American Oil and Gas Reporter - November 2021 - 17

IndustryDigest
Alsup also dismisses concerns that
nixing the 2020 regulation will be
economically disruptive. " The rule has
only been in effect for 13 months, " he
writes. " This is insufficient time for
institutional reliance to build up around
the current rule, which had been under
attack since before day one. This order
finds vacatur will not intrude on any
justifiable reliance. " ❒
Federal Judge Faults EA
On 58,000 Colorado Acres
But Doesn't Kill Leases
DENVER-The federal Bureau of
Land Management violated the
National Environmental Policy Act and
the Administrative Procedure Act when
it relied on a 2017 environmental
assessment and auctioned 58,000
federal acres in Colorado for oil and
gas leasing, a federal district court
judge has ruled. Nevertheless, the
judge's ruling also rejected the
plaintiffs' request that the leases be
nullified and indicated that the
statutory violations are small enough
that BLM's original leasing decision
may stand after further review.
Therefore, rules U.S. District Judge
for the District of Colorado Marcia
Krieger, the leasing decision has been
remanded back to BLM for further
consideration consistent with the
court's opinion.
" Ultimately, the question of whether
vacatur of the existing leases should
accompany a remand of the 2018
leasing decision to the BLM turns on
the extent and significance of the NEPA
violations that this court has found in
this case, " Krieger wrote in the Sept. 28
opinion. " If the defects identified by this
court are minor, it may very well be
that, upon remand, the BLM is likely to
reconsider the issues but ultimately
reach the same leasing decision. In that
circumstance, premature vacatur of the
existing leases would simply result in
administrative delay and additional
costs for all parties involved in order to
re-lease the same lands.
" Here, the court finds that the NEPA
failures discussed herein are relatively
minor, and are unlikely to prompt
fundamentally different decisionmaking
by the BLM upon remand, "
Krieger added.
According to court documents, the
plaintiffs in the case-anti-development
groups Rocky Mountain Wild, National
Parks Conservation Association, Center
for Biological Diversity and WildEarth
Guardians-based their case on alleged
weaknesses in an EA developed in
2017 that BLM used in leasing
decisions for 100,000 federal acres that
year. Since the additional 58,000 acres
were offered later, when there was new
data about matters such as air quality
and wilderness characteristics, the
litigants claimed BLM should have
performed a new EA.
Krieger's ruling sided with that
claim, but her decision not to void the
leases referenced reasoning offered by
the Western Energy Alliance in an
amicus brief. " That brief is supported
by an affidavit from an Alliance
member explaining that it 'has a multiyear
planning cycle for future
development,' that 'infrastructure must
be constructed well in advance of
drilling wells,' and that 'in order to
make capital planning decisions, (it)
must have a clear idea of its
development plan and future well
locations,' " she writes.❒
Canada Invokes Treaty
On Behalf Of Line 5
OTTAWA, ONTARIO-Amid a
Democratic governor's ongoing efforts
to kill a project that seeks to update the
Line 5 pipeline that crosses under Lake
Michigan's Straits of Mackinac, the
Canadian government is invoking a 44year-old
treaty that governs energy
transportation between the United
States and Canada.
" In response to Michigan's efforts to
shutdown Line 5, Canada has raised its
significance for Canadian economic and
energy security at the highest levels of
the U.S. federal government, " said
Canadian Minister of Foreign Affairs
Marc Garneau in an Oct. 4 statement.
" We have also stressed the importance
of fully respecting and implementing
the international agreements that are in
place between our two countries.
" Line 5 is governed by the
provisions of the 1977 agreement
between the government of Canada and
the government of the United States of
America Concerning Transit Pipelines,
which guarantees the uninterrupted
transit of light crude oil and natural gas
liquids between the two countries, "
Garneau says. " Canada is formally
invoking the dispute settlement
provision of the 1977 agreement to
ensure its full application. "
Michigan Governor Gretchen
Whitmer and Attorney General Dana
Nessel claim environmental
considerations justify their efforts to
prevent Enbridge from constructing a
tunnel under the straits to house a new
30-inch pipeline for light crude oil and
natural gas liquids, which would replace
the existing dual submerged pipelines
that have operated under the straits
since 1953. However, Garneau counters,
the Canadian government also
prioritizes the health of the Great Lakes
and it says the Line 5 project does not
contradict that.
" For more than 65 years, Line 5 has
been the safest way to transport
Canadian hydrocarbons from western
Canada to central Canada, helping
provide energy that is essential for
heating homes and powering Canada's
economy, " he said. " Furthermore,
Canada supports Enbridge's plan to
replace the existing pipeline with the
proposed Great Lakes Tunnel Project,
which will run far below the lakebed of
the Straits of Mackinac, to further
protect the Great Lakes. "
Garneau recalled that on Nov. 13,
Whitmer's office and the Michigan
Department of Natural Resources
issued a notice of revocation and
termination of easement with the
intended effect of permanently shutting
down Line 5. The notice is the subject
of a legal dispute in U.S. courts
between Michigan and Enbridge.
The 1977 agreement between the
Government of Canada and the
Government of the United States of
America Concerning Transit Pipelines
prohibits measures that are intended to
impede, divert, redirect or interfere with
crude oil or natural gas liquids moving
through transit pipelines, such as Line
5, or that would have that effect. ❒
IPAA's Virtual Exploring
Energy Program Returns
WASHINGTON-The Independent
Petroleum Association of America says
its Energy Workforce Education
Center's Virtual Exploring Energy
Program has relaunched into high
schools around the country this autumn.
NOVEMBER 2021 17
American Oil and Gas Reporter - November 2021

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