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Quick Take
BLM proposed new regulations to reduce gas wasted through venting, flaring, and leaks by oil and gas lessees on public lands.
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 (BLM) finalized the “Waste Prevention, Production Subject to Royalties, and Resource Conservation” Rule (Waste Prevention Rule) in Nov. 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. Among many other requirements, the rule required operators to regularly inspect well sites and compression stations for leaks, using an instrument-based approach, and to quickly address leaks found. The Waste Prevention Rule would have achieved 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 Trump Administration delayed compliance with the rule, causing a flurry of litigation. BLM published a revised rule on Sep. 28, 2018, largely repealing the original rule. Several states and environmental groups successfully challenged the revised rule, and a federal court vacated it on July 15, 2020, reinstating the original Obama-era rule.
With the Obama-era rule back in place, several states revived cases challenging that rule. On Oct. 8, 2020, they succeeded, and the District of Wyoming vacated the original Waste Prevention Rule. California and environmental groups appealed that decision.
Current Status
On Nov. 28, 2022 BLM proposed new regulations to reduce gas wasted through venting, flaring, and leaks by oil and gas lessees on public lands. Comments closed on Jan. 30, 2023. Read our analysis of the Nov. 2022 proposal here.
Timeline of Events
obama administration
Read MoreNov. 15, 2016 Three days before publication, but after the rule is 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.).
Nov. 18, 2016 BLM publishes the Waste Prevention Rule.
Jan. 17, 2017 The District of Wyoming denies a request for a preliminary injunction (leaving the rule in effect during the litigation). Wyoming v. US 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 administration
Read MoreMarch 28, 2017 President Trump’s Executive Order 13783 on Promoting Energy Independence and Economic Growth directs the BLM to review the rule.
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).
July 5-12, 2017 California, New Mexico, and a coalition of environmental groups challenge BLM’s postponement of the compliance dates, arguing 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. 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.).
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. 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.
Nov. 2, 2017 Democratic lawmakers write a letter to Secretary Zinke opposing BLM’s attempts to repeal, revise, or rescind the rule.
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 Suspension Rule. California and New Mexico v. BLM, 3:17-cv-07186; Sierra Club et al v. BLM 3:17-cv-07187 (N.D. Cal.).
Dec. 29, 2017 The 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.).
Feb. 22, 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.
Feb. 22, 2018 The Northern District of California issues a preliminary injunction preventing BLM’s Suspension Rule from taking effect. 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 The District Court for the District of Wyoming agrees to resume industry and state challenges to the rule, lifting its earlier stay. 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 4, 2018 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, 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 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 v. Dept. of Interior, 1:18-cv-01116 (D.D.C.).
June 4, 2018 The Tenth Circuit denies a request from California, New Mexico and environmental groups to stay the Apr. 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 Apr. 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 26, 2018 The Ninth Circuit grants BLM’s motion to voluntarily dismiss the preliminary injunction of BLM’s suspension rule, ending the case. 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 US 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. The new rule changes the way the costs of the climate impact of methane are considered and 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. 4:18-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. 4:18-cv-05984 (N.D. Cal.).
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. Western Energy Alliance, et al. v. Sally Jewell, No. 18-8027 (10th Cir.).
March 4, 2020 Motion for summary judgement hearing in California, et al. v. Zinke, No. 4:18-cv-05712 (N.D. Cal.), consolidated with Sierra Club v. Zinke, No. 4:18-cv-05984 (N.D. Cal.).
July 15, 2020 The Northern District of California vacates BLM’s 2018 Revision Rule in which BLM rescinded the bulk of the 2016 Methane Waste Prevention Rule. California v. Zinke (4:18-cv-05712), consolidated with Sierra Club v. Zinke, No. 4:18-cv-05984 (N.D. Cal.).
Oct. 8, 2020 The federal District Court of Wyoming vacates the 2016 Methane Waste Prevention Rule, finding the rule went beyond BLM’s statutory authority and encroached on EPA’s authority under the Clean Air Act. 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. 21, 2020 California and environmental organizations appeal the Wyoming district court’s October decision to vacate the 2016 Methane Waste Prevention Rule to the Tenth Circuit. Wyoming, et al. v. DOI, No. 20-08073 and No. 20-08072.
biden administration
Read MoreJan. 20, 2021 President Biden instructs agencies to review all “existing regulations, orders, guidance documents, policies, and any other similar agency actions (agency actions)” for inconsistency with his statement of policy in Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis,” and consider suspending, revising, or rescinding these actions. As a result of President Biden’s instructions, Chief of staff Ron Klain issued a freeze on all pending regulations for 60 days to allow time for this review and released a “List of Agency Actions for Review” that includes the 2018 Revision Rule.
Mar. 16, 2022 The Fifth Circuit stays the injunction against Biden’s interim social cost estimates, which allows the Biden administration to start using its estimates again. OIRA is still reviewing the Waste Prevention Rule, but the Biden administration previously cited the injunction barring the estimates as a reason for delay of the rule. This decision allows the rule to keep moving forward. Louisiana v. Biden, Docket No. 22-30087 (5th Cir.).
May 20, 2022 The Government Accountability Office (GAO) releases a report that makes recommendations for EPA and BLM to reduce methane emissions during oil and gas development. GAO recommends that BLM require operators to submit gas capture plans, similar to the plans that several states require.
Nov. 14, 2022 OMB completes its review of the Waste Prevention Rule proposal.
Nov. 28, 2022 BLM proposes new regulations to reduce gas wasted through venting, flaring, and leaks by oil and gas lessees on public lands. Comments must be submitted by Jan. 30, 2023.