Legal

Quick Facts

  • From 2009-2013, EPA and U.S. Fish and Wildlife Service settled 71 lawsuits behind closed doors with environmental groups
  • These sue-and-settle techniques resulted in more than 100 new federal rules and will cost society more than $100 million annually.
  • WildEarth Guardians sued and settled with the U.S. Fish & Wildlife Service, compelling the service to decide listings for 251 species by the end of fiscal year 2016. In a similar move with the Center for Biological Diversity, FWS agreed to decide on 757 species by 2018.

As other avenues to advance positive energy policies have been closed in Congress and by the Administration over the last several years, Western Energy Alliance has been compelled to engage in more legal challenges. Confronted with an Interior Department and EPA that have invoked new barriers to oil and natural gas development, Western Energy Alliance has established a Legal Defense Fund and engaged in the following legal initiatives:

  • BLM Venting and Flaring Rule: On November 15th within 40 minutes of the Interior Department’s announcement, Western Energy Alliance and IPAA filed a lawsuit in the U.S. District Court for Wyoming challenging BLM’s venting and flaring rule. Our motion for preliminary injunction was denied, but we're optimistic that in the course of the full ruling the court will agree with our argument ath BLM has vastly overstepped its authority by finalizing a rule that assumes the Clean Air Act authority that properly resides with EPA and the states. The states of Montana, Wyoming, North Dakota, and Texas have also filed legal challenges, which have been consolidated with ours. The New Mexico Attorney General, California Air Resources Board, and various environmental groups have intervened on behalf of BLM.

  • Greater Sage Grouse: Western Energy Alliance filed a lawsuit challenging BLM and U.S. Forest Service land use plan amendments for the Greater Sage Grouse that impose top-down, centralized conservation plans.
  • Intervention in WildEarth Guardians' Leasing Challenge: Western Energy Alliance is an intervenor in WEG’s lawsuit challenging 397 leases sold in Colorado, Utah and Wyoming in 2015 and 2016. WEG claims that BLM failed to analyze climate change before offering the leases, even though BLM analyzed it in all the leasing environmental assessments. Our latest brief is available here as are the briefs from the government, the states, and API

  • Judicial Challenge to EPA's NSPS Rules (OOOOa): Western Energy Alliance filed a judicial challenge to EPA's recently finalized New Source Performance Standards (NSPS) rule (OOOOa). We did not petition for administrative reconsideration, as we believe the time is now for moving forward with the larger legal issues associated with how EPA’s methane regulation violates the Clean Air Act. 

  • Administrative and Judicial Challenge to EPA’s NSPS/NESHAP Rules (OOOO): EPA implemented NSPS and National Emissions Standards for Hazardous Air Pollutants (NESHAP) rules for the oil and natural gas industry in October of 2012. The new rules circumvent Congress by using the Clean Air Act (CAA) to regulate methane as a greenhouse gas, despite the fact that methane is not a toxic or air pollutant specified in the CAA. Western Energy Alliance is challenging the rule and judicially. The lawsuit has been held in abeyance while goung through further rounds of rulemaking to address implementation problems identified by ours and other trades' administrative petitions, and for the recently finalized NSPS rules (OOOOa). Our administrative reconsideration petition was terminated on July 29, 2016. The judicial challenge will likely get consolidated with OOOOa litigation.
  • Montana Leasing Climate Change Challenge: In 2010, environmental groups sued to stop leasing in Montana on the basis of global warming. Western Energy Alliance intervened along with API, the Montana Petroleum Association and the Montana Chamber of Commerce to support BLM’s leasing analysis, which found no significant impact on the climate from federal oil and natural gas leasing in Montana. The environmental groups sued again, and have now settled with the government in recognition of BLM’s anticipated venting and flaring rule that will impose the types of air quality controls on the leases that the groups were seeking to impose through the courts. 

