American Oil and Gas Reporter - April 2020 - 14

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IndustryDigest
District Court Upholds
Trump Rescission of
Obama Fracture Rule
OAKLAND, CA.-A federal judge
has upheld the Trump administration's
rescission of an Obama-era hydraulic
fracturing rule governing operations on
federal and tribal lands in two similar
cases, a development that industry
representatives are cheering.
In cases before the U.S. District
Court, California Northern District,
Judge Haywood S. Gilliam Jr. decided
that a final rule the Bureau of Land
Management issued on Dec. 29, 2017,
which repealed the entirety of the
Obama White House's March 26, 2015
fracturing rule, would not harm states or
environmental groups because the
Trump rule has not gone into effect.
Gilliam was ruling in California v.
Bureau of Land Management and Sierra
Club v. Ryan Zinke. Both plaintiff
groups had asserted the 2017 rule
violated the Administrative Procedure
Act, National Environmental Policy Act
and the Endangered Species Act, court
documents indicate.
The 2015 rule updated well
construction and testing requirements,
and required operators to use storage
tanks instead of pits, seek approval for
all fracturing operations and disclose
the chemical additives used in fracture
fluids (AOGR, April 2015, pg. 54).
As part of President Trump's
Executive Order 13783, issued March
28, 2017, federal agencies were directed
to review regulations that potentially
imposed burdens on producing
domestic energy resources. The
following day, then-Secretary of the
Interior Zinke directed BLM to begin
rescinding the Obama fracture rule. The
agency published a final rule repealing
it on Dec. 29, 2017.
California and a coalition of eight
groups filed separate lawsuits on Jan.
24, 2018, claiming the 2015 rule
facilitated environmentally responsible
oil and gas development, and alleging
BLM's rescission violated federal law.
Later that year, Wyoming, the
Independent Petroleum Association of
America and the Western Energy
Alliance were granted intervenor status.
In his ruling, Gilliam noted the
court's job was not to decide on the
environmental merits of the fracture
rule or if BLM's rationales were valid.
14 THE AMERICAN OIL & GAS REPORTER

"Instead, the narrow question for the
court is whether the admitted policy
change represented by the repeal was so
inadequately explained as to be
arbitrary and capricious," he wrote.
"The court finds that BLM adequately
articulated a reasoned explanation for
its change in position regarding the
sufficiency of BLM's pre-existing
regulations and state and tribal
regulations for hydraulic fracturing."
Barry Russell, IPAA's president and
chief executive officer, lauds the ruling.
"IPAA launched the initial challenge
of the Obama-era rule with the belief
that the law would be on our side and
the initial rule would be overturned,"
Russell says. "We are pleased to come
full circle as the Trump rescission rule
is upheld and independent producers
will not be forced to comply with costly
and duplicative rules while operating on
federal lands." ❒

U.S. EPA Announces
Temporary Policy On
Enforcement Discretion
WASHINGTON-In a move urged
by some oil and gas industry
representatives, the U.S.
Environmental Protection Agency
announced on March 26 a temporary
policy regarding enforcement of
environmental legal obligations during
the coronavirus pandemic.
EPA explains that its temporary
enforcement discretion policy applies
to civil violations during the COVID-19
outbreak and addresses separate
categories of noncompliance
differently. The policy does not provide
leniency for intentional criminal
violations of law, nor does it apply to
activities carried out under Superfund
or Resource Conservation and
Recovery Act corrective action
enforcement.
As an example, EPA says it doesn't
expect to seek penalties for
noncompliance with routine monitoring
and reporting obligations that are the
result of the COVID-19 pandemic, but
does expect public water systems
operators to continue to ensure drinking
water supply safety. The temporary
policy also describes the steps regulated
facilities should take to qualify for
enforcement discretion.
"EPA is committed to protecting

human health and the environment, but
recognizes challenges resulting from
efforts to protect workers and the public
from COVID-19 may directly impact
the ability of regulated facilities to meet
all federal regulatory requirements,"
says EPA Administrator Andrew
Wheeler. "This temporary policy is
designed to provide enforcement
discretion under the current,
extraordinary conditions, while
ensuring facility operations continue to
protect human health and the
environment."
API President Michael Sommers
requested such a policy in March 20
letter to President Trump.
"We are grateful for the ongoing
work of your administration in
providing appropriate guidelines for
mitigation of the pandemic," Sommers
states. "In light of these guidelines, the
oil and natural gas industry needs to
maintain safe and reliable operations,
taking into consideration that there may
be limited personnel capacity to manage
the full scope of the current regulatory
requirements. As such, we will be
requesting assistance in temporarily
waiving nonessential compliance
obligations from the relevant agencies
and departments within your
administration and/or their state
counterparts, and may include
recordkeeping, training or other
nonsafety critical requirements."
According to EPA, the temporary
policy makes it clear that the agency
expects regulated facilities to comply
with regulatory requirements where
reasonably practicable, and to return to
compliance as quickly as possible. To
be eligible for enforcement discretion,
the policy also requires facilities to
document decisions made to prevent or
mitigate noncompliance and
demonstrate how they were caused by
the COVID-19 pandemic.
According to EPA, the policy applies
retroactively to March 13, 2020. The
agency will assess the continued need for
and scope of this temporary policy on a
regular basis and will update it if it
determines modifications are necessary.
EPA's memorandum on the program can
be found at:
www.epa.gov/sites/production/files/202003/documents/oecamemooncovid19impli
cations.pdf.
Some state regulators also are
exercising enforcement discretion. The
http://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf. http://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf. http://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf.
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