American Oil and Gas Reporter - February 2021 - 14

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IndustryDigest
Scientific Transparency
Rule Goes Down In Court
GREAT FALLS, MT.-A regulation
put out by the Trump-era
Environmental Protection Agency that
purported to encourage scientific
transparency in federal rulemaking was
nullified by the U.S. District Court for
the District of Montana in late January,
only weeks after it took effect. The
EPA under Biden responded to the
decision by asking the court to vacate
the rule, which it did on Feb. 1,
indicates plaintiff The Environmental
Defense Fund.
According to law firm Steptoe &
Johnson, EPA released the final rule
" Strengthening Transparency in Pivotal
Science Underlying Significant
Regulatory Actions and Influential
Scientific Information, " on Jan. 6 to
guide how the agency " will consider the
availability of dose-response data
underlying pivotal science used in its
significant regulatory actions and
influential scientific information. " The
regulation, which sought to revise how
EPA internally weighed scientific
information when making rules, was
proposed in 2018 and revised in 2020
and 2021 after receiving nearly 1
million public comments.
Besides addressing how EPA was to
determine public availability and the
importance of pivotal science and
influential scientific information for
significant regulatory actions, the firm
says, the final rule would have
established peer review requirements
for pivotal science as well as well as
criteria for the administrator to
consider when granting case-by-case
exemptions. Steptoe & Johnson notes
the rule focused on " studies that
describe the quantitative relationship
between the dose or exposure of a
pollutant, contaminant or substance
and an effect, " making it narrower than
earlier proposals.
EDF and other opponents objected
that the regulation was rushed into place
during the final days of the Trump
administration. They also claimed the
rule " would have undermined the
agency's ability to protect public health
and the environment by fundamentally
transforming the ways in which EPA
may consider scientific evidence. It
would have restricted EPA's ability to
use rigorous, peer-reviewed medical
14 THE AMERICAN OIL & GAS REPORTER

research for which underlying data are
not publicly available-even when legal
and ethical rules, like medical privacy
laws, would have prohibited making
that data public. "
EDF says it joined with the Montana
Environmental Information Center, and
Citizens for Clean Energy to sue EPA
when the agency attempted to make the
rule effective immediately upon its
publication in the Federal Register
rather than setting an effective date at
least 30 days later, as required for
substantive rules. According to EDF, the
court issued an order implementing the
legally mandated effective date for the
regulation, and found fault with the
rule's legal basis. ❒

Settlement Halts Leasing
On 45,000 Federal Acres
Covering Piceance Basin
EUGENE, OR.-On Jan. 14, the U.S.
Bureau of Land Management settled a
2018 lawsuit challenging the legality of
53 oil and gas leases covering 45,000
acres in western Colorado, Western
Environmental Law Center reports.
" This legal agreement, along with
successful challenges to management
plans in the region, effectively puts the
brakes on further oil and gas leasing in
the Piceance Basin, " comments Kyle
Tisdel, one of Western's attorneys.
" This is a major win against a Trump
administration that refused to
acknowledge or analyze the climate
and human health impacts of oil and
gas exploitation. "
The 2018 lawsuit, which was filed
by Wilderness Workshop, Center for
Biological Diversity, Living
Rivers/Colorado Riverkeeper and Sierra
Club, alleged that the BLM violated the
National Environmental Protection Act
by failing to perform site-specific
environmental reviews before
approving the leases. Instead, BLM
granted them under resource
management plans for the Grand
Junction and Colorado River Valley
field offices that Western argues did not
consider hydraulic fracturing's potential
harm to the climate, public health and
the Colorado River.
According to Western, the
agreement blocks drilling on more than
45,000 acres until officials revise those
land management plans, which govern

2 million acres of public lands in
western Colorado.
The agreement notes that BLM
denies it violated any laws by issuing
the leases. However, through other
cases, it already has agreed or offered
to complete supplemental NEPA
analyses for the resource management
plans governing those leases.
Therefore, the parties " believe it is in
the best interest of the public, the
parties and judicial economy to resolve
the claims in this case. " ❒

State Court Strikes Down
N.D. Pore Space Statute
BISMARCK, N.D.-A North Dakota
district court has struck down the pore
space law passed by the 2019 North
Dakota Legislative Assembly, but
industry representatives say the legal
battle may continue.
According to published reports, on
Jan. 21, Northeast District Judge
Anthony Benson declared the law-
which took effect when Governor Doug
Burgum signed SB 2344 in 2019-
unconstitutional.
Arguably, SB 2344 was itself
prompted by a court ruling. As it was
originally written in 2009, the state
code's carbon dioxide storage section
was meant to allow coal plants to
permanently store the carbon dioxide
they produced in subsurface pore space.
However, in 2017, the North Dakota
Supreme Court applied that law to a
saltwater disposal well and ruled that,
under the state's oil and gas production
damage compensation law, the operator
owed a surface owner damages for
using that owner's pore space.
SB 2344 sponsor Senator Jessica
Unruh, R-Beulah, pushed the legislation
to clarify the state's pore space law
(AOGR, June 2019, pg. 38). However,
the Northwest Landowners Association
charged that it violated landowners'
rights. According to the Bratten law
firm, its representative, Benson's ruling
concurs, describing the law as " an
unconstitutional taking of an inherent,
inalienable property right . . . for the
improper purpose of economic
development, by giving all value of
those property rights to a private party,
for a nonpublic purpose. "
The firm says the court maintains
that SB 2344 prohibits " landowners
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