Regulations
Under the Commerce Clause of the Constitution, Congress has jurisdiction over waters of the United States, a concept that has been held to cover not only navigable waters but also other waters that may in some way impact interstate or international commerce. That jurisdiction was exercised by Congress through passage of the Clean Water Act. But determinations of which waters impact interstate commerce (like determinations in many other areas to which the Commerce Clause applies) sometimes lend themselves to tortured and arbitrary reasoning as justification for expanded federal authority over matters that otherwise would be under the jurisdiction of the States. A final rule adopting an expansive definition of “waters of the United States” was issued by the Corps of Engineers and the Environmental Protection Agency, under the Obama administration, on June 29, 2015 (80 FR 37053). However, as a result of ensuing litigation, the implementation of that rule came to be enjoined in twenty-eight States, which remained subject to the pre-2015 definition of “waters of the United States;” while the definition in the 2015 rule (with its potential to criminalize activities affecting waters that until then had never been imagined to be “waters of the United States”) took effect in the other twenty-two. Pending a further review of the proper regulatory definition of “waters of the United States,” the Corps and EPA, under the Trump administration, issued a final rule on October 22, 2019 (84 FR 56626) (which itself was litigated in several federal district courts), repealing the 2015 definition, and reinstating the pre-2015 definition in the meantime. On April 21, 2020 (85 FR 22250), the Corps and EPA published a final rule to establish a new definition of “waters of the United States,” which bore many similarities to the pre-2015 definition (although with some differences), and which – perhaps most significantly – specified the exclusion of groundwater from the definition. In further litigation, though, the 2020 rule was vacated. And the Biden administration, on January 15, 2023 (88 FR 3004), published a final rule, effective March 20, that returned the definition of “waters of the United States” more closely to the pre-2015 definition (although once again with some differences). On May 25, however, the Supreme Court issued its decision in Sackett v. EPA, refining the meaning of “waters of the United States,” and thus limiting the applicability of the most recent rule. And on September 8 (88 FR 61964), the Corps and EPA amended their regulatory definition of “waters of the United States,” with the stated intent of conforming that definition to the Court’s ruling. (The January 2023 rule, it should be noted, once again led to litigation, as a result of which preliminary injunctions were issued, prior to the Sackett decision, that blocked the operation of that rule in twenty-seven States; and those States thus reverted, at that point, to the pre-2015 definition of “waters of the United States.” It could be argued that the new September 2023 rule, as an amendment to the January 2023 regulation, therefore may not directly apply to those twenty-seven States either — although the Sackett ruling itself would pertain in all States.)
The Council on Environmental Quality, on June 26, 2019 (84 FR 30097), under the Trump administration, published draft guidance on the consideration of greenhouse gas emissions in the environmental review process. On February 19, 2021 (86 FR 10252), however, under the Biden administration, that draft guidance was withdrawn. New interim guidance on how greenhouse gas emissions and climate change should be considered, during environmental analyses conducted by federal agencies, was published by CEQ on January 9, 2023 (88 FR 1196), effective immediately.
The Forest Service, on September 1, 2020 (85 FR 54311), published a proposed revision of its regulations on federal oil and gas resources on National Forest System lands. The proposed rule addresses the procedures followed by the Forest Service in making lands available for leasing, as well as the requirements for conducting operations on Forest Service lands.
On April 20, 2022 (87 FR 23453), CEQ published a final rule, effective May 20, rolling back a 2020 Trump administration revision of its regulations on federal agencies’ implementation of procedural requirements under NEPA. This rule largely restored the provisions that were in effect prior to 2020, regarding agencies’ conduct of environmental reviews in connection with actions that they are proposing to take. CEQ advised that the 2022 rule was intended to address the most significant NEPA process issues, with more comprehensive revisions being planned. And on July 31, 2023 (88 FR 49924), CEQ followed up with a proposed “Phase 2” revision of its regulations for implementing NEPA’s procedural requirements. The proposed rule, in addition to implementing the amendments to NEPA under the Fiscal Responsibility Act of 2023 (pertaining to scope, length, and timing of NEPA documents), would reinstate a number of regulatory provisions that had been in effect from 1978 to 2020, and would add a regulatory emphasis on climate change and environmental justice.
The Office of Hearings and Appeals, on January 30, 2023 (88 FR 5789), published an amendment of its regulations governing appeals (43 CFR Part 4). The new rule makes additional provisions for the electronic filing and service of documents; and it also provides for certain procedural information to be promulgated through OHA Standing Orders, rather than in the regulations themselves. The rule is effective on March 16, 2023, except as to any provisions that may be withdrawn due to adverse comments before then.
The Bureau of Land Management, on February 24, 2023 (88 FR 11818), issued a final rule making an annual adjustment for inflation to the amounts charged for civil monetary penalties for violations relating to lease operations (43 CFR Part 3160). A similar annual adjustment for inflation to the Office of Natural Resources Revenue’s charges for civil monetary penalties resulting from violations of statutes, regulations, orders, or lease terms relating to royalty payments (30 CFR Part 1241) was made by final rule issued on January 13, 2023 (88 FR 2520).
