American Oil and Gas Reporter - April 2022 - 14

IndustryDigest
Biden SC-GHG Restored,
Removing An Alleged
Obstacle To Leasing
NEW ORLEANS-Reasoning that
plaintiffs' claims of harm are more
theoretical than actual at this stage, a
federal appeals court has lifted a lower
court's injunction against a regulatory
tool the Biden administration says will
help it address climate change.
Although the March 16 order from the
U.S. Court of Appeals for the Fifth
Circuit reinstates the social cost of
greenhouse gases (SC-GHG) that
prompted litigation by Louisiana
Attorney General Jeff Landry and nine
other state attorneys general, its
reinstatement also may ease leasing in
federal lands and waters.
According to press accounts, that is
because U.S. Department of Interior
officials delayed permitting in response
to the lower court's ruling, insisting that
they must incorporate SC-GHG into
rulemaking, permitting and other
regulatory analyses (AOGR, March
2022, pg. 83). Media reports quote
Interior spokesperson Melissa Schwartz
saying, " Calculating the social cost of
GHG emissions provides important
information that has been part of the
foundation of work the Interior
Department has undertaken over the
past year. " With its ability to use those
calculations restored, DOI " continues
its planning for responsible oil and gas
development on America's public lands
and waters. "
Frank Macchiarola, senior vice
president of policy, economics and
regulatory affairs for the American
Petroleum Institute, lauds the
resumption, but notes more remains to
be done. " At a time when the
administration and allies around the
world are calling for more American
energy, we welcome the DOI's
announcement and urge the
administration to hold onshore lease
sales under the Mineral Leasing Act
with sufficient acreage and fair terms, "
he says. " We also call on the
administration to accelerate the longdelayed
five-year program for leasing
on the Outer Continental Shelf. "
The Fifth Circuit's decision to lift the
injunction, meanwhile, finds that the
AGs' action is not yet ripe. " In sum, the
plaintiff states' claims are based on a
generalized grievance of the use of
14 THE AMERICAN OIL & GAS REPORTER
interim estimates in cost/benefit
analyses of regulations and agency
action, " the court's opinion argues. " But
their claimed injury does not stem from
the interim estimates themselves; it
stems from any forthcoming,
speculative, and unknown regulation
that may place increased burdens on
them and may result from consideration
of SC-GHG. "
Although the case against the Biden
administration's SC-GHG originates in
the fact that it restores the social costs
created by the Obama administration's
Interagency Working Group (IWG),
which were more than sevenfold those
employed during the Trump
administration, some right-leaning
analysts agree with the decision.
Jonathan Adler of Case Western
Reserve University School of Law
suggests in the libertarian publication
Reason that the opinion is neither
" liberal " nor unorthodox, but merely a
straightforward application of Article
III's standing requirements.
Adler goes on to say that " nothing in
the Fifth Circuit's opinion presumes
that the IWG social cost of carbon
estimates are reasonable or reliable, nor
does it presume that the Biden
administration's climate policies are the
correct ones. It instead focused on
whether the plaintiff states are pressing
claims that federal courts can properly
hear, and it did so correctly. " ❒
Court Vacates Leases
In Montana, Wyoming
GREAT FALLS, MT.-Citing
concerns about sage grouse habitat, a
federal judge in March nullified
hundreds of Montana and Wyoming oil
and gas leases and a federal Bureau of
Land Management instruction
memorandum (IM), both of which were
issued during the Trump administration.
According to court documents for
Montana Wildlife Federation v. David
Bernhardt, BLM issued the IM in 2018
that re-interpreted its 2015 resource
management plan's leasing and
development prioritization for areas
outside sage grouse habitat to apply at
times in which the bureau faced a review
backlog. The decision, written by Judge
Brian Morris, chief district judge for the
U.S. District Court of Montana, says the
IM violates the Federal Land Policy and
Management Act of 1976 because,
among other reasons, it " renders the
prioritization requirement into a mere
procedural hurdle. "
The fact that BLM was operating
under the IM when it posted a pair of
Trump-era lease sales-two in Montana
and one in Wyoming-constitutes a fatal
flaw for the leases, the ruling finds. The
ruling says 90% of the parcels in the
first Montana lease sale, 70% of them in
the second Montana sale and all the
leases in the Wyoming lease sale fall
within general or priority sage grouse
habitat areas.
" The court sees no reason to leave the
2018 IM in place, " the decision reads.
" BLM's errors undercut the very reason
the 2015 plans created a priority
requirement in the first place and prevent
BLM from fulfilling that requirement's
goals. As for the lease sales, the errors
here occurred at the beginning of the oil
and gas lease sale process, infecting
everything that followed. "
The ruling does not vacate the
relatively few parcels that fall outside
sage grouse habitat. ❒
Court: EA Incomplete
Because It Ignores
Downstream Impacts
WASHINGTON-The U.S. Court of
Appeals for the District of Columbia
Circuit in mid-March remanded a
Federal Energy Regulatory
Commission certificate for failing to
assess the environmental impact of a
midstream project's downstream
greenhouse gas emissions.
According to court documents,
litigants in Food & Water Watch and
Berkshire Environmental Action Team v.
FERC are suing the commission over its
2019 environmental assessment of an
upgrade that Tennessee Gas Pipeline
Co. is attempting on a 2.1-mile stretch
of pipeline and a compressor station in
Agawam, Ma.
Although the litigants allege four
failings with FERC's NEPA
compliance, the ruling concurs only
with the one that faults the
commission's due diligence on
downstream GHG impacts. Since the
project aims to add 72,400 dekatherms a
day to Columbia Gas's existing
residential and commercial connections
in the Greater Springfield service
territory, the court criticizes the

American Oil and Gas Reporter - April 2022

Table of Contents for the Digital Edition of American Oil and Gas Reporter - April 2022

Contents
American Oil and Gas Reporter - April 2022 - Intro
American Oil and Gas Reporter - April 2022 - Cover1
American Oil and Gas Reporter - April 2022 - Cover2
American Oil and Gas Reporter - April 2022 - Contents
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