The governmental orders by layer
From March 13, 2020 through September 30, 2021 an employer in mining, oil and gas or energy services operated under orders from every layer of government that had power to issue one: the President, the Centers for Disease Control and Prevention, the Transportation Security Administration, the Department of Homeland Security, the Occupational Safety and Health Administration, the Federal Emergency Management Agency, the Federal Energy Regulatory Commission and the Department of Defense at the federal level; the governors, health officers, oil and gas regulators, land commissioners, utility commissions and occupational-safety agencies of the fifty States and the District of Columbia; the Navajo Nation, the Mescalero Apache Tribe, the Yakama Nation and the other tribal governments on whose lands the industry's mines, wells and pipelines sit; and the county judges, mayors, health districts and courts of the metropolitan areas where the industry keeps its offices, its yards and its supply bases. Every layer reached at least one of the eleven functions described above in every one of the six quarters. This section sets out the layers; the next sets out the quarters. The Service's form sentence treats the record as though it consisted of a handful of stay-home orders that expired in May 2020. That is not the record.
The universe
The scale of the orders is not a matter of impression. The Centers for Disease Control and Prevention counted forty-two States and territories that issued mandatory stay-at-home orders between March 1 and May 31, 2020, covering 2,355 of the nation's 3,233 counties, and found that "most jurisdictions issued multiple orders."17 The COVID Analysis and Mapping of Policies project counted more than 20,000 national and State policy measures in the United States and found that ninety-five percent of them issued before November 23, 2021, which is to say that the policy-making did not stop when the stay-home orders ended.18 Ballotpedia counted 2,065 executive orders of governors and State agencies between February and June 29, 2020 alone.19 The Department of Health and Human Services' own policy dataset recorded 4,218 State and county policy actions between March 23, 2020 and August 31, 2021, and its curators stopped coding in the spring of 2021, so the figure is a floor for 2020 and no measure of 2021.20 The Kaiser Family Foundation's State-by-State files, read at each quarter boundary, show thirty-five emergency declarations and nine statewide mask requirements in force on July 2, 2021, and twenty-five emergency declarations and eleven statewide mask requirements in force on September 21, 2021.21 The Bureau of Economic Analysis attributed the second-quarter 2020 collapse of gross domestic product to "stay-at-home orders" by name; the Comptroller General did the same.22 None of these figures is a count of the orders this analysis relies on. Each is a measure of the field from which those orders are drawn, and each is a public record of an agency or institution.
The regulators as issuers
For this industry the universe has a second dimension that most industries lack. The orders that reached a mining or energy employer were issued not only by governors and health officers but by the industry's own regulators, acting under their organic statutes in response to the same emergency. The Railroad Commission of Texas, the North Dakota Industrial Commission, the New Mexico Commissioner of Public Lands, the Oklahoma Corporation Commission and the Federal Energy Regulatory Commission each issued instruments between March 19, 2020 and September 14, 2021 that changed the terms on which wells could be drilled, completed, produced, shut in and reported, on which pipelines could be certificated and built, and on which the industry's customers could collect their bills.23 Those instruments are orders from appropriate governmental authorities in the plainest sense: they are the commands of the bodies whose commands the industry exists to obey.
The federal layer
The federal layer had a beginning, a middle and an end, and the end came after September 30, 2021. Its instruments are set out here quarter by quarter, because the Service's position that the federal government issued nothing that reached a private employer is the position most easily disproved by a list. The full federal record is on this site's federal page.
The predicates
The Secretary of Health and Human Services determined on January 31, 2020 that a public health emergency existed nationwide, and renewed the determination without interruption; the renewal of July 19, 2021 took effect July 20 and ran past the end of the claim period.24 The President declared a national emergency under the National Emergencies Act on March 13, 2020 and continued it by notice of February 24, 2021; he made an emergency determination under section 501(b) of the Stafford Act the same day, covering every State, tribe and territory.25 Those instruments are the predicates that every federal order below recites and that every State disaster declaration in the State section mirrors. They are not the orders. The orders follow.
The second quarter of 2020 and the March run-up
On February 2 and March 2, 2020 the President suspended the entry of persons who had been in China and Iran; on March 13 and March 16 he suspended the entry of persons who had been in the Schengen Area, the United Kingdom and Ireland; on May 26 he added Brazil.26 On March 20, 2020 the Department of Homeland Security limited crossings at every land port of entry on the Canadian and Mexican borders to "essential travel," and renewed the limit each month for nineteen months.27 On the same day the Centers for Disease Control and Prevention ordered the suspension of the introduction of certain persons from Canada and Mexico under sections 362 and 365 of the Public Health Service Act, extended it on April 20 and made it indefinite on May 21.28 The Department of State suspended routine visa services at every post on March 20, 2020, and the Citizenship and Immigration Services closed its offices to the public from March 18 to June 4.29 On April 22 the President suspended the entry of immigrants for sixty days, and on June 22 he suspended the entry of nonimmigrants on H-1B, H-2B, L and certain J visas through December 31, 2020, later extended to March 31, 2021; the engineers, technicians and specialty welders the industry brings in on those visas were the persons described.30 The Department of Labor and the Department of Homeland Security issued temporary rules changing the terms on which H-2A and H-2B workers could be hired and retained during the emergency.31
The Defense Production Act and the respirators
On March 18, 2020 the President invoked the Defense Production Act for health and medical resources; on March 23 he prohibited hoarding of designated scarce materials; on March 25 the Secretary of Health and Human Services designated N95 respirators among them; and on April 7 the Federal Emergency Management Agency adopted a temporary final rule prioritizing and allocating those respirators and barring their export without approval, a rule extended on August 10 and December 31, 2020 to June 30, 2021.32 The N95 respirator is the respirator a well-services crew wears against hydrogen sulfide exposure and a miner wears against silica; the allocation rule reached the supply function of every employer in this industry for fifteen months. On March 20 the Under Secretary of Defense told the defense industrial base which of its contractors were "essential critical infrastructure," and on April 8 the Department adopted the class deviation implementing section 3610 of the CARES Act for contractors whose facilities were closed or restricted "due to COVID-19."33 On March 13 the Deputy Secretary of Defense stopped all domestic travel for Department components, and the stop ran, in conditions-based form, through the end of the claim period.34
The federal workforce and the leave mandates
The Office of Management and Budget directed the federal workforce to maximum telework on March 17, 2020 and aligned agency operations to the national guidelines on April 20; the Secretary of the Interior placed the Department's workforce, including the Bureau of Land Management and the Bureau of Safety and Environmental Enforcement, on weather and safety leave and telework on March 22.35 Every drilling permit, right-of-way grant, unit agreement, royalty-relief application and plan of development that an operator files with those bureaus went to a closed office from that day. The Environmental Protection Agency announced a temporary enforcement policy, retroactive to March 13, 2020, under which routine compliance monitoring and reporting obligations could be excused where "COVID-19 was the cause of the noncompliance"; the policy is described here as what it is, a policy and not an order, and it is evidence that the federal government itself recognized that the orders had made ordinary compliance impossible.36 The Families First Coronavirus Response Act imposed paid-leave mandates on every employer of fewer than 500 employees from April 1, 2020, implemented by a temporary rule of April 1 and a revised rule of September 16, 2020; both ran to December 31, 2020.37
The customs rule
On April 20, 2020 the Department of the Treasury and Customs and Border Protection adopted a temporary final rule postponing the deposit of estimated duties for importers who could demonstrate "significant financial hardship," and defined that hardship in the words of the Suspension Clause itself: an importer qualified if its "operations are fully or partially suspended during March 2020 or April 2020 due to orders from a competent governmental authority limiting commerce, travel, or group meetings due to COVID-19."38 The Executive Branch thus told every importer of tubulars, bits, pumps and mining machinery, in a rule published in the Federal Register, that the orders of March and April 2020 had fully or partially suspended the operations of American businesses. The Service's position that they had not is a position the Executive Branch contradicted in its own rulemaking.
