◼ All species of plants and animals, except pest insects, are eligible for listing as
endangered or threatened.
◼ For the purposes of the ESA, Congress defined species to include subspecies,
varieties, and, for vertebrates, distinct population segments.
Quoting https://www.fws.gov/endangered/laws-policies/
17

18. REGULATORY UPDATE
Endangered Species Act (ESA)
Citizens Suits
◼ 16 USC 1540(g) CITIZEN SUITS
◼ 1)Except as provided in paragraph (2) of this subsection any
person may commence a civil suit on his own behalf—
◼ (A) to enjoin any person, including the United States and any
other governmental instrumentality or agency (to the extent
permitted by the eleventh amendment to the Constitution), who
is alleged to be in violation of any provision of this chapter or
regulation issued under the authority thereof; or
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19. REGULATORY UPDATE
Endangered Species Act (ESA)
Citizens Suits
◼ 16 USC 1540(g) CITIZEN SUITS
◼ (1)Except as provided in paragraph (2) of this subsection any person
may commence a civil suit on his own behalf—
◼ (B) to compel the Secretary to apply, pursuant to section
1535(g)(2)(B)(ii) of this title, the prohibitions set forth in or authorized
pursuant to section 1533(d) or 1538(a)(1)(B) of this title with respect to
the taking of any resident endangered species or threatened species
within any State; or
◼ (C) against the Secretary where there is alleged a failure of the Secretary
to perform any act or duty under section 1533 of this title which is not
discretionary with the Secretary.
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20. REGULATORY UPDATE
Endangered Species Act (ESA)
Citizens Suits
◼ 16 USC 1540(g) CITIZEN SUITS
◼ The district courts shall have jurisdiction, without regard to the
amount in controversy or the citizenship of the parties, to
enforce any such provision or regulation, or to order the
Secretary to perform such act or duty, as the case may be. In any
civil suit commenced under subparagraph (B) the district court
shall compel the Secretary to apply the prohibition sought if the
court finds that the allegation that an emergency exists is
supported by substantial evidence.
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21. REGULATORY UPDATE
Endangered Species Act (ESA)
Section 7 Consultation
◼ The Endangered Species Act of 1973 (ESA) mandates all Federal departments and
agencies to conserve listed species and to utilize their authorities in furtherance of the purposes
of the ESA.
◼ The ESA provides specific mechanisms to achieve its purposes and Section 7 is one of those.
Section 7 requires that Federal agencies develop a conservation program for listed species (i.e.,
Section 7(a)(1)) and that they avoid actions that will further harm species and their critical
habitat (i.e., Section 7(a)(2)). The section 7 consultation process described here applies to the
second requirement - Section 7(a)(2).
Quoting: https://www.fws.gov/midwest/endangered/section7/s7process/7a2process.html
21

22. REGULATORY UPDATE
Endangered Species Act (ESA)
Section 7(a)(2) Responsibilities
◼ Under the implementing regulations (50 CFR 402), Federal agencies must
review their actions and determine whether the action may affect federally
listed and proposed species or proposed or designated critical habitat. To
accomplish this, Federal agencies must request from the Service a list of species
and critical habitat that may be in the project area or they can request our
concurrence with their species list. The Service must respond to either request
within 30 days.
Quoting: https://www.fws.gov/midwest/endangered/section7/s7process/7a2process.html
22

23. REGULATORY UPDATE
Endangered Species Act (ESA)
Section 7(a)(2) Responsibilities
◼ Once a species list is obtained or verified as accurate, Federal agencies need to
determine whether their actions may affect any of those species or their critical
habitat. If no species or their critical habitat are affected, no further
consultation is required. If they may be affected, consultation with the Service
is required. This consultation will conclude either informally with written
concurrence from the Service or through formal consultation with a biological
opinion provided to the Federal agency.Quoting:
https://www.fws.gov/midwest/endangered/section7/s7process/7a2process.html
23

