Landowner, Operator Protections from Contamination

The ownership of land usually includes the right to use all of the property, both above and below the surface. As a general example, the owner of the surface of the property may use it as he or she sees fit and can also explore for and produce oil and gas from below the surface. But the law allows that the ownership of the land and the ownership of the mineral rights may be separate. In this situation, the interests of the separate owners may not always align. However, even though their interest may not align and their rights and obligations may differ, each can take certain precautions to protect their respective rights. Continue reading “Landowner, Operator Protections from Contamination”

The Meandering Course of the Clean Water Rule

The Clean Water Rule, also known as the Waters of the United States Rule, has been controversial since it was first proposed. It was opposed in multiple judicial forums when it was finalized in June, 2015. The Trump Administration has taken steps to repeal and replace the Rule. The latest chapter in the ongoing saga is the issuance by the EPA and the Corps of Engineers (the Agencies) of a Supplemental Notice of Proposed Rulemaking (Notice), which provided further justification of its effort to repeal the Rule. Continue reading “The Meandering Course of the Clean Water Rule”

EPA’s 500th Day Victory Lap

On the 500th day of the Trump Administration, EPA touted its “notable policy achievements,” highlighting nine such achievements in a “promises made, promises kept” format. However, some of the noted achievements are works in progress and perhaps need more concrete results before a ‘mission accomplished’ banner is hung at EPA headquarters.

The nine ‘achievements’ listed by EPA include: withdrawing from the Paris Climate Agreement, ensuring clean air and water, reducing burdensome government regulations, repealing the so-called “Clean Power Plan,” repealing the Waters of the United States Rule, promoting energy dominance, promoting science transparency, ending ‘sue and settle,’ and promoting certainty to the auto industry. Continue reading “EPA’s 500th Day Victory Lap”

EPA Enforcement In The Coming Years

EPA’s enforcement presence has been reduced over the last several years. This trend will continue during the Trump Administration as EPA re-defines its relationship with states and tribes. Even so, EPA has announced an enforcement approach that will maintain it as a formidable enforcer of our environmental laws.

According to EPA’s web-site, EPA’s budget was $10.3B in FY 2010, $8.1B in in FY 2016, and $8.06B in FY 2017. For those same years, EPA’s employee count was 17,218, 14,779, and 15,408, respectively. So, EPA’s budget and employee count were on a downward trend during the Obama years.[1] Continue reading “EPA Enforcement In The Coming Years”

Clean Water Rule Jurisdiction Resolved in National Association of Manufacturers v. the Department of Defense But Uncertainty Prevails

On January 22, 2018, the United States Supreme Court issued its unanimous ruling in National Association of Manufacturers v. the Department of Defense, et al., No. 16-299.  The decision resolves the issue of the proper court for judicial review of the Clean Water Rule (Rule) issued by the Environmental Protection Agency (EPA) and the Corps of Engineers (Corps).

This article will provide some background about the Rule and legal challenges, information about the Supreme Court’s ruling, and highlight some of the uncertainties created in the wake of the decision. Continue reading “Clean Water Rule Jurisdiction Resolved in National Association of Manufacturers v. the Department of Defense But Uncertainty Prevails”

Oil and Gas Production is Not Waiting for EPA

EPA is continuing its attempts to stay or postpone various Obama-era requirements on the oil and gas industry. It has proposed 90-day and two-year stays of the most recent and encompassing regulations imposed during the last years of the Obama administration. Some of these attempts are ensnared in court proceedings. However, the oil and gas industry itself is not idly standing by waiting for relief. Instead, oil and gas production is steadily climbing to record levels. Continue reading “Oil and Gas Production is Not Waiting for EPA”

The Administration Restrains Itself

The Trump administration has recently signaled a retrenchment in agency actions. These voluntary actions curtail the administrative agency from exercising powers or authority beyond what may be provided to it under applicable statutes and regulations.

The attorney general issued a memorandum to all Department of Justice components in November stating that the department will no longer engage in the practice of issuing guidance documents that effectively create rights or obligations binding on persons or entities outside the executive branch without undergoing the rulemaking process. The memorandum barred any guidance documents of general applicability and future effect that are designed to advise parties outside the executive branch about legal rights and obligations falling within the department’s regulatory or enforcement authority.

When issuing guidance documents, the department was instructed, among other things, to identify the document as guidance and clearly state that they have no legally binding effect on persons or entities outside the federal government. Also, guidance documents should not be used for the purpose of coercing persons or entities outside the federal government into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or regulation.

As to the Department of Justice, this will end the practice of issuing guidance documents that have the effect of binding anyone outside of the government, unless the proper rulemaking procedures are followed. It is unclear whether the memorandum applies outside of the Department of Justice. Regardless, in addition to its public efforts, EPA has quietly taken two actions that voluntarily restrict its ability to inject itself into state permitting issues.

First, in a memorandum posted on EPA’s website in December relating to the pre-construction analysis of New Source Review applicability, Administrator Scott Pruitt announced that EPA will no longer delve into, or “second-guess,” the pre-construction applicability analysis submitted or performed by an applicant. Thus, when an applicant performs the applicability analysis in accordance with the calculation procedures in the regulations and follows the applicable recordkeeping and notification requirements, that owner or operator has met the regulations. In such cases, EPA will not substitute its judgment for that of the applicant’s emissions projections. Essentially, this action reverses a prior policy in which EPA asserted the right to require additional analysis despite the applicant’s projections or compliance with calculation protocols.

Secondly, Administrator Pruitt issued two orders in October denying petitions for objections to Title V air permits issued by state agencies. Under the Clean Air Act, any person may petition the EPA to object to the terms and conditions within a state-issued Title V permit. Title V permits usually contain requirements from the pre-construction Prevention of Significant Deterioration (PSD) Program. Over the last several years, citizen groups have successfully petitioned EPA to issue objections to PSD permit conditions included in Title V permits. These two decisions state that the petition for objection process is not the proper forum or method to object to PSD requirements. Instead, the state’s administrative and judicial review process should be utilized.

These actions are seen by many as a departure from the recent past, in which agencies wielded authority without appropriate limitations. Certainly, they suggest that agencies will now act in a more restrictive manner.