FERC, the critical-infrastructure list and the ports
The Federal Energy Regulatory Commission acted on April 2, 2020. Its Policy Statement on Business Continuity of Energy Infrastructure found that regulated entities "have had to take unprecedented actions in response to the emergency conditions, including directing staff to work remotely for an extended period, which may disrupt, complicate, or otherwise change their normal course of business operations," and its Order No. 870 delegated to staff the authority to act on COVID-19 waiver and extension requests; on May 5 it shortened the comment period for section 204 filings "to ensure regulated entities' liquidity in the face of the COVID-19 pandemic"; on June 16 it issued its policy statement on the effects of COVID-19 on oil pipelines; and on June 5 it noticed a technical conference on the impacts of COVID-19 on the energy industry for July 8 and 9.39 Order No. 870 is the order; the policy statements and the notices are the Commission's own record, made at the time, of the regime it administered under that order, and this analysis cites them as that record and not as orders. The Cybersecurity and Infrastructure Security Agency's advisory list of essential critical infrastructure workers, issued March 19, 2020 and revised March 28, April 17, May 19 and August 18, 2020, is guidance and is cited as such; it matters because Texas, Kentucky, Louisiana, Florida, Georgia, Massachusetts, Connecticut, Michigan and Mississippi incorporated it by reference into orders that bound every business in the State.40 The Coast Guard's Marine Safety Information Bulletins on port and facility operations, issued March 18 and revised April 17 and May 7, 2020, are the record of the regime under which every Gulf of Mexico supply base and every crude export terminal operated; they are cited as evidence of that regime, and the orders they implemented are the orders cited above.41
The third quarter of 2020
The land-border limits were renewed on July 22, August 21 and September 23, 2020.42 The nonimmigrant entry suspension of June 22 remained in force; the Title 42 order remained in force; the respirator allocation rule was extended and modified on August 10.43 The Department of Labor's revised paid-leave rule took effect September 16.44 The Department of Defense moved from a stop-movement order to a conditions-based approach on May 22, under which travel to and from installations remained restricted where local conditions had not met the Department's gating criteria.45 FERC's shortened comment period ran to September 1 and its technical conference sat on July 8 and 9.46
The fourth quarter of 2020
The land-border limits were renewed on October 22, November 23 and December 22, 2020.47 On October 13 the Centers for Disease Control and Prevention replaced its March order with an order suspending the right to introduce certain persons from Canada and Mexico, which remained in force until August 2, 2021.48 On December 31 the respirator allocation rule was extended to June 30, 2021; on December 18 the Department of Homeland Security extended its H-2A flexibilities.49 FERC's docket recorded the industry's own account of the quarter: UGI LNG's request for an extension of time to complete a certificated liquefaction project recited construction delays caused by the pandemic.50
The first quarter of 2021
On January 20 and 21, 2021 the President ordered mask-wearing and physical distancing, the occupational-health and airborne-transmission controls of the federal workplace, in federal buildings and on federal lands, directed the agencies to require masks in interstate travel, and directed the Occupational Safety and Health Administration to consider an emergency temporary standard.51 On January 25 he continued the Schengen, United Kingdom, Ireland and Brazil suspensions and added South Africa.52 On January 26 the Centers for Disease Control and Prevention required a negative pre-departure test of every air passenger arriving from abroad.53 On January 27 the Secretary of Homeland Security determined that a national emergency required actions to protect the safety of Americans using the transportation system, and at 11:59 p.m. on February 1, 2021 the Centers for Disease Control and Prevention's order requiring masks on every conveyance and at every transportation hub, the airborne-transmission control that governed every flight, bus, train and hub in the country, took effect, implemented by the Transportation Security Administration's Security Directives 1582/84-21-01, 1544-21-02 and 1542-21-01 and Emergency Amendment 1546-21-01, each effective the same night.54 From that night every crew flight to the North Slope, every helicopter to a Gulf platform, every charter to a Permian rotation and every airport in the country operated under a federal order that limited travel to persons who complied with it. The Office of Management and Budget's Memorandum M-21-15 of January 24 required masks and distancing in every federal workplace immediately and limited occupancy to twenty-five percent; the Bureau of Land Management's field offices, the Minerals Management offices and the Mine Safety and Health Administration's district offices operated under it.55 The land-border limits were renewed on January 19, February 23 and March 19, 2021; the nonimmigrant suspension expired March 31.56 The Occupational Safety and Health Administration launched its National Emphasis Program on COVID-19 on March 12, 2021, directing inspections of workplaces with the highest exposure; the Department of Defense reissued its conditions-based travel restrictions on March 15.57 On February 24 the President ordered a review of the supply chains for critical minerals and energy, and on February 1 the scarce-materials designation was extended.58
The second quarter of 2021
On April 20 the Administrator ratified the Security Directives; on April 30 the President suspended the entry of persons who had been in India, effective May 4; on May 12 Security Directive 1582/84-21-01A cancelled and replaced its predecessor with an expiration date of September 13, 2021.59 The land-border limits were renewed on April 22, May 24 and June 23.60 The respirator allocation rule ran to June 30 with additional exemptions noticed June 11.61 On June 21 the Occupational Safety and Health Administration's Emergency Temporary Standard for health-care settings took effect, followed by its inspection directive of June 28; the standard bound the occupational-health clinics that supply the industry's physicals, fit tests and drug screens.62 On June 10 the Office of Management and Budget replaced its occupancy limit with reentry planning; the mask and distancing requirements for federal workplaces remained.63 On June 8 the Administration published its 100-day supply-chain review and announced a Supply Chain Disruptions Task Force, records of the federal government's own account of the state of the industry's inputs at mid-2021.64
The third quarter of 2021
Every federal instrument that follows was in force on some or all of the ninety-two days from July 1 to September 30, 2021, and the first six were in force on every one of them. The Centers for Disease Control and Prevention's conveyance and transportation-hub mask order, the airborne-transmission control on every flight, bus, train and hub, was in force every day.65 Security Directive 1582/84-21-01A was in force through September 13 and Security Directive 1582/84-21-01B, effective September 14, was in force through the end of the quarter and to January 18, 2022.66 The land-border limits were in force every day: the notices of June 23, July 22, August 23 and September 22, 2021 for Canada, and the notices of the same dates for Mexico, each limiting land crossings to essential travel to November 8, 2021.67 The entry suspensions for the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa, China, Iran and India were in force every day and were revoked on November 8, 2021.68 The Title 42 order was in force every day, in its October 13, 2020 form to August 2 and in its August 2, 2021 form thereafter.69 The pre-departure testing order was in force every day.70 Executive Orders 13991 and 13999 remained in force; on July 29, 2021 the Safer Federal Workforce Task Force reinstated masks for every person in federal buildings in areas of substantial or high transmission and in August required a certification of vaccination from employees, onsite contractors and visitors; every operator's landman, permit agent and regulatory analyst who entered a Bureau of Land Management, Bureau of Safety and Environmental Enforcement or Mine Safety and Health Administration office entered under those rules.71 The Occupational Safety and Health Administration's Revised National Emphasis Program and Updated Interim Enforcement Response Plan took effect July 7, 2021, and its health-care standard remained in force.72 The public health emergency was renewed July 20; the President directed 100 percent federal cost share for emergency protective measures on August 17; the scarce-materials designation was extended July 7 to November 15, 2021.73 On September 9, 2021 the President ordered every federal agency to include in its contracts a clause requiring contractors and subcontractors to comply with the Safer Federal Workforce Task Force's guidance, and ordered the vaccination of federal employees; the Task Force issued its contractor guidance and the Director of the Office of Management and Budget made the determination required by the order on September 24.74 Every mining, pipeline and energy-services employer that held or bid a federal contract, from the coal supplier of a federal facility to the environmental-services contractor of a national laboratory, was addressed by the order of September 9, 2021, whose clause every covered contract carried from October 15, 2021. FERC's waiver regime remained in force: on September 14, 2021 it noticed the request of the Edison Electric Institute and the American Gas Association to extend the COVID-19 waiver of the allowance-for-funds-used-during-construction rules to March 31, 2022, and its April 2020 policy statement and delegation order had not been withdrawn.75 The Coast Guard's bulletins of June 11 and September 2, 2021 implemented the conveyance mask order in the maritime transportation system, and its crew-change and credential bulletins ran through the quarter; they are cited as the record of the regime the CDC order created at every offshore supply base.76 The Department of Defense's conditions-based travel restrictions of March 15, 2021 remained in force, and the Department was still publishing its installation status updates under them on September 27, 2021.77
The end of the layer
That is the federal layer. It began before the first day of the claim period and ended after the last. The Service's form sentence on the suspension prong accounts for none of it.
The fifty States
The pattern
Every State and the District of Columbia declared an emergency; forty-two States and the District closed non-essential businesses or confined the public to their homes between March 19 and April 3, 2020; every one of them treated oil and gas extraction and energy as essential or critical infrastructure and attached conditions to the designation, and one of them, Pennsylvania, closed its coal, metal and nonmetal mines and its mining-services contractors by name (Ex. PA-004); twenty quarantined arriving travelers in the spring of 2020 and more did so in the winter;78 thirty-nine imposed statewide face-covering requirements, the most visible of the workplace infection-prevention and exposure-control requirements they imposed on every indoor public setting, the industry's offices, shops and lodging among them; five adopted binding occupational-safety rules on every employer, four of which were in force on every day of the third quarter of 2021; and the sector regulators of the largest producing States acted in their own names. The fifty-one rows are in the State table this page renders and on each State page. This section sets out the States by basin, because that is how the industry is organized and how the orders reached it.
