BLM Methane Waste Prevention Rule

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 Conservationrule (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. In December 2017 BLM published a final rule suspending the 2018 compliance dates of the rule until 2019 (the Suspension Rule). This followed an earlier effort to delay those compliance dates by merely noticing the postponement in the Federal Register. On February 22, 2018 BLM published a proposal (the Revision Rule) to replace the 2016 Waste Prevention Rule. The Revision Rule proposes returning to the pre-2016 rule standards, which date from the 1970s. On September 18, 2018 BLM released the final version of the Revision Rule which was published in the federal register on September 28, 2018 and will go into effect on November 27, 2018. On the same day, the Attorneys General for California and New Mexico filed suit alleging BLM violated the Administrative Procedure Act, Mineral Leasing Act, and National Environmental Policy Act. On September 28, 2018, eighteen environmental groups also challenged the Revision Rule.

Four 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, No. 2:16-CV-00285 consolidated with Western Energy Alliance, et al. v. Sally Jewell, 2:16-CV-0280. (D. Wyo.) — challenging the original Waste Prevention Rule,
  • California and New Mexico v. Zinke, No. 3:17-CV-03804 consolidated with Sierra Club et al., v. Zinke. No. 3:17-CV-03885 (N.D. Cal.) — challenging BLM’s June 15, 2017 notification of postponement of the rule’s compliance dates,
  • California and New Mexico v. BLM, No .3:17-cv-07186 consolidated with Sierra Club et al v. BLM 3:17-cv-07187 (N.D. Cal.) — challenging BLMs December 8, 2017 Suspension Rule delaying the Waste Prevention Rule’s 2018 compliance dates,
  • EDF v. Dept. of Interior, No. 1:18-cv-01116 (D.D.C) -– a FOIA suit against BLM regarding requested documents relating to its efforts to delay, suspend, and rollback the Waste Prevention Rule,
  • California, et al. v. Zinke, No. 3:18-cv-05712 (N.D. Cal.) — challenging the Trump Administration’s Revision Rule (which replaces the Methane Waste Prevention Rule) finalized in September 2018.
  • Sierra Club v. Zinke, No. 3:18-cv-5984 (N.D. Cal.) — also challenging the Revision Rule.

In the Wyoming v. U.S. Dep’t of the Interior case, an April 4, 2018 ruling by the District of Wyoming staying implementation of key provisions of the Waste Prevention Rule and staying the litigation pending completion of BLM’s Revision Rule rulemaking process was recently appealed to the Tenth Circuit. On June 4, 2018, The Tenth Circuit denied a request to stay the April 4th order pending its consideration of the appeal and denied requests to dismiss the appeal of the April 4th order altogether. Merits briefing has proceeding in the appeal and on July 30, 2018 appellants (environmental groups and the states of California and New Mexico) filed their brief asking the court to overturn the District Court’s April 4th ruling.

The California and New Mexico v. Zinke and Sierra Club et al. v. Zinke 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 asked the Ninth Circuit to voluntarily dismiss its appeal, a motion that was granted on March 15, 2018.

In the California and New Mexico v. BLM and Sierra Club et al. v. BLM cases on June 20, 2018 BLM filed a motion to voluntarily dismiss its April 23, 2018 appeal in the Ninth Circuit seeking to overturn the Northern District of California’s February 22, 2018 preliminary injunction against BLM’s Suspension Rule.

In EDF v. Dept. of Interior, EDF sued 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.

California, et al. v. Zinke, filed Sept. 18, 2018, challenges the Trump Administration’s Revision Rule finalized in September 2018, arguing it violates the APA, MLA, and NEPA.

Sierra Club v. Zinke, filed September 28, 2018, also challenges the Revision Rule on the grounds of APA, MLA, and NEPA violations.

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For reference as you read, here are the four cases on 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, No. 2:16-CV-00285 consolidated with Western Energy Alliance, et al. v. Sally Jewell, 2:16-CV-0280. (D. Wyo.) — challenging the original Waste Prevention Rule,
  • California and New Mexico v. Zinke, No. 3:17-CV-03804 consolidated with Sierra Club et al., v. Zinke. No. 3:17-CV-03885 (N.D. Cal.) — challenging BLM’s June 15, 2017 notification of postponement of the rule’s compliance dates,
  • California and New Mexico v. BLM, No .3:17-cv-07186 consolidated with Sierra Club et al v. BLM 3:17-cv-07187 (N.D. Cal.) — challenging BLMs December 8, 2017 Suspension Rule delaying the Waste Prevention Rule’s 2018 compliance dates,
  • EDF v. Dept. of Interior, No. 1:18-cv-01116 (D.D.C) -– a FOIA suit against BLM regarding requested documents relating to its efforts to delay, suspend, and rollback the Waste Prevention Rule,
  • California, et al. v. Zinke, No. 3:18-cv-05712 (N.D. Cal.) — challenging the Trump Administration’s Revision Rule finalized in September 2018 that replaces the 2016 Methane Waste Prevention Rule.
  • Sierra Club v. Zinke, No. 3:18-cv-5984 (N.D. Cal.) — also challenging the Revision Rule.

