On June 15, 2020, the U.S. Supreme Court held in United States Forest Service v. Cowpasture River Preservation Association that the U.S. Forest Service was authorized to issue a special use permit granting a 0.1-mile right of way under the Appalachian Trail (“Trail”) to Atlantic Coast Pipeline, LLC (“Atlantic”) for a proposed underground natural gas
AOGCC Implements Electronic Permitting Procedures in Response to Office Shutdowns Caused by COVID-19
Last month, the Alaska Oil and Gas Conservation Commission (AOGCC) announced that it would be implementing electronic permitting procedures in response to office shutdowns caused by COVID-19. The electronic process will also serve as the initial step in developing a fully electronic permitting and reporting system.
The initial system will utilize “AOGCC-designed fillable PDF and
EPA Proposes Changes to the Multisector General Permit That Will Affect Oil and Gas Extraction Permittees
The Environmental Protection Agency (EPA) has proposed a draft Multisector General Permit (MSGP) under the National Pollutant Discharge Elimination System (NPDES) program for stormwater discharges related to industrial activity. In Alaska, EPA has jurisdiction over NPDES permitting on federal property within Denali National Park, in federal waters (three miles or more offshore), and on certain
Sage-Grouse: Short Flight for Pending 10 Million-Acre Withdrawal from General Mining Law?
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 Sage-Grouse: Short Flight for Pending 10 Million-Acre Withdrawal from General Mining Law?
North Dakota’s UIC Class VI Primacy Wait is Almost Over
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 North Dakota’s UIC Class VI Primacy Wait is Almost Over
Swing and a Foul Ball? Practical Effect of Obama Administration’s Now-Defunct Coal Leasing Moratorium Likely Relatively Small
An executive order, secretarial order, and lawsuit challenging said secretarial order, all in the span of less than 36 hours and all concerning federal coal leasing. The Trump administration on Wednesday reversed a 2016 Obama administration moratorium on federal coal leasing, and environmental organizations have already filed suit challenging this change of direction. While the effect on coal mining from this Trump administration reversal is uncertain, the now-defunct moratorium likely had a relatively small practical effect on federal coal leasing.
By way of background, in January 2016 then Secretary of the Interior Sally Jewell issued Secretarial Order No. 3338. This order directed the Bureau of Land Management (BLM) to (i) prepare a Programmatic Environmental Impact Statement (PEIS) under the National Environmental Policy Act (NEPA) to review the federal government’s coal leasing program, and (ii) imposed a “pause” on federal coal leasing while the PEIS was prepared. As a result, the BLM would neither process new applications for coal leases nor conduct lease sales for pending applications until the PEIS was complete. However, Secretary Jewell’s order exempted five categories of coal leasing decisions from the moratorium (e.g., when the NEPA process had already been completed and a record of decision had already been issued by either the BLM or the applicable federal surface management agency). Yesterday, current Secretary of the Interior Ryan Zinke implemented President Trump’s Energy Independence Executive Order by revoking Secretary Jewell’s order through his own Secretarial Order No. 3348. (The executive order was not focused just on federal coal leasing. Here is an analysis of its potential impact on the broader energy industry, and here is an analysis of its rescission of President Obama’s 2015 natural resource mitigation memorandum.)
Continue Reading Swing and a Foul Ball? Practical Effect of Obama Administration’s Now-Defunct Coal Leasing Moratorium Likely Relatively Small
Idaho Modifies Oil and Gas Statutes (Again)
Both houses of the Idaho Legislature unanimously approved House Bill 301a last week following a seven-hour negotiation and two days of hearings earlier this month. Supported by Governor Otter, this bill will (among other things) amend the forced pooling provisions enacted just 12 months ago. In fact, House Bill 301a is the latest in a series of legislative actions taken since exploration and development operations commenced in western Idaho in 2010. The Idaho Department of Lands’ website shows nine producing wells plus six shut-in wells as of last month.
Changes to Idaho’s current oil and gas statutes brought by House Bill 301a include:
- Decreasing the default spacing unit for a vertical gas well from 640 acres to 160 acres and allowing federal minerals to be excluded from a spacing unit if the U.S. Bureau of Land Management fails to auction a lease for such minerals for at least six months.
