In the middle ages, theologians strenuously debated the number of angels dancing on a pinhead. Now we have lawyers and judges going around in circles in order to prevent methane emissions. This circus show is a direct result of the embedded green bureaucracy in government, together with a segment of the population mobilized by fear of global warming/climate change.
The courtroom drama started when the Obama administration in its midnight hours gave environmentalists a Christmas gift with a new Methane Waste Prevention Rule issued by BLM (Bureau of Land Management). It demonstrated how federal agencies were enslaved by green ideologues in order to choke any energy developments with a slew of regulations and penalities. In fact, folks like the EDF (Environmental Defense Fund) are traumatized by fear of “greenhouse gases”, and methane in particular. Their real mission is to keep fossil fuels in the ground, thereby securing an imaginary future where the climate is always favorable and never changes.
This hysteria has been deliberately instilled and maintained by climatists (alarmists/activists) and produces a circus whenever they feel threatened (which is often). This is a case in point, and a cautionary tale for anyone trying to reconcile conservation and development.
Aside: In 1978 Billy Martin was Manager of the New York Yankees baseball team during a particularly turbulent time with players, coaches, the owner and fans. The Yankees were known by the NYC borough housing their stadium; overnight they went from the “Bronx Bombers” to the “Bronx Zoo.” The long-running soap opera prompted this comment from third baseman Graig Nettles: “When I was a kid I wanted to be either a ball player or work in a circus. Now I get to do both!”
Harvard Law School has a record of the series of acts in this soap opera here Methane Waste Prevention Rule
The schedule of Acts in the Methane Waste Prevention Circus (synopsis only; details at linked website)
History Before Trump Era (BTE)
On November 18, 2016 BLM published the Waste Prevention Rule with an effective date of January 17, 2017 and additional compliance deadlines set for January 17, 2018.
Three days before publication (November 15, 2016), but after the rule was signed, industry and states filed challenges to the rule in the District of Wyoming.
On January 17, 2017 the District of Wyoming denied a request for a preliminary injunction (leaving the rule in effect during the litigation).
Trump Common Era (TCE)
On February 3, 2017 The US House of Representatives passed a Congressional Review Act resolution to disapprove the rule, which would have voided the rule and barred any other “substantially similar” rule in the future.
On March 28, 2017 President Trump’s Executive Order on Promoting Energy Independence and Economic Growth directed the BLM to review the rule.
On May 10, 2017 the US Senate voted down the House of Representatives’ Congressional Review Act resolution, with three Republicans voting no.
On June 15, 2017 BLM announced that it was postponing the 2018 compliance dates for an indefinite period of time (as long as litigation is pending), “pursuant to the Administrative Procedure Act” in a notification in the Federal Register.
On July 5, 2017 California and New Mexico challenged BLM’s postponement of the compliance dates.
On July 10, 2017 several environmental groups also challenged BLM’s postponement. The Northern District of California granted a motion to relate these two cases on July 12, 2017 and North Dakota and several industry groups were later allowed to intervene in the consolidated cases.
On September 7, 2017 the Northern District of California denied a request to transfer the litigation challenging BLM’s postponement to the District of Wyoming.
On October 4, 2017 the Northern District of California determined BLM’s June 15, 2017 postponement was unlawful, granting summary judgment in the case that vacated the postponement notification and reinstated the rule’s January 17, 2018 compliance date.
Also on October 4, 2017 BLM proposed a rule to delay the 2018 compliance dates in the Obama-era rule until January 17th, 2019. The agency accepted comments until November 6, 2017.
On October 27, 2017 industry groups asked the District of Wyoming to issue a preliminary injunction on the rule’s January, 2018 compliance deadlines to keep them from going into force while litigation is pending.
On October 30, 2017 the District of Wyoming agreed to a Trump administration request to slow the litigation by postponing briefing deadlines as BLM goes through its rulemaking process to repeal, revise, or rescind the rule pursuant to Executive Order 13783.
On November 2, 2017 Democratic lawmakers wrote a letter to Secretary Zinke opposing BLM’s attempts to repeal, revise, or rescind the rule.
