A power plant flaring excess methane

Methane Waste Prevention Rule

The Inte­ri­or Depart­men­t’s Bureau of Land Man­age­ment (BLM) has a respon­si­bil­i­ty under the Min­er­al Leas­ing Act (MLA) to ensure that pri­vate lessees engaged in oil and gas oper­a­tions on pub­lic lands do not waste valu­able resources and evade the pay­ment of roy­al­ties due to the fed­er­al gov­ern­ment for the use of pub­licly owned resources.

In recent years, some oil and gas oper­a­tors have wast­ed nat­ur­al gas and its prin­ci­pal com­po­nent, methane, by vent­ing and flar­ing large vol­umes of methane that are co-pro­duced with more valu­able oil deposits. In 2016, BLM final­ized a rule that pro­hibits oil and gas oper­a­tors from wast­ing gas by con­duct­ing unwar­rant­ed vent­ing and flar­ing of unwant­ed methane.

The Trump admin­is­tra­tion has pur­sued three dif­fer­ent meth­ods for nul­li­fy­ing the methane waste pre­ven­tion rule and allow­ing oil and gas oper­a­tors to vent and flare unwant­ed gas sup­plies, with­out regard to their oblig­a­tion to pay roy­al­ties or pro­tect the envi­ron­ment. State attor­neys gen­er­al have suc­cess­ful­ly chal­lenged the admin­is­tra­tion’s per­sis­tent attempts to scut­tle the methane waste rule. Lit­i­ga­tion is ongoing.

Attempt­ed Repeal by Congress

2017-2021

The Trump admin­is­tra­tion pro­posed that Con­gress nul­li­fy the methane waste pre­ven­tion rule through a Con­gres­sion­al Review Act (CRA) res­o­lu­tion of disapproval.

  • Feb­ru­ary 2017

    In Feb­ru­ary 2017, sev­en attor­neys gen­er­al sent a let­ter to U.S. Sen­ate lead­er­ship urg­ing the Sen­ate to vote against the CRA res­o­lu­tion because it would cost states where the oil and gas devel­op­ment is tak­ing place mil­lions in annu­al roy­al­ties. Addi­tion­al­ly, the let­ter not­ed that the methane waste pre­ven­tion rule reduces potent cli­mate change caus­ing methane emissions.

  • May 2017

    The Sen­ate sided with state attor­neys gen­er­al and reject­ed the CRA res­o­lu­tion in May 2017.

Post­pon­ing and Sus­pend­ing by BLM

2017-2021

  • June 2017

    Unde­terred by the defeat in Con­gress, in June 2017, BLM pub­lished a notice that pur­port­ed to post­pone com­pli­ance dates set forth in the methane waste pre­ven­tion rule. 

  • July 2017

    In July 2017, the state attor­neys gen­er­al of Cal­i­for­nia and New Mex­i­co sued the Depart­ment of the Inte­ri­or, alleg­ing that BLM had no author­i­ty to put off com­pli­ance with the final rule unless it com­plied with the Admin­is­tra­tive Pro­ce­dure Act (APA) and under­took and com­plet­ed a full notice-and-com­ment rulemaking.

  • August 2017

    Four attor­neys gen­er­al, led by Wash­ing­ton Attor­ney Gen­er­al Bob Fer­gu­son, filed an ami­cus brief in sup­port of the com­plaint brought by Cal­i­for­nia and New Mexico. 

  • Octo­ber 2017

    In the fall, the Unit­ed States Dis­trict Court for the North­ern Dis­trict of Cal­i­for­nia agreed with the state attor­neys gen­er­al, and void­ed the admin­is­tra­tion’s post­pone­ment of com­pli­ance dates set forth under the waste pre­ven­tion rule.

  • Octo­ber 2017

    Sub­se­quent­ly, BLM reframed its sus­pen­sion of the waste pre­ven­tion rule’s com­pli­ance require­ments as a pro­posed rule.

  • Novem­ber 2017

    The state attor­neys gen­er­al filed com­ments oppos­ing the pro­posed rule. 

  • Decem­ber 2017

    BLM then final­ized the sus­pen­sion rule in Decem­ber 2017

  • Decem­ber 2017

    The state attor­neys gen­er­al of Cal­i­for­nia and New Mex­i­co returned to court, fil­ing a com­plaint to over­turn the final rule that pur­ports to sus­pend require­ments of the waste pre­ven­tion rule until Jan­u­ary 172019.

