California AG Xavier Becerra and New Mexico AG Hector Balderas Ask Court to Vacate Rollback of Methane Waste Prevention Rule

Washington, D.C. — California Attorney General Xavier Becerra and New Mexico Attorney General Hector Balderas filed a motion for summary judgement in the U.S. District Court for the Northern District of California Friday calling on the court to vacate the Trump administration’s rollback of a Bureau of Land Management (BLM) regulation addressing the excessive venting and flaring of natural gas by oil and gas companies operating on public lands. The attorneys’ general lawsuit comes at a time when global emissions of methane gas are spiking, and when the venting and flaring of natural gas has reached crisis levels in BLM managed areas such as New Mexico’s Permian Basin and the Bakken Shale Formation in North Dakota.

The attorneys’ general brief is part of a multi-year legal battle over the fate of the Methane Waste Prevention Rule, which Attorneys General Becerra and Balderas have been defending from repeal since the first year of the Trump administration. The current litigation surrounds BLM’s September 2018 “Waste Prevention, Production Subject to Royalties, and Resource Conservation; Rescission or Revision of Certain Requirements Rule” (“Recission Rule”), which repealed the common-sense regulation put into place to address the widespread waste of natural gas by the oil and gas industry, while offering no alternative mechanisms to stop the massive waste of natural gas resources on the public lands.

”[Attorney General Hector Balderas] and I asked the courts to block [BLM’s] repeal of the Waste Prevention Rule, which protects us from potent methane emissions and toxic air pollutants,” said Attorney General Xavier Becerra. “This is the third time the Trump Administration has tried to gut this rule. We’ll keep fighting for our people and our planet.“

A federal agency within the Interior Department, the BLM manages oil and gas leases on more than 245 million acres of federal and tribal lands. BLM leases account for an estimated 9 percent of total domestic oil and gas production. The agency has a statutory obligation under the Mineral Leasing Act and the Federal Oil and Gas Royalty Management Act to minimize the waste of oil and gas generated on public lands, but the BLM had not updated its guidelines on venting and flaring for more than three decades prior to finalizing the Methane Waste Prevention Rule.

The Trump administration’s repeal of the Methane Waste Prevention Rule has aided U.S. oil and gas companies in setting new records for the amount of natural gas wasted through venting and flaring in 2019. In New Mexico’s Permian Basin region, for instance, oil and gas companies have been venting or flaring a historic 661 million cubic feet of natural gas per day. Oil and gas industry drilling operations are similarly venting or flaring an estimated 500 million cubic feet of natural gas per day in North Dakota’s Bakken Shale Formation—roughly 20 percent of the total amount of natural gas that is being produced there.

At the time of its finalization, the BLM estimated that the Methane Waste Prevention Rule would result in annual savings of up to 41 billion cubic feet of natural gas, while simultaneously preventing emissions of up to 180,000 tons of methane, 267,000 tons of volatile organic compounds, and 2,030 tons of other forms of toxic air pollutants. The BLM rule would have generated $14 million in public royalties that would be shared with state, local and tribal governments—funding that would contribute to vital social services like public education and critical health services for vulnerable populations.

In their brief, the attorneys general cited a 2010 study by the Government Accountability Office concluding that 40 percent of the natural gas that industry wasted through venting and flaring could be easily captured with readily available technologies. The AGs also noted that approximately 100,000 BLM-regulated oil and gas wells were responsible for the waste of 462 billion cubic feet of natural gas through venting and flaring between 2009 and 2015, enough to provide gas to 6.2 million households.

Attorneys General Becerra and Balderas also objected to the revised cost-benefit analysis that the Trump administration used to justify its decision to repeal the Methane Waste Prevention Rule, noting that it relied upon a skewed “social cost of methane” model that excluded the global impacts of climate change. Methane is one of the world’s fastest growing sources of climate pollution, and a powerful greenhouse gas with a hundred-year impact 28-36 times that of carbon dioxide.

“Repealing restrictions on the venting and flaring of natural gas, particularly when these wasteful practices have reached unprecedented levels, shows the Trump administration’s arrogant disregard for its legal obligations to be a good steward of our nation’s natural resources,” said David J. Hayes, Executive Director of the State Energy & Environmental Impact Center. “The Interior Department’s repeal is a blatant give-away to the oil and gas industry that is unlikely to survive judicial review.”

The Trump administration has admitted that minority and low-income populations located near oil and gas operations are uniquely impacted by the repeal of the Methane Waste Prevention Rule. Decreased risks to human health and the environment through a reduction in hazardous air pollution makes up a significant percentage of the $209 to $403 million in foregone benefits resulting from the Trump administration’s decision to roll back the rule.

BACKGROUND

The BLM began its rulemaking process for the Methane Waste Prevention Rule in 2014 following reviews by the Government Accountability Office and the Interior Department’s Office of the Inspector General. Those reviews concluded that the BLM had failed to meet its statutory obligations under the Mineral Leasing Act and the Federal Oil and Gas Royalty Management Act, and that the agency was allowing millions of dollars in annual royalty payments to be lost by not setting stricter regulations on venting and flaring by the oil and gas industry. The BLM completed its Methane Waste Prevention Rule in 2016.

In March 2017, President Trump issued an executive order calling for the Interior Secretary to repeal the Methane Waste Prevention Rule. Beginning in June 2017, the Interior Department finalized a series of three delay and suspension rules designed to stop different requirements of the rule from going into effect as the Trump administration began working on its full repeal. Attorneys General Becerra and Balderas successfully challenged all three delay and suspension rules in the U.S. District Court for the Northern District of California, with the court moving to reinstate the Methane Waste Prevention Rule each time.

Following its repeated unsuccessful attempts at delaying the Methane Waste Prevention Rule’s enforcement, the Trump administration released its Proposed Recission Rule in February 2018. On April 23, Attorneys General Becerra and Balderas submitted comments to the Interior Department objecting to its proposed Rescission Rule, noting that BLM’s proposal was “devoid of legal justification” and in violation of the Administrative Procedure Act.

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About the State Energy & Environmental Impact Center:
The State Energy & Environmental Impact Center at NYU School of Law is a nonpartisan academic center at NYU School of Law. The Center is dedicated to working towards a healthy and safe environment, guided by inclusive and equitable principles. The Center studies and supports the work of state attorneys general (AGs) in defending, enforcing, and promoting strong laws and policies in the areas of climate, environmental justice, environmental protection, and clean energy.