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Federal Judge Denies Challenge to BLM Venting/Flaring Rule

A federal judge for the U.S. District Court for the District of Wyoming on Monday denied a request by several oil/gas producing states for a preliminary injunction against the Obama administration's venting/flaring rule, which the states allege duplicates and negates state actions already cutting emissions.

At issue were the venting/flaring restrictions laid down by the U.S. Department of Interior and its Bureau of Land Management (BLM). Judge Scott Skavdahl said he could not conclude that the federal agencies exceeded their authority or acted "arbitrarily or capriciously." Wyoming, Montana and North Dakota "have not established their right to relief is clear and unequivocal," Skavdahl concluded.

Despite the immediate setback, one of the petitioners joining the states, Denver-based Western Energy Alliance (WEA), thinks the plaintiffs will win out in the proceedings on the full merits of the case.

"The venting and flaring rule oversteps BLM's mandate from Congress by usurping Clean Air Act authority that resides with the Environmental Protection Agency," said WEA President Kathleen Sgamma, who asserted that oil/gas producers have significantly reduced methane emissions during the last 25 years in the absence of federal regulations.

Lynn Helms, director of North Dakota’s Department of Mineral Resources, last Friday underscored what his state has accomplished of late in cutting flaring and lamented what he called a "blizzard of federal regulations" continuing through the last days of the Obama administration.

North Dakota's gas capture totals in the most recent statistics were at 89%-90% well below the state's current goal of 85% capture, said Helms, adding that at the same time "federal regulation has not stopped.” There was a hearing in Casper, WY, last Friday on the preliminary injunction request.

"The rule is effective [Tuesday, Jan. 17] unless a preliminary injunction is issued," Helms said, adding that North Dakota's Industrial Commission [IC] two and a half years ago established a timetable for producers meeting various flaring goals.

"The great thing about what the state did with gas capture plans is as this trend set in, operators focused on the core area, and we required them to tell the gas processing and gathering people what they were doing so the infrastructure got built in that area to capture that gas," Helms said. "Therefore, even as oil production dropped and gas production increased, the capital was being deployed in the core area to capture that gas.

"Gas capture that went into effect as part of the IC's rule has really worked."

Federal regulation has often had the opposite effect, according to Sgamma. "Federal regulation in the form of delayed pipeline and gas gathering line permits often leads to producers having to flare methane for longer periods of time than would otherwise be necessary," she said.

"While we're disappointed that we didn't convince the judge to stay the rule at this time, we remain confident that when he considers the full merits of the case he will agree this rule is unlawful federal overreach."

Judge Skavdahl said the states' filing had "failed to establish all four factors required for issuance of a preliminary injunction." But he agreed that an expedited briefing schedule was in order, so he ordered federal agencies to provide "an administrative record" by Feb. 21. The states, WEA and the Independent Petroleum Association of America can file their briefs 30 days after that.

"The lawsuits now proceed to full briefing stage, and the judge has set an expedited hearing schedule," said a WEA spokesperson.

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