On October 4, 2017, the United States District Court for the Northern District of California held that the Bureau of Land Management (“BLM”) cannot postpone implementation of natural gas methane emission rules because such action would violate the Administrative Procedure Act (“APA”). Plaintiffs – the State of California, the State of New Mexico, and a coalition of seventeen conservation and tribal citizens groups (jointly “Plaintiffs”) – initiated the lawsuit in two separate actions. Plaintiffs argued that postponing implementation of the BLM’s Waste Prevention, Production Subject to Royalties, and Resource Conservation Rule (“Final Rule”) after its effective date violated Section 705 of the APA.
Secretary of the Interior Zinke has directed that the Bureau of Land Management immediately begin implementing the recommendations in his Sage-Grouse Review Team’s report, which was was released today, concerning the 2015 greater sage-grouse amendments to federal land use management plans. (Prior post on Sage-Grouse Review Team here.) Among other things, such as coordinating federal mitigation policy with state mitigation approaches, the Trump Administration will now be moving to “[r]emove all [sagebrush focal areas (SFAs)] and the management actions tied to SFAs.” This would include the pending withdrawal for up to 20 years of over 10 million acres of SFAs on public lands in six western states from mineral location and entry under the General Mining Law . (Prior posts on withdrawal here and here.) The report also recognizes a short-term “[n]eed to clarify under what circumstances or how the [land use management] plans recognize valid existing rights.” Because valid existing rights (i.e., a mining claim within which a valuable mineral deposit has been discovered) are relevant if a withdrawal is approved, this recommended clarification indicates that the Trump Administration may well withdraw the SFAs for a short time while it moves forward with amending the plans to remove the SFAs altogether. Continue Reading
On July 18, in Hopkins County Coal, LLC v. Perez, the U.S. Court of Appeals for the Sixth Circuit issued an opinion upholding two citations and an order issued to a mine operator, Hopkins County Coal, for its refusal to turn over certain personnel records requested by the Mine Safety and Health Administration (MSHA) during a § 105(c) discrimination complaint investigation. The mine operator challenged the request for the records on several grounds, arguing that the Secretary of Labor overstepped his authority because the records were not among those that the Mine Act requires operators to keep and also that neither the miner nor MSHA had ever told the mine operator what the factual basis was for the miner’s discrimination case. Continue Reading
On July 19, 2017, Republicans in the U.S. House of Representatives passed legislation that grants the Federal Energy Regulatory Commission (“FERC”) increased autonomy over pipeline approvals. The bill, Promoting Interagency Coordination for Review of Natural Gas Pipelines Act (H.R. 2910), is aimed at streamlining the federal permitting process for pipeline approvals.
H.R. 2901 would specify timeframes and procedures for FERC and other affected agencies to follow in conducting environmental reviews related to natural gas pipelines. The bill would give FERC the authority to designate which other agencies will participate in the permitting and environmental review process, and FERC would hold primary authority by setting the terms of environmental reviews, requiring other federal agencies to defer to FERC. In addition, all National Gas Act reviews would be required to proceed concurrently and finish within 90 days of the environmental review, unless otherwise mandated by law.
On Wednesday the Bureau of Land Management (BLM) will auction helium stored in its Cliffside Field underground storage facility in west Texas (aka the Federal Helium Reserve). This annual auction under the Helium Stewardship Act of 2013 is part of a privatization effort that began back in 1996 and will culminate with the BLM divesting itself of that facility by 2021. At the same time, concerns about helium supply are again rising, as production from Qatar, which accounts for 25% of global helium supply, was interrupted last month by an economic boycott in the region. These events are prompting Congress to consider changing the nearly century-old treatment of helium under the Mineral Leasing Act of 1920.
On June 28, 2017, the Senate introduced a bill that aims to revitalize and overhaul various federal energy and natural resources policies. Senate Bill 1460 (S.1460), sponsored by Senators Lisa Murkowski (R-Arkansas) and Maria Cantwell (D-Washington), broadly proposes reform of United States policies on topics such as energy efficiency, supply and conservation. A key highlight of S.1460 is modernization of the electric grid, an issue that has often been touted as a national security concern. Further, on the conservation side, the bill would establish a National Park Maintenance and Revitalization Fund. While details of the bill are still forthcoming, the bill’s authors state that S.1460 will lay out a plan to strengthen the nation’s energy infrastructure.
Late Wednesday Secretary of the Interior Zinke signed Secretarial Order 3353 establishing a Sage-Grouse Review Team to review the Obama Administration’s 2015 amendments to federal land use management plans. To avoid listing the greater sage-grouse under the Endangered Species Act, those plan amendments had proposed that over 10 million acres of “sagebrush focal areas” on public lands in six western states be withdrawn from mineral location and entry under the General Mining Law for up to 20 years. The new Sage-Grouse Review Team’s work will include recommending changes to the amended plans that “give appropriate weight to the value of energy and other development on public lands within BLM’s overall multiple-use mission.” Comprised of representatives from various Department of the Interior agencies and working with the U.S. Forest Service and state agencies, the Sage-Grouse Review Team is to provide a written report on or before August 6, 2017.
The U.S. Environmental Protection Agency (EPA) is poised to approve North Dakota’s application for primary enforcement authority over the underground injection of CO2 for geologic sequestration in that state. Nearly four years after North Dakota became the first state to seek primacy from EPA over carbon sequestration wells – known as Underground Injection Control (UIC) Class VI wells – EPA just published the proposed rule to effect this delegation on Friday. 82 Fed. Reg. 22,949 (May 19, 2017). The 60-day public comment period on the proposed delegation ends on July 18, 2017. Continue Reading
On Friday the China Minmetals Corporation signed a 15-year contract with the International Seabed Authority (ISA) for exploration of polymetallic nodules on the deep seabed of the Pacific Ocean. The ISA has now executed nearly 30 exploration contracts for polymetallic nodules, polymetallic sulphides, and ferromanganese in the Atlantic, Indian, and Pacific Oceans. These materials are rich in minerals – such as cobalt, lithium, and tellurium – used to produce batteries and solar panels. Last month British scientists announced the discovery of a deposit of tellurium deep in the Atlantic Ocean sufficient to make solar panels capable of generating 65% of the United Kingdom’s electricity supply.
Created under the United Nations Convention on the Law of the Sea of 1982 (UNCLOS), the ISA regulates seabed activities occurring more than 200 miles offshore (i.e., beyond countries’ Exclusive Economic Zones). The mining part of UNCLOS (aka Part XI) was renegotiated in the early 1990s resulting in the 1994 Implementing Agreement. UNCLOS became effective later in 1994 when a 60th country (Guyana) ratified it. Over 160 countries have now ratified UNCLOS, but the United States has not. As a result, U.S. companies cannot pursue ISA contracts. Continue Reading
On Monday Governor Inslee signed SB 5470, which the legislature unanimously passed to streamline Department of Natural Resources (DNR) permitting for drilling core holes used to gather geothermal data. Before SB 5470, each core hole required a separate permit, and if a core hole penetrated more than 750 feet into bedrock or geothermal energy was discovered, then a hearing was required. As a result of SB 5470, a single permit can cover multiple core holes and a hearing is not required, regardless of depth or discovery. Consequently, DNR permitting of all core holes will be exempt from the State Environmental Policy Act (SEPA). This DNR map illustrates geothermal resource potential across the state.