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California, New Mexico Join Lawsuit Over Venting/Flaring Final Rule -- on BLM's Side

California and New Mexico have asked a federal court to allow them to join a lawsuit by three other western states against the Interior Department (DOI) over a final rule to reduce venting and flaring from oil and gas operations on public and tribal lands.

But unlike Montana, North Dakota and Wyoming, the two states want to join the case in U.S. District Court in Wyoming as respondents on the same side as the DOI and its Bureau of Land Management (BLM), which promulgated the Waste Prevention, Production Subject to Royalties, and Resource Conservation Rule.

In a motion for order filed Thursday, California and New Mexico officials argue that the petitioning states have failed to demonstrate that they are likely to proceed on the merits of their lawsuit -- which Montana and Wyoming filed last November -- or that they would be irreparably harmed by the new rule. California and New Mexico also disagreed with the other states' contention that the BLM doesn't have the authority to enact such a rule, or that the rule is precluded by the Clean Air Act (CAA).

"BLM is the federal agency explicitly charged by statute with overseeing oil and gas operations on federal and Indian lands, including the prevention of waste and the assessment of royalty payments," wrote the officials, including Kamala Harris and Hector Balderas, attorneys general (AG) for California and New Mexico, respectively. "The fact that the rule impacts air emissions does not transform it into a CAA rulemaking, nor is there any legal impediment to BLM's rulemaking due to the fact that BLM and EPA [the Environmental Protection Agency] have separate (but complementary) statutory obligations with regard to oil and gas development."

California and New Mexico also urged District Court Judge Scott Skavdahl not to grant Montana, North Dakota and Wyoming a preliminary injunction against the rule, which is scheduled to take effect on Jan. 17, 2017.

North Dakota joined Montana and Wyoming as petitioners on Nov. 23. The move was unopposed.

According to court records, the BLM took no position on California and New Mexico joining the lawsuit as respondents, and the three petitioning states did not oppose the intervention, either. But two industry groups, Western Energy Alliance (WEA) and the Independent Petroleum Association of America (IPAA), which filed a separate lawsuit against the BLM last November, opposed the move. The two lawsuits were combined on Nov. 30.

In a response filed Friday, the WEA and IPAA argue that Balderas and the California Air Resources Board, through its representation by Harris, "should be denied intervention because, to the best of [our] knowledge, they failed to participate in the public rulemaking process. Additionally, the New Mexico AG should be denied intervention because it has not demonstrated a cognizable interest that warrants or supports its intervention."

A hearing on the preliminary injunction has been scheduled for 1 p.m. on Jan. 6, 2017. Both sides in the case will be given two hours to present their argument and any testimony. The case [No. 2:16-cv-00285-SWS] is State of Wyoming et al v. United States Department of the Interior et al.

Under the final rule, to be implemented in stages, oil and gas producers would be required to use currently available technologies and processes to cut flaring in half at oil wells on public and tribal lands. Operators would also be required to periodically inspect their facilities for leaks and replace outdated equipment that vents large quantities of gas into the air. Other parts of the rule require operators to limit venting from storage tanks and to use best practices to limit gas losses when removing liquids from wells.

Last month, Harris was elected to fill the seat of U.S. Sen. Barbara Boxer (D-CA), who is retiring. California Gov. Jerry Brown, a Democrat, selected U.S. Rep. Xavier Becerra (D-CA) to succeed her as AG.

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