  • Feb­ru­ary 2018

    In Feb­ru­ary 2018, a dis­trict court blocked the delay of the rule, stat­ing, 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.” With the rule in effect as a result of the Feb­ru­ary 2018 dis­trict court rul­ing in Cal­i­for­nia, oppo­nents of the rule asked a fed­er­al dis­trict court in Wyoming, hear­ing an indus­try com­plaint chal­leng­ing the 2016 rule, to block the rule. 

  • March 2018

    Cal­i­for­nia and New Mex­i­co argued in March 2018 that the Wyoming dis­trict court should leave the rule in place because any alleged inabil­i­ty on the part of indus­try to com­ply with the rule is a result of industry’s own mak­ing, as indus­try should have already been in sub­stan­tial com­pli­ance with the rule in Jan­u­ary 2017.

  • April 2018

    In April 2018, the Wyoming dis­trict court stayed imple­men­ta­tion of the rule.

  • April 2018

    Two days lat­er, the attor­neys gen­er­al of Cal­i­for­nia and New Mex­i­co noti­fied the Wyoming dis­trict court that they would be appeal­ing the dis­trict court’s stay of the rule to the Tenth Cir­cuit Court of Appeals. 

  • June 2018

    In June 2018, a divid­ed Tenth Cir­cuit denied a request by oppo­nents of the methane waste pre­ven­tion rule to dis­miss the appeal by Cal­i­for­nia and New Mex­i­co, but declined to rein­state imple­men­ta­tion of the rule dur­ing the appeals process.

  • April 2019

    In April 2019, the Tenth Cir­cuit dis­missed the appeal by Cal­i­for­nia and New Mex­i­co as moot because BLM pub­lished a final rule in Sep­tem­ber 2018 (see below) that rescind­ed crit­i­cal parts of the 2016 methane waste pre­ven­tion rule. The court con­clud­ed that any deci­sion it might issue would have no real-world effect” because the rule the dis­trict court had stayed imple­men­ta­tion of had been eliminated.

  • July 2020

    In July 2020, the fed­er­al dis­trict court in Wyoming lift­edstay on the lit­i­ga­tion that had been in place pend­ing res­o­lu­tion of lit­i­ga­tion in a Cal­i­for­nia fed­er­al dis­trict court over the Sep­tem­ber 2018 final rule (below).

  • August 2020

    The fol­low­ing month, BLM filed its reply brief, in the now reini­ti­at­ed lit­i­ga­tion in Wyoming, argu­ing that the 2016 rule should be vacat­ed as the bureau did not ade­quate­ly jus­ti­fy the 2016 rule and erred in its inter­pre­ta­tion of statu­to­ry author­i­ty to pro­mul­gate the 2016 rule.

  • August 2020

    In August 2020, Cal­i­for­nia and New Mex­i­co, along with envi­ron­men­tal orga­ni­za­tions, filed their reply brief and not­ed that the court should dis­miss chal­lenges to the methane waste pre­ven­tion rule as the record before the BLM in 2016 sup­port­ed issuance of the rule as a law­ful exer­cise of BLM’s statu­to­ry authority.

  • Octo­ber 2020

    In Octo­ber 2020, the fed­er­al dis­trict court in Wyoming issued a rul­ing that vacat­ed the 2016 methane waste pre­ven­tion rule. The dis­trict court held that BLM had exceed­ed its statu­to­ry author­i­ty under the MLA and act­ed arbi­trar­i­ly in pro­mul­gat­ing the methane waste pre­ven­tion rule. Fol­low­ing the release of the deci­sion, the Cal­i­for­nia Attor­ney Gen­er­al released a state­ment express­ing a con­tin­ued com­mit­ment to defend­ing the rule to reduce the waste­ful leak­age of methane. 

  • Decem­ber 2020

    In Decem­ber 2020, Cal­i­for­nia and New Mex­i­co filed a notice with the fed­er­al dis­trict court in Wyoming that the states were appeal­ing the Octo­ber 2020 deci­sion to the Tenth Circuit.

Weak­en­ing by BLM

2017-2021

  • Feb­ru­ary 2018

    BLM pub­lished a pro­posed rule in Feb­ru­ary 2018 that would rescind or revise crit­i­cal com­po­nents of the methane waste pre­ven­tion rule. 

  • April 2018

    In April 2018, Cal­i­for­nia and New Mex­i­co filed com­ments opposed to the pro­posed rule as BLM had not advanced a rea­soned basis for repeal­ing a rule that it had recent­ly deter­mined was con­sis­tent with its statu­to­ry oblig­a­tions. The attor­neys gen­er­al also not­ed that pre­serv­ing the methane waste pre­ven­tion rule would boost roy­al­ty receipts and pro­tect the environment.

