09/20/2017 - Regulatory Rollback

BLM Methane Waste Prevention Rule

by Hana Vizcarra

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it Matters

Methane is often vented or flared during oil and gas extraction and production and can leak from production equipment. The Department of the Interior and its Bureau of Land Management published the “Waste Prevention, Production Subject to Royalties, and Resource Conservation” Rule (Waste Prevention Rule) in 2016 to “reduce the waste of natural gas from flaring, venting, and leaks from oil and gas production operations on public and Indian lands.”

The rule addressed venting and flaring of associated gas from oil wells by limiting venting to cases of emergencies or when flaring is technically infeasible, and requiring operators to capture a percentage of the gas they would otherwise flare for sale or use. It also required operators to regularly inspect well sites and compression stations for leaks, using an instrument-based approach, and to quickly address leaks found. The rule required operators to replace high-bleed pneumatic controllers and certain pneumatic pumps with equipment that vents less or no gas and to take other measures to avoid emissions from this equipment. It also required operators to recover gas vented from storage vessels or route it to a flare or combustor, and to take measures to minimize venting from downhole well maintenance and liquids unloading as well as to capture, use, flare, or inject gas released during drilling and completions.

The Waste Prevention Rule would achieve lower greenhouse gas emissions from oil and gas production, while providing “a fair return on public resources for federal taxpayers” by requiring operators to pay royalties on wasted gas (gas whose loss was avoidable). The Bureau of Land Management (BLM) estimated the rule would save enough methane to supply around 740,000 households each year. The rule had several rounds of compliance dates for different parts of the rule. 

Current Status

The Waste Prevention Rule, promulgated in 2016 by the Obama Administration’s Department of the Interior, has spawned a series of cases and multiple efforts by the Trump Administration to delay or roll back its provisions.

Sep. 18, 2018 BLM releases the final version of the Revision Rule, which is published in the Federal Register on Sep. 28, 2018 and will go into effect on Nov. 27, 2018. On the same day, the attorneys general for California and New Mexico file suit alleging BLM violated the Administrative Procedure Act, Mineral Leasing Act, and National Environmental Policy Act.

Sep. 28, 2018 Eighteen environmental groups also challenge the Revision Rule.

The following cases related to the Waste Prevention Rule and the Administration’s efforts to delay, suspend, or roll it back, have been brought to date:

WYOMING V. U.S. DEP’T OF THE INTERIOR, CHALLENGING THE ORIGINAL WASTE PREVENTION RULE

No. 2:16-CV-00285 consolidated with Western Energy Alliance, et al. v. Sally Jewell, 2:16-CV-0280. (D. Wyo.); appealed to the U.S. Court of Appeals for the Tenth Circuit, No. 18-8027 and consolidated with No. 18-8029

April 9, 2019 The Tenth Circuit Court of Appeals dismisses appeals by California, New Mexico, and environmental groups challenging the stay of the Obama-era Waste Prevention Rule issued pending the finalization of the Revision Rule and vacates the stay. The court found the appeals moot because the Revision Rule is now final, noting “any decision we might issue . . . would have no real-world effect because the rules the district court enjoined have been replaced.”

CALIFORNIA AND NEW MEXICO V. ZINKE, CHALLENGING BLM’S JUNE 15, 2017 NOTIFICATION OF POSTPONEMENT OF THE RULES’S COMPLIANCE DATES

No. 3:17-CV-03804 consolidated with Sierra Club et al., v. Zinke. No. 3:17-CV-03885 (N.D. Cal.)

This case is complete, having found BLM’s June 15, 2017 notice of postponement of the compliance dates in the Waste Prevention Rule unlawful under the APA. The BLM asks the Ninth Circuit to voluntarily dismiss its appeal, a motion that is granted on March 15, 2018.

