X

Reset Password

Username:

Change Password

Old Password:
New Password:
We have completed your request.
Fracking Tracker Hero

Shale & Fracking Tracker

News & Flashes

BLM Proposes to Eliminate Emissions-Related Provisions of Currently-Postponed Waste Prevention Rule 02-21-2018

On February 12, 2018, the Bureau of Land Management (“BLM”) released a pre-publication version of a proposed rule (the “Proposed Rule”) to modify the 2016 Waste Prevention Rule (the “Waste Prevention Rule”). The proposed modifications to the Waste Prevention Rule include the elimination of provisions aimed at reducing methane emissions from oil and gas facilities on federal lands. Compliance with these provisions of the Waste Prevention Rule has already been postponed until January 2019 pursuant to a final rule (the “Postponement”) promulgated by BLM on December 8, 2017, though the Postponement remains subject to pending judicial review.

BLM’s Waste Prevention Rule, initially promulgated in November 2016, covers a number of methane emissions sources associated with oil and gas production activities on federal lands, including natural gas emissions from venting or flaring, gas leaks from equipment and facilities located at the well site, and well drilling and completions. The Proposed Rule would eliminate many of the requirements aimed at reducing these emissions, and modify several others to reflect an approach similar to that in effect prior to the promulgation of the Waste Prevention Rule. For example, the Proposed Rule would eliminate the requirement that operators prepare “Waste Minimization Plans” when submitting an Application for Permit to Drill, as well as operational and equipment-related requirements applicable to well drilling operations, well completions, pneumatic controllers, pneumatic diaphragm pumps, storage vessels, and leak detection and repair. Pursuant to the Proposed Rule, the Waste Prevention Rule’s requirements related to gas capture, downhole well maintenance, liquids unloading, and measuring/reporting volumes of gas vented and flared would be “modified and/or replaced” to reflect the policies set forth in BLM’s NTL-4A, which governed venting and flaring from BLM-administered leases prior to the promulgation of the Waste Prevention Rule.

BLM has justified its proposed rule on “overlap” with the Environmental Protection Agency’s (“EPA”) New Source Performance Standards (“NSPS”) and a revised cost-benefit analysis, which concluded that “the value of the conserved gas would not outweigh the costs” of the regulation. Read more about BLM’s justification for the Proposed Rule on V&E’s Climate Change Blog.

Meanwhile, the Postponement remains in effect, though it is subject to a pending judicial challenge brought by the states of California and New Mexico (California et al. v. BLM et al., Case No. 17-cv-07186) and several environmental groups (Sierra Club et al. v. Zinke et al., Case No. 17-cv-07187) in the United States District Court for the Northern District of California. Both the states and the environmental groups have filed motions for a preliminary injunction that would reinstate the Waste Prevention Rule’s original January 2018 compliance deadlines. The court heard oral arguments on these motions on February 14, 2018. A separate legal challenge to the validity of the 2016 Waste Prevention Rule brought by several industry groups and states also remains pending in Western Energy Alliance et al. v. Secretary of the U.S. Dep’t of the Interior et al., Case No. 16-cv-00280 in the United States District Court for the District of Wyoming. In that case, the court granted a motion to stay the case pending BLM’s rulemaking to rescind or revise the Waste Prevention Rule, and BLM continues to file status updates with the court in accordance with the court’s order granting the stay.

The Proposed Rule will remain open for public comment for a 60-day period following its publication in the Federal Register. BLM has stated that it intends to conclude this rulemaking effort within the period during which compliance with the Waste Prevention Rule has been suspended pursuant to the Postponement. Nonetheless, the pending motions seeking preliminary injunctions in the litigation challenging the Postponement create continued uncertainty for operators on federal lands, raising the prospect that the Waste Prevention Rule’s original January 2018 compliance deadlines could be reinstated — at least temporarily while BLM finalizes the Proposed Rule — by court order.