24. REGULATORY UPDATE
Endangered Species Act (ESA)
Source: https://www.nrdc.org/save-endangered-species-act
24

25. REGULATORY UPDATE
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA)
◼ Established a superfund to clean up uncontrolled or
abandoned hazardous-waste sites as well as accidents, spills,
and other emergency releases of pollutants and
contaminants into the environment. See 42 U.S.C. §9601
et seq. (1980) and the Superfund amendments in 1986
◼ Under CERCLA, the EPA has the power to seek out those
parties responsible for any release and assure their
cooperation in the cleanup.
◼ See 40 CFR Part 305-307 for the regulations the EPA
promulgated under CERCLA
◼ Source: https://www.epa.gov/laws-regulations/summary-comprehensive-environmental-
response-compensation-and-liability-act
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26. REGULATORY UPDATE
Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA)
Source: http://www.trcsolutions.com/services/environmental-engineering-
remediation/cercla-rcra-consulting
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27. REGULATORY UPDATE
Resource Conservation and Recovery Act
(RCRA)
27
◼ Gave the EPA the authority to control hazardous waste from
the "cradle-to-grave." See 42 U.S.C. §6901 et seq. (1976)
◼ This includes the generation, transportation, treatment,
storage, and disposal of hazardous waste. RCRA also set forth
a framework for the management of non-hazardous solid
wastes.
◼ The 1986 amendments to RCRA enabled EPA to address
environmental problems that could result from underground
tanks storing petroleum and other hazardous substances.
Source: https://www.epa.gov/laws-regulations/summary-resource-conservation-and-
recovery-act

28. REGULATORY UPDATE
Resource Conservation and Recovery Act
(RCRA) - Exemptions
28
◼ Gas and oil drilling muds and oil production
brines; and
◼ Drilling fluids, produced water, and other waste
intrinsically derived from primary exploration,
development, or production field operations.
◼ Source:
https://yosemite.epa.gov/oa/eab_web_docket.nsf/Attachments%20By%20ParentFili
ngId/945EF425FA4A9B4F85257E2800480C65/$FILE/28%20-
%20RCRA%20E%26P%20Exemption.pdf See also
http://www.rrc.state.tx.us/media/7221/am-ch_3.pdf ,
http://www.rrc.state.tx.us/media/2803/ch2.pdf

29. REGULATORY UPDATE
Resource Conservation and Recovery Act
(RCRA)
Source: https://eponline.com/articles/2015/07/01/understanding-the-rcra-
exclusion.aspx?admgarea=ht.waste
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30. REGULATORY UPDATE
Resource Conservation and Recovery Act
(RCRA)
30

31. REGULATORY UPDATE
Water Use and Discharge
◼ Clean Water Act
◼ Safe Drinking Water Act
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32. REGULATORY UPDATE
Clean Water Act (CWA)
◼ Established as the primary law for regulating the chemical,
physical, and biological integrity of surface waters.
◼ The CWA (33 USC 1251-1387) defines various types of
pollutants and establishes protective standards, programs,
and permit requirements.
◼ In 1990, Congress amended the CWA by the Oil Pollution
Act (33 USC 2701 et seq.) to incorporate requirements for
the prevention of, preparedness for, and response to oil
spills at non-transportation-related facilities.
◼ Source: http://teeic.indianaffairs.gov/er/oilgas/legal/index.htm
32

33. REGULATORY UPDATE
Clean Water Act (CWA)
◼ CWA regulations promulgated by the U.S.
Environmental Protection Agency (EPA) - See 40 CFR
100-136, 401-471, and 500-503.
◼ U.S. Army Corps of Engineers (USACE) also has
responsibility for Section 404 of the CWA related to
permits for the discharge of dredge and fill material into
waters of the United States. See the USACE
promulgated regulations at 33 CFR 323.
◼ Source: http://teeic.indianaffairs.gov/er/oilgas/legal/index.htm
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34. REGULATORY UPDATE
Clean Water Act – Stormwater Permitting
Exemptions
◼ Well sites and drill pads
◼ Access and maintenance roads including haul / maintenance
roads solely servicing exempt activities
◼ Local “borrow pits” to provide sand, gravel, and soil for
maintenance of service roads and infrastructure necessary to
operate producing oil and gas fields, crude oil pipelines, and
natural gas transmission lines. To receive the exemption the
facility can only supply material to the exempt oil and gas project.
◼ Gathering line systems
◼ Transmission line systems
◼ Source: https://www.epa.gov/npdes/oil-and-gas-stormwater-permitting#undefined
34

35. REGULATORY UPDATE
Clean Water Act – Stormwater Permitting
Exemptions
◼ Staging areas for oil and gas operations that are
contiguous to the exempt project (areas/locations where
pipe, sand, etc., are staged for drilling activities)
◼ Water lines, electric utility lines and railroad
infrastructure servicing field exploration and production
activities
◼ Storage tanks and oil-water separators
◼ Midstream processing plants
◼ Source: https://www.epa.gov/npdes/oil-and-gas-stormwater-permitting#undefined
35

