American Oil and Gas Reporter - July 2018 - 14

IndustryDigest
Court Keeps On Ice
Obama-Era Rules
For Venting and Flaring
DENVER-In a case that some
industry representatives predict
ultimately will prove moot, a three
judge-panel of the U.S. Court of
Appeals for the 10th Circuit has
rejected two motions to stay a Trumpera federal regulation dealing with an
Obama-era rule governing natural gas
flaring and venting on public and tribal
lands, media reports say, adding that the
court also denied a pair of motions for
dismissal.
The Waste Prevention, Production
Subject to Royalties, and Resource
Conservation Rule, promulgated by the
U.S. Department of Interior's Bureau of
Land Management during the Obama
administration, is being reviewed for
possible revision or elimination by the
Trump administration, which published a
final rule in December 2017 that
temporarily postponed the
unimplemented portions of the Obamaera regulation (AOGR, Jan. 2018, pg. 24).
Press accounts indicate Western
Energy Alliance President Kathleen
Sgamma is pleased with the
development. "Time is on our side,"
Sgamma is quoted. "Having ruled on
these motions, the appeal now moves on
to the merits, but briefing will take
about as long as BLM will take
finalizing the rule. We could have a
situation of briefing being done just as
the new rule is published, making the
entire case moot."
While some states and industry
groups including the Western Alliance
had sued BLM over the Obama
administration venting and flaring rule,
and called for its suspension during
litigation, other states joined
environmental groups and successfully
sued to stop the Trump administration
when it attempted to freeze
implementation during its review
(AOGR, March 2018, pg. 30). In April,
Judge Scott Skavdahl for the U.S.
District Court for the District of
Wyoming ordered a stay in light of the
BLM's plans to revise the rule (AOGR,
May 2018, pg. 18).
According to published reports,
June's rulings responded to motions
filed in response to Skavdahl's ruling,
with the court denying two stay requests
from California, New Mexico and more
14 THE AMERICAN OIL & GAS REPORTER

than a dozen green groups, but also
denying two dismissal appeals from
Wyoming, Montana, the Western
Energy Alliance and the Independent
Petroleum Association of America. r
See Related Story, Page 106

Federal Court Denies
California Cities' Claims
For Climate Damages
SAN FRANCISCO-A federal judge
has tossed out the claims for climate
damages two California cities filed
against five international oil companies,
ruling that determining the contribution
of fossil fuels to climate change was
beyond the purview of a single court.
On June 25, U.S. District Judge
William Alsup in the U.S. District Court
for the Northern District of California
dismissed the demands by Oakland, Ca.,
San Francisco and San Francisco County
that BP, Chevron Corp., ExxonMobil,
ConocoPhillips and Royal Dutch Shell
pay for damages the cities might incur as
a result of rising sea levels caused by
climate change.
San Francisco and Oakland initiated
the lawsuit in separate filings in
September 2017 in their respective
county courts (AOGR, October 2017, pg.
28). San Francisco County was added to
the consolidated lawsuit when an
amended complaint was moved to
federal district court, court records show.
Similar lawsuits have since been
filed by the city of Santa Cruz, Ca.,
Santa Cruz County, Richmond, Ca., and
New York City (AOGR, February 2018,
pg. 97).
Observing that a public nuisance
claim requires proof that "the gravity of
the (defendant's) interference with the
public right outweighs the utility of the
actor's conduct," Judge Alsup
determined, "It is true that carbon dioxide
released from fossil fuels has caused (and
will continue to cause) global warming.
But against that negative, we must weigh
this positive: Our industrial revolution
and the development of our modern
world literally has been fueled by oil and
coal. Without those fuels, virtually all our
monumental progress would have been
impossible.
"All of us have benefited," the judge
continued. "Having reaped the benefit
of that historic progress, would it really
be fair to now ignore our own

responsibility in the use of fossil fuels
and place the blame for global warming
on those who supplied what we
demanded?"
Alsup says his order "recognizes, but
does not resolve these questions."
However, he points out that the U.S.
Supreme Court held in Am. Elec. Power
Co. Inc. v. Connecticut that the
Environmental Protection Agency's
Clean Air Act authority to set emission
standards "has displaced federal
common law nuisance claims."
The plaintiffs also contended they
were affected by emissions arising
outside the United States, to which
Judge Alsup replied, "Questions of how
to appropriately balance the worldwide
negatives (of CO2 emissions) against the
positives of the energy itself . . . demand
the expertise of our environmental
agencies, our diplomats, our executive
and at least the Senate. Nuisance suits
in various U.S. judicial districts
regarding conduct worldwide are far
less likely to solve the problem and,
indeed, could interfere with reaching a
worldwide consensus.
"In sum," the judge concludes, "this
order accepts the science behind global
warming. The dangers raised in the
complaints are very real. But those
dangers are worldwide. Their causes are
worldwide. The benefits of fossil fuels
are worldwide. The problem deserves a
solution on a more vast scale than can
be supplied by a district judge or jury in
a public nuisance case." r

Court: EPA Can Use
Different Standards
According To Location
WASHINGTON-The question of
what constitutes a facility for purposes
of Clean Air Act oversight remains a
matter of geography after a three-judge
panel in the U.S. Court of Appeals for
the District of Columbia Circuit in early
June shot down a petition by a trio of
industry groups.
The lawsuit, NEDACAP v. EPA,
originated when the American
Petroleum Institute, National
Environmental Development
Association's Clean Air Project
(NEDACAP) and the Air Permitting
Forum sued the Environmental
Protection Agency shortly after it
amended the CAA in August 2016,
American Oil and Gas Reporter - July 2018

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