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.
Continue Reading Trump’s BLM Cannot Delay Implementation of Oil and Gas Methane Rules after Effective Date
Federal Bill Proposes Streamlined Pipeline Permitting, Vesting Authority in FERC
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.Continue Reading Federal Bill Proposes Streamlined Pipeline Permitting, Vesting Authority in FERC
Senate Proposes Legislation to Modernize Federal Energy Policies
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.
Continue Reading Senate Proposes Legislation to Modernize Federal Energy Policies
Some Not-So-Good News Out of Washington, D.C. for Pipeline Operators – Feds Increase Fines for Pipeline Safety Violations
President Trump’s recent executive orders have benefited the oil pipeline industry in a number of ways, including most notably, giving the final “okay” to the Dakota Access Pipeline. But some legislative mandates have been out of the reach of the President’s pen. On April 27, the federal Pipeline and Hazardous Materials Safety Administration (“PHMSA”), within the Department of Transportation, released a final rule revising its maximum penalties for violations of pipeline safety laws. The rule titled, Pipeline Safety: Inflation Adjustment of Maximum Civil Penalties, was issued pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which requires federal agencies to adjust their civil monetary penalties annually to account for changes in inflation. So what’s changed?
Continue Reading Some Not-So-Good News Out of Washington, D.C. for Pipeline Operators – Feds Increase Fines for Pipeline Safety Violations
Sage Grouse Update: BLM Issues Draft Environmental Impact Statement (DEIS) on Proposed Withdrawal of 10 Million Acres
On the last business day of 2016 the BLM released the DEIS on its proposed 20-year withdrawal of approximately 10 million acres of “sagebrush focal areas” (SFAs) in six western states from mineral location and entry under the General Mining Law. At the same time, the BLM temporarily “segregated” almost 400,000 more acres in Nevada that the State of Nevada has proposed as a substitute for nearly 500,000 acres within SFAs considered by the State to have high mineral potential or limited sage-grouse habitat. As described in our article last year in the American Bar Association’s mining newsletter, the BLM started this process in September 2015 as a key part of the justification for not listing the greater sage-grouse under the Endangered Species Act. (That article also describes what the BLM’s proposal means for mining on these lands in Idaho, Montana, Nevada, Oregon, Utah, and Wyoming, and the multiple lawsuits that have been filed challenging the federal government’s actions.)
Continue Reading Sage Grouse Update: BLM Issues Draft Environmental Impact Statement (DEIS) on Proposed Withdrawal of 10 Million Acres
Draft Resource Management Plan Amendment Released for Central California Federal Lands
On January 6, 2017, the federal Bureau of Land Management (“BLM”) issued a notice of Draft Resource Management Plan Amendment (“DRMP Amendment”) and Draft Environmental Impact Statement (“DEIS”) for oil and gas leasing and development on federal lands administered by the BLM, Central Coast Field Office (“Planning Area”). 82 Fed. Reg. 1754 (Jan. 6, 2017). The DRMP Amendment and DEIS describe and analyze alternatives for the planning and management of leasing and development in the Planning Area, as required by the National Environmental Policy Act and the Federal Land Policy and Management Act. The BLM administers approximately 284,000 acres of surface estate and 793,000 acres of federal mineral estate within the Planning Area.
Continue Reading Draft Resource Management Plan Amendment Released for Central California Federal Lands
In Effort to Increase Both Transparency and Safety, PHMSA Releases Civil Penalty Framework
The Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (“PHMSA”) issued a General Policy Statement for civil penalties (“Penalty Framework”) on October 17, 2016. The Penalty Framework allows a respondent in a PHMSA enforcement case to request a proposed civil penalty calculation related to its case, and provides a penalty range with corresponding factors used in calculating the penalty amount. Prior to publishing the Penalty Framework, the PHMSA only provided its civil penalty framework upon request.
In imposing a civil penalty, the PHMSA must consider five factors:
(1) The nature, circumstances and gravity of the violation, including adverse impact on the environment;
(2) The degree of the respondent’s culpability;
(3) The respondent’s history of prior offenses;
(4) Any good faith by the respondent in attempting to achieve compliance; and
(5) The effect on the respondent’s ability to continue in business.
49 U.S.C. § 60122.Continue Reading In Effort to Increase Both Transparency and Safety, PHMSA Releases Civil Penalty Framework
Pipeline Operators Take Note: PHMSA Issues Interim Emergency Pipeline Safety Rules – Should You Be Concerned?
