PUBLIC LANDS

Court reverses 'untethered' suspension of BLM methane rule

A federal court dealt another major blow last night to the Trump administration's attempts to unwind Obama-era restrictions on methane emissions from the oil and gas industry.

The U.S. District Court for the Northern District of California ruled that the Bureau of Land Management did not justify its decision to postpone core provisions of its 2016 Methane and Waste Prevention Rule.

"The 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," Judge William Orrick wrote in a late-night opinion.

"They have shown irreparable injury caused by the waste of publicly owned natural gas, increased air pollution and associated health impacts, and exacerbated climate impacts," he wrote.

Orrick issued a preliminary injunction requiring BLM to fully enforce the regulation. The agency just released a broader proposal for a permanent rollback of most of the rule's provisions, but that plan won't be finalized until April, at the earliest.

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The court's decision — the second time the court has blocked Interior Secretary Ryan Zinke's efforts to sideline the methane rule — is a tremendous victory for environmentalists and states that supported the Obama-era plan to reduce venting, flaring and leakage of the potent greenhouse gas on public and tribal lands.

California, New Mexico and a coalition of environmental groups filed suit in December when the Trump administration suspended key provisions that required oil and gas drillers to craft waste minimization plans, use methane leak detection technology and cut back on flaring, among other measures.

They have defended the Obama measure as a necessary effort to avoid the waste of natural resources and reel in planet-warming emissions (Energywire, Dec. 20, 2017).

The court's analysis

Supporters of the Obama rule made several arguments against BLM's suspension:

  • BLM did not provide a reasoned analysis for the rollback.
  • BLM relied on a faulty cost-benefit analysis.
  • Postponing the rule prevents BLM from meeting its statutory duties.
  • The agency's decisionmaking process was unfair.

Orrick, an Obama appointee, agreed with most of the claims. He wrote last night that BLM never explained much of its reasoning for the suspension, including its claim that the methane rule would burden domestic energy production and was not in line with President Trump's 2017 "energy independence" executive order.

He also noted that BLM offered conflicting statements that compliance costs would disproportionately affect small businesses but weren't significant enough to trigger additional review known as a "regulatory flexibility analysis."

"BLM does not explain how or why it could conclude that the calculated costs could be so insignificant as not to unnecessarily or disproportionately burden small entities within the meaning of the RFA, and simultaneously conclude that there would be a disproportionate effect for other purposes," he wrote. "Nor could it, as these two positions are entirely inconsistent."

Orrick said "perhaps the BLM's best justification" for the suspension is its uncertainty about whether the agency has authority to enforce the Obama rule. Critics of the 2016 measure have said it amounts to an air quality regulation better suited to U.S. EPA and state officials. A federal judge in Wyoming flagged similar concerns a year ago but did not decide the issue.

Still, Orrick found, the suspension wasn't actually tailored with that concern in mind, so it's not an appropriate justification. In sum, he ruled, BLM's reasoning for suspending the rule did not appear to meet the legal standard for changing a regulation.

"New facts or evidence coming to light, considerations that BLM left out in its previous analysis, or some other concrete basis supported in the record — these are the types of 'good reasons' that the law seeks," the opinion says. "Instead, it appears that BLM is simply 'casually ignoring' all of its previous findings and arbitrarily changing course."

The court went on to criticize BLM's regulatory impact analysis for using inconsistent assumptions to measure costs and benefits, and Orrick found that the agency had unfairly ignored public comments related to the costs of the rule. However, he did not agree with the plaintiffs' argument that BLM's suspension violates its legal duty to prevent the waste of resources.

Environmentalists celebrated the court's decision last night, declaring an all-caps victory on Twitter.

"VICTORY! U.S. District Court enjoins @SecretaryZinke's bogus 'suspension' of BLM's methane waste rule," Earthjustice attorney Ted Zukoski posted. "So the 2016 rule to prevent waste of taxpayer's money & polluting methane is back in effect."

States and the oil and gas industry are expected to weigh in today. The Independent Petroleum Association of America and Western Energy Alliance may return to the court handling the original challenge to the Obama rule to try to block implementation of the rule.

Staying in Calif.

Last night's decision marks the second time the California court has blocked the Trump administration's efforts to sideline the rule after the court in October rejected an earlier effort to freeze it (Energywire, Oct. 5, 2017). That ruling is now under review in the 9th U.S. Circuit Court of Appeals.

Notably, BLM and states that supported the suspension had asked to transfer the case to a potentially friendlier venue at the federal district court in Wyoming, which fielded earlier challenges to the original Obama rule.

Orrick denied the request yesterday, acknowledging that the cases involve related rulemaking issues but noting distinctions in the legal questions. The Wyoming case focuses on whether the original Obama rule exceeded BLM's authority, he wrote, while this case focuses on whether the agency justified its regulatory freeze.

"Because Defendants have not shown that the convenience or interest of justice factors weigh strongly in favor of transfer, I will not disturb Plaintiffs' choice of venue," he said in last night's opinion. "The most expedient result is for the case to remain in this district."

The Northern California district is handling several other challenges to recent deregulatory efforts affecting public lands, including litigation over the rollback of Obama-era reforms to how royalties are calculated and BLM's rescission of its fracking rule.

Twitter: @ellengilmer Email: egilmer@eenews.net

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