Texas and the Gulf Coast
Texas issued Executive Order GA-08 on March 19, 2020, closing dine-in service, gyms and bars and capping gatherings at ten; on March 26 it ordered every air passenger arriving from the New York area and New Orleans into fourteen-day quarantine; on March 29 it ordered that "Every person who enters the State of Texas through roadways from Louisiana ... shall be subject to mandatory self-quarantine for a period of 14 days," with an exemption for travel "in connection with commercial activity ... or critical-infrastructure functions, as may be determined by the Texas Division of Emergency Management"; and on March 31 it adopted GA-14, effective April 2, defining essential services by the federal critical-infrastructure list, version 2.0, and ordering every person in Texas to "minimize in-person contact with people who are not in the same household."79 GA-14 barred local orders that restricted essential services, so no county could close a Texas well, and it ran to April 30.80 GA-29 required face coverings statewide from July 3, 2020, one of the workplace infection-prevention and exposure-control requirements that GA-28, GA-30 and GA-32 completed with occupancy limits, distancing conditions and the hospitalization trigger through the winter; GA-34 ended the statewide limits on March 10, 2021; GA-38 of July 29, 2021 and GA-39 of August 25, 2021 continued the disaster regime and its preemption of local orders, and the Governor renewed the disaster declaration on August 29, 2021.81 The Supreme Court of Texas's emergency orders governed every court in the State through the quarter: the Thirty-Eighth to August 1, the Fortieth from August 1 to October 1, 2021.82 Louisiana closed non-essential businesses on March 23, 2020 by Proclamation 33 JBE 2020, incorporating the federal list, and moved through Phases 1, 2 and 3 from May 15, 2020 with distancing and face-covering conditions on every business "in full operation"; its first statewide face-covering order, Proclamation 89 JBE 2020, which closed every bar and capped crowds at fifty in the same instrument, ran from July 13, 2020 to April 28, 2021, when Proclamation 79 JBE 2021 lifted it (Ex. LA-014; Ex. LA-030); its emergency was renewed June 22, 2021; and on August 2, 2021 Proclamation 137 JBE 2021 re-imposed indoor face coverings on every person, in every business, from August 4, an airborne-transmission control the same proclamation extended to public conveyances, renewed September 1 and September 29, 2021 to October 27.83 Louisiana's crews were the crews Texas, Florida, Oklahoma and Arkansas quarantined by name.84 Mississippi's Executive Order 1463 of March 24, 2020 suspended local limits on essential businesses and its Executive Order 1466 ordered shelter in place statewide from April 3 to April 27, 2020.85 Alabama's State Health Officer ordered the State to stay at home from April 4 to April 30, 2020, naming "petroleum producers ... petroleum exploration and production ... mining" essential and conditioned, and the Governor declared a new emergency on August 13, 2021.86 Florida's Executive Order 20-91 adopted the federal list statewide from April 3, 2020; its Executive Orders 20-80, 20-82 and 20-86 isolated arriving travelers and stopped Louisiana traffic at checkpoints on Interstate 10 from March 24, 2020; and in 2021 the Legislature and the Governor barred local emergency orders from July 1.87
New Mexico, Arizona and the Navajo Nation
New Mexico's orders of March 16 and 19, 2020 closed gatherings and dine-in service; its order of March 23, 2020 named "oil drilling, oil refining, natural resources extraction or mining operations" essential and, in the same instrument, capped every hotel, motel and RV park at fifty percent; its order of April 6 reduced the cap to twenty-five percent.88 The Governor's Executive Order 2020-054 of July 1, 2020 required every person arriving in New Mexico to self-isolate for fourteen days, amended September 3 (effective September 4) and October 29, 2020, and the requirement ran to February 10, 2021.89 Its orders of July 13, September 18 and October 16, 2020 re-closed indoor dining, capped gatherings at five and set lodging at sixty and twenty-five percent; its "reset" of November 16 to December 2, 2020 closed non-essential businesses a second time with lodging at twenty-five percent; its county framework of December 2, 2020 set lodging by county color (forty and twenty-five percent at Red, sixty and twenty-five at Yellow and seventy-five and forty at Green, for NM Safe Certified and other lodging), added on February 24, 2021 a Turquoise level at which certified lodging ran uncapped and other lodging at fifty percent, and ran, through the orders of December 30, 2020, April 28 and June 2, 2021, to June 30, 2021, when every county stood at Turquoise.90 On June 30, 2021 the Secretary of Health issued the order that governed July 1: face coverings for the unvaccinated, rapid-response case reporting and mandatory COVID-Safe Practices for "[a]ll businesses, establishments, and non-profit entities" under a penalty of $5,000 per violation; it was extended July 30; on August 17, 2021 the universal indoor face-covering requirement was reinstated for all persons from August 20, atop the COVID-Safe Practices that continued to bind every business; and on September 15, 2021 it was extended to October 15 with the emergency renewed the same day.91 New Mexico's Occupational Health and Safety Bureau required every employer to report a positive COVID-19 case within four hours from August 5, 2020, and the Supreme Court of New Mexico's protocols governed every courthouse through the quarter.92 The State Land Office's emergency shut-in rule is described in the sector-regulator section below. Arizona declared its emergency March 11, 2020; its Executive Order 2020-12 of March 23 barred every county and city from closing an essential service, and ran to September 29, 2021; its stay-home order ran March 31 to May 15, 2020; and its Executive Order 2020-24 quarantined air arrivals from New York, New Jersey and Connecticut from April 9 to May 16, 2020.93 The Navajo Nation, on whose lands the Navajo Mine, the Kayenta lease and the Aneth field sit, ordered its residents to stay at home on March 20, 2020, imposed a nightly curfew on March 30 that ran to August 4, 2021, locked the Nation down for fifty-seven hours each weekend in April, for ten days in June and each weekend in September 2020, re-issued the stay-home order November 16, 2020, continued it into March 2021, re-issued it again April 9, 2021 and replaced it June 18, 2021 with a Safer-at-Home order that continued the daily curfew to August 4, 2021, and in the third quarter of 2021 continued "Yellow Status" for businesses from July 8, re-emphasized Safer-at-Home requirements August 4, clarified its face-covering mandate for businesses and schools August 6 and declared "Orange Status" for businesses and schools with revised gathering limits from August 12, 2021.94 The Mescalero Apache Tribe required face coverings of every employee and customer of every entity doing business on the reservation from May 12, 2020, one of the exposure-control conditions it placed on every such entity, confined weekday movement to necessary travel and closed tribal roads to outside visitors in October 2020, and re-imposed face coverings on every tribal employee, agent and contractor on August 20, 2021, with its other COVID-19 provisions continued.95
Oklahoma, Kansas and Arkansas
Oklahoma's Fourth Amended Executive Order 2020-07 of March 24, 2020 ordered vulnerable persons home and closed non-essential businesses in the counties with community spread; its Sixth Amended order of March 29 quarantined every air traveler arriving from New York, New Jersey, Connecticut, Washington, California and Louisiana for fourteen days; its Seventh Amended order of April 1 closed to the public every business outside the critical-infrastructure sectors statewide to April 24, 2020, and the Essential Industries List that accompanied it kept "21 Mining, Oil and Gas Extraction" and "486 Pipeline Transportation" open.96 Its winter orders of October 23 and November 16, 2020 imposed a moratorium on State-paid travel, face coverings on State property and an 11 p.m. closing; the emergency orders were rescinded May 4, 2021; and in the third quarter of 2021 the Corporation Commission's remote-hearing regime, the Cherokee Nation's employee vaccination order and the State's Executive Order 2021-16 and Senate Bill 658 were in force.97 Kansas's Executive Order 20-16 ordered the State to stay home from March 30 to May 3, 2020 under the Kansas Essential Function Framework, which listed "Exploration and Extraction of Fuels" and "Transport Materials by Pipeline," and its Department of Health and Environment maintained a mandatory travel-quarantine list from March 23, 2020, updated June 29 and December 1, 2020 and June 3 and September 23, 2021, with an exemption for critical-infrastructure workers that covered work and nothing else.98 Arkansas issued no stay-home order; it quarantined arriving travelers from March 30 to June 15, 2020, confined every business to the Department of Health's distancing and operating protocols from April 6, 2020 to February 26, 2021, limited lodging to authorized guests from April 6 to June 15, 2020, and declared a new emergency from July 29 to September 27, 2021; its Public Service Commission ordered every jurisdictional electric, gas and water utility to suspend disconnections on April 10, 2020.99
Appalachia
