American Oil and Gas Reporter - August 2020 - 18

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IndustryDigest
be expected to have primary
environmental regulatory authority under
various statutes, SHJ writes.
Among the areas that could be
impacted, SHJ says, are wildlife
protection, land-use restrictions,
prohibitions against water
contamination, oil and gas permitting,
drilling plan requirements, and planning
and construction of new pipelines and
gathering systems.
"Tribes also retain the power to tax
certain activities by non-Indian
members," SHJ continues. "As a result,
oil and gas business in eastern
Oklahoma could see tribes seeking to
impose their own taxes on non-Indian
oil and gas leases." ❒

Courts Muddy Status
Of BLM Flaring Rules
Federal courts are again playing
"fruit basket upset" with the Bureau of
Land Management's venting and flaring
regulations, with one court in July ordering a return to Obama-era regulations and another reactivating a lawsuit
against those same regulations.
On July 15, published reports indicate, the U.S. District Court for the
Northern District of California rescinded the venting and flaring regulations finalized by the BLM in September 2018
and ordered a return to the 2016 Waste
Prevention, Production Subject to Royalties and Conservation Rule, which the
2018 rule replaced.
Then on July 21, the U.S. District
Court for the District of Wyoming reactivated a case that combined lawsuits
filed by the Independent Petroleum Association of America and the Western

Energy Alliance with similar cases filed
by several states, including Wyoming.
The associations and producing states
had challenged the Obama-era regulations immediately after they became effective in November 2016 (AOGR, December 2016, pg. 32). That case stayed
enforcement of the 2016 regulations,
but was paused when BLM finalized its
revised regulations on September 2018.
In her July 15 ruling, reports say,
Northern California District Judge
Yvonne Gonzalez Rogers held BLM
violated both the National Environmental Policy Act and the Administrative Procedure Act in issuing its 2018
revised regulations. "BLM simply engineered a process to ensure a preordained conclusion," reports say the
judge charged.
Gonzalez Rogers ordered a return to
the 2016 venting and flaring regulations, but delayed that order for 90
days to allow the federal court in
Wyoming to consider that litigation in
light of her ruling.
Judge Scott Skavdahl in Wyoming
started that process on July 21, according to an announcement from Wyoming
Governor Mark Gordon's office, by reactivating the associations' and states'
challenge to the Obama-era rule.
IPAA Vice President of Government
Relations Mallori Miller recalls that
the parties filed a motion in 2018 to
"preserve venue" in their lawsuit, anticipating environmental groups might
get a favorable ruling on their lawsuit
challenging the Trump-era regulations.
"We wanted to make sure we would
have a place to come back to rather
than starting our original lawsuit all
over," she comments.

Miller adds that Judge Skavdahl lifted his 2016 stay of the Obama-era rules
when he reactivated the industry's challenge, but she points out, "Judge Skavdahl has set an aggressive briefing
schedule that more than likely will result in a decision on the merits of the
Obama-era rule before the period of enactment is over.
"The California case had nothing to
do with the merits of the Obama rule, so
the Wyoming case really will be the deciding factor for how that rule is implemented," she emphasizes.
Adds Governor Gordon, "Wyoming
will be reviewing its options to appeal
the California decision, but in the meantime, we will do all we can to avoid the
harm that the Obama-era rule will cause
in this particularly difficult time for
Wyoming's energy industry." ❒

States Sue To Block
CWA Section 401 Rule
SACRAMENTO, CA.-A coalition
of 21 attorneys general led by
California, Washington and New York
have filed a lawsuit challenging the
Environmental Protection Agency's
final rule clarifying the procedures
states must follow in performing
Section 401 water quality certifications
under the Clean Water Act.
EPA released its final rule June 1,
which requires states to conclude
Section 401 reviews within one year of
receiving a certification request, and
limits the scope of states' reviews to
assuring a discharge from a federally
permitted activity will comply with
"water quality requirements" as defined

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American Oil and Gas Reporter - August 2020

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