36. REGULATORY UPDATE
Clean Water Act – Stormwater Permitting
Exemptions
◼ Gas and oil treatment and conditioning equipment (e.g., heater
treaters, dehydrators, and CO2 scrubbers, cryogenic plants,
fractionation plants) and the transmission lines leaving these
facilities.
◼ Gas processing plants (natural gas liquids recovery facilities
and/or H2S “gas sweetening” plants)
◼ Natural gas pipeline compressor stations
◼ Crude oil pipeline pump stations
◼ Crude oil pipelines (i.e., connecting producing fields with a
refinery)
◼ Source: https://www.epa.gov/npdes/oil-and-gas-stormwater-permitting#undefined
36

37. REGULATORY UPDATE
Clean Water Act – Stormwater Permitting
Exemptions
◼ Natural gas transmission lines (i.e., lower pressure lines
from producing field to nearest energy “hub” and cross-
country, high pressure intra- and interstate pipelines).
The exemption ceases at the distribution center (often
referred to as the “City Gate”). The distribution center
is where the local gas utilities take delivery of the gas
and distribute it via lower pressure service lines to
customers.
◼ Dedicated natural gas pipelines connecting LNG
terminals to nearest transmission pipeline “hub”
◼ Source: https://www.epa.gov/npdes/oil-and-gas-stormwater-permitting#undefined
37

38. REGULATORY UPDATE
Clean Water Act – Stormwater Permitting
Exemptions
◼ Newly constructed offshore “islands” used as
platforms for Alaskan exploration and
production drilling operations
◼ Central liquid waste treatment set up on a drill
pad even if it takes waste from other drill pads
◼ Source: https://www.epa.gov/npdes/oil-and-gas-stormwater-permitting#undefined
38

39. REGULATORY UPDATE
Clean Water Act – Waters
of the United States
◼ EPA rule (effective Aug. 28, 2015)- New definition of
"Waters of the United States" at 40 CFR 230 See
https://www.epa.gov/cleanwaterrule/documents-
related-clean-water-rule
◼ Federal Sixth Circuit Court of Appeals (Oct. 9, 2015) -
The Clean Water Rule is hereby STAYED, nationwide,
pending further order of the court. Source:
http://www.ca6.uscourts.gov/opinions.pdf/15a0246p-
06.pdf
◼ See now https://www.epa.gov/wotus/definition-
waters-united-states-rule-status-and-litigation-update
39

40. REGULATORY UPDATE
Clean Water Act – Unconventional Oil
and Gas Extraction Effluent Guidelines
◼ EPA has established pretreatment standards for the Oil
and Gas Extraction Category (40 CFR Part 435). The
standards prohibit discharges of wastewater pollutants
from onshore unconventional oil and gas (UOG)
extraction facilities to publicly owned treatment works
(POTWs).
◼ The final rule was signed by the EPA Administrator and
is being prepared for publication
Source: https://www.epa.gov/eg/unconventional-oil-and-gas-extraction-effluent-
guidelines
40

41. REGULATORY UPDATE
Clean Water Act
Source: https://www.epa.gov/enforcement/2015-major-criminal-cases
41

42. REGULATORY UPDATE
Safe Drinking Water Act (SDWA)
◼ Established protection of public drinking water
supplies.
◼ The SDWA (42 USC 300 et seq.) establishes health-
based drinking water standards and source water
protection programs, including wellhead protection
and sole source aquifer protection programs.
◼ SDWA regulations promulgated by the EPA - See
40 CFR 141-149
Source: http://teeic.indianaffairs.gov/er/oilgas/legal/index.htm
42

43. REGULATORY UPDATE
SDWA Exemptions - 42 U.S. Code § 300h
Source: https://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/pdf/USCODE-
2011-title42-chap6A-subchapXII.pdf
◼ (d) ‘‘Underground injection’’ defined; underground injection endangerment of
drinking water sources
◼ For purposes of this part:
◼ (1) UNDERGROUND INJECTION.—The term ‘‘underground
injection’’—
◼ (A) means the subsurface emplacement of fluids by well injection; and
◼ (B) excludes—
◼ (i) the underground injection of natural gas for purposes of
storage; and
◼ (ii) the underground injection of fluids or propping agents (other
than diesel fuels) pursuant to hydraulic fracturing operations
related to oil, gas, or geothermal production activities,
43

