Reeling in Regulatory Overreach
by Aaron Johnson, Vice President of Public Affairs on August 27, 2018 - 1:39pm
As printed for the Montana Petroleum Association Treasure State Journal
“Are you KIDDING me?? You want to RESCIND the methane rule? Who ARE you?,” wrote one person anonymously to the Bureau of Land Management (BLM) this spring. Another commented, “The BLM should be restricting toxic methane emissions, not encouraging them. Honor our laws and the regulations that spring from them.”
Predictably, these points of view dominated the 223,585 public comments submitted to BLM on plans to revise the venting and flaring rule. The comments reflect the deepening lack of understanding around public lands management, regulations governing our industry, and how development is done in ways that protects the environment.
Despite the public’s confusion, the good news is we have an administration that understands and is committed to following the law rather than misinformation from opponents of oil and natural gas. In fact, what we are witnessing in Washington, D.C. is rare. The federal government is reviewing environmental laws and, for once, is reeling in overreaching regulations that don’t follow the law.
The rewrite of BLM’s venting and flaring rule is front-and-center in this undertaking, which is clear from the large number of public comments. And what we see under the Trump Administration is a BLM that finally recognizes what Western Energy Alliance has been saying for years: air quality is not within the agency’s domain. As we’ve argued exhaustively in court and public comment letters, Congress delegated that authority to the Environmental Protection Agency (EPA) and the states in the Clean Air Act.
We are pleased BLM is undergoing a formal rulemaking process to revise the venting and flaring rule. While the process is taking several months, the Alliance and the Independent Petroleum Association of America continue to press our lawsuit to prevent the rule issued in 2016 from being implemented. The case remains in the courts, but we expect BLM to finalize the revised rule by the end of the summer before courts decide. The agency will finally put to rest the original flawed rule and properly focus on land management and waste prevention.
Meanwhile, several other overreaching environmental regulations are being reviewed or repealed at a scale our nation has not seen in the modern era. Secretary Ryan Zinke is leading the Department of the Interior with a focus on keeping regulations confined to the authority granted by Congress and cooperating with states on policies where their on-the-ground expertise is greater, such as with the Greater Sage Grouse. So far Zinke has withdrawn the hydraulic fracturing rule and ordered lease sales to occur quarterly. His team is working to streamline environmental reviews and drilling permit processing.
We’re seeing similar reforms at EPA. So far the agency has rewritten methane rules under Quad Oa, repealed the Clean Power Plan, halted the Waters of the U.S. (WOTUS) rule, ended sue-and-settle practices, removed conflicts of interest on Scientific Advisory Committees, and eliminated the use of secret science when creating regulations.
Another noteworthy example of this administration’s re-evaluation of regulations involves disparate prosecution of oil and natural gas under the Migratory Bird Treaty Act (MBTA). The Interior Department reversed a policy rushed through in the final days of the Obama Administration and is in line with decisions from the Fifth, Eighth, and Ninth Circuit Courts of Appeals.
The MBTA was enacted by Congress in 1918 as a criminal statute to stop the hunting and poaching of migratory birds. The Obama Administration routinely conflated it with the Endangered Species Act, which prohibits activities that threaten only those species listed as endangered or threatened. For example, the MBTA was used by the U.S. Department of Justice in 2011 to target seven oil and natural gas companies for the deaths of 28 birds, including half a dozen ducks, that mistook open pits for freshwater ponds. Meanwhile, the Administration was permitting wind energy projects that kill 46 to 64 bald and golden eagles annually.
Of course, nobody in our industry wants to kill birds. But it does happen on occasion unintentionally. Yet, consider the U.S. Fish and Wildlife Service (FWS) estimates the average number of birds killed each year by house cats is 1.9 billion and 677 million by buildings. Even though FWS overestimates deaths from oil pits based on outdated practices, it is 0.04% of the number of deaths caused by cats. The data shows the absurdity of DOJ targeting industry and the justification for this administration’s corrective action.
Among all these regulatory changes in recent months, there is one initiative that reflects the fundamental changes we see from Washington. The Interior Department is working to move BLM’s headquarters outside of the nation’s capital and to the West, closer to the land and the people it serves.
Moving BLM to a western state makes sense. Of the 248.2 million acres it manages, 99.6% are west of the Mississippi River. Yet the agency leadership and policymakers are located in DC. Because of the large footprint of federal lands in the West, BLM decisions disproportionately affect westerners.
The agency is currently analyzing the eventual location and number of jobs to be relocated under its broader reorganization plan. The initiative has bipartisan support within Congress, among governors and local elected officials.
Regardless of whether 100 or 2,000 jobs are moved, this would set an important precedent for relocating other federal agencies to decentralize power in Washington in the future.
After nearly a year and a half of addressing overreaching regulations, Secretary Zinke recently indicated that the Interior Department is shifting focus. The agency will focus on ensuring the direction from the administration is making it into the field. It’s one thing to issue a direction, and another to ensure that staff on the ground carry out those changes. For example, the directive to streamline permitting needs to be followed with results to significantly reduce the number of days to get a permit from 260 days.
As the process unfolds, Western Energy Alliance will continue working to achieve lasting reform at all levels of BLM and the Interior Department. We will also continue to be the voice of reason to counter the excess of uninformed information from environmental groups about our industry.