Pennsylvania's orders of March 19, 2020 closed every business that was not life-sustaining, and the list that accompanied them marked Oil and Gas Extraction "Yes" and Coal Mining, Metal Ore Mining, Nonmetallic Mineral Mining and Quarrying, Support Activities for Mining and Utility Subsystem Construction "No."100 The Secretary of Health's Worker Safety Order of April 15, 2020, effective April 19, bound every business that remained open to cleaning, distancing, staggering and screening rules; the targeted mitigation orders of July 15, 2020, effective July 16, required that "Unless not possible, all businesses are required to conduct their operations in whole or in part remotely through individual teleworking"; the orders of November 23, 2020, effective November 27, tightened the words to "Unless impossible, all businesses must conduct their operations remotely," a mandate the Acting Secretary's amendment of April 1, 2021 ended effective April 4, while the mitigation orders' remaining capacity, gathering, alcohol and workplace rules ran to 12:01 a.m. May 31, 2021; the universal face-covering order of November 17, 2020, which with the Worker Safety Order's cleaning, distancing, staggering and screening rules formed the Commonwealth's workplace infection-prevention and exposure-control regime, ran to June 28, 2021; and the travel order of November 17, 2020 required every person entering the Commonwealth from November 20 to produce a negative test or quarantine, until its termination on March 1, 2021.101 Act 21 of 2021 extended the Commonwealth's regulatory suspensions to September 30, 2021, Act 73 extended them to March 31, 2022, the Acting Secretary ordered face coverings in every school from September 7, 2021 and the Department issued its health-care work-restriction advisory September 16, 2021.102 West Virginia's Executive Order 9-20 ordered the State to stay at home from March 24, 2020 and named, as item g of its essential businesses, "Coal mining and coal-fired electric generation facilities, as well as all ancillary and support functions ranging from transportation, maintenance, equipment, and supply vendors"; Executive Order 14-20 isolated for fourteen days every person arriving from an area of substantial spread under State Police monitoring from March 31, 2020; Executive Order 15-20 closed private campgrounds to new arrivals from outside the State; the framework was terminated April 20, 2021 by Executive Order 12-21, which kept its health-care orders in force; and the emergency declaration of March 16, 2020 ran past the claim period.103 Ohio's Stay At Home Order of March 22, 2020 named "petroleum and fuel, mining" essential and asked every arriving traveler to self-quarantine; its face-covering order, the airborne-transmission control it placed on every indoor business, ran from July 23, 2020 to June 2, 2021.104 Kentucky's Executive Order 2020-257 closed every non-life-sustaining business from March 26, 2020 under the federal list; Executive Orders 2020-258 and 2020-266 restricted travel into and out of the Commonwealth and required quarantine until their rescission May 6 and expiry May 22, 2020; Healthy at Work bound every reopened business from May 11, 2020 to June 11, 2021; the Public Service Commission suspended disconnections from March 16 to October 20, 2020; and the Court of Justice's administrative order of August 9, 2021 governed every courthouse through the quarter.105 Virginia's Executive Orders 53 and 55 closed and confined from March 24 and March 30, 2020 to June 10, 2020; its Department of Labor and Industry adopted the nation's first COVID-19 Emergency Temporary Standard on every employer from July 27, 2020, made it permanent from January 27, 2021 and amended it effective September 8, 2021; the Supreme Court of Virginia's judicial emergency ran through the quarter.106 Tennessee's Executive Order 22 confined the State from March 31 to April 30, 2020 and named "petroleum and fuel, mining" essential; its limited emergency ran through 2021 and its school face-covering order issued August 16, 2021.107
The Rockies and the Bakken
North Dakota issued no stay-home order and needed none to reach this industry: its State Health Officer's Confinement Order 2020-02 of March 28, 2020 quarantined every person returning from international travel, and Confinement Order 2020-02.1 of April 8, 2020 ordered that "any person who enters North Dakota traveling from another state or country" quarantine for fourteen days, exempting commuters and essential critical infrastructure workers "while asymptomatic"; the order ran in successive forms to its revocation on September 21, 2020.108 Its face-covering order, with the business duties it imposed, ran from November 14, 2020 to January 18, 2021, and the capacity limits that accompanied it, the State's other workplace infection-prevention and exposure-control requirement, ran to the same day; the emergency was rescinded April 30, 2021; and the 2021 Legislature enacted the statutes that governed the third quarter.109 The Industrial Commission's instruments are described below. Montana's Stay at Home Directive of March 28, 2020 named "petroleum and fuel, forest products, mining" essential; its Directive of March 30 quarantined every person arriving "for a non-work-related purpose" for fourteen days and required every hotel and short-term rental to post the notice; its Directive of the same day limited foreclosures, evictions and disconnections; and in 2021 the Legislature's House Bill 702 and the Department's emergency rule of August 31 governed.110 Wyoming closed bars, restaurants, gyms and schools on March 19, 2020 and capped gatherings at ten on March 20, with "hotels for lodging" and "worker transport" exempt, and continued those orders in amended form without interruption to May 31, 2021; its Governor's Directive of April 3, 2020 quarantined every non-work arrival and required hotels to post the notice, to May 8, 2020; its face-covering order, which joined the distancing conditions and gathering caps of Orders #1 and #2, ran from December 9, 2020 to March 15, 2021; its emergency ran to March 15, 2022.111 Colorado's Public Health Order 20-24 of March 22, 2020 ordered every non-essential employer to cut its in-person workforce by fifty percent; the Second Updated order of March 26 ordered the State to stay at home and listed "Oil and gas extraction, production, refining, storage, transport and distribution" as Critical Infrastructure subject to the Social Distancing Requirements, prohibiting all travel "except Necessary Travel"; the Third and Fourth Updated orders carried the regime to April 26, 2020.112 Safer at Home followed from April 27; the face-covering order, one of the workplace infection-prevention and exposure-control requirements that Safer at Home's distancing and capacity rules completed, from July 17, 2020 to June 1, 2021; Level Red from November 20, 2020; the dial to April 16, 2021; and Public Health Order 20-38 in its successive amendments from April 16 through the Fourth Amended order of July 1, the Fifth of August 1 and the Sixth of September 1, 2021, with the Disaster Recovery Orders of July 8 and September 4, 2021 continuing the emergency.113 Routt County closed its lodging to visitors on March 24, 2020 and Pitkin County issued its standing order March 18; the Legislature's House Bill 20-1414 prohibited price gouging for the duration of the emergency.114 Utah's Stay Safe, Stay Home directive bound every organization from March 30, 2020; its Executive Orders 2020-15 and 2020-16 required a travel declaration of every person entering the State from April 10 to May 1, 2020; its public health order of April 14, 2020 governed self-isolation and quarantine; the Southeast Utah Health Department's Grand County order of May 1, 2020 conditioned lodging and required face coverings; the State declared a new public health emergency October 14, 2020 and imposed face coverings statewide, with gathering limits, on November 9, 2020; and its courts reinstated face coverings July 30, 2021.115 Idaho's Order to Self-Isolate confined the State from March 25 to April 30, 2020 and, as amended April 15, required arriving persons to quarantine, a requirement carried by the Stay Healthy Order that followed May 1 to May 15, 2020; the emergency was continued June 18 and July 19, 2021 and the Guard was activated August 31, 2021.116 South Dakota's Executive Orders 2020-08 and 2020-12 directed employers and retail businesses from March 23 to April 28, 2020, its Executive Order 2020-13 confined vulnerable persons in Minnehaha and Lincoln Counties with critical-infrastructure work excepted, and its courts operated under a judicial emergency from March 13, 2020 through the period.117 Nebraska's Directed Health Measures ran from March 25, 2020 through May 2021, quarantined international arrivals and regulated congregate-housing employers, and the Governor's hospital-capacity order issued August 26, 2021.118
The Pacific and Alaska
Alaska's Health Mandate 010 of March 23, 2020 quarantined every person arriving in the State for fourteen days from March 25; Health Mandate 012 prohibited travel between communities except for critical infrastructure from March 28; and the Essential Services and Critical Workforce Infrastructure Order, first issued March 27, listed "oil production, mining," ordered that "workers arriving in Alaska from out of state must self-quarantine for 14 days" and required every critical-infrastructure business to file a protective plan.119 The travel order was revised June 5, 2020 (effective June 6; testing alternative), August 6 (effective August 11; pre-test for non-residents), October 15 (effective October 16) and November 16, 2020, and lapsed February 14, 2021; Anchorage's Emergency Orders governed hotels and arrivals in the city; the Commissioner of Health declared a new public health emergency effective May 1, 2021, added crisis standards of care September 21, 2021, and the Supreme Court's Special Order of August 31, 2021 governed the courts.120 California's Executive Order N-33-20 confined the State from March 19, 2020 to June 15, 2021 under the Essential Critical Infrastructure Workers list, which named the energy sector; the Regional Stay at Home Order of December 3, 2020 closed hotels to out-of-State non-essential reservations in every region below fifteen percent ICU capacity; Cal/OSHA's COVID-19 Prevention Emergency Temporary Standard bound every employer from November 30, 2020, conformed by Executive Order N-84-20, supplemented by the exposure-notice statute from January 1, 2021, and readopted June 17, 2021; and the Beyond the Blueprint order governed from June 15, 2021 through the quarter.121 Nevada's Directive 003 of March 20, 2020 closed non-essential businesses and provided that "the construction, mining, manufacturing, and infrastructure sector labor force may continue operations, but shall maintain strict social distancing practices" and adopt policies ensuring "minimum contact between the workforce and the general public"; the State stayed home from April 1 to May 9, 2020; and on July 27, 2021 Directive 047 required face coverings of every person, vaccinated or not, in public indoor spaces in every county of substantial or high transmission from July 30, including the mining counties, an airborne-transmission control that Directive 048 carried into every office and breakroom by defining "indoor public setting" to include them, with Nevada OSHA supplying the enforcement guidance.122 Washington's Proclamation 20-25 confined the State from March 23, 2020 with the Energy Sector on its critical-workers list; Proclamation 20-23 suspended utility disconnections from March 18, 2020 to September 30, 2021; Proclamations 20-83 and 20-83.2 restricted arriving travelers; the occupational-health and airborne-transmission controls of the State's workplace regime ran through the quarter: the Secretary of Health's Order 20-03.3 required face coverings of every unvaccinated person and in listed settings from June 30, 2021 and Order 20-03.4 of every person indoors from August 23, 2021, Proclamation 20-25.15 of August 20, 2021 prohibited every business from admitting unmasked persons and placed the duty on the employer, Proclamation 21-14 of August 9, 2021 required vaccination of State workers and State contractors by October 18, 2021, amended August 20 and September 27; and the Department of Labor and Industries' emergency rule WAC 296-800-14035 made every proclamation a workplace-safety violation, re-adopted May 26, 2020, July 6, August 23 and September 20, 2021.123 The Yakama Nation required face coverings in every indoor public setting from June 26, 2020 and directed every business not to serve unmasked customers on site, under civil fines.124 Oregon's Executive Order 20-12 confined the State from March 23, 2020; Oregon OSHA's temporary rule bound every employer from November 16, 2020, its permanent rule from May 4, 2021, amended June 30 and September 16, 2021; Executive Order 21-15 rescinded the remaining orders June 30, 2021 while extending the emergency to December 31; and the Oregon Health Authority required face coverings indoors of every person from August 13, 2021 and outdoors in crowded settings from August 27, an airborne-transmission control layered on Oregon OSHA's rule and enforced by Oregon OSHA from September 16.125 Hawaii quarantined every arriving traveler from March 26, 2020 to March 25, 2022, confined the State from March 25, 2020 naming "petroleum and fuel, mining" essential, and in the third quarter of 2021 ran the Safe Travels regime and statewide face coverings, the airborne-transmission control layered on the Safe Travels quarantine, under the proclamations of June 7 and August 5 and the gathering limits of August 10, 2021.126