44. REGULATORY UPDATE
Air Emissions
◼ Clean Air Act
44

45. REGULATORY UPDATE
Clean Air Act (CAA)
◼ Established protection of air quality.
◼ The CAA (42 USC 7401 et seq.) establishes
ambient air quality standards, permit
requirements for both stationary and mobile
sources
◼ CAA regulations promulgated by the EPA - See
40 CFR 50-99.
Source: http://teeic.indianaffairs.gov/er/oilgas/legal/index.htm
45

46. REGULATORY UPDATE
Oil and Natural Gas Sector: Emission Standards for New,
Reconstructed, and Modified Sources - - EPA Final Rule -
Federal Register June 3, 2016
◼ Updated the New Source Performance Standards (NSPS) for the
oil and gas industry to add requirements that the industry reduce
emissions of greenhouse gases and to cover additional equipment
and activities in the oil and gas production chain.
◼ The final rule sets limits for methane, which is the principal
greenhouse gas emitted by equipment and processes in the oil
and gas sector.
◼ Owners/operators will be able to meet the limits using
technologies that are cost-effective and readily available.
Source: https://www3.epa.gov/airquality/oilandgas/actions.html
46

47. REGULATORY UPDATE
Oil and Natural Gas Sector: Emission Standards for New,
Reconstructed, and Modified Sources - - EPA Final Rule -
Federal Register June 3, 2016
◼ These sources include hydraulically fractured oil wells,
some of which can contain a large amount of gas along
with oil, and equipment used across the industry that
was not regulated in the agency’s 2012 rules.
◼ The final rule also requires owners/operators to find
and repair leaks, also known as “fugitive emissions,”
which can be a significant source of both methane and
VOC pollution.
Source: https://www3.epa.gov/airquality/oilandgas/actions.html
47

48. REGULATORY UPDATE
Oil and Natural Gas Sector: Emission Standards for New,
Reconstructed, and Modified Sources - - EPA Final Rule -
Federal Register June 3, 2016
◼ The final rule:
◼ Sets a fixed schedule for monitoring leaks. The final rule sets a
fixed schedule for monitoring leaks rather than a schedule that
varies with performance. For well sites, including low-
production well sites, the rule requires leaks monitoring twice
a year.
◼ Compressor stations -- generally large facilities encompassing
numerous pieces of equipment that operate continuously and
under significant pressure -- must conduct quarterly leaks
monitoring. Owners and operators at all sites will have one
year to conduct an initial leaks monitoring survey.
Source: https://www3.epa.gov/airquality/oilandgas/actions.html
48

49. REGULATORY UPDATE
Oil and Natural Gas Sector: Emission Standards for New,
Reconstructed, and Modified Sources - - EPA Final Rule -
Federal Register June 3, 2016
◼ Allows an alternative approach for finding leaks. In addition to
optical gas imaging (special cameras that allow the user to “see”
leaks), the final rule allows owners/operators to use “Method 21”
with a repair threshold of 500 ppm as an alternative for finding
and repairing leaks. Method 21 is an EPA method for
determining VOC emissions from process equipment. The
method is based on using a portable VOC monitoring
instrument, such as an organic vapor analyzer (sometimes
referred to as a “sniffer”).
Source: https://www3.epa.gov/airquality/oilandgas/actions.html
49

50. REGULATORY UPDATE
Oil and Natural Gas Sector: Emission Standards for New,
Reconstructed, and Modified Sources - - EPA Final Rule -
Federal Register June 3, 2016
◼ Phases in requirements for using a process known as a “green
completion” to capture emissions from hydraulically fractured oil
wells. Owners/operators will have six months from the time the
final rule is published in the Federal Register to meet the green
completion requirements. Owners/operators of hydraulically
fractured oil wells will be required to reduce emissions using
combustion controls until the green completion requirement
takes effect.
◼ Source: https://www3.epa.gov/airquality/oilandgas/actions.html
50

51. REGULATORY UPDATE
Oil and Natural Gas Sector: Emission Standards for New,
Reconstructed, and Modified Sources - - EPA Final Rule -
Federal Register June 3, 2016
◼ Final Source Determination Rule:
◼ EPA has issued a final rule to clarify when multiple pieces of
equipment and activities in the oil and gas industry must be
deemed a single source when determining whether major source
permitting programs apply. The programs are the Prevention of
Significant Deterioration (PSD) and Nonattainment New Source
Review preconstruction permitting programs, and the Title V
Operating permits program.
Source: https://www3.epa.gov/airquality/oilandgas/actions.html
51

