US judge denies initial injunction in BLM venting, flaring suit

A federal district court judge in Wyoming denied a preliminary injunction against the US Bureau of Land Management's venting and flaring rule. Petitioners-which included the Independent Petroleum Association of America, the Western Petroleum Association, and the states of Wyoming, North Dakota, and Montana-did not demonstrate that a preliminary injunction is warranted, US District Judge Scott W. Skavdahl said in his Jan. 16 decision.

"Even though Judge Skavdahl did not grant a preliminary injunction, we're confident about our chances during the proceedings on the full merits of the case," WEA Pres. Kathleen Sgamma said in Denver following the ruling. "While we're disappointed that we didn't convince the judge to stay the rule at this time, we remain confident that when he considers the full merits of the case he will agree this rule is unlawful federal overreach."

IPAA and WEA sued immediately when BLM issued its final venting and flaring rule in November (OGJ Online, Nov. 16, 2016). They argued that it creates duplicative regulation that conflicts with US Environmental Protection Agency requirements. Congress designated authority to regulate air quality to EPA under the Clean Air Act, yet BLM has tried to assume this role under the guise of reducing waste from oil and gas production, they contended.

The three states filed similar suits, which were consolidated with IPAA and WEA's action. They proceed now to the full briefing stage. Skavdahl ordered the federal government to lodge the administrative record on or before Feb. 21, and petitioners to file their opening brief within 30 days of the government's filing.

The judge also found that the balance of harms in the case did not tip decidedly in either side's favor. "Though Petitioners have not shown a likelihood of irreparable harm justifying an injunction, neither have Respondents shown substantial harm if an injunction were granted," he wrote.

BLM has been regulating oil and gas waste pursuant to NTL-4A for 30 years, Skavdahl said. "The asserted need to update BLM's rules to account for technological advances does not seem so pressing that appreciable harm will result to BLM if the rule's effective date is delayed pending this court's ruling on the merits. The asserted benefits of the rule are found largely in the social benefits of reducing emissions of methane and other pollutants, which is already subject to EPA and state regulations," he said.

Public interest factors also support both sides of the issue, he continued. "The public interest is served by preserving the status quo, particularly where the balance of harms does not tip decidedly in either side's favor," Skavdahl said.

"A preliminary injunction would not be adverse to the public interest in resource conservation because BLM already has regulations in place to prevent waste and many of the rule's provisions do not take effect for a year; nor would an injunction be adverse to the public interest in clean air because EPA and State Petitioners already regulate emissions from oil and gas production, albeit not as broadly as the rule contemplates," he explained.

"Oil and gas producers have significantly reduced methane emissions over the last quarter century in the absence of federal regulation," Sgamma said. "In fact, federal regulation in the form of delayed pipeline and gas gathering line permits often leads to producers having to flare methane for longer periods of time than would otherwise be necessary."