The Midwest
Minnesota's Executive Orders 20-20, 20-33 and 20-48 confined the State from March 27 to May 17, 2020 and named "iron ore mining and processing operations and supplier/vendor industries" a Critical Sector, required a preparedness plan of every business from April 30, 2020, and continued a telework mandate to April 14, 2021; the emergency ended July 1, 2021.127 Michigan's Executive Order 2020-21 confined the State from March 24, 2020 under the critical-infrastructure list and reopened manufacturing May 11; its Occupational Safety and Health Administration's emergency rules bound every employer from October 14, 2020 to June 22, 2021; its Employment Rights Act barred discipline of quarantined employees from October 22, 2020; and Executive Order 2020-28 governed water utilities.128 Illinois's Executive Order 2020-10 confined the State from March 21, 2020 and named "petroleum and fuel, mining" essential; its April 1 order continued and extended its predecessors; Tier 3 mitigations returned in November 2020; its disaster proclamation was in force July 1, 2021 and renewed through the quarter; and Executive Order 2021-20 of August 26, 2021 re-imposed indoor face coverings on every person from August 30, an airborne-transmission control to which Executive Order 2021-22 added, on September 3, an employer duty to enforce it in every indoor workplace.129 Indiana's Executive Order 20-08 confined the State from March 25, 2020, extended by Executive Order 20-18 with its essential list to April 20 and by Executive Order 20-22 to May 1, while Executive Order 20-05 suspended disconnections; its emergency continued through Executive Order 21-17 and its monthly renewals, with Executive Order 21-27 of September 30, 2021 taking effect October 1; and its Department of Health's control measures were given executive-order status August 1, 2021.130 Wisconsin's Emergency Orders 12 and 28 confined the State from March 25, 2020, naming "petroleum and fuel, mining" essential, until the Supreme Court set Order 28 aside on May 13, 2020; its courts' masking and distancing order of May 21, 2021 ran through the quarter.131 Iowa's proclamations of July 23 and September 17, 2021 continued the disaster emergency; Missouri's Stay Home order confined the State from April 6 to May 3, 2020, and its general emergency ran to August 27, 2021, when Executive Order 21-09 replaced it with a state of emergency for health-care staffing and COVID-19 recovery through December 31, 2021, continuing the waivers (Ex. MO-018; Ex. MO-020).132
The Northeast, the mid-Atlantic and the Southeast
New York's PAUSE orders closed non-essential businesses from March 22, 2020, and Empire State Development's guidance named utilities, fuel supply and transmission essential while limiting construction to essential projects; Executive Order 205 quarantined arriving travelers from June 25, 2020 through the spring of 2021; the Legislature's utility moratorium ran to December 21, 2021; and the Department of Health's face-covering and vaccination rules issued through 2021.133 New Jersey's Executive Order 122 ceased non-essential construction from April 10 to May 18, 2020 while naming utilities essential; Executive Order 192 imposed workplace protocols on every employer from November 5, 2020 to June 4, 2021, its unvaccinated-employee rules carried forward by Executive Orders 242 and 243; its utility moratorium ran from October 15, 2020 to June 30, 2021 with a grace period to December 31, 2021; and Executive Order 252 imposed vaccination or testing on covered workers from September 7, 2021.134 Connecticut's Executive Order 7H closed non-essential businesses from March 23, 2020; Executive Order 7T barred hotels from taking non-essential guests from April 2 to June 17, 2020; Executive Orders 7III and 9B quarantined arriving travelers from July 24, 2020 to March 19, 2021; the Public Utilities Regulatory Authority suspended shut-offs from March 12, 2020; and the emergencies were renewed July 21, 2021 with Executive Order 13A and the universal-masking rule, the airborne-transmission control the Department of Public Health placed on every school, child-care, health-care, congregate and transit setting, in force through the quarter.135 Massachusetts's Order No. 13 closed non-essential businesses from March 24, 2020; Order No. 45 quarantined arriving travelers from August 1, 2020 to March 22, 2021; the modified public health emergency and its face-covering orders, airborne-transmission controls on every health-care, congregate-care and correctional setting, ran from May 28, 2021 through the quarter.136 Rhode Island confined the State from March 28, 2020, quarantined every non-work arrival from March 28 to September 2, 2020 (Ex. RI-009; Ex. RI-010) and arrivals from hot-spot States and abroad from September 3, 2020 to July 6, 2021 (Ex. RI-024; Ex. RI-036; Ex. RI-040; Ex. RI-043), in Executive Orders 20-13, 20-14, 20-71, 21-26, 21-57 and 21-68; its regulation on covered entities was amended twenty times; its emergency was extended July 14 and August 12, 2021; and its Quarantine and Isolation Orders of September 1, 2 and 30, 2021 bound every person exposed.137 Vermont's Addendum 6 suspended in-person business operations from March 25, 2020; Addendum 7 quarantined arriving travelers and suspended lodging from March 30, 2020; the restart addenda required documented training of every employee; the Safe Travel policy was paused into a universal quarantine November 10, 2020; and Executive Order 06-21 governed post-emergency recovery from June 15, 2021.138 New Hampshire's Emergency Order 17 confined the State from March 27, 2020 with an Exhibit A that named "Petroleum drilling, extraction, production ... Natural gas transmission and distribution pipelines" essential; Emergency Order 27 confined hotels to essential workers from April 6, 2020; the Universal Guidelines bound every employer from June 16, 2020 to May 7, 2021; and the travel-quarantine orders ran to May 7, 2021.139 Maine's Executive Orders 19 and 28 confined the State from March 25, 2020; Executive Order 34 quarantined arriving travelers and closed lodging from April 3 and 5, 2020; Keep Maine Healthy governed travelers from June 9, 2020 to May 1, 2021; and Executive Order 40 of June 30, 2021 scheduled the remaining expirations to September 30 and December 31, 2021.140 Delaware's Fourth and Fifth Modifications confined the State from March 24, 2020; its Seventh quarantined arriving travelers from March 30 and its Tenth closed lodging to leisure guests from April 7, 2020, both to June 1; its emergency ran to July 13, 2021, and its emergency orders on child care and personal-assistance agencies issued August 13 and September 10, 2021.141 Maryland's Orders 20-03-23-01 and 20-03-30-01 closed and confined from March 23 and 30, 2020, with the Office of Legal Counsel's guidance on the energy sector; its Order 20-12-17-01 required testing or quarantine of arriving travelers from December 17, 2020; its emergency orders were terminated in stages from June 15, 2021; and its Department of Health's directives ran through the quarter.142 The District of Columbia closed non-essential businesses March 25 and confined its residents April 1, 2020; quarantined non-essential travelers from July 27, 2020; ended its public health emergency July 25, 2021 while extending its public emergency to October 8; and resumed indoor face coverings for every person July 31, 2021, an airborne-transmission control on every indoor workplace in the District.143 North Carolina's Executive Order 121 confined the State from March 30 to May 8, 2020 under the federal list; Executive Orders 124 and 142 prohibited utility shut-offs to July 29, 2020; its face-covering order, one of the airborne-transmission controls the State placed on its retail, restaurant, personal-care and other workplaces where distancing was not possible, with the duty on the business (Ex. NC-013), ran from June 26, 2020 to May 14, 2021 with Executive Orders 220 and 224 in 2021; and Executive Order 230 of August 31, 2021 extended the hours-of-service relief for fuel delivery.144 South Carolina's Executive Order 2020-14 quarantined arriving travelers from March 27, 2020; Executive Order 2020-19 barred lodging to arrivals from the affected areas from April 3; Executive Order 2020-21 ordered every person to stay home or at work from April 7 to May 4, 2020 and named "fuels and petroleum products" Critical Infrastructure Operations; and its trial courts operated under the Chief Justice's orders through August 2021.145 Georgia's Executive Order 04.02.20.01 confined the State from April 3 to April 30, 2020 under the federal list; its Executive Order 04.08.20.04 suspended short-term rentals from April 9 to April 30, 2020; and its Economic Recovery emergency was declared June 30, 2021 and renewed July 22, August 19 and September 20, 2021, with the Guard activated and hours-of-service rules suspended August 30, 2021.146
The sum
The sum is fifty-one jurisdictions: in every one that closed or confined, the industry was designated essential and conditioned, and in Pennsylvania a class of its mines and contractors was closed by name (Ex. PA-004); in the States that issued no general closure, quarantines, gathering caps and sector orders reached the industry's crews and sites (Ex. ND-021; Ex. WY-005; Ex. AR-041); and in the largest producing States a regulator of the industry itself acted in the same weeks. The next section turns to the cities and to those regulators.