  • Bureau of Indian Affairs Rights-of-Way (ROW) Rule: Western Energy Alliance filed a lawsuit challenging BIA’s ROW rule and a motion for Preliminary Injunction, which was denied. The rule went into effect on April 21, 2016, and the Alliance has withdrawn the lawsuit. 
  • Uinta Basin Ozone Victory: Wild Earth Guardians and other environmental groups petitioned EPA to designate the Uinta Basin in Utah as non-attainment for ozone. Western Energy Alliance and Uinta Basin operators have been working with Utah, EPA, and the State of Utah to monitor and study air quality in the basin while reducing emissions ever since industry-funded monitors first determined there was an ozone issue. Because EPA did not yet have the requisite three years of quality assured data necessary to designate the Uinta Basin for ozone, it designated the basin as unclassified. The environmental groups sued and asked EPA to violate the Clean Air Act by designating the basin before quality data were collected. The Alliance formally intervened in that lawsuit along with the state and counties to ensure good information was considered, and the D.C. Circuit Court agreed. The Uinta Basin will be properly designated in the 2016/2017 timeframe after EPA sets the new ozone National Ambient Air Quality Standard.
  • Bladderpod Research Project: Western Energy Alliance, along with the Colorado Cattlemen’s Association and Colorado Farm Bureau, filed an amicus brief in support of West Slope COGA’s lawsuit challenging the planting of two threatened species, the Dudley  Bluffs Bladderpod and Dudley Bluffs Twinpod, on existing oil and natural gas leases. Rather than go through the correct procedure for establishing experimental populations under the Endangered Species Act, BLM created a new category of a “research population” that infringes upon the valid existing rights of leaseholders on Colorado’s West Slope. Rio Blanco and Garfield counties also filed amicus brief. 
  • Mora Fracking Moratorium: Mora County, New Mexico, attempted to ban fracking and all oil and natural gas development. Western Energy Alliance filed an amicus brief in support of the Independent Petroleum Association’s (IPANM) lawsuit to overturn the ban. On January 20, 2015, a federal judge agreed with us and ruled that the ban violates federal law. 
  • Sage Grouse Challenges: Western Energy Alliance was compelled to initiate three Freedom of Information Act lawsuits because BLM, FWS, and USGS because they would not disclose the science they’re using to impose restrictions and to evaluate the species for a listing under the ESA. We have received a reimbursement from USGS for attorney fees incurred in our FOIA lawsuit. The information gathered from our FOIA lawsuits has revealed that poor quality science is being used to excessively restrict oil and natural gas development. The Alliance along with a Western Coalition of counties and other public lands users has filed three Data Quality Act challenges to the poor quality of agency information. 
  • Lesser Prairie Chicken: Western Energy Alliance has joined the Oklahoma Independent Petroleum Association, Oklahoma Oil and Gas Association, American Petroleum Institute, Independent Petroleum Association of America, and the International Association of Geophysical Contractors in a lawsuit challenging the Fish & Wildlife Service’s decision to list the Lesser Prairie Chicken as threatened under the Endangered Species Act. Our filing is available here.
  • Wolverine: API, Montana Petroleum Association and Western Energy Alliance filed a motion to intervene in a case brought by the Defenders of Wildlife, Center for Biological Diversity, and WildEarth Guardians. The environmental groups, already forcing FWS to make decisions on 878 species, are never satisfied  unless the answer is a full endangered species listing for every single species, no matter what the science says. They are challenging FWS’ decision not to list the species, claiming reasons of climate change. 
  • Leasing and Hydraulic Fracturing: Environmental groups sued BLM to withdraw leases in California arguing that it had failed to analyze the impact of fracking before leasing. Western Energy Alliance filed an amicus brief in support of the California Independent Petroleum Association and argued that only curative NEPA was required, not a withdrawal of the leases. The court agreed and BLM began to prepare the NEPA document. In a related case, however, another federal judge determined BLM must go back and update the Environmental Impact Statement before issuing the Record of Decision, rather than simply issuing a curative NEPA document. 
  • Appeal on Utah Lease Deferrals: In November 2013, five days before the planned lease sale, BLM unexpectedly deferred 57 parcels. Western Energy Alliance was able to obtain a letter from a rock art conservation group objecting to the parcels that prompted the decision. The problem was the letter was sent nearly two months after the public protest period had closed, providing evidence that the decision was arbitrary and not in accordance with established leasing policies. The Alliance is appealing to the Interior Board of Land Appeals to try to force BLM to follow its own procedures and offer the parcels at the next available sale.

  • Access to Federal Units: Western Energy Alliance filed an amicus brief in support of member company Entek's lawsuit to gain access to its leases within a federal unit that includes both federal and split-estate lands.  The 10th Circuit Court of Appeals ruled in our favor, strengthening the rights of lessees trying to deliver to Americans the energy they all own within the federal mineral estate, regardless of surface ownership.
  • Expressions of Interest (EOI) Disclosure Appeal: In February 2013, a Colorado District Court judge ruled in Citizens for a Healthy Community v. Interior that BLM must disclose the identity of companies submitting EOIs before lease sale. For many years, BLM has used Exemption 4 under the Freedom of Information Act (FOIA) to protect commercial information and has not disclosed the identity of those nominating leases until two days after sale. Western Energy Alliance believes it is important to maintain confidentiality to protect the work that companies do before nomination and sale. Without clear indication from BLM that it will appeal, the Alliance has filed a motion to intervene in order to attempt to appeal this ruling.
  • Montana Leasing Climate Change Challenge: In 2010, environmental groups sued to stop leasing in Montana on the basis of global warming. Western Energy Alliance joined an intervention along with API, the Montana Petroleum Association and the Montana Chamber of Commerce to support BLM’s leasing analysis, which found no significant impact on the climate from federal oil and natural gas leasing in Montana. We continue to support BLM as the environmental groups appeal.
  • Categorical Exclusions Lawsuit: In 2011, Western Energy Alliance achieved a significant legal victory by overturning BLM policy IM 2010-118 which had added more environmental analysis to the drilling permit process and hence, more processing time and delays. Our victory in Wyoming District court overturned the policy for the entire nation and enables categorical exclusions from NEPA to be issued under Section 390 of the Energy Policy Act of 2005 as mandated by Congress.
  • Unissued Leases Lawsuit and Appeal: In 2011, Western Energy Alliance achieved a partial legal victory when the Wyoming District Court ruled that the Secretary of the Interior must make a decision on leases within 60 days of receipt of payment. While it was disappointing not to get a clear statement based on the plain language of the Mineral Act, which requires lease issuance within sixty days, the ruling from Wyoming compels BLM to make a decision to proceed. If that “decision” is to wait for months or years, companies do have the ability to get a refund of their lease payments, which was not an option before.
  • 77 Utah Leases: Western Energy Alliance supported a petition to the U.S. Supreme Court by the Impact v. Salazar plaintiffs both financially and with an amicus brief. While a Utah District Court judge found that then-Secretary Salazar had unlawfully withdrawn leases in Utah, he ruled that the plaintiffs had missed the deadline for filing their lawsuit based on an internal Interior memorandum. The Supreme Court neglected to hear the case.