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Groups Defend Obama-Era Methane Rule, Invoke High Court Ruling

Aug. 26, 2020, 6:06 PM

A federal judge shouldn’t scrap an Obama-era methane rule just because the Trump administration won’t defend it in court, state and environmental lawyers argued in a court filing.

The Natural Resources Defense Council, Sierra Club, and other groups, joined by California and New Mexico, on Tuesday urged the U.S. District Court for the District of Wyoming to uphold the Bureau of Land Management’s regulation on its merits and allow “benefits of reduced waste, increased royalties, and decreased pollution finally to be realized.”

The groups and states argued that the Justice Department’s decision to abandon any legal defense of the rule amounted to a post-hoc litigation position that’s impermissible under recent U.S. Supreme Court precedent.

The 2016 Waste Prevention Rule aims to reduce methane venting, flaring, and leaks from oil and gas operations on public and tribal lands. Those emissions both contribute to climate change and waste natural gas.

The Trump administration scrapped the regulation and replaced it with an industry-friendly version, but a federal court in California struck down that move last month. With the original rule set to take effect again, the Wyoming court has restarted long-idled litigation that questions whether the Obama-era restrictions are legal.

Supreme Court Precedent

In a recent court filing, Justice Department lawyers said they wanted to “confess” legal error as to the 2016 rule rather than defend it. The 2016 rule falls short of the Administrative Procedure Act and Mineral Leasing Act, they argued.

But California, New Mexico, and the environmental litigants say the court must ignore the land bureau’s new position, and instead review the rule on its merits, giving standard deference to the agency on its original record for the methane restrictions.

They pointed to the Supreme Court’s recent ruling striking down the Trump administration’s decision to end the Deferred Action for Childhood Arrivals, or DACA, immigration policy. The ruling emphasized that federal actions can’t be upheld based on post-hoc rationalization.

“This Court must rely solely on the agency rationales and supporting record evidence provided at the time BLM promulgated the Waste Prevention Rule, and not the post-hoc ‘confessions of error’ that BLM advances now,” Earthjustice attorney Robin Cooley and other lawyers wrote for the state and environmental coalition.

‘No Weight’

Allowing the bureau to abandon the rule through a “post-hoc litigation position” after federal courts already struck down previous attempts to undo the regulation would allow the Trump administration to sidestep the Administrative Procedure Act’s rulemaking requirements, the states and environmental groups argued.

“Courts routinely give no weight to an agency’s claimed confession of error where, as here, it would allow the agency to circumvent the APA’s requirements,” they told the Wyoming court.

States and industry groups that oppose the 2016 rule have until Sept. 4 to respond.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is Wyoming v. Interior, D. Wyo., No. 2:16-cv-00285, brief filed 8/25/20.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Chuck McCutcheon at cmccutcheon@bloombergenvironment.com

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