  • Sep­tem­ber 2018

    BLM final­ized the pro­posed rule in Sep­tem­ber 2018. The final rule elim­i­nates a require­ment that oil and gas pro­duc­ers cap­ture an increas­ing per­cent­age of vent­ed or flared methane emis­sions. The rule also removes a require­ment that oil and nat­ur­al gas lease­hold­ers con­duct reg­u­lar leak inspec­tions of com­pres­sor sta­tions and oth­er pipeline infra­struc­ture, which will like­ly delay the detec­tion and repair of methane leaks.

  • Sep­tem­ber 2018

    The day the new rule was final­ized, Cal­i­for­nia and New Mex­i­co filed suit in fed­er­al dis­trict court in Cal­i­for­nia. The suit chal­lenged the final rule as a vio­la­tion of the APA as BLM had not sup­plied a rea­soned analy­sis for revers­ing its course in rescind­ing the 2016 rule. Addi­tion­al­ly, the com­plaint not­ed that the rule vio­lates the MLA’s require­ment that BLM require lease­hold­ers pre­vent waste irre­spec­tive of cost considerations.

  • June 2019

    In June 2019, Cal­i­for­nia and New Mex­i­co filed a motion for sum­ma­ry judg­ment in the law­suit chal­leng­ing the Sep­tem­ber 2018 rescis­sion rule. The motion requests that the fed­er­al dis­trict court vacate the rescis­sion rule.

    First, BLM vio­lat­ed the APA in pro­mul­gat­ing the rule because the Bureau failed to ade­quate­ly jus­ti­fy rolling back crit­i­cal pro­vi­sions in the 2016 rule. BLM improp­er­ly claimed that the 2016 methane waste pre­ven­tion rule exceed­ed BLM’s author­i­ty under the MLA to reg­u­late the pre­ven­tion of the waste of pub­licly owned resources. Fur­ther, BLM’s reg­u­la­to­ry impact analy­sis for the rescis­sion rule ignored sub­stan­tial cli­mate change impacts and was con­trary to the best avail­able sci­ence in employ­ing the domes­tic” social cost of methane met­ric, which dra­mat­i­cal­ly reduced the esti­mat­ed ben­e­fits asso­ci­at­ed with the 2016 rule’s green­house gas emis­sions reductions.

    Sec­ond, BLM’s new def­i­n­i­tion of waste of oil or gas” under the MLA in the rule is arbi­trary and capri­cious in vio­la­tion of the APA because it includes an eco­nom­ic lim­i­ta­tion that is unsup­port­ed by the statu­to­ry text and case law. Third, BLM vio­lat­ed the Nation­al Envi­ron­men­tal Pol­i­cy Act (NEPA) by fail­ing to con­sid­er the envi­ron­men­tal impacts of the rescis­sion before pro­mul­gat­ing the rescission.

  • July 2020

    In July 2020, the Cal­i­for­nia fed­er­al dis­trict court ruled in favor of Cal­i­for­nia and New Mex­i­co in grant­i­ng the states’ motion for sum­ma­ry judg­ment. The court found that BLM’s con­clu­sion that the costs of the 2016 rule exceed­ed its ben­e­fits was faulty as its use of the domes­tic social cost of methane met­ric in con­duct­ing the cost-ben­e­fit analy­sis was arbi­trary and capri­cious in vio­la­tion of the APA. Fur­ther, the court held that the eco­nom­ic lim­i­ta­tion in the BLM’s new def­i­n­i­tion of waste of oil or gas” under the MLA was arbi­trary and capri­cious. BLM was also found to have failed to ful­fill its NEPA oblig­a­tions in pro­mul­gat­ing the 2018 rule. The court vacat­ed the 2018 recis­sion rule and reim­ple­ment­ed the 2016 methane waste pre­ven­tion rule, but stayed the vacatur and reim­ple­men­ta­tion for 90 days.

  • Sep­tem­ber 2020

    In Sep­tem­ber 2020, BLM filed a notice of appeal to the Ninth Cir­cuit with the fed­er­al dis­trict court in Cal­i­for­nia chal­leng­ing the low­er court’s July 2020 ruling. 

  • Octo­ber 2020

    In Octo­ber 2020, the Cal­i­for­nia fed­er­al dis­trict court entered final judg­ment in favor of Cal­i­for­nia and New Mex­i­co, vacat­ing the Sep­tem­ber 2018 rescis­sion rule.