Looking Ahead On Venting and Flaring
The United States District Court for the District of Wyoming denied a preliminary injunction against the Bureau of Land Management’s (BLM) rule to control venting and flaring of methane from oil and natural gas production.
Obviously, we’re disappointed that Judge Skavdahl did not rule in our favor on the preliminary injunction, and thus, the BLM venting and flaring rule has now gone into effect. Suits were brought by Western Energy Alliance, the Independent Petroleum Association of America (IPAA), and the states of Montana, North Dakota and Wyoming. The trade associations and states request the court delay BLM’s January 17th implementation of the rule, which fell three days before the Trump Administration took office.
There are two reasons the judge didn’t issue the injunction. One is that irreparable harm wasn’t adequately proven. While the judge conceded that costs will be incurred to start implementing the rule on day one, he believes those costs aren’t substantial enough since many of the provisions are phased in over a full year. He has granted an expedited briefing schedule so that we will have more clarity well before all costs are borne.
The second reason is that he’s still grappling with the fundamental issue: whether or not the rule’s Clean Air Act (CAA)-like regulation of air quality exceeds BLM’s authority to the detriment of the states and EPA. The defense argued that the air quality aspects of the rule are ancillary to the waste prevention provisions. Both sides agree that BLM has authority to regulate waste, but our side argues that BLM goes well past that authority and has instituted an unlawful air quality control rule.
There are many comments in the ruling that bring us optimism. The judge remains completely skeptical about BLM’s meanderings in climate change economic theory: “The 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 [Mineral Leasing Act] authority.” He admits, “The Rule upends the Clean Air Act’s cooperative federalism and usurps the authority Congress expressly delegated under the CAA to EPA, states, and tribes to manage air quality.” He states that, “While the EPA has begun the rulemaking process for regulation of existing sources under the CAA, the BLM has hijacked the EPA’s authority under the guise of waste management.” “Portions of BLM’s state rationale for the Rule undermine Respondents’ insistence that the Rule is foremost a waste prevention regulation that simply has incidental benefits to air quality.”
Those all seem to be damning statements, but Judge Skavdahl is just really careful, and was not prepared to rule too definitely on the likelihood of either side prevailing or of incurring harm. He cautiously finds that, “…the Court cannot conclude that the provisions of the Rule which overlap EPA/state air quality regulations promulgated under CAA authority lack a legitimate, independent waste prevention purpose or are otherwise so inconsistent with the CAA as to exceed BLM’s authority and usurp that of the EPA, states, and tribes.” We will help him to do so when the full merits of the case are heard.
Kathleen Sgamma is the president of Western Energy Alliance. The Alliance represents the Western oil and natural gas industry and is a supporter of Western Wire.