CALIFORNIA AND NEW MEXICO V. BLM, CHALLENGING BLM’S DEC. 8, 2017 SUSPENSION RULE DELAYING WASTE PREVENTION’S RULE’S 2018 COMPLIANCE DATES

No .3:17-cv-07186 consolidated with Sierra Club et al v. BLM 3:17-cv-07187 (N.D. Cal.); appealed to the Ninth Circuit, No. 18-15711.

BLM filed a motion on June 20, 2018 to voluntarily dismiss its April 23, 2018 appeal in the Ninth Circuit seeking to overturn the Northern District of California’s Feb. 22, 2018 preliminary injunction against BLM’s Suspension Rule. The Ninth Circuit grants the motion to dismiss on June 26, 2018.

EDF V. DEPT. OF INTERIOR, A FOIA SUIT AGAINST BLM REGARDING REQUESTED DOCUMENTS RELATING TO ITS EFFORTS TO DELAY, SUSPEND, AND ROLLBACK THE WASTE PREVENTION RULE

No. 1:18-cv-01116 (D.D.C)

EDF sues the Department of Interior on May 11, 2018, alleging BLM failed to properly respond to a Freedom of Information Act request to produce records related to its “efforts to suspend, delay, repeal and/or revise” the Waste Prevention Rule. The BLM is processing EDF’s FOIA requests on a rolling basis and the parties are submitting regular status updates to the court.

CALIFORNIA, ET AL. V. ZINKE

No. 3:18-cv-05712 (N.D. Cal.)

This case, filed on Sep. 18, 2018, challenges the Trump Administration’s Revision Rule (which replaces the Methane Waste Prevention Rule) finalized in September 2018, arguing it violates the APA, MLA, and NEPA.

SIERRA CLUB V. ZINKE

No. 3:18-cv-5984 (N.D. Cal.)

This case, filed on Sep. 28, 2018, also challenges the Revision Rule on the grounds of APA, MLA, and NEPA violations.

History

Nov. 18, 2016 BLM publishes the Waste Prevention Rule with an effective date of Jan. 17, 2017 and additional compliance deadlines set for Jan. 17, 2018.

Nov. 15, 2016 Three days before publication, but after the rule was signed, industry and states file challenges to the rule in the District of Wyoming. Wyoming v. U.S. Dep’t of the Interior, No. 2:16-CV-00285 (D. Wyo.), later consolidated with Western Energy Alliance, et al. v. Sally Jewell, No. 2:16-CV-0280 (D. Wyo.).

Jan. 17, 2017 The District of Wyoming denies a request for a preliminary injunction (leaving the rule in effect during the litigation). Wyoming v. U.S. Dep’t of the Interior, No. 2:16-CV-00285 (D. Wyo.), consolidated with Western Energy Alliance, et al. v. Sally Jewell, No. 2:16-CV-0280 (D. Wyo.).

Trump Era

Feb. 3, 2017 The US House of Representatives passes 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.

March 28, 2017 President Trump’s Executive Order on Promoting Energy Independence and Economic Growth directs the BLM to review the rule.

May 10, 2017 The US Senate votes down the House of Representatives’ Congressional Review Act resolution, with three Republicans voting no.

June 15, 2017 BLM announces that it is 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.

July 5, 2017 California and New Mexico challenge BLM’s postponement of the compliance dates.

July 10, 2017 Several environmental groups also challenge BLM’s postponement. The groups and states argue that BLM violated the Administrative Procedures Act when it published its postponement notice in the Federal Register after the effective date of the rule had passed.

July 12, 2017 The Northern District of California grants a motion to relate these two cases, and North Dakota and several industry groups are later allowed to intervene in the consolidated cases. California and New Mexico v. Zinke, No. 3:17-CV-03804; Sierra Club et al., v. Zinke. No. 3:17-CV-03885 (N.D. Cal.).

Sep. 7, 2017 The Northern District of California denies a request to transfer the litigation challenging BLM’s postponement to the District of Wyoming. California and New Mexico v. Zinke, No. 3:17-CV-03804; Sierra Club et al., v. Zinke. No. 3:17-CV-03885 (N.D. Cal.).

