American Oil and Gas Reporter - July 2020 - 15

IndustryDigest
Two Courts Differ On
New WOTUS Definition
The Trump administration's new
definition of "waters of the United
States" subject to federal Clean Water
Act jurisdiction batted .500 in the first
two of its court challenges heard.
The Navigable Waters Protection
Rule was announced by Environmental
Protection Agency Administrator
Andrew Wheeler on Jan. 23 in Las
Vegas and was published in the April 21
Federal Register. It replaces the Obama
administration's 2015 Clean Water Rule
and delineates four categories of
federally regulated waters as well as
variety of nonjurisdictional waters
(AOGR, February 2020, pg. 14). The
rule became effective June 22.
On June 19, according to published
reports, The U.S. District Court for the
Northern District of California denied a
motion filed by California and 16 other
states and cities for a nationwide
preliminary injunction. But on the same
day, in what the Environmental Law and
Policy Monitor terms a "seemingly
opposite conclusion," the U.S. District
Court for the District of Colorado
granted the state of Colorado's motion
to prevent the rule from taking effect in
that state.
In California, according to published
reports, Judge Richard Seeborg
concluded EPA's and the U.S. Army
Corps of Engineers' interpretation of
WOTUS was entitled to deference.
"The court emphasized that Congress
failed to clearly define the term in the
statute and that there had been a shifting
interpretation of the term between
administrations," the reports say. "The
court acknowledged that interpretative
changes motivated by a change in
administration were inherently
unreasonable and concluded the
agencies' current interpretation-even if
it was inconsistent with the agencies'
2015 interpretation-likely was not
inconsistent with the text, structure and
purpose of the CWA."
In Colorado, however, Judge
William J. Martinez found the
Navigable Waters Protection Rule
contradicted the U.S. Supreme Court's
2006 ruling in Rapanos v. United
States, the reports continue.
They say, "Judge Martinez
concluded the rule impermissibly
implements the jurisdictional test put

forth by the four-justice plurality in
Rapanos . . . rather than Justice
(Anthony) Kennedy's concurring
opinion. Given the rule's contradiction
of Justice Kennedy's concurring opinion
. . . Judge Martinez determined the
plaintiffs likely would succeed in
challenging the rule and halted its
implementation in Colorado."
The reports note the Navigable
Waters Protection Rule faces additional
challenges in Arizona, Washington,
South Carolina and Massachusetts as
well as in New Mexico where the New
Mexico Cattle Growers Association
contends the new rule doesn't go far
enough in paring back the CWA's reach.
❒

Judge Orders DAPL
Shut Down By Aug. 5
WASHINGTON-A federal judge has
ordered the Dakota Access Pipeline
emptied and shut down while the Army
Corps of Engineers prepares an environmental impact statement on DAPL's
crossing of the Missouri River.
The North Dakota Petroleum Association reports Judge James Boasberg in
the U.S. District Court for the District
of Columbia on July 6 gave Energy
Transfer Partners 30 days to empty the
pipeline and cease operations.
In March, Boasberg ruled an environmental assessment the Corps completed in 2018 violated the National
Environmental Policy Act and did not
justify the easement granted DAPL to
cross beneath the Missouri River
(AOGR, April 2020, pg. 18). He allowed DAPL to continue operating,
however, pending filing of briefs on
whether the easement should be vacated and the pipeline shut down until the
Corps completed the EIS. NDPC estimates a full EIS will take 13-42
months to complete.
As of June, published reports say, the
pipeline from Stanley, N.D., to Patoka,
Il., was carrying 570,000 barrels a day
of crude oil.
In 2017, Boasberg ruled the Corps
"largely complied" with NEPA when it
permitted the pipeline, but nevertheless
ordered additional review to address
concerns raised by the Standing Rock
Sioux and Cheyenne River Sioux tribes
(AOGR, July 2017, pg. 14). DAPL
crosses the Missouri River just north of
the Standing Rock Sioux reservation.

In August 2018, the Corps affirmed
its earlier determination that the pipeline
posed no significant environmental
threats, a finding the tribes disputed.
In ordering DAPL be shut down,
Boasberg says he is "mindful of the disruption such a shutdown will cause," but
contends it is necessary.
"Given the seriousness of the Corps'
. . . error, the impossibility of a simple
fix, the fact that Dakota Access did assume much of its economic risk knowingly, and the potential harm each day
the pipeline operates, the court is forced
to conclude that the flow of oil must
cease," the judge's ruling says.
NDPC calls Boasberg's order "an
extreme action and one not required
by law."
"This is a serious attack on our industry and will impact all levels of operations in North Dakota as well as to other industries," NDPC declares. "DAPL
moves 40% of Bakken oil."
Referencing Boasberg's ruling as
well as Dominion Energy's announcement the day before that it was cancelling the Atlantic Coast Pipeline (see
story page 26), American Petroleum Institute President and Chief Executive
Officer Mike Sommers says API is
"deeply troubled by these setbacks for
U.S. energy leadership."
"Our nation's outdated and convoluted permitting rules are opening the
door for a barrage of baseless, activist-led litigation, undermining
American energy progress and denying local communities the environmental, employment and economic
benefits modern pipelines provide,"
Sommers insists. "The need to reform
our broken permitting system has never been more urgent." ❒

Two Lawsuits Ask
9th Circuit To Reinstate
Obama Fracture Rule
SACRAMENTO, CA.-The plaintiffs
in two failed attempts to overturn
President Trump's rescission of Obama
era fracturing regulations are taking
their challenge to a higher court.
On June 12, California Attorney
General Xavier Becerra and the Sierra
Club on behalf of itself and seven other
environmental organizations filed
separate notices of appeal with the U.S.
Court of Appeals for the 9th Circuit.
JULY 2020 15

American Oil and Gas Reporter - July 2020

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