First Comes the Executive Order, Then Comes the Lawsuit

Posted on May 4, 2017 by Anjali Patel

UPDATED 07.25.2018 On February 19, 2018, the District Court for the District of Alaska denied motions to dismiss filed by Defendants and by intervenors for Defendants, including the American Petroleum Institute and the State of Alaska.

Last week, the President released an executive order entitled “Implementing an America-First Offshore Energy Strategy” aimed at “encourag[ing] energy exploration and production, including on the Outer Continental Shelf.”  The Executive Order states that “America must put the energy needs of American families and businesses first” and that “[t]he energy and minerals produced from lands and waters under Federal management are important to a vibrant economy and to our national security.”

The Executive Order directs the Secretary of the Interior, among other things:

  • To “give full consideration to revising the schedule of proposed oil and gas lease sales” to include, but not be limited to, annual lease sales in the following Outer Continental Shelf Planning Areas:  Western Gulf of Mexico, Central Gulf of Mexico, Chukchi Sea, Beaufort Sea, Cook Inlet, Mid-Atlantic, and South Atlantic;
  • To develop and implement “a streamlined permitting approach for privately funded seismic data research and collection aimed at expeditiously determining the offshore energy resource potential of the United States within the Planning Areas.”
  • To review the Bureau of Safety and Environmental Enforcement’s (BSEE) Final Rule “Oil and Gas and Sulfur Operations in the Outer Continental Shelf—Blowout Preventer Systems and Well Control,” 81 Fed. Reg. 25,888 (Apr. 29, 2016), and to review  (and consider whether to revise or withdraw) the Bureau of Ocean Energy Management’s Proposed Rule “Air Quality Control, Reporting, and Compliance,” 81 Fed. Reg. 19,718 (Apr. 5, 2016).
  • To review (and, if appropriate, publish for notice and comment a proposed rule suspending, revising or rescinding) the BSEE Final Rule “Oil and Gas and Sulfur Operations on the Outer Continental Shelf—Requirements for Exploratory Drilling on the Arctic Outer Continental Shelf,” 81 Fed. Reg. 46,478 (July 15, 2016).

The Executive Order further directs the Secretary of Commerce, among other things:

  • To “refrain from designating or expanding any National Marine Sanctuary under the National Marine Sanctuaries Act, 16 U.S.C. 1431 et seq., unless the sanctuary designation or expansion proposal includes a timely, full accounting from the Department of the Interior of any energy or mineral resource potential within the designated area—including offshore energy from wind, oil, natural gas, methane hydrates, and any other sources that the Secretary of Commerce deems appropriate—and the potential impact the proposed designation or expansion will have on the development of those resources.”
  • To conduct within 180 days “a review of all designations and expansions of National Marine Sanctuaries, and of all designations and expansions of Marine National Monuments … designated or expanded within the 10-year period prior to the date of this order,” which review is to include “the opportunity costs associated with potential energy and mineral exploration and production from the Outer Continental Shelf, in addition to any impacts on production in the adjacent region.”
  • To review (and, if appropriate, publish for notice and comment a proposed rule suspending, revising or rescinding) NOAA’s Technical Memorandum NMFS-OPR-55 of July 2016 (Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing) for consistency with the Executive Order’s policy.

The Executive Order also:

  • Revokes Executive Order 13754 on Northern Bering Sea Climate Resilience (issued December 9, 2016), and
  • Modifies previously issued Memorandum that withdrew certain areas of the U.S. Outer Continental Shelf (including sections of the Arctic Ocean) from disposition by leasing to limit such withdrawal to only “those areas of the Outer Continental Shelf designated as of July 14, 2008, as Marine Sanctuaries under the Marine Protection, Research, and Sanctuaries Act of 1972.”

Yesterday, a coalition of environmental organizations brought a complaint in the United States District Court for the District of Alaska challenging the Executive Order as unlawful (under the Outer Continental Shelf Lands Act) and unconstitutional (under Article II and the Property Clause, Article IV, Section 3, clause 2).  The lawsuit seeks declaratory and injunctive relief.  The coalition is led by the League of Conservation Voters, who filed its first-ever lawsuit, and includes the Natural Resources Defense Council, Sierra Club, Alaska Wilderness League, Defenders of Wildlife, Northern Alaska Environmental Center, Resisting Environmental Destruction on Indigenous Lands, Center for Biological Diversity, Greenpeace, and the Wilderness Society.

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D.C. Circuit Holds in Abeyance MATS and NSPS Litigation

Posted on May 2, 2017 by Katherine O'Konski

UPDATED 07.25.2018 Both cases continue to be held in abeyance with EPA filing status reports at 90-day intervals.