Oct. 4, 2017 The Northern District of California determines BLM’s June 15, 2017 postponement was unlawful, granting summary judgment in the case that vacated the postponement notification and reinstated the rule’s Jan. 17, 2018 compliance date. The court determines that BLM violated the Administrative Procedure Act to justify postponing a rule that was already in effect. California and New Mexico v. Zinke, No. 3:17-CV-03804; Sierra Club et al., v. Zinke. No. 3:17-CV-03885 (N.D. Cal.).

Oct. 4, 2017 BLM proposes a rule to delay the 2018 compliance dates in the Obama-era rule until Jan. 17, 2019. The agency accepts comments until Nov. 6, 2017. 

Oct. 27, 2017 Industry groups ask 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. Wyoming v. U.S. Dep’t of the Interior, No. 2:16-CV-00285 (D. Wyo.), consolidated with Western Energy Alliance, et al. v. Sally Jewell, No. 2:16-CV-0280 (D. Wyo.).

Oct. 30, 2017 The District of Wyoming agrees 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. Wyoming v. U.S. Dep’t of the Interior, No. 2:16-CV-00285 (D. Wyo.), consolidated with Western Energy Alliance, et al. v. Sally Jewell, No. 2:16-CV-0280 (D. Wyo.).

Nov. 2, 2017 Democratic lawmakers write a letter to Secretary Zinke opposing BLM’s attempts to repeal, revise, or rescind the rule.

Last week of November 2017 Environmental groups file briefing with the District of Wyoming opposing the industry groups’ Oct. 27, 2017 preliminary injunction request. Wyoming v. U.S. Dep’t of the Interior, No. 2:16-CV-00285 (D. Wyo.), consolidated with Western Energy Alliance, et al. v. Sally Jewell, No. 2:16-CV-0280 (D. Wyo.).

Dec. 4, 2017 BLM files a notice of appeal to the Ninth Circuit of the Oct. 4, 2017 Northern District of California decision finding the June 2017 BLM delay unlawful. California and New Mexico v. Zinke, No. 3:17-CV-03804; Sierra Club et al., v. Zinke. No. 3:17-CV-03885 (N.D. Cal.).

Dec. 8, 2017 BLM publishes a final rule delaying the 2018 compliance dates until 2019. Often referred to as the “Suspension Rule,” this is the final version of the rule BLM proposed on Oct. 4, 2017.

Dec. 19, 2017 New Mexico and California sue BLM over its Dec. 8, 2017 final rule to suspend the methane rule’s 2018 compliance dates, delaying them until 2019. A coalition of environmental groups also sue over the Dec. 8, 2017 rule. Both lawsuits are filed in the District Court for the Northern District of California and consolidated in January 2018. California and New Mexico v. BLM, 3:17-cv-07186 and Sierra Club et al v. BLM 3:17-cv-07187 (N.D. Cal.).

Dec. 29, 2017 The U.S. District Court for the District of Wyoming grants a request from industry groups and Wyoming and Montana to stay litigation in light of the final Suspension Rule BLM issued on Dec. 8, 2017. Wyoming v. U.S. Dep’t of the Interior, No. 2:16-CV-00285 (D. Wyo.), consolidated with Western Energy Alliance, et al. v. Sally Jewell, No. 2:16-CV-0280 (D. Wyo.).

Jan. 5, 2018 The American Petroleum Institute moves to intervene in the Dec. 19, 2017 lawsuits in the Northern District of California, saying the rule would be economically damaging.

Jan. 9, 2018 The states of North Dakota and Texas also move to intervene on behalf of BLM. Both of these motions are granted on Feb. 26, 2018. California and New Mexico v. BLM, 3:17-cv-07186; Sierra Club et al v. BLM 3:17-cv-07187 (N.D. Cal.).