52. REGULATORY UPDATE
Oil and Natural Gas Sector: Emission Standards for New,
Reconstructed, and Modified Sources - - EPA Final Rule -
Federal Register June 3, 2016
◼ The final rule defines the term “adjacent” to clarify that
equipment and activities in the oil and gas sector that are under
common control will be considered part of the same source if
they are located near each other – specifically, if they are located
on the same site, or on sites that share equipment and are within
¼ mile of each other. Input from states, industry and other
commenters was helpful in finalizing these requirements.
◼ The final rule applies to equipment and activities used for
onshore oil and natural gas production, and for natural gas
processing. It does not apply to offshore operations.
Source: https://www3.epa.gov/airquality/oilandgas/actions.html
52

53. REGULATORY UPDATE
EPA Issues Final Policy and Technical Amendments to the
New Source Performance Standards for the Oil and Natural
Gas Industry
◼ On August 13, 2020, EPA issued two final rules that
will make it simpler and less burdensome for the oil and
natural gas industry to comply with the New Source
Performance Standards (NSPS) for the Oil and Natural
Gas Industry.
◼ Combined, the two rules combined are expected to save
the industry millions of dollars in compliance costs each
year.
Source: https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-industry/epa-
issues-final-policy-and-technical
53

54. REGULATORY UPDATE
Recent Presidential Memoranda
◼ Presidential Memorandum Regarding Construction of the
Dakota Access Pipeline See
https://www.federalregister.gov/documents/2017/02/17/R1-
2017-02032/construction-of-the-dakota-access-pipeline
◼ Presidential Memorandum Regarding Construction of the
Keystone XL Pipeline See
https://www.govinfo.gov/app/details/DCPD-201700068
54

55. REGULATORY UPDATE
Recent Executive Orders
◼ Executive Order Expediting Environmental Reviews and
Approvals For High Priority Infrastructure Projects See
https://www.whitehouse.gov/the-press-
office/2017/01/24/executive-order-expediting-environmental-
reviews-and-approvals-high
◼ But see Biden pitching a much vaster climate plan than Obama ever
attempted https://www.politico.com/news/2021/01/27/biden-
climate-orders-energy-463051
◼ See Executive Order 14008 of January 27, 2021 Tackling the
Climate Crisis at Home and Abroad
https://www.federalregister.gov/documents/2021/02/01/202
1-02177/tackling-the-climate-crisis-at-home-and-abroad
55

56. REGULATORY UPDATE
Recent Developments
◼ Judge invalidates Trump rollback of law protecting birds
◼ https://www.fox46.com/news/national-news/judge-
invalidates-trump-rollback-of-law-protecting-birds/
◼ Biden Delays Trump Rule That Weakened Wild Bird
Protections
◼ https://www.pbs.org/newshour/politics/ap-report-biden-
delays-trump-rule-that-weakened-wild-bird-protections
56

57. REGULATORY UPDATE
Recent Developments
◼ EPA Proposes New Source Performance Standards Updates, Emissions
Guidelines to Reduce Methane and Other Harmful Pollution from the Oil
and Natural Gas Industry
◼ November 2, 2021
◼ https://www.epa.gov/controlling-air-pollution-oil-and-natural-
gas-industry/epa-proposes-new-source-performance
57

58. REGULATORY UPDATE
Presidential Memoranda v. Executive
Order
◼ Presidential memoranda vs. executive orders. What's the
difference? See
http://www.usatoday.com/story/news/politics/onpolitics/201
7/01/24/executive-order-vs-presidential-memorandum-whats-
difference/96979014/
58

59. Environmental Regulations
West Virginia v. EPA, (June 30, 2022)
◼ West Virginia v. EPA, 142 S. Ct. 2587 (2022).
◼ Court Opinion
59

60. REGULATORY UPDATE
West Virginia v. EPA, (June 30, 2022)
◼ In 2015, however, EPA issued a new rule
concluding that the “best system of emission
reduction” for existing coal-fired power plants
included a requirement that such facilities reduce
their own production of electricity, or subsidize
increased generation by natural gas, wind, or solar
sources.
◼ The question before us is whether this broader
conception of EPA’s authority is within the power
granted to it by the Clean Air Act.
60