The largest metros
The industry's field operations sit in basins, but its offices, its engineering staffs, its yards, its supply bases, its regulators and its courts sit in cities, and the cities issued their own orders on top of the States'. The metro pages hold the metropolitan instruments; this section takes the thirteen that matter most to this industry.
Harris County declared a local disaster March 11, 2020 and ordered its residents to Stay Home, Work Safe from 11:59 p.m. on March 24, extended April 3 to April 30; the order reached the largest concentration of operator, service-company and offshore-drilling headquarters in the country, in its energy capital.147 From June 22, 2020 the County Judge's order required every commercial entity to adopt a Health and Safety Policy and require face coverings, continued July 1 and August 26, 2020 to run with the Governor's disaster declaration; the City's Fourth Amended Order of June 29, 2020 capped gatherings coterminously with GA-28 (Ex. TX-021).148 In the third quarter of 2021 the County required screening and face coverings in every county building, its Local Health Authority ordered face coverings in the public schools August 12, and the Local Administrative Judge imposed health-and-safety protocols on every Harris County courtroom from August 12 and re-adopted the courts' operating plan September 30, 2021.149 The Port of Corpus Christi, the nation's largest crude-export port, announced that it would remain open under the Nueces County stay-at-home order of March 26, 2020, and Port Freeport operated under Brazoria County's; both are records of the county orders that governed the docks.150
Dallas County ordered Stay Home Stay Safe from March 23, 2020, required face coverings from April 17, imposed a Health and Safety Policy on every business from June 19 and continued it "concurrently with the Governor" from August 4, 2020; Tarrant County confined its residents from March 24, 2020; the Department of State Health Services placed Trauma Service Area E under the GA-32 capacity trigger December 3, 2020; and on August 11, 2021 the County Judge ordered face coverings in public spaces, an airborne-transmission control carried by a mandatory Health and Safety Policy on every commercial entity serving the public in the county, modified August 16 to comply with the courts, an order the Fifth Court of Appeals declined to stay on September 27, 2021.151 Trinity Metro enforced the federal conveyance mask order from February 1, 2021.152
Bexar County and the City of San Antonio ordered Stay Home Work Safe from March 24, 2020; Executive Order NW-10 required a mandatory Health and Safety Policy of every commercial entity from June 17, 2020; NW-12 and NW-13 carried face coverings and gathering limits through the summer; NW-17 and NW-19 imposed curfews and the fifty-percent occupancy rule through the winter; NW-20 continued the posting requirement after GA-34; and in August 2021 NW-21, the Fourteenth Addendum to the City's Eighth Declaration, the Health Authority's school directive and the Local Administrative Judge's suspension of in-person jury service governed.153 CPS Energy announced on March 11, 2020 that it had suspended disconnections.154
Travis County and the City ordered Stay Home - Work Safe from March 24, 2020 and extended it to May 8; the Stay Home, Mask, and Otherwise Be Safe orders ran from July 3, 2020 through April 21, 2021; the Commissioners Court adopted the Health Authority's rules March 9, 2021; and in August 2021 the County Judge required face coverings of employees, visitors and customers, an exposure-control condition on entry to every designated County facility, its clerks, tax office, courts and permitting counters among them, the City required them in its facilities, and the courts held every hearing remotely under the Fourth Amended Emergency Order.155 The Railroad Commission of Texas sits in Austin; its staff worked remotely under these orders from March 19, 2020.156 Austin Energy announced the suspension of disconnections on March 13, 2020 and resumed them in stages from October 2021.157
Denver and the Front Range
Denver ordered its residents to stay at home from 5:00 p.m. on March 24, 2020, adopted the State order March 26 and extended it to May 8, 2020, two weeks past the State; its Home by 10 order confined residents nightly from November 8, 2020; it adopted Level Red November 20, 2020; and in 2021 it adopted Public Health Order 20-38 and each of its amendments, on April 16, July 1, August 2 and September 3, 2021, while ordering the vaccination of personnel of covered entities from August 2 and face coverings in schools from August 17.158 Boulder, Tri-County and Jefferson County adopted the dial as local frameworks from April 16, 2021 and imposed school and universal indoor face-covering orders in August and September 2021, airborne-transmission controls that bound every indoor public space in Boulder County and every school and child-care setting in Jefferson County and the Tri-County jurisdictions; the First and Seventeenth Judicial Districts ordered facial coverings and limited operations through the quarter.159 Denver is the headquarters city of the Denver-Julesburg Basin's operators and of the Rockies' service and midstream companies.
The City declared a disaster emergency March 13, 2020 and closed its facilities March 16; the Allegheny County Health Department's control-measure orders of July 2, 8 and 17, 2020 closed on-premises alcohol service, then indoor dining, and capped gatherings at twenty-five, running to September 24, 2020; the Fifth Judicial District operated under emergency plans from March 24, 2020, resumed normal operations July 1, 2021, re-imposed face coverings in every court facility August 10, 2021 and obtained an extension of the judicial emergency to October 1, 2021; the City enacted temporary paid sick leave December 8, 2020 and again July 27, 2021; and the County directed masking and testing of unvaccinated employees August 5, 2021.160 Pittsburgh is the office city of the Marcellus and Utica operators and of the Appalachian coal companies whose mines Pennsylvania's list closed.