Week of Feb. 12, 2018 BLM releases a proposed rule (the Revision Rule) to replace the 2016 Waste Prevention Rule. It proposes returning to the pre-2016 rule standards, which date from the 1970s, and rescinds the leak detection and repair provision. The proposal is published in the Federal Register on Feb. 22, 2018, with the comment period open through April 23, 2018.

Feb. 22, 2018 The Northern District of California issues a preliminary injunction preventing BLM’s Dec. 8, 2017 Suspension Rule from taking effect. The court says “BLM’s reasoning behind the Suspension Rule is untethered to evidence contradicting the reasons for implementing the Waste Prevention Rule, and so plaintiffs are likely to prevail on the merits.” This order also denies the Jan. 9, 2018 request by BLM, North Dakota and Texas to transfer the case to the U.S. District Court for the District of Wyoming. California and New Mexico v. BLM, 3:17-cv-07186; Sierra Club et al v. BLM 3:17-cv-07187 (N.D. Cal.).

March 7, 2018 U.S. District Court for the District of Wyoming agrees to resume industry and state challenges to the rule, lifting a stay issued on Dec. 29, 2017 and setting a briefing schedule for pending motions. Wyoming v. U.S. Dep’t of the Interior, No. 2:16-CV-00285 (D. Wyo.), consolidated with Western Energy Alliance, et al. v. Sally Jewell, No. 2:16-CV-0280 (D. Wyo.).

March 14, 2018 BLM announces it will voluntarily dismiss its appeal to the Ninth Circuit of the Oct. 4, 2017ruling from the Northern District of California, finding BLM had violated the Administrative Procedure Act by postponing 2018 compliance datesThe Ninth Circuit grants its motion to dismiss on March 15, 2018, ending the substantive portion of this case. California and New Mexico v. Zinke, No. 3:17-CV-03804; Sierra Club et al., v. Zinke. No. 3:17-CV-03885 (N.D. Cal.).

April 4, 2018 The US District Court for the District of Wyoming agrees to suspend key provisions of the Waste Prevention Rule. Deciding various motions on how to handle the case given the potential for BLM’s proposed Revision Rule to supersede the 2016 Waste Prevention Rule, the court stays implementation of certain phase-in provisions of the Waste Prevention Rule and stays the case pending BLM’s completion of rulemaking process for the Revision Rule. Wyoming v. U.S. Dep’t of the Interior, No. 2:16-CV-00285 (D. Wyo.), consolidated with Western Energy Alliance, et al. v. Sally Jewell, No. 2:16-CV-0280 (D. Wyo.).

April 5 and 6, 2018 California, New Mexico, and environmental groups file 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 and staying the action pending finalization of the Revision Rule. They also file a motion to stay the case pending appeal on April 6, 2018. Wyoming v. U.S. Dep’t of the Interior, No. 2:16-CV-00285 (D. Wyo.), consolidated with Western Energy Alliance, et al. v. Sally Jewell, No. 2:16-CV-0280 (D. Wyo.).

April 23, 2018 BLM files a notice of appeal to the Ninth Circuit of the Feb. 22, 2018 order denying a motion to transfer venue and granting a preliminary junction. California and New Mexico v. BLM, 3:17-cv-07186; Sierra Club et al v. BLM 3:17-cv-07187 (N.D. Cal.)

April 30, 2018 The District of Wyoming denies appellants’ April 6, 2018 motion to stay its April 4, 2018 decision. By denying the motion, the court leaves 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. Wyoming v. U.S. Dep’t of the Interior, No. 2:16-CV-00285 (D. Wyo.), consolidated with Western Energy Alliance, et al. v. Sally Jewell, No. 2:16-CV-0280 (D. Wyo.).

May 11, 2018 Environmental Defense Fund sues 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.” EDF is represented by HLS Emmett Environmental Law & Policy Clinic. EDF v. Dept. of Interior1:18-cv-01116 (D.D.C.).