In addition to the D.C. Circuit’s order granting EPA’s motion to hold in abeyance litigation surrounding the Clean Power Plan, the court last week also put holds on ongoing litigation over EPA’s Mercury and Air Toxics Standards (MATS) 2016 Supplemental Finding and its CO2 New Source Performance Standards (NSPS) for New Power Plants.

MATS 2016 Supplemental Finding.  Last week, the D.C. Circuit granted EPA’s motion to indefinitely postpone oral argument in Murray Energy Corp. v. EPA, No. 16-1127.  The court is holding the consolidated cases in abeyance to allow the agency time to determine what action the agency will be taking with respect to the MATS Supplemental Finding.  The case has been removed from the oral argument calendar, and EPA was directed to file status reports on its review of the Supplemental Finding at 90-day intervals.

New Source Performance Standards.  The D.C. Circuit also issued an order granting EPA’s March 28 motion to hold in abeyance North Dakota v. EPA, No. 15-1381.  In contrast to the MATS indefinite abeyance, the court ordered a limited 60-day abeyance of these consolidated cases, during which time EPA must file status reports at 30-day intervals.  (In its previous order the Court had removed the April 17 oral argument date from its calendar pending its decision on the motion).  Similar to the directive it issued in the CPP litigation, the court also directed the parties to file supplemental briefs by May 15 addressing whether the cases should be remanded to EPA rather than held in abeyance, and requested that submissions be joint “to the extent possible.”

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Court Holds Clean Power Plan Litigation in Abeyance

Posted on April 28, 2017 by Jessica Bell

UPDATED 07.25.2018 This case remains in abeyance with EPA filing status reports at 30-day intervals, although several D.C. Circuit judges have expressed reluctance to continue holding the case in abeyance.

Today, the D.C. Circuit granted EPA’s motion to hold the consolidated cases challenging the Clean Power Plan in abeyance.  The court ordered a 60-day abeyance and directed EPA to file status reports at 30-day intervals.  The court further directed supplemental briefing from the parties addressing whether the cases should be remanded to EPA rather than held in abeyance.  These supplemental briefs are due May 15, 2017.

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Columbia University Report Shows that Environmental Regulations are Not the Primary Threats to Coal

Posted on April 27, 2017 by Jessica Bell

A recent report by Columbia University’s Center on Global Energy Policy has found that declines in coal generation, while due to a variety of factors, are unlikely to be significantly reversed by implementing all the actions in last month’s energy Executive Order.  In Can Coal Make a Comeback?, researchers looked at the reasons for the decline in U.S. coal consumption of 20% from 2011 to 2015—and the bankruptcy filings of a number of coal mining companies.  The report also looks at the impacts on those who work in the coal industry and their communities.  At the end of 2011, there were over 130,000 people working in the coal mining industry; now that number is just over 70,000.  And drops in coal production have reduced tax revenue in coal communities.

This report finds that 49% of the decline in U.S. coal consumption was due to decreased natural gas prices, 26% was due to decreased electricity demand, and 18% was due to growth in renewables.  Environmental regulations accelerated coal generator retirements, but were less significant contributors to the overall decline.  The report also finds that issues in international coal markets—including lower Chinese coal demand that depressed global prices—were a relatively large factor.

The report identifies increases in natural gas prices as a crucial factor for coal to rebound.  Rolling back environmental regulations promulgated under the Obama Administration would not, standing alone, markedly increase coal consumption.  (The report assumed the removal of the Clean Power Plan, CO2 New Source Performance Standards for new power plants, methane rules for new oil and gas production, methane rules for new and existing oil and gas production on federal lands, and the coal leasing moratorium on federal lands.)

On employment, the report is skeptical that a full reversal to pre-2015 levels is likely to occur.  While acknowledging the difficulties of revitalizing impacted communities, the report discusses several community-driven economic diversification efforts that may provide some relief rather than “false hope that the glory days can be revived.”  The report identifies federal government actions that can assist these programs, including infrastructure investment, tax credits, and repurposing of abandoned mine land.

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5th Circuit Grants Abeyance and EPA Postpones Compliance Deadlines for Effluent Limitation Guidelines; EPA Submits Further Abeyance Motions

Posted on April 25, 2017 by Anjali Patel

Yesterday, the Fifth Circuit issued an order granting EPA’s motion to hold Southwestern Electric Power Co. v. EPA (consolidated challenges to EPA’s “Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category” (Rule)) in abeyance for 120 days, until August 12, 2017.  The Court also granted EPA’s request to file a motion to govern further proceedings upon the conclusion of the 120 day period.  In today’s Federal Register, EPA published a notice stating that it will be reconsidering the Rule.  EPA also stated that it is postponing the Rule’s compliance dates that have not yet passed, pending judicial review.

And adding to the EPA’s list of requests to postpone judicial rulings on cases involving its regulations, EPA has filed motions in:

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