REVISED BLM WASTE PREVENTION/METHANE REGULATIONS FINALIZED

Effective November 27, 2018, the revised Bureau of Land Management (BLM) regulations pertaining to waste prevention will take effect. 83 Fed. Reg. 49,184 (Sept. 28, 2018). This final rulemaking eliminates several of the more onerous burdens imposed by the regulations adopted at the end of the previous Administration. 82 Fed. Reg. 83,008 (Nov. 18, 2016) (the “2016 Rule”). The 2016 Rule (sometimes called the methane rule) was officially effective as of January 17, 2017, although many of its provisions called for delayed implementation. The 2016 Rule has been the subject of conflicting rulings from the federal courts in the District of Wyoming (now in the Tenth Circuit Court of Appeals) and the Northern District of California (and briefly in the Ninth Circuit Court of Appeals). Although the adoption of the new final rule would appear to moot that litigation, the States of California and New Mexico, followed by Sierra Club and a number of other non-governmental organizations, filed new lawsuits challenging the 2018 final rule in the U.S. District Court for the Northern District of California. State of California, et al. v. Zinke, et al., Case No. 4:18-cv-05712-YGR (filed Sept. 18, 2018); Sierra Club, et al. v. Zinke, et al., Case No. 4:18-cv-05984-SBA (filed Sept. 28, 2018). Western Energy Alliance and Independent Petroleum Association of America have moved to intervene in the State of California case. This post describes the terms of the 2018 rule that will take effect November 27, 2018, barring an injunction or order vacating the 2018 rule from the federal court in California.

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North Dakota Grants Exception to Flaring Restrictions

In July of last year, the North Dakota Industrial Commission, the administrative body charged with regulating oil and gas production, responded to media and public pressure by promulgating strict new rules to reduce the amount of gas flared in the state. Under these rules, producers may flare for 90 days without restriction. After the 90-day period, they must meet gas capture requirements or face production restrictions. Further, the Commission now requires gas capture plans to be in place prior to issuing drilling permits. These new rules have been heralded as a major step toward reducing flaring without unduly stifling development.

Unfortunately, the realities of infrastructure development have made the difficulty of implementing this new policy apparent. Last week, the Commission granted a six-month exception to the new flaring rules for 105 oil wells owned by XTO Energy. The wells were supposed to be connected to a pipeline extension slated to be built in 2015. However, the pipeline developers reached an impasse in easement negotiations with the Three Affiliated Tribes, forcing the pipeline to be rerouted and pushing the completion date out at least a year.

Initially, XTO requested exceptions through the third quarter or 2016 for 143 wells that would have been connected to the new pipeline. The Commission denied the exception for some wells because they were drilled after XTO knew the pipeline project was not going forward as planned. At the end of the six-month exception, XTO must go back before the Commission to request an extension.

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