In the last week of November 2017 environmental groups filed briefing with the District of Wyoming opposing the industry groups’ October 27, 2017 preliminary injunction request.
On December 4, 2017 BLM filed a notice of appeal to the Ninth Circuit of the October 4, 2017 Northern District of California decision finding the June 2017 BLM delay unlawful.
On December 8, 2017 BLM published a final rule delaying the 2018 compliance dates until 2019. Often referred to as the “Suspension Rule,” this was the final version of the rule BLM proposed on October 4, 2017.
On December 19, 2017 New Mexico and California sued BLM over its December 8, 2017 final rule to suspend the methane rule’s 2018 compliance dates, delaying them until 2019. A coalition of environmental groups also sued over the December 8 rule. Both lawsuits were filed in the District Court for the Northern District of California and were consolidated in January 2018.
On December 29, 2017, the U.S. District Court for the District of Wyoming granted a request from industry groups and Wyoming and Montana to stay litigation in light of the final Suspension Rule BLM issued on December 8, 2017.
On January 5, 2018 the American Petroleum Institute moved to intervene in the December 19 lawsuits in the Northern District of California, saying the rule would be economically damaging. On January 9, 2018 the states of North Dakota and Texas also moved to intervene on behalf of BLM. Both of these motions were granted on February 26, 2018.
In the week of February 12, 2018 BLM released a proposed rule (the Revision Rule) to replace the 2016 Waste Prevention Rule.
On February 22, 2018 the Northern District of California issued a preliminary injunction preventing BLM’s December 8, 2017 Suspension Rule from taking effect. This order also denied a January 9th request by BLM, North Dakota and Texas to transfer the case to the U.S. District Court for the District of Wyoming.
On March 7, 2018 U.S. District Court for the District of Wyoming agreed to resume industry and state challenges to the rule, lifting a stay issued on December 29, 2017 and setting a briefing schedule for pending motions.
Also on March 14, 2018 BLM announced it would voluntarily dismiss its appeal to the Ninth Circuit of the October 4, 2017 ruling from the Northern District of California, finding BLM had violated the Administrative Procedure Act by postponing 2018 compliance dates. The Ninth Circuit granted its motion to dismiss on March 15, 2018, ending the substantive portion of this case.
On April 4, 2018 the US District Court for the District of Wyoming agreed to suspend key provisions of the Waste Prevention Rule. The court stayed the case pending BLM’s completion of rulemaking process for the Revision Rule.
On April 5th and 6th, 2018 California, New Mexico, and environmental groups filed notices of appeal to the 10th Circuit Court of Appeals of District of Wyoming’s April 4, 2018 order staying implementation of provisions of the Waste Prevention Rule.
On April 23, 2018 BLM filed a notice of appeal to the Ninth Circuit of the February 22, 2018 order denying a motion to transfer venue and granting a preliminary junction.
On April 30, 2018 the District of Wyoming denied appellants’ April 6, 2018 motion to stay its April 4th decision. By denying the motion, the court left in place its suspension of key provisions of the rule and stay of the case pending completion of the regulatory process for the Revision Rule.
On May 11, 2018 Environmental Defense Fund sued Interior and BLM for BLM’s failure to respond to FOIA requests “to produce records relevant to efforts to suspend, delay, repeal and/or revise the Waste Prevention, Production Subject to Royalties, and Resource Conservation final rule.”
On June 4, 2018 the Tenth Circuit denied a request from California, New Mexico and environmental groups to stay the April 4th order of the District of Wyoming (suspending key portions of the rule and staying litigation at the district court level) pending the Tenth Circuit’s consideration of their appeal of the order. In the same ruling, the Tenth Circuit also denied Wyoming, Montana, and industry groups’ motion to dismiss the appeal of the April 4th order entirely.
On June 20, 2018 BLM filed a motion to voluntarily dismiss its appeal to the Ninth Circuit filed on April 23, 2018. This leaves in place the February 22, 2018 preliminary injunction of BLM’s Suspension Rule.
