Indian Country Should Defend Environmental Protections

by Kilpatrick Townsend & Stockton LLP
Contact

Doing exactly what he promised to do throughout his campaign, Donald Trump has been rolling back Obama-era environmental regulations since his first full day in office when he issued an executive order to expedite approval of the Dakota Access pipeline. He’s continued by bringing back the Keystone pipeline by issuing the cross-border permit that had been denied by the Obama administration. Then, by directing the U.S. Environmental Protection Agency to review and potentially weaken fuel economy standards for cars and trucks. Most recently, he issued another executive order titled “Promoting Energy Independence and Economic Growth.”[1] This order directs federal agencies to review and potentially rescind several Obama-era environmental and energy regulations. This most recent executive order lines up with two years of campaign promises to undo environmental regulations and sends the clear signal that federal agencies will rescind these regulations.

The environmental harm of pipelines crossing the lakes and rivers that make up the water supply for large portions of Indian Country is easy to see, and these pipelines have served as effective rallying points for bringing together tribes and environmentalists in opposition. The image of a pipeline, literally a manmade scar across the earth, was a key component to how the protests at Standing Rock received a level of media coverage not typically devoted to any tribal issue. While that image is lacking from the recent executive order and the drawn out and complex regulatory process it has set in motion, the environmental harms likely to occur in Indian Country could have deep and long lasting impacts to tribes everywhere.

There are some obvious provisions of the executive order that could have immediate impacts on Indian Country. These provisions include lifting the moratorium on coal leasing on federal land, and a review and potential rescission of regulations governing fracking in Indian Country[2] and flaring in Indian Country.[3] The likely rescission of either, or more likely both, of these regulations could have devastating economic and environmental impacts. The fracking regulation was created to replace prior Bureau of Land Management regulations that were at least 25 years old and were created long before fracking was even a commonly used practice.[4] These new Obama administration fracking regulations sought to make more information publically available, ensure well integrity, protect water sources by managing “recovered fluids” in lined pits, and disclosing chemicals used in fracking operations.

Regulated parties have already invested heavily to comply with these fracking regulations that apply to over 47,000 active oil and gas leases on public and Indian lands and over 95,000 oil and gas wells. A rescission of this rule would only leave in place BLM fracking regulations from over two decades ago, when fracking rarely occurred. Likewise, the ordered review on regulations addressing flaring in Indian Country could have far reaching environmental impacts for many tribes.

Flaring, and venting, are the processes by which operators burn off or release natural gas that results from oil and gas drilling operations. While natural gas is a valuable commodity that is mined in its own right, in some instances its more economical to simply burn off the natural gas that is produced as a byproduct of other drilling operations. Natural gas that is flared or vented is primarily comprised of methane, an especially powerful greenhouse gas with climate impacts significantly above those of carbon dioxide. Flaring is no small issue in Indian Country. The Office of Natural Resources Revenue reported that federal and Indian onshore lessess and operators vented or flared 462 billion cubic feet of natural gas between 2009 and 2015 — enough gas to serve about 6.2 million households for a year.[5] The regulation prohibits the venting of natural gas, except under certain specific conditions, and requires operators to “reduce wasteful flaring of gas by capturing for sale or using on the lease a percentage of their gas production.”[6]

In addition to the environmental impacts of these rules, there are substantial economic impacts to tribes as well. The previous rules often did not require operators to pay royalties on vented or flared natural gas. Indeed, the BLM estimated that the new regulations would “produce net benefits ranging from $46 million to $204 million per year.”[7]

If the current administration is successful in their efforts to suspend, rescind or revise these significant rules, it is certain to have lasting environmental impacts on par with or greater than those resulting from any pipeline. However, a lengthy process remains before any wholesale regulatory changes can go into effect. Indian Country can and should be active participants in that process, along with the many states and cities who have vowed to oppose any administration efforts to weaken environmental protections or limit expansion of clean energy solutions. Indian Country and the Standing Rock Sioux Tribe clearly demonstrated the coordinated and passionate leadership and reasonable voice that tribes can bring to environmental issues. We all know that tribes are the original EPA, and Indian Country’s leadership may be needed now more than ever, in the many fights yet to come on environmental issues that could impact our lands beyond any pipeline.

[1] Exec. Order, Presidential Executive Order on Promoting Energy Independence and Economic Growth (Mar. 28, 2017), available at https://www.whitehouse.gov/the-press-office/2017/03/28/presidentialexecutive-order-promoting-energy-independence-and-economi-1.

[2] Final Rule entitled ‘Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands,’ 80 Fed. Reg. 16128 (March 26, 2015).

[3] Final Rule entitled ‘Waste Prevention, Production Subject to Royalties, and Resource Conservation,’ 81 Fed. Reg. 83008 (November 18, 2016).

[4] Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands, 80 FR 16128-0, *16128 (Mar. 26, 2015).

[5] Waste Prevention, Production Subject to Royalties, and Resource Conservation, 81 FR 83008-01, *83009 (Nov. 18, 2016).

[6] Id. at 83011.

[7] Id. at 83013.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Kilpatrick Townsend & Stockton LLP | Attorney Advertising

Written by:

Kilpatrick Townsend & Stockton LLP
Contact
more
less

Kilpatrick Townsend & Stockton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.