History

On November 18, 2016 BLM published the Waste Prevention Rule with an effective date of January 17, 2017 and additional compliance deadlines set for January 17, 2018.

Three days before publication (November 15, 2016), but after the rule was signed, industry and states filed 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.)).

On January 17, 2017 the District of Wyoming denied 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

On February 3, 2017 The US House of Representatives passed 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.

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

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

On June 15, 2017 BLM announced that it was 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.

On July 5, 2017 California and New Mexico challenged BLM’s postponement of the compliance dates. On July 10, 2017 several environmental groups also challenged BLM’s postponement. The groups and states argued that the 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 granted a motion to relate these two cases on July 12, 2017 and North Dakota and several industry groups were 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.).

On September 7, 2017 the Northern District of California denied a request by 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.).

On October 4, 2017 the Northern District of California determined BLM’s June 15, 2017 postponement was unlawful, granting summary judgment in the case that vacated the postponement notification and reinstated the rule’s January 17, 2018 compliance date. The court determined 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.).

Also on October 4, 2017 BLM proposed a rule to delay the 2018 compliance dates in the Obama-era rule until January 17th, 2019. The agency accepted comments until November 6, 2017. 

On October 27, 2017 industry groups asked 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.)).

On October 30, 2017 the District of Wyoming agreed 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.)).

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

In the last week of November 2017 environmental groups filed briefing with the District of Wyoming opposing the industry groups’ October 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.)).

On December 4, 2017 BLM filed a notice of appeal to the Ninth Circuit of the October 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.).

On December 8, 2017 BLM published a final rule delaying the 2018 compliance dates until 2019. Often referred to as the “Suspension Rule,” this was the final version of the rule BLM proposed on October 4, 2017.

On December 19, 2017 New Mexico and California sued BLM over its December 8, 2017 final rule to suspend the methane rule’s 2018 compliance dates, delaying them until 2019. A coalition of environmental groups also sued over the December 8 rule. Both lawsuits were filed in the District Court for the Northern District of California and were 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.).

On December 29, 2017, the U.S. District Court for the District of Wyoming granted a request from industry groups and Wyoming and Montana to stay litigation in light of the final Suspension Rule BLM issued on December 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.)).

On January 5, 2018 the American Petroleum Institute moved to intervene in the December 19 lawsuits in the Northern District of California, saying the rule would be economically damaging. On January 9, 2018 the states of North Dakota and Texas also moved to intervene on behalf of BLM. Both of these motions were granted on February 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.).

In the week of February 12, 2018 BLM released 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 was published in the Federal Register on February 22, 2018 and the comment period was open through April 23, 2018.

On February 22, 2018 the Northern District of California issued a preliminary injunction preventing BLM’s December 8, 2017 Suspension Rule from taking effect. The court said “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 denied a January 9th 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.).

On March 7, 2018 U.S. District Court for the District of Wyoming agreed to resume industry and state challenges to the rule, lifting a stay issued on December 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.)).

Also on March 14, 2018 BLM announced it would voluntarily dismiss its appeal to the Ninth Circuit of the October 4, 2017 ruling from the Northern District of California, finding BLM had violated the Administrative Procedure Act by postponing 2018 compliance datesThe Ninth Circuit granted 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.).

On April 4, 2018 the US District Court for the District of Wyoming agreed 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 stayed implementation of certain phase-in provisions of the Waste Prevention Rule and stayed 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.)).

On April 5th and 6th, 2018 California, New Mexico, and environmental groups filed 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 filed 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.)).

On April 23, 2018 BLM filed a notice of appeal to the Ninth Circuit of the February 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.)

On April 30, 2018 the District of Wyoming denied appellants’ April 6, 2018 motion to stay its April 4th decision. By denying the motion, the court left 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.)).

On May 11, 2018 Environmental Defense Fund sued 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 Interior, 1:18-cv-01116 (D.D.C.).

On June 4, 2018 the Tenth Circuit denied a request from California, New Mexico and environmental groups to stay the April 4th 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 denied Wyoming, Montana, and industry groups’ motion to dismiss the appeal of the April 4th 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.

On June 20, 2018 BLM filed a motion to voluntarily dismiss its appeal to the Ninth Circuit filed on April 23, 2018. This leaves in place the February 22, 2018 preliminary injunction of BLM’s 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.).

On July 30, 2018, environmental groups, California, and New Mexico filed 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.

On September 18, 2018, BLM released the final version of the Revision Rule proposed on Feb. 22, 2018. The rule was published in the Federal Register on September 28, 2018 and will go into effect on November 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 Pres. Trump’s Executive Orders 13771 and 13783, the rule largely repeals the 2016 Methane Waste Prevention Rule.

Also on September 18, 2018, California and New Mexico Attorneys General filed 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.).

Eighteen environmental groups sued Interior in the U.S. District Court for the Northern District of California on September 28, 2018, 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.).

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