On July 30, 2018, environmental groups, California, and New Mexico filed a brief with the 10th Circuit asking the court to overturn the District Court’s decision to enjoin the Methane Waste Prevention Rule.
Currently Running Methane Circus Performances
Four cases related to the Waste Prevention Rule and the Administration’s efforts to delay, suspend, or roll it back are currently active:
- Wyoming v. U.S. Dep’t of the Interior, No. 2:16-CV-00285 consolidated with Western Energy Alliance, et al. v. Sally Jewell, 2:16-CV-0280. (D. Wyo.) — challenging the original Waste Prevention Rule,
- California and New Mexico v. Zinke, No. 3:17-CV-03804 consolidated with Sierra Club et al., v. Zinke. No. 3:17-CV-03885 (N.D. Cal.) — challenging BLM’s June 15, 2017 notification of postponement of the rule’s compliance dates,
- California and New Mexico v. BLM, No .3:17-cv-07186 consolidated with Sierra Club et al v. BLM 3:17-cv-07187 (N.D. Cal.) — challenging BLMs December 8, 2017 Suspension Rule delaying the Waste Prevention Rule’s 2018 compliance dates, and
- EDF v. Dept. of Interior, No. 1:18-cv-01116 (D.D.C) -– a FOIA suit against BLM regarding requested documents relating to its efforts to delay, suspend, and rollback the Waste Prevention Rule.
I searched a lot to find out what is the root of the legal conflict. Almost everything in the media is from alarmist sources and avoids the details and differences between what is proposed in 2016 and 2018. The most informative source IMO is the legal brief submitted by the energy producers April 23, 2018 Comments on BLM 2018 Revisions to Waste Prevention Rules Excerpts below in italics with my bolds.
To Whom it May Concern: Western Energy Alliance (the Alliance) and the Independent Petroleum Association of America (IPAA) appreciate the opportunity to provide comments on the Bureau of Land Management’s (BLM) proposed revisions of certain provisions of the Methane and Waste Prevention rule, or 2016 rule. The 2016 rule as promulgated exceeded BLM’s authority under the Mineral Leasing Act (MLA), and that the decision to re-evaluate the rule is required. The proposed revision rule more accurately captures the scope of BLM’s waste minimization authority, and will better ensure federal mineral interests are adequately protected without excessively burdening federal lands development with overreaching regulations.
IPAA represents thousands of independent oil and natural gas exploration and production companies, as well as the service and supply industries that support their efforts. Independent producers drill about 95% of American oil and natural gas wells, and produce about 54% of American oil and more than 85% of American natural gas. The Alliance represents over 300 companies engaged in all aspects of environmentally responsible exploration and production of oil and natural gas in the West. Alliance members are independents, the majority of which are small businesses with an average of 15 employees.
The 2016 Waste Prevention Rule Exceeds BLM’s Statutory Authority
The 2016 rule exceeds BLM’s statutory authority under the MLA and must be revised. The United States District Court for the District of Wyoming expressed significant concern with the rule. The court described BLM as having “hijacked the EPA’s authority under the guise of waste management” and stated that “the BLM cannot use overlap to justify overreach.”1 Given such a strong warning of the legal vulnerability of the rule, it is logical and necessary that BLM move to substantively revise it to more accurately reflect the agency’s statutory authority. Our comments on the 2016 rule, which are attached hereto as Appendix B and reincorporated in full by reference herein, provide an overview of our concerns with the technical and legal vulnerabilities of the 2016 rule. Many of those concerns went unaddressed and are subject to the ongoing litigation referenced above. This letter raises further concerns with the 2016 rule.
The stated primary goal of the 2016 rule was to reduce methane emissions from oil and gas operations. During that rulemaking process, BLM repeatedly emphasized that the methane reductions achieved by the Proposed Rule justified its provisions. As the Wyoming court noted, however, BLM only has “authority to regulate the development of federal and Indian oil and gas resources for the prevention of waste.” Id. at 15 (emphasis in original). Therefore, some emissions reductions may occur as a result of an otherwise lawful measure to prevent the “waste” of gas pursuant to BLM’s authority under the MLA. But BLM’s obligation to promulgate reasonable waste prevention measures does not confer any authority to regulate air quality. The Wyoming court also made clear that the “protection of air quality . . . is expressly within the ‘substantive field’ of EPA and states pursuant to the Clean Air Act.” Thus, in the context of the 2016 rule, BLM lacks authority to require the oil and gas industry to reduce methane (or other air) emissions.