June 4, 2018 The Tenth Circuit denies a request from California, New Mexico and environmental groups to stay the April 4, 2018 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 denies Wyoming, Montana, and industry groups’ motion to dismiss the appeal of the April 4, 2018 order entirely. Wyoming v. U.S. Dep’t of the Interior, No. 2:16-CV-00285 (D. Wyo.), consolidated with Western Energy Alliance, et al. v. Sally Jewell, No. 2:16-CV-0280 (D. Wyo.); appealed to the U.S. Court of Appeals for the Tenth Circuit, No. 18-8027.

June 20, 2018 BLM files a motion to voluntarily dismiss its appeal to the Ninth Circuit filed on April 23, 2018. This leaves in place the Feb. 22, 2018 preliminary injunction of BLM’s Suspension Rule. The Ninth Circuit grants the motion to dismiss on June 26, 2018. California and New Mexico v. BLM, 3:17-cv-07186; Sierra Club et al v. BLM 3:17-cv-07187 (N.D. Cal.).

July 30, 2018 Environmental groups, California, and New Mexico file a brief with the 10th Circuit asking the court to overturn the District Court’s decision to enjoin the Methane Waste Prevention Rule. Wyoming v. U.S. Dep’t of the Interior, No. 2:16-CV-00285 (D. Wyo.), consolidated with Western Energy Alliance, et al. v. Sally Jewell, No. 2:16-CV-0280 (D. Wyo.); appealed to the U.S. Court of Appeals for the Tenth Circuit, No. 18-8027 and consolidated with No. 18-8029.

Sep. 18, 2018 BLM releases the final version of the Revision Rule proposed on Feb. 22, 2018. The rule is published in the Federal Register on Sep. 28, 2018 and will go into effect on Nov. 27, 2018. The Revision Rule revises the 2016 Waste Prevention Rule (also known as the Venting and Flaring Rule). The new rule changes the way the costs of the climate impact of methane are considered. Reviewed in response to President Trump’s Executive Orders 13771 and 13783, the rule largely repeals the 2016 Methane Waste Prevention Rule.

Sep. 18, 2018 California and New Mexico Attorneys General file suit against the Department of Interior in the U.S. District Court for the Northern District of California. The suit asks for declaratory relief that BLM has violated the Administrative Procedure Act, Mineral Leasing Act, and National Environmental Policy Act. California, et al. v. Zinke, No. 3:18-cv-05712 (N.D. Cal.).

Sep. 28, 2018 Eighteen environmental groups sue Interior in the U.S. District Court for the Northern District of California, challenging BLM’s Revision Rule (its rollback of the Methane Waste Prevention Rule). Like the challenge brought by California and New Mexico, the suit alleges the Revision Rule violates the Mineral Leasing Act, Administrative Procedure Act, and the National Environmental Policy Act. Sierra Club v. Zinke, No. 3:18-cv-5984 (N.D. Cal.).

March 25, 2019 EDF and the BLM submit their most recent status update to the court on the progress of BLM’s responses to EDF’s FOIA requests. The next status report is expected in late May 2019. EDF v. Dept. of Interior1:18-cv-01116 (D.D.C.).

April 9, 2019 The Tenth Circuit Court of Appeals dismisses appeals by California, New Mexico, and environmental groups challenging the stay of the Obama-era Waste Prevention Rule issued pending the finalization of the Revision Rule and vacates the stay. The court found the appeals moot because the Revision Rule is now final, noting “any decision we might issue . . . would have no real-world effect because the rules the district court enjoined have been replaced.” Wyoming v. U.S. Dep’t of the Interior, No. 2:16-CV-00285 (D. Wyo.), consolidated with Western Energy Alliance, et al. v. Sally Jewell, No. 2:16-CV-0280 (D. Wyo.); appealed to the U.S. Court of Appeals for the Tenth Circuit, No. 18-8027.