The Bureau of Land Management published a proposed rule, on April 3 (88 FR19583), in the name of BLM’s mandate to manage the public lands for multiple use and sustained yield, that would elevate conservation, in its own right, to a “use” that must be balanced against all other uses under the Federal Land Policy and Management Act’s multiple-use management requirement.
The Department of Agriculture, on June 3, 2020 (85 FR 34085), under the Trump administration, had adopted new regulations for the review and issuance of agency guidance documents, providing additional controls on guidance that Agriculture Department agencies (including the Forest Service) might issue. On May 4, 2023 (88 FR 28381), however, those regulations were removed.
By final rule published on June 16, 2023, (88 FR 39514), effective that same date, BLM codified Onshore Orders 1, 2, 6, and 7, governing onshore oil and gas operations, as Subparts 3171, 3172, 3176, and 3177 of 43 CFR.
On July 24 (88 FR 47562), BLM published a proposed comprehensive revision of its oil and gas leasing regulations. Many of the proposed changes, rather than promoting any legitimate public purpose, appear to be part of a calculated effort by the current administration to dismantle the federal oil and gas leasing program that has served this country so well for so long. For a detailed analysis, see this link: proposedblmleasingrule923
ONRR, on August 9, 2023 (88 FR 53790) (corrected August 16, 88 FR 55571), published a final rule, effective September 8, to allow ONRR (or an authorized State or Tribe) to specify that records which have been requested, during an audit of royalty payment and reporting, must be provided electronically.
The Bureau of Land Management published a final rule with its annual update of fees for activities relating to federal mineral resources (43 CFR 3000.12) on September 28, 2023 (88 FR 66695), effective October 1.
Under the Forest Service’s regulations on special uses of National Forest System lands, uses that would create an exclusive or perpetual right of use or occupancy are currently prohibited (36 CFR 251.54). On November 3 (88 FR 75530), however, the Forest Service published a proposed amendment of its rule that would provide an exemption for carbon capture and storage.
BLM, on November 21 (88 FR 81022), published a proposed revision of its regulations on temporary closure and restriction orders affecting BLM lands (43 CFR 8364.1). The proposed rule would, among other changes, eliminate the requirement for such orders to be published in the Federal Register.
On April 10, 2024 (89 FR 25378), BLM published a final rule governing the waste of natural gas due to venting, flaring, and leaks during production. This new regulation, effective June 10, replaces Notice to Lessees 4A (“Royalty or Compensation for Oil and Gas Lost”), the BLM authority that has governed venting and flaring until now. Among the provisions included in this regulation are requirements for operators to submit a waste minimization plan as part of an application for permit to drill; to take reasonable measures, as specified by BLM, to prevent waste; and to maintain a lease detection and repair program. The regulation also addresses when oil or gas is considered to be “unavoidably lost” and hence not subject to royalties.
* * *
A number of regulatory actions affecting the oil and gas industry are now under consideration by agencies in the Interior Department and elsewhere.
The Forest Service, on April 19, 2018 (83 FR 17359), announced the initiation of a planning process that will lead to the issuance of a revised Forest Plan for the Wayne National Forest in Ohio.
The Fish and Wildlife Service, on June 1, 2022 (87 FR 33200), published a request for comment on proposed revisions to its collection of information on operations for non-federal oil and gas on National Wildlife Refuge lands. The notice observes that, in addition to the Fish and Wildlife Service, other land management agencies such as BLM, the Forest Service, and the National Park Service also have regulations concerning the development of non-federal oil and gas. (In all such cases, it should be noted, the agencies’ power to regulate the exercise of the non-federal rights is limited, and their regulatory efforts occasionally have resulted in litigation.) The Fish and Wildlife Service’s current proposal is to adopt an electronic permit form, and to include additional details on the form.
The Office of Management and Budget, on August 2, 2023 (88 FR 50912), published a notice of availability of proposed guidance on the assessment of changes in “environmental and ecosystem services” (described as “all relevant contributions to human welfare from the environment or ecosystems”) that should be used by agencies as part of their benefit-cost analysis when drafting regulations.
The Interior Department, on August 4 (88 FR 51853), announced that, pursuant to a program established by Congress in 1990, a prospectus is being prepared for a National Nature Assessment that would assess changes in nature as an aspect of global change.
The Fish and Wildlife Service published a notice, on September 15 (88 FR 63547), of proposed updated planning policies that would incorporate landscape conservation plans, and consideration of climate change, into the management of the National Wildlife Refuge System.
* * *
The Bureau of Land Management has completed a transition of its online land and mineral reports from the LR2000 system to a new Mineral & Land Records System, at https://reports.blm.gov/reports/mlrs. In connection with the move, MLRS has created new serial number designations for all cases — a dual numbering system for all existing leases — with the assurance that existing lease numbers (“legacy serial numbers”) will continue to apply as well.
* * *
The Interior Department’s Office of the Secretary announced on February 28, 2020 (85 FR 12009), that, in compliance with Executive Order 13891 which required agency guidance documents to be made readily available to the public, a website was established to contain all of the Department’s guidance documents that are currently in effect. Among the documents that can be found on the website — www.doi.gov/elips/browse — are the Departmental Manual, Secretarial Orders, and links to BLM manuals, BLM handbooks, BLM instruction memoranda and information bulletins, and Solicitor’s Opinions.