61. REGULATORY UPDATE
West Virginia v. EPA, (June 30, 2022)
◼ HOLDINGS:
◼ Standing
◼ Authority
61

62. REGULATORY UPDATE
West Virginia v. EPA, (June 30, 2022)
◼ HOLDING: Standing
◼ The argument that no petitioner lacked standing was
rejected as the lower court's judgment purported to revive
the Clean Power Plan, thereby requiring that the States
more stringently regulate power plan emissions within their
borders.
◼ The government had not shown that subsequent agency
and judicial action mooted the case as it had not suggested
that it would not reimpose emission limits predicated on
generation shifting if the litigation was resolved in its favor;
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63. REGULATORY UPDATE
West Virginia v. EPA, (June 30, 2022)
◼ HOLDING: Authority
◼ Review of the authority claimed per 42 U.S.C.S. § 7411(d)
was subject to the major questions doctrine given that
EPA had used an ancillary and gap-filler provision of the
Clean Air Act to substantially restructure the American
energy market;
◼ Per § 7411(d), it was not plausible that Congress gave
EPA clear authority to devise carbon emissions caps
based on a generation shifting approach. (emphasis
added)
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64. REGULATORY UPDATE
Implications of West Virginia v. EPA
◼ The Supreme Court’s application of the to the
major questions doctrine in West Virginia v. EPA,
may limit the ability of the federal administrative
state and federal regulatory agencies to promulgate
regulations far-reaching regulation without explicit
Congressional authorization.
◼ Thus, the SEC's proposed mandatory ESG
disclosures may be vulnerable to legal challenge in
the courts.
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65. REGULATORY UPDATE
Cases and Controversies
❑ People v. Exxon Mobil Corp., 2019 NY Slip Op 51990(U),
65 Misc. 3d 1233(A), 119 N.Y.S.3d 829 (Sup. Ct.)
❑ Action alleging fraudulent scheme by Exxon Mobil
Corporation to deceive investors about the company's
management of risks posed by climate change
regulation.
❑ Claims asserted by the Office of the Attorney General
denied, and the action is dismissed with prejudice.
❑ Also, note ESG reporting impacts on potential
litigation going forward.
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66. REGULATORY UPDATE
Cases and Controversies
❑ Louisiana v. Biden, No. 2:21-CV-01074, 2022 U.S. Dist.
LEXIS 25496 (W.D. La. Feb. 11, 2022)
❑ Plaintiff States filed a Complaint seeking declaratory
and injunctive relief as a result of Executive Order
13990 ("EO 13990"). EO 13990 reinstated the
Interagency Working Group ("IWG") on Social Costs
of Greenhouse Gas Emissions for agencies to use
when monetizing the value of changes in greenhouse
gas emissions resulting from regulations and other
relevant agency actions.
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67. REGULATORY UPDATE
Cases and Controversies
❑ Louisiana v. Biden, No. 2:21-CV-01074, 2022 U.S. Dist.
LEXIS 25496 (W.D. La. Feb. 11, 2022)
❑ Enjoined and restrained the Interagency Working
Group on Social Cost of Greenhouse Gases
❑ See also Friends of the Earth v. Haaland, Civil Action No.
21-2317 (RC), 2022 U.S. Dist. LEXIS 10795 (D.D.C.
Jan. 20, 2022)
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68. REGULATORY UPDATE
Naturally Occurring Radioactive
Material (NORM)
◼ Generally the handling and disposal of oil-field NORM
regulated by the states and not the federal government. See
http://www.rrc.state.tx.us/oil-gas/applications-and-
permits/environmental-permit-types-information/norm/
◼ Expect new EPA rule in Aug. 2016 regulating Unconventional
oil and gas extraction wastewater that often contains contain
various organic chemicals, inorganic chemicals, metals, and
naturally-occurring radioactive materials (also referred to as
technologically enhanced naturally occurring radioactive
material or TENORM). See
https://yosemite.epa.gov/opei/rulegate.nsf/byrin/2040-af35
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69. REGULATORY UPDATE
NORM Litigation
◼ Grefer v. Alpha Tech., 965 So. 2d 511 (La.App. 4 Cir. 2007)
◼ Plaintiffs sought compensatory and punitive damages as a result
of defendants alleged contamination of real property with
radioactive material (pipe scale aggregated on land)
◼ See
https://scholar.google.com/scholar_case?case=1772575705993
74374&hl=en&as_sdt=6&as_vis=1&oi=scholarr
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70. REGULATORY UPDATE
Takeaways
◼ Key to know:
◼ What the applicable law is,
◼ Where to find the law,
◼ How to interpret the law, and
◼ How to apply the law (e.g., permitting
requirements).
◼ Proper due diligence is paramount to mitigating
against environmental challenges and liabilities
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