Bud's Offshore Energy (BOE)

Attached is an opinion prepared by the Assistant Attorney General, Office of Legal Counsel, for the General Counsel, Dept. of Energy. This opinion may boost prospects for Santa Ynez Unit (SYU) production, either by Sable Offshore or a successor.

BOE SYU watchers see this State-Federal battle ultimately ending up in the Supreme Court, perhaps following the 9th Circuit’s ruling on PHMSA’s preemption of State authority over the onshore pipeline segments.

A few key excerpts from the DOJ opinion (emphasis added):

p. 1: You have asked whether an order issued under the Defense Production Act of 1950 (“DPA” or “Act”), Pub. L. No. 81-774, 64 Stat. 798 (codified as amended at 50 U.S.C. § 4501 et seq.), to Sable by the President or his delegee would preempt the California laws currently impeding Sable from resuming production and operating the associated pipeline infrastructure. We conclude that it would.

p. 6: As the Supreme Court has explained, executive orders “may create rights protected against inconsistent state laws through the Supremacy Clause,” especially when such orders are issued pursuant to “congressional authorization.”

p. 20: State law, we have been advised, is not currently the only impediment to Sable’s ability to resume production and transportation of oil. A consent decree entered in United States v. Plains All American Pipeline L.P., No. 20-cv-02415 (C.D. Cal. Oct. 14, 2020), Dkt. 33 (“Consent Decree”), “currently vests authority over resumption of transportation through the onshore portions of the Santa Ynez Pipeline System with the California Office of the State Fire Marshal.” Sable Letter at 9. We have been advised that, in addition to the United States and various State of California entities, Sable is a party to the Consent decree as a result of an acquisition. You have asked whether an executive order under the DPA would displace these provisions of the Consent Decree, even though there are both federal- and state-law claims at issue in that case. For three reasons, we think it would.

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