American Oil and Gas Reporter - August 2016 - 20

IndustryDigest
Service's practice of designating areas
that don't qualify as critical habitat as
essential to a species' survival, and thus
eligible for "unoccupied critical habitat"
designation. However, a dissenting
judge calls the decision unprecedented
and sweeping.
The Independent Petroleum
Association of America has argued that
designating as critical habitat areas
where a species does not currently reside
"has no basis in law and could threaten
economic development activities and job
creation across the country" (AOGR,
January 2016, pg. 151).
The U.S. Court of Appeals for the
5th Circuit issued its decision involving
the dusky gopher frog in Markle
Interests v. U.S. Fish & Wildlife Service
on June 30. The frog is found only in
Mississippi, but the Louisiana acreage
includes historical breeding sites and
habitat-friendly ponds, media reports
indicate. In 2012, USFWS filed to
protect 6,477 acres in Mississippi and
Louisiana.
Court documents say the plaintiff
challenged the agency's designation of
1,544 acres of Louisiana timberland as
critical habitat for the frog on three
points:
* The designation violated the Endangered Species Act and Administrative Procedures Act.
* It exceeded the service's authority
under the Commerce Clause of the U.S.
Constitution.
* It violated the National Environmental Policy Act.
According to the majority opinion in
the 2-1 decision, USFWS used a
reasonable interpretation of ESA in
determining the Mississippi lands alone
would be inadequate for the frog's
survival and that the Louisiana acreage
was essential for its conservation.
Because designating critical habitat
under ESA is a valid exercise of
Commerce Clause authority, the court
rejected the second argument.
Regarding the final point, the decision
says USFWS was not required to
complete an environmental impact
statement before its critical habitat
designation, and thus did not violate
NEPA.
In her dissent, Justice Priscilla Owen
assailed "a gap in the reasoning of the
majority opinion that cannot be
bridged." She says the Louisiana lands
are not now essential for the frog's
20 THE AMERICAN OIL & GAS REPORTER

conservation because their biological
and physical characteristics don't
support it and there is no probability for
that to happen because there is no
evidence the alternations necessary are
likely to ever occur.
Owen says a logical extension of the
decision is that the federal government
can designate vast portions of the
country as critical habitat, "because it is
theoretically possible, even if not
probable, that land could be modified to
sustain the introduction or
reintroduction of an endangered
species."
According to media sources, the
plaintiffs plan to appeal. ❒

Mining Group Files Suit
Over 'Waters Of U.S.'
WASHINGTON-The American
Exploration & Mining Association
(AEMA) is suing the U.S.
Environmental Protection Agency over
its rule that changes the definition of
"waters of the United States" as set
forth in the Clean Water Act.
In American Exploration & Mining
Association v. EPA, the trade association
alleges EPA is violating the Regulatory
Flexibility Act (RFA) and
Administrative Procedures Act (APA).
The lawsuit follows a multistate legal
challenge led by West Virginia and
North Dakota against the jurisdictional
reach for the "waters" definition
claimed by EPA and the U.S. Army
Corps of Engineers. Under that
definition, large categories of intrastate
waters and wetlands are per se or
potentially subject to federal authority
(AOGR, August 2015, pg. 156).
AEMA claims the EPA's rule will
have a substantial impact on its
members' ability to finance and develop
projects, or to maintain infrastructure
and facilities, its court filing says. The
association's arguments against the
revised waters of the United States
definition include:
* It contravenes the RFA, which
requires federal agencies to fit
regulatory requirements to the scale of
business jurisdictions subject to
regulation. Agencies must consider
flexible regulatory proposals and
explain the rationale for their actions.
* It violates the APA by changing
elements in the final rule from the

proposed rule, including how it defines
what waters are navigable.
According to court documents, to
determine if a proposed rule will have
enough economic impact on small
entities to trigger the RFA, federal
agencies use one of two base lines.
AEMA alleges EPA, "for unknown
reasons," ignored the recent practices
base line and used the historical practices
base line to make its determination.
APA requires agencies to provide for
public comments on changes to a final
rule that are not a "logical outgrowth" of
the proposed rule making, the
association says. Among the proposed
changes that failed to follow that rule,
the lawsuit states EPA failed to provide
definitions for "bed and banks" or "high
tide line," substantially changed the
definition of "neighboring" by removing
the definitions for "riparian area" and
"flood plain," and added a new category
of waters that were jurisdictional.
AEMA says it is filing the lawsuit in
the U.S. District Court for the District
of Columbia, which is handling a
multistate challenge to the rule led by
West Virginia and North Dakota, out of
"an abundance of caution," explaining
"there is substantial uncertainty
regarding which courts of appeal have
jurisdiction over the final rule." ❒

North Dakota Protests
EPA Rules On Methane
WASHINGTON-North Dakota is
asking a federal court to review the U.S.
Environmental Protection Agency's
methane emission regulations for oil
and gas facilities. The state reportedly is
the first to file a protest of the new
rules.
The petition, State of North Dakota
v. EPA, was filed in the Court of
Appeals for the District of Columbia
Circuit. It calls the new rules "arbitrary,
capricious, an abuse of discretion, and
not in accordance with law."
The state is asking the court to
determine whether EPA's final rule on
methane standards under the Clean Air
Act's New Source Performance
Standards for new, reconstructed and
modified sources in the oil and gas
industry exceeds its statutory authority.
The agency began the process of
reducing methane and volatile organic
compound emissions from industry
American Oil and Gas Reporter - August 2016

Table of Contents for the Digital Edition of American Oil and Gas Reporter - August 2016