On October 3, 2016, the Pipeline and Hazardous Materials Safety Administration (“PHMSA”), within the U.S. Department of Transportation, released a new rule on its authority to issue emergency orders for pipeline safety. The Interim Final Rule, titled “Pipeline Safety: Enhanced Emergency Order Procedures,” comes as a result of the Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016 (“PIPES”). PIPES was signed into law by President Obama in June 2016 and allows the PHMSA to impose emergency restrictions, prohibitions, and safety measures on gas or hazardous liquid pipeline facilities to address safety concerns.
Continue Reading Pipeline Operators Take Note: PHMSA Issues Interim Emergency Pipeline Safety Rules – Should You Be Concerned?
EPA Issues Expansive, Costly New Source Performance Standards for Oil and Gas Sector
Widely anticipated on both sides of the aisle, on May 12, 2016, the U.S. Environmental Protection Agency (“EPA”) released final regulations to curb emissions of methane and volatile organic compounds (“VOC”) from additional new, modified, and reconstructed sources in the oil and gas industry. The Final Rule, titled, ‘Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources’ (“Final Rule”), amends the new source performance standards (“NSPS”) for the oil and natural gas source category. This action follows EPA’s publication of proposed regulations in August 2015, and is extremely significant because it is the first instance of such regulation of VOC and methane emissions by the EPA. In addition to yesterday’s announcement, the EPA is completing final Control Techniques Guidelines for reducing VOC emissions from existing oil and gas sources in ozone nonattainment areas, which are expected to be released later this spring.
Background: The Climate Action Plan
Over the past few years, the Obama Administration has taken an aggressive stance on climate change regulation, and the Final Rule is the Administration’s most recent action to specifically address methane and short-lived climate pollutants. In June 2013, the Administration released the Climate Action Plan which directed the EPA and other federal agencies to develop a comprehensive regulatory scheme to reduce methane emissions. In March 2014, as a follow-up to the Climate Action Plan, the Obama Administration issued the Climate Action Plan: Strategy to Reduce Methane Emissions.Continue Reading EPA Issues Expansive, Costly New Source Performance Standards for Oil and Gas Sector
Environmentalists Sue EPA to Force Update of Drilling Waste Regulations
On May 4, 2016, a coalition of environmental organizations (“Plaintiffs”) filed suit against the U.S. Environmental Protection (“EPA”) in U.S. District Court for the District of Columbia to compel the EPA to promulgate revised regulations and guidelines for the disposal, storage, transportation, and handling of oil and gas wastes. Environmental Integrity Project et al. v. Gina McCarthy (Case No. 1:16-cv-00842). In the Complaint, Plaintiffs state that the Resource Conservation and Recovery Act (“RCRA”) requires the EPA to review and revise regulations for drilling wastes every three years. 42 U.S.C. § 6912(b). According to Plaintiffs, the EPA last conducted a review of the regulations in 1988, but has since failed to update the regulations. Further, the EPA has not updated the guidelines for state solid waste management plans as required under RCRA.
The environmental organizations are the Environmental Integrity Project, Natural Resources Defense Council, Earthworks, Responsible Drilling Alliance, San Juan Citizens Alliance, West Virginia Surface Owners’ Rights Organization, and the Center for Health, Environment and Justice.
Continue Reading Environmentalists Sue EPA to Force Update of Drilling Waste Regulations
Colorado Court Strikes Down Local Fracking Bans that Conflict with State Law
On May 2, 2016, the Colorado Supreme Court issued opinions in two separate cases challenging local bans on hydraulic fracturing (“fracking”). A win for the oil and gas industry in the state, the Supreme Court held that the challenged fracking bans were preempted by state law in both cases. These decisions highlight the legal principle or doctrine of “preemption” – if state law allows a process, like fracking, a local government is not permitted to ban or outlaw it.
In City of Fort Collins v. Colorado Oil and Gas Association (No. 15SC668, 2016), the Colorado Oil and Gas Association, an industry trade association, sued the City of Fort Collins seeking a declaratory judgment that Fort Collins’ moratorium on fracking was preempted by state law. In November 2013, the citizens of Fort Collins approved a citizen-initiated ordinance that placed a moratorium on “hydraulic fracturing and the storage of its waste products within the City of Fort Collins or on lands under its jurisdiction for a period of five years, without exemption or exception, in order to fully study the impacts of this process . . .” Opinion, at 5. In finding that the State of Colorado has an interest in regulating fracking, the court held that Fort Collins’ fracking moratorium “renders the state’s statutory and regulatory scheme superfluous” because it prevents oil and gas operators from complying with state law that permits and regulates fracking. “In doing so, the moratorium materially impedes the effectuation of the state’s interest in the efficient and responsible development of oil and gas resources.” Id. at 14.Continue Reading Colorado Court Strikes Down Local Fracking Bans that Conflict with State Law