The City declared a state of emergency March 11, 2020 that ran past the claim period; its proclamations of March 16, April 15 and May 15, 2020 promulgated emergency orders under which its Health Department's Stay at Home Directives governed to May 16; its Modified Phase Two guidelines governed the winter; its guidelines of May 28, 2021 gave way to an indoor face-covering mandate with workplace requirements July 31, 2021 and a vaccination-or-test requirement for indoor patrons from August 16, 2021, with vaccination or testing of City employees and public-facing contractors ordered August 19 and effective August 30.161 Jefferson Parish, home of the helicopter bases and supply yards that serve the Gulf of Mexico, required face coverings indoors in every commercial building from July 1, 2020 to April 28, 2021 and again from August 4, 2021 through the quarter, an exposure-control duty enforced against the business that admitted an unmasked person, and East Baton Rouge's Mayor-President imposed a "No Mask - No Service" rule on every commercial and nonprofit entity serving the public in the City-Parish from July 3, 2020, an exposure-control duty placed on the business and not on the customer alone.162
Clark County declared its emergency March 15, 2020 and enacted an ordinance penalizing violations of the emergency declaration April 21, 2020; its local mitigation plan governed from May 1 to June 1, 2021; on July 20, 2021 the Commission required face coverings of every employee in indoor public spaces from July 22 and signage of the health district's indoor recommendation at every business; and the Eighth Judicial District reinstated face coverings July 19, 2021.163 Washoe County, the office city of the Nevada gold industry, refused events of more than 250 persons in October 2020, limited gatherings to fifty or fifty percent from November 5, 2020, adopted a local mitigation plan May 3, 2021 and came under Directive 047 on July 30, 2021.164
Salt Lake County's Public Health Order 2020-01 closed dine-in service from 5:00 p.m. on March 15, 2020; Order 2020-02 capped gatherings at ten from March 19; the Joint Stay-at-Home Order 2020-03 confined the County from March 27 to May 1, 2020; Orders 2020-05, 2020-07 and 2020-08 carried the phased guidelines and a face-covering requirement from June 27, 2020, extended by Orders 2020-13 to 2020-15 to January 5, 2021; Summit County's orders confined its residents from March 29, 2020; and in the third quarter of 2021 the Salt Lake County Health Department ordered face coverings for students in kindergarten through grade six on August 11, an order the County Council terminated the next day, Summit County's Health Officer declared a Delta-variant local public health emergency and issued its Order of Constraint on August 21, effective August 25, requiring face coverings in its elementary schools, and the City ordered face coverings in its buildings July 28 and declared a local emergency August 20.165
Phoenix and the copper country
Maricopa County required face coverings from June 20, 2020 by regulation, an airborne-transmission control on every place of public accommodation in the county with a duty on each to require face coverings of its staff, amended June 26; the City's proclamation of June 18, 2020 required them from June 20; the Superior Court restricted physical access to court facilities through July 19, 2021, maintained six-foot distancing from July 28 and ordered face coverings in every court facility from August 9, 2021; and Valley Metro and Sun Tran required face coverings on every vehicle from July 1, 2020 and January 4, 2021.166
Los Angeles County's Safer at Home orders of March 21 and April 10, 2020 confined the County and imposed Social Distancing Protocols on every business permitted to operate; its Targeted Safer at Home order of December 30, 2020 ran with the Regional Stay at Home; its Blueprint orders governed the spring of 2021; and its Beyond the Blueprint orders of July 16 and August 16, 2021 (effective July 17 and August 19, the latter in force to October 7, 2021) required face coverings indoors of every person, imposed vaccination on health-care workers from August 12, 2021 and attached conditions to large events; the City's Safer L.A. order of July 17, 2021 did the same; the Superior Court required face coverings in every courthouse from June 28, 2021.167 The County is home to the Wilmington and Inglewood fields and to the refineries of the South Bay; every one of them operated under these orders. In the Bay Area, home of the Richmond, Martinez and Benicia refineries, the health officers' Stay Safer at Home order of December 4, 2020 adopted the Regional order; Safer Return Together replaced it June 15, 2021; and on August 2, 2021 eight Bay Area health officers ordered every person to wear a face covering indoors from August 3, with San Francisco adding a proof-of-vaccination requirement for patrons from August 20, 2021.168 The Los Angeles Department of Water and Power and the Sacramento Municipal Utility District announced in March 2020 that they had suspended disconnections, and did not resume them until 2021 and 2022; the East Bay Municipal Utility District announced the same.169
Seattle and Puget Sound
King County's Local Health Officer closed bars, clubs, gyms and dining rooms and barred gatherings of fifty from March 16, 2020; the City capped restaurant delivery commissions April 24, 2020; the Health Officer directed indoor masking from May 20, 2021, and, after the regional health officers' joint recommendation of July 26, ordered indoor and outdoor masking from September 7, and on September 16, 2021 ordered verification of vaccination at restaurants, bars and events, with the entry requirement taking effect October 25, 2021; the Mayor required vaccination of every City employee August 9, 2021 and the County Executive did the same August 10; and the City extended its closures and relief measures September 21, 2021.170 The refineries of Anacortes, Ferndale and Tacoma and the Port of Seattle's fuel terminals operated under those orders and under the State's.
The transit layer
In every one of these metros the transit authority enforced the federal conveyance mask order from February 1, 2021 through the end of the claim period: Capital Metro, Trinity Metro, VIA, Denver RTD, the Port Authority of Allegheny County, the New Orleans RTA and Jefferson Transit, Metro Transit, the Utah Transit Authority, Valley Metro, BART, the MBTA, Metra, the MTA and the Maryland Transit Administration each published the requirement.171 The employee who rode to the yard, the office or the airport rode under a federal order.
The sector regulators
The Railroad Commission of Texas
On March 19, 2020 the Commission announced that "The Railroad Commission of Texas (Commission) and a large number of operators are now working remotely" and extended the notification requirements under Statewide Rule 32 on flaring; on March 24 it invited every operator to "request a waiver for regulatory requirements" during the disaster; on April 3 it extended every Oil and Gas Division permit, licence, registration and rule exception expiring between March 1 and September 30, 2020 to September 30, and deferred the deadlines to resolve violations of the inactive-well plugging rule and the Form P-5 requirements; on May 5, "in recognition of the unprecedented national and global economic conditions currently impacting the oil and gas industry," it adopted three orders of temporary exceptions to 16 TAC §§ 3.8(d)(4)(H), 3.13(d), 3.14(b)(2), 3.78, 3.95 and 3.107(b), its pit, casing, plugging, fee, storage and penalty rules; on May 15 it moved the W-1 drilling-permit system online from June 1; on September 29 it extended every deadline to December 31, 2020; and on December 21 it announced that the extensions would expire on that day, putting every deferred obligation of every Texas operator on the same date.172 The Public Utility Commission of Texas, in Project No. 50664, directed every retail electric provider to offer deferred payment plans and suspended disconnections from March 26, 2020, created and then wound down the COVID-19 Electricity Relief Program through August 27, 2020, and extended the disconnection exception to September 30, 2020.173
The North Dakota Industrial Commission
On March 24, 2020 the Commission directed the Department of Mineral Resources "to immediately reinstate guidelines that promote the prevention of waste of the state's natural resources of oil and gas during the current economic climate," reviving the Not Completed Well, Inactive Well and Suspension of Drilling waivers; on June 19, 2020 it authorized the Department to confiscate more than 350 abandoned wells for plugging under the CARES Act program.174 The Director's Cuts of April 14, May 15, June 12 and July 17, 2020 are the Commission's own record of what followed: rigs at 55, 54, 52 and 35, "the number of active completion crews decreasing from 25 to 1," and 193 wells waiting on completion.175
The New Mexico State Land Office
On April 3, 2020 the Commissioner of Public Lands initiated emergency rulemaking because "The COVID-19 pandemic brought home, almost overnight" a demand and storage crisis; on April 21 she adopted emergency rule 19.2.100.71 NMAC, Temporary Shut-In of Oil Wells Due to Severe Reduction in the Price of Oil, finding that "because of a severe reduction in the price of oil, the beneficiaries of state trust lands will be better served if oil wells are allowed to be temporarily shut in rather than produced at a low price," with a Shut-In Notification Form for every State-lease well; and on June 12 she held a second virtual hearing on the longer-term rule.176 The lessor of the Permian's State-trust acreage thus ordered the terms on which its wells could stop producing without forfeiting the lease.
The Oklahoma Corporation Commission
On March 16, 2020 the Commission announced the coordinated utility-disconnection moratoriums of the State's regulated utilities; on June 17, 2021 it moved every courtroom proceeding and Commission meeting to Zoom from June 21, 2021, a regime that ran through the third quarter.177
The Federal Energy Regulatory Commission
FERC's instruments are set out in the federal layer: the policy statement on business continuity, Order No. 870, the shortened section 204 comment period, the oil-pipeline policy statement, the technical conference, the UGI LNG extension notice and the September 14, 2021 notice of the request to extend the COVID-19 waiver of the allowance-for-funds-used-during-construction rules to March 31, 2022.178 Order No. 870 is cited as the order; the policy statements and the docket notices are cited as the Commission's own record, made at the time, of the regime it administered under that order. Every interstate pipeline, every LNG terminal and every FERC-jurisdictional utility operated under that regime for the whole of the claim period.
The State utility commissions
The Kentucky Public Service Commission suspended disconnections March 16, 2020 and lifted the suspension October 20, 2020; the Arkansas Public Service Commission did the same April 10, 2020 for the duration of the emergency; the Illinois Commerce Commission urged every utility to cease disconnections March 13, 2020 and to extend the moratorium through the winter of 2021; the Connecticut Public Utilities Regulatory Authority ordered a shut-off moratorium March 12, 2020; the Pennsylvania Public Utility Commission's moratorium ran from March 13 to November 9, 2020; New York's Legislature imposed a statutory moratorium June 17, 2020 and extended it May 11, 2021 to December 21, 2021; New Jersey's ran from October 15, 2020 to June 30, 2021 with a grace period to December 31, 2021; Washington's Proclamation 20-23 ran from March 18, 2020 to September 30, 2021; and North Carolina's Executive Orders 124 and 142 prohibited shut-offs to July 29, 2020.179 A utility that cannot disconnect a non-paying customer is a utility that defers its capital program, and the pipeline and utility contractor is the first line it defers.
The State occupational-safety agencies
Virginia's Department of Labor and Industry, California's Division of Occupational Safety and Health, Oregon OSHA, Michigan OSHA and Washington's Department of Labor and Industries each adopted a binding COVID-19 rule on every employer in the State; New Mexico's Occupational Health and Safety Bureau required four-hour reporting of positive cases; Nevada OSHA enforced Directive 047.180 Each rule reached every well pad, mine, shop and pipeline right-of-way in its State on every day it was in force, and four of them were in force on every day of the third quarter of 2021.
