Trump’s BLM Cannot Delay Implementation of Oil and Gas Methane Rules after Effective Date

by Stoel Rives LLP

On October 4, 2017, the United States District Court for the Northern District of California held that the Bureau of Land Management (“BLM”) cannot postpone implementation of natural gas methane emission rules because such action would violate the Administrative Procedure Act (“APA”).  Plaintiffs – the State of California, the State of New Mexico, and a coalition of seventeen conservation and tribal citizens groups (jointly “Plaintiffs”) – initiated the lawsuit in two separate actions.  Plaintiffs argued that postponing implementation of the BLM’s Waste Prevention, Production Subject to Royalties, and Resource Conservation Rule (“Final Rule”) after its effective date violated Section 705 of the APA.

The Final Rule regulates venting, flaring, and leaks of methane in natural gas and oil production, and its purpose is to reduce emissions of methane into the atmosphere.  Broadly, the Final Rule requires operators to adopt currently available technologies in order to limit the rate of flaring at oil wells, and requires operators to inspect for leaks and replace equipment that vents methane emissions into the air.  These requirements were geared toward meeting the Obama Administration’s goal to cut methane emissions from the oil and gas sector by 40-45% from 2012 levels by 2025.

The Obama-era BLM published the Final Rule on November 18, 2016 and the Final Rule’s effective date was January 17, 2017.  On March 28, 2017, President Trump issued Executive Order No. 13783, which instructed each executive agency to review all agency actions to identify those that “potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law.”  82 Fed. Reg. 16,093.  On June 15, 2017, the BLM issued a notice that it was postponing the compliance dates for certain sections of the Final Rule until January 17, 2018.  82 Fed. Reg. 27,430.  The notice stated that delay was necessary due to the costs of compliance and pending litigation – two cases were filed in the District Court of Wyoming that challenged the legality of the Final Rule in November 2016.

In the Order Granting Plaintiffs’ Motion for Summary Judgment (“Order”), the Judge agreed with Plaintiffs, finding that, because the Final Rule was already promulgated and partially in effect, the BLM cannot retroactively delay or rescind it.  “While Section 705 allows the postponement of the effective date of a broader range of agency actions than a complete rule, such as a part of a rule or a license, and would have allowed the agency lawfully to postpone certain parts of the Rule, rather than its entirety, had it done so before the effective date of January 17, 2017,” an agency cannot postpose an entire rule after its “effective date.”  Order at 16 (emphasis added).  Further, the Court sided with Plaintiffs’ argument that the BLM violated the APA’s notice-and-comment requirements by effectively repealing the Final Rule without obtaining comment from the public.  5 U.S.C. § 553.  The Court held that the “statutory requirement of notice-and-comment is equally applicable to the repeal of regulations as to their adoption.”  Order at 17.  As relief, the court vacated the BLM’s postponement notice (issued June 15, 2017), which means that these sections of the Final Rule will go into effect on January 17, 2018 – the initial effective date for these sections at the time of promulgation of the Final Rule.

Relatedly, on October 5, 2017, the BLM published a notice in the Federal Register stating that it is proposing to temporarily suspend or delay certain requirements contained in the Final Rule until January 17, 2019.  “The BLM is currently reviewing the 2016 final rule and wants to avoid imposing temporary or permanent compliance costs on operators for requirements that may be rescinded or significantly revised in the near future.”  The Judge’s October 4th Order did not – and could not – directly address the October 5th notice, but, based on the legal reasoning in the Order, efforts to suspend or delay the Final Rule as proposed in the October 5th notice would likely violate the APA for the same reasons.  We will continue to monitor legal developments in connection with the Final Rule and report on what the BLM, the plaintiffs, and courts do next.

The two consolidated lawsuits are Sierra Club et al. v. Zinke et al., Case Number 3:17-cv-03885, and State of California et al. v. United States Bureau of Land Management et al., Case Number 3:17-cv-03804.

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.

© Stoel Rives LLP | Attorney Advertising

Written by:

Stoel Rives LLP

Stoel Rives 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):

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.


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 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:

- 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.