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Trump Administration Urges Lawsuit Delay to Help Rescind or Revise BLM Venting/Flaring Rules

The Trump administration has outlined its plans in federal court to ultimately rescind or revise a rule promulgated by the Department of Interior's (DOI) Bureau of Land Management (BLM) governing flaring and venting of associated natural gas on public and tribal lands.

Attorneys with the Justice Department on Tuesday filed a motion in U.S. District Court for the District of Wyoming. They requested a 90-day extension of the deadline to file briefs in a lawsuit filed by four states over the BLM's Waste Prevention, Production Subject to Royalties, and Resource Conservation Rule -- also known as the venting and flaring rule.

According to the motion, the DOI has developed a three-step plan to revise or rescind the rule, while preventing any harm from compliance with the rule during the interim. The BLM took the first step last week, when it published a notice in the Federal Register that it wants to postpone the compliance dates for the rule from January 2018, pending judicial review.

The second step calls for the BLM to conduct a notice and comment rulemaking over a proposal to suspend the parts of the rule that are already in effect, and to extend the compliance dates for those parts that have not yet taken effect, but were postponed last week. Such a rulemaking would suspend or extend certain parts of the rule until July 17, 2019.

Specifically, the rulemaking would affect requirements on waste minimization plans; gas capture percentages; measurement of flared volumes; well drilling; well completions and related operations; pneumatic controllers; pneumatic diaphragm pumps; storage vessels; downhole well maintenance and liquids unloading; and leak detection and repair.

The motion said the BLM intends to publish a public notice over the proposed rulemaking and accept public comments over that rulemaking by the end of August. The bureau also plans to publish a final rule in advance of the original January 2018 compliance dates.

Finally, the third step calls for the BLM to "publish a separate proposed rule for public notice and comment that would propose to permanently rescind or revise the rule."

Currently, opening briefs are due on July 3, response briefs are due on Aug. 11 and reply briefs are due on Aug. 25. The DOI has proposed postponing opening briefs until Oct. 2, response briefs to Nov. 9 and reply briefs to Nov. 24.

In arguing for the extension, the Justice Department said the accommodation would "allow BLM to devote its resources to developing and promulgating a rule proposing to suspend and extend the provisions of the rule, rather than to the defense of a rule that BLM is actively reconsidering.

"The requested extension will also ensure that the court's and parties' time and resources are not wasted litigating a rule which may soon be replaced, and many provisions of which may never come into effect. Indeed, it is possible that BLM's reconsideration of the rule may ultimately obviate the need for judicial resolution of petitioners' claims."

The Independent Petroleum Association of America (IPAA) and the Western Energy Alliance (WEA) filed a lawsuit against the rule last November. Montana and Wyoming filed a separate lawsuit three days later, and North Dakota and Texas subsequently joined as petitioners. The two lawsuits were combined at the end of November.

In two separate filings on Wednesday, North Dakota and Texas, as well as the IPAA and WEA, said they were opposed to the Trump administration's request to extend the briefing deadlines.

"We believe that the clearest path to addressing our members' concern about incurring costs for a rule that is likely to change substantially, is just to get through the district court," WEA President Kathleen Sgamma told NGI on Thursday. "We think our chances are very good in court, and we think the judge will agree with us that this rule is a vast overreach of federal authority.

"While we appreciate that the DOI is embarking on a rulemaking process to change the rule, that will take a lot of time and will be litigated by environmental groups. So we are asking the court to move forward with the briefing."

DOI Secretary Ryan Zinke told the Senate Appropriations Subcommittee on the Department of the Interior, Environment, and Related Agencies that the department would rewrite the rule, but warned that legal challenges from supporters and opponents would likely delay the rulemaking process for a couple years.

An executive order (EO) signed by President Trump on March 28 included a requirement that the DOI review, rescind or revise the rule. The following day, Zinke issued a secretarial order that gave the BLM 21 days to review the rule and report on whether the rule is consistent with policy outlined in the EO.

The case is State of Wyoming et al v. United States Department of the Interior et al, No. 2:16-cv-00285-SWS. District Court Judge Scott Skavdahl is presiding.

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