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Oil Transportation and Suction Dredge Mining Legislative Topics in Washington Too
Following up on last week’s post about Oregon legislative proposals, here are some of the mineral-related bills currently pending in the Washington State Legislature:
Oil and Gas
SB 5462 and HB 1611 – These two almost identical bills are follow-ups to the Oil Transportation Safety Act that was enacted in Washington two years ago. Among other things, SB 5462 and HB 1611 would (i) require that railroads transporting crude oil and petroleum products demonstrate financial ability to pay for a “worst case spill”; (ii) obligate refineries to account for different types of crude oil in their emergency planning and training; (iii) impose a public notice requirement if a refinery proposes to export more than 10% of its annual production; (iv) allow the Department of Ecology to share confidential information regarding oil transportation with elected local officials responsible for emergency response agencies; (v) levy oil spill response and administration taxes on crude oil and petroleum products delivered via pipeline to bulk oil terminals; and (vi) give the state’s Energy Facility Site Evaluation Council (EFSEC) jurisdiction over crude oil pipelines that are at least five miles (rather than the current 15 miles) long.
Continue Reading Oil Transportation and Suction Dredge Mining Legislative Topics in Washington Too
Mineral-Related Bills Pending Before Oregon Legislature
The Oregon Legislature’s 2017 session officially kicked off last week. A variety of mineral-related bills have been introduced. Here are some of the ones to follow:
Mining
SB 3 – SB 3 is primarily focused on suction dredge mining. It would build on the 2013 enactment of a moratorium, currently in effect until 2021, on the use of motorized equipment engaged in small-scale precious metal mining of placer deposits (i) within and upstream of spawning habitat for salmon and bull trout, and (ii) 100 yards upland from such areas if water quality could be impacted. SB 3 would wrap Pacific lamprey spawning habitat into the moratorium, but would eliminate the prohibition on upland use of such equipment starting in 2019. Instead, the use of such equipment, regardless of the size of the operation, within 100 yards upland of any river’s ordinary high water line would be subject to the Department of Geology and Mineral Industries’ (“DOGAMI”) existing exploration and operating permit programs, including the associated reclamation requirements. Starting in 2021, suction dredge mining would be permanently prohibited in a wide variety of locations unless the mining concerned a federal mining claim and the prohibition would violate federal law. In those areas where suction dredge mining was allowed, it would require a removal-fill permit issued by the Department of Environmental Quality (“DEQ”) rather than the Department of State Lands. SB 3 would also provide that the surface mining exclusion certificate required under ORS 517.753 only applies to commercial sand, gravel, and crushed stone operations.
Continue Reading Mineral-Related Bills Pending Before Oregon Legislature
Wyoming Court Strikes Down BLM Hydraulic Fracturing Rule; Existing Appeal Remains Pending (For Now)
UPDATE: Quickly following on the heels of the Wyoming federal district court’s order striking down the Bureau of Land Management’s (BLM) hydraulic fracturing rules, the state governments of North Dakota, Wyoming, Colorado, and Utah have now moved to dismiss the pending Tenth Circuit appeal of the district court’s preliminary injunction order. Those state government indicated in their brief that they had unsuccessfully attempted to reach out to counsel for the BLM and the environmental groups who filed that appeal, but expected those parties will oppose the dismissal motion.
Separately, the BLM and the intervening environmental groups each filed notices seeking to directly appeal the district court’s June 21 order and judgment striking the BLM’s rules to the Tenth Circuit. While it remains unclear exactly how this matter will now proceed on appeal, it seems likely that the Tenth Circuit will combine or consolidate all of these appeal issues in one way or another.
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As we’ve previously reported, a Wyoming federal court issued a preliminary injunction order last year that temporarily halted the Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on public lands. Since that time, the case has split into two proceedings: the Wyoming court moved forward with conducting a full legal analysis of the BLM’s final rule, while several environmental groups who had intervened in the lawsuit appealed the preliminary injunction order to the Tenth Circuit Court of Appeals. This week we received some clarity on one of those proceedings, while the other remains pending.
District Court Strikes Down BLM Final Rule
On June 21, the Wyoming court struck down the BLM’s final rule, finding the agency lacked the legal authority to promulgate those regulations.
In his order, Judge Scott Skavdahl premised his opinion on whether Congress delegated requisite authority to the BLM to regulate hydraulic fracturing on public lands, and “not whether hydraulic fracturing is good or bad for the environment or the citizens of the United States.” Ultimately, Judge Skavdahl held, a federal agency “may not exercise its authority in a manner that is inconsistent with the administrative structure that Congress enacted into law.”
Court Denies Move For Final Judgment On Order Delaying BLM Hydraulic Fracturing Rule; Environmental Groups Proceed Anyway
Following a Wyoming federal court’s order temporarily halting the Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on public lands, Sierra Club and several other environmental groups requested the court enter final judgment and delay proceedings while they pursue an appeal through the Tenth Circuit Court of Appeals. (Our complete coverage of this