The tribal governments
The Navajo Nation, the Mescalero Apache Tribe, the Yakama Nation and the Cherokee Nation issued the orders set out above; an Indian tribal government is an appropriate governmental authority in the plainest sense, and Congress has said as much in the Code.181
The federal land and safety agencies
The Bureau of Land Management and the Bureau of Safety and Environmental Enforcement operated under the Interior memorandum of March 22, 2020 and the Office of Management and Budget's memoranda thereafter; the Bureau's field-office closures and the Department of Energy's Legacy Management visitor closures are records of the regime.182 None of them is needed to prove a single quarter; each corroborates what the instruments above already prove.
The counterparties
The eleventh function, CB, is the function the Service's form sentence never reaches, and it is the function through which the orders did the most to this industry. The operations section set out the counterparty map. This section records the orders that reached each counterparty by name. The producers, the service company's only customer, shut in wells under the New Mexico rule and the North Dakota waivers and deferred their obligations under the Texas extensions.183 The refiners cut runs because the orders on travel and commerce cut demand: the Energy Information Administration recorded second-quarter 2020 global demand down 16.6 million barrels a day "the result of COVID-19-related shutdowns," jet fuel down sixty-four percent, gasoline down twenty-six percent, and United States production down from 12.9 to 11.4 million barrels a day "as Baker Hughes reported the fewest active drilling wells in the United States in their records."184 The utilities operated under the disconnection moratoria above. The steel mills and equipment plants that buy coal and sell tubulars operated under Pennsylvania's, Michigan's, New York's, New Jersey's, Kentucky's and Washington's manufacturing closures and Texas's twenty-five-percent rule (Ex. TX-014; Ex. TX-016).185 The hotels, motels and RV parks that house the crews operated under New Mexico's caps, Connecticut's ban, Maine's closure, New Hampshire's essential-workers rule, Delaware's, South Carolina's and Vermont's restrictions, Montana's and Wyoming's posting requirements, Southeast Utah's Grand County order, Routt County's closure, Alaska's plans and California's Regional order.186 The clinics that supply the industry's physicals, fit tests and drug screens operated under the elective-procedure suspensions of the spring of 2020 in Texas (Ex. TX-004), Colorado (Ex. CO-007), Oklahoma (Ex. OK-006), New Mexico (Ex. NM-007; Ex. NM-013), Louisiana (Ex. LA-045) and West Virginia (Ex. WV-014), with West Virginia's resumption conditioned on approved plans from April 28 and 30, 2020 (Ex. WV-023; Ex. WV-024), and, from June 21, 2021, under the federal health-care standard.187 The recorders and courts that record leases and rights-of-way and hear title and royalty disputes operated under the judicial emergency orders of every energy State.188 The Federal Reserve's Beige Books recorded the result district by district: "mandated closures" in April and May 2020, "mandated restrictions" through December 2020, and in July and September 2021 "supply disruptions and labor shortages" that the spring-2020 dismantling had caused and that continued under the orders then in force.189
The ecosystem: the guidance and what is not an order
This analysis rests on domestic orders and needs nothing else. The Cybersecurity and Infrastructure Security Agency's advisory list, the Environmental Protection Agency's enforcement policy, the Mine Safety and Health Administration's enforcement announcements and the industry's trade-association guidance are context, not orders, and this analysis treats none of them as an order. The trade shows, conventions, measurement schools, lease sales, regulator hearings and crew rotations of this industry that the orders closed, capped or moved online are recorded in the Library's meetings records, with the venue orders in force on their dates and the organizers' own notices. The orders are the instruments set out above and in the quarter inventories that follow. They are enough.
The standing duties
Beneath the emergency orders lay a further layer that bound every operator, contractor and supplier in this industry throughout the six quarters: the standing statutes that commanded every person to prevent and control communicable disease and every employer to furnish a safe and healthful workplace, the offenses that punished disobedience of health and emergency orders, and the liability shields of 2020 and 2021 that protected only the complying business. Each is an order from an appropriate governmental authority: a statute or rule that commands conduct is an order, and a legislature, a health department, a labor department and an occupational-safety agency are each such an authority (see the statute page). The layer is set out here for the eight principal States of the industry; the fifty-one-State table is on this site's standing-duties page.190
The first layer is the orders' own conditions of operating, and the verbs are commands. Texas: "[e]very business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy"; the DSHS protocols the same orders incorporated with "should" are recommendations, compulsory through the commands beside them and the statutes and shield below.191 New Mexico: businesses "must operate in accordance with the pertinent 'COVID-Safe Practices (CSPs)'" from May 16, 2020 and "must adhere to the pertinent COVID-Safe Practices" from July 1, 2021, under a $5,000 penalty for each violation.192 Oklahoma: the Essential Industries List that kept "21 Mining, Oil and Gas Extraction" open conditioned its starred industries on the requirement that they "must publicly post and adhere to social distancing guidelines in order to remain open."193 Louisiana: every sector "shall be allowed to operate under the following conditions."194 North Dakota: every arriving crew quarantined on pain of "a class B misdemeanor," and the reopening standards "must be adopted and rigorously followed."195 California: "[e]mployers shall establish, implement, and maintain an effective, written COVID-19 Prevention Program."196 Pennsylvania: "shall implement, as applicable, the following social distancing, mitigation, and cleaning protocols," and "[u]nless impossible, all businesses must conduct their operations remotely."197 Colorado: on July 1, 2021, "[a]ll businesses and government entities shall comply with the requirements in this Section I.B."198 Recommendatory clauses are recorded as such in the footnotes, with their incorporating instrument.
The second layer is the standing law that commanded the same conduct before any order issued. Texas states the duty on the person in the words Health and Safety Code section 81.002 has carried since 1989: "The state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease."199 Behind it stand the control measures of section 81.082, the offenses of sections 81.087 and 81.085(h), Government Code section 418.173's fine of $1,000 and 180 days, and Labor Code section 411.103, under which "[e]ach employer shall" provide "a place of employment that is reasonably safe and healthful," with "methods of sanitation and hygiene."200 The other seven States carried the same three commands: New Mexico's Occupational Health and Safety Act ("free from recognized hazards") and the $5,000 penalty behind its orders;201 Oklahoma's quarantine statute ("[i]t shall be unlawful ... to violate the terms or conditions of the quarantine");202 Louisiana's R.S. 23:13 ("reasonably safe") and R.S. 29:724 ("the force and effect of law");203 North Dakota's infraction for disobeying "any order issued by any state, district, county, or municipal health officer";204 California's Labor Code ("safe and healthful") and written prevention program;205 Pennsylvania's General Safety Law ("reasonable and adequate protection") and 71 P.S. § 1409;206 and Colorado's § 25-1-114 (a misdemeanor to "willfully violate, disobey, or disregard" a health order).207 In the six States without an occupational-safety plan of their own, the federal clause supplied the general duty; over all eight lay section 5(a)(1) of the Occupational Safety and Health Act, "free from recognized hazards that are causing or are likely to cause death or serious physical harm," enforced against the virus by citation from September 10, 2020 and by $3,930,381 in proposed penalties from 300 inspections by December 31, 2020.208
The third layer is the liability shields, and their condition is compliance. Texas protects a business unless the claimant proves it "knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease," for actions commenced on or after March 13, 2020;209 Oklahoma, from May 21, 2020, only where the conduct "was in compliance or consistent with federal or state regulations, a Presidential or Gubernatorial Executive Order, or guidance applicable at the time";210 Louisiana, retroactive to March 11, 2020, unless the business "failed to substantially comply with the applicable COVID-19 procedures established by the federal, state, or local agency";211 North Dakota, from January 1, 2020, only where the act "was in substantial compliance or was consistent with a federal or state statute, regulation, or order related to COVID-19."212 New Mexico, California, Colorado and Pennsylvania enacted no business shield; Pennsylvania's Governor vetoed the bill because "[p]roviding immunity for a business that does not rigorously comply with public health orders does not ensure the safety of the public, its employees and is not in the public interest."213 In both groups the legislature's premise is the same: compliance with the governmental health standards is what a business owed.
The courts treated the regime as law binding businesses: the Supreme Court of Oklahoma held that the orders "expressed the public policy of the State of Oklahoma," the Supreme Court of New Mexico held the Governor and Secretary "authorized to restrict or close businesses when necessary for the protection of public health," and the Fifth Circuit upheld Texas's and Louisiana's orders; each is an adjudication, cited as such.214 An operator that screened its crews at the gate, rotated its shop onto shifts to hold a 25 and then a 50 percent occupancy, quarantined a crew for fourteen days on crossing into New Mexico, masked a rig floor and sent its land and accounting staff home was not choosing; it was complying, and the command it complied with is an order under the Suspension Clause. The answer to the Service's Q&A-14 position below applies the point.