The only way BLM could justify the 2016 rule was to incorporate global climate change benefits. As the Wyoming court put it, “the Rule only results in a ‘net benefit’ if the ‘social cost of methane’ is allowed to be factored into the analysis . . . [and] [t]he Court questions whether the ‘social cost of methane’ is an appropriate factor for BLM to consider in promulgating a resource conservation rule pursuant to its MLA authority.”The social cost of methane was formally withdrawn by Executive Order No. 13783, Promoting Energy Independence and Economic Growth, meaning it is no longer a suitable metric for rulemaking.
Under the MLA, produced gas is “wasted” only if it could have been economically captured and marketed or put to beneficial use on the lease. Thus, to establish that a proposed waste prevention measure is a “reasonable precaution” against “waste” and authorized under the MLA, BLM must demonstrate that the gas can be economically captured by the operator or beneficially used on the lease. If a waste prevention measure renders gas capture or use uneconomic, then BLM has no authority to impose it.
The reality is that without duplicative and burdensome federal rules, industry has made tremendous progress in addressing issues associated with venting, flaring, and methane emissions. According to EPA’s most recent greenhouse gas inventory, between 1990 and 2016, methane emissions from petroleum and natural gas systems declined 14% while natural gas production increased 50%. In the 2016 inventory (published in 2018), petroleum system methane emissions declined 3% since 1990, and methane from natural gas systems declined 16% since 1990. These decreases come despite a 71% and 48% increase in production, respectively, since 2005. Most important, the most recent EPA data, which applies more accurate calculation methodologies, show that emissions from associated gas venting and flaring decreased 36% from 2015-2016. See 2018 GHG Inventory Report at 3-64. In fact, EPA revised petroleum system methane emission estimates going back to 1990, resulting in an average decrease of 28% for a given year relative to previous estimates due to the “recalculation of associated gas venting and flaring emissions using a basin-level approach.” Id. at ES-6 (the same recalculation results in increased CO2, however). EPA’s new data reveals that the 2016 rule was premised on inaccurate information regarding the volume of methane emissions attributable to venting and flaring, and is therefore, an arbitrary and capricious agency action that was premised on faulty logic and without adequate support on the record. EPA’s new and updated data further supports the agency’s rationale for the Proposed Rule.
In closing, we reiterate the tremendous progress that America’s oil and natural gas industry has made, and will continue to make, in addressing venting, flaring, and methane emissions. EPA’s most recent data concerning such emissions demonstrates that despite a significant increase in production in recent years, emissions continue to decline, including specifically methane emissions from venting and flaring. In this respect, the fundamental premise upon which the 2016 rule was based is not accurate and warrants a reconsideration of the rule. The 2016 rule exceeded BLM’s authority, made numerous and fundamentally flawed assumptions in its assessment of both the cost of compliance to industry and the benefits derived from the rule, and was an unlawful, arbitrary and capricious agency action. Accordingly, BLM was required to make substantial revisions to that rule, and we believe the Proposed Rule is a vast improvement and consistent with the agency’s statutory authority in most respects.
This is another example of using regulations and legal techniques to add layers of complication and cost with the intent of stopping energy extraction: “Leave it in the ground.” A previous post showed how this is an activist strategy with deep commitment and deep pockets supporting it. Just look how quickly legal teams acted to obstruct a more balanced rule, and put sand in the gears of deregulation. In fact a circus should be more fun instead of a continual battleground with slings and arrows.
Methane Gets a Bad Rap More Methane Madness
Methane is Natural not Pollution Carbon Sense and Nonsense
Game Plan against Fossil Fuels Climatist Revolutionaries
Note: Here is the proposed rule:
A Proposed Rule by the Land Management Bureau on 02/22/2018