BLM Rescinds 2015 Hydraulic Fracturing Rule 01-02-2018

On December 29, 2017, the Bureau of Lang Management (“BLM”) issued a final rule (the “Rescission”) rescinding in its entirety the agency’s 2015 final rule regulating hydraulic fracturing activities on Federal and Indian lands (the “2015 Rule”). The 2015 Rule (link to 2015 white paper on fracking website) included a comprehensive set of well-bore integrity requirements, standards for the interim storage of recovered waste fluids, mandatory notifications and waiting periods for key parts of the fracturing process, and chemical disclosure requirements. However, these requirements had not yet taken effect as a result of a stay issued in connection with the ongoing judicial challenges to the 2015 Rule. Pursuant to the Rescission, BLM’s hydraulic fracturing regulations (43 CFR Part 3160) in effect prior to effective date of the of 2015 Rule (June 24, 2015) will now govern hydraulic fracturing activities on Federal and Indian lands going forward, effective immediately. 

In the preamble to the Rescission, BLM explains that rescission of the 2015 Rule is preferable to the 2015 Rule because it will “relieve operators of duplicative, unnecessary, costly and unproductive regulatory burdens.”  Specially, BLM estimates the Rescission will result in savings of $9,690 in compliance costs per well. The preamble further explains that the agency reviewed incident reports associated with hydraulic fracturing activities on Federal and Indian lands since December 2014 and found a “rarity of adverse environmental impacts that occurred from hydraulic fracturing operations since promulgation of the 2015 [R]ule.”  BLM concludes in the preamble that the BLM’s own pre-existing regulations, coupled with state/tribal oversight and regulations, mitigate such risks. 

The preamble also explains that the Rescission “eliminates the need for further litigation about BLM’s statutory authority.”  In litigation challenging the 2015 Rule, the District Court for the District of Wyoming concluded (link to June 22, 2016 frack flash) that regulating hydraulic fracturing activities was outside the BLM’s statutory authority. Although the United States Court of Appeals for the Tenth vacated the District Court’s final order, plaintiffs in that case have moved for rehearing or reconsideration en banc. These proceedings are pending, and it remains to be seen what effect the Rescission will have with respect to the continuing litigation regarding the 2015 Rule. 

While the Rescission is effective immediately, judicial challenges to the Rescission are likely. Read the Rescission in full here.

BLM Finalizes Postponement of Waste Prevention Rule 12-13-2017

On December 8, 2017, the Bureau of Land Management (“BLM”) published a final rule (the “Postponement”) postponing certain requirements of the 2016 Waste Prevention Rule (“Waste Prevention Rule”) for one year. BLM’s Postponement reflects the completion of BLM’s latest effort to delay the requirements of the Waste Prevention Rule after a court in the Northern District of California vacated BLM’s previous attempt to postpone the effective dates of the rules through alternative procedures. 

BLM’s Waste Prevention Rule, initially promulgated in November 2016, covers a number of methane emissions sources associated with oil and gas production activities on federal lands, including natural gas emissions from venting or flaring, gas leaks from equipment and facilities located at the well site, and well drilling and completions. While the Waste Prevention Rule called for operators to submit “waste minimization” plans by January 2017, the Rule’s leak detection and recovery, emission reduction, and reporting requirements were scheduled to go into effect on January 17, 2018. BLM issued a proposed rule in October 2017 proposing to extend the Waste Prevention Rule’s January 2018 effective dates to January 2019. The proposed rule was open to public notice and comment for a 30-day period concluding November 6, 2017. The Postponement formally promulgates the October 2017 proposed rule, extending the Waste Prevention Rule’s original January 17, 2018 effective dates to January 17, 2019. 

The Postponement is currently in effect, but remains subject to judicial challenge in the future. Any such future judicial challenge could also raise a prospective stay of the Postponement, which could bring the original 2016 Waste Prevention Rule deadlines back into effect pending the court’s resolution of the judicial challenge to the Postponement. Meanwhile, a separate legal challenge to the validity of the 2016 Waste Prevention Rule brought by several industry groups and states remains pending in Western Energy Alliance et al. v. Secretary of the U.S. Dep’t of the Interior et al, Case No. 16-cv-00280 in the U.S. District Court for the District of Wyoming. In that case, the Federal Respondents have filed a Motion to Dismiss, or, in the alternative, for a Stay of Proceedings in light of the Postponement.

View More


V&E Fracking Publications

Daily Fracking News

View More

Sign Up for Updates

Receive email news and alerts about Shale and Fracking from V&E