A Biden administration effort to reduce methane emissions on federal lands hinges on a single sentence in the 1920 Mining Leasing Act that may give the administration little leverage in the courts.
The administration is now taking comments on a proposed rule that would limit the amount of methane that drilling companies can leak, vent or burn from oil and gas fields on federal lands. They would be subject to fines for exceeding the limits.
But similar rules have been thwarted by litigation in the past, according to a Congressional Research Service analyst. And the thin language of the Mineral Leasing Act (MLA) poses challenges for the rule once it takes effect.
“BLM is enacting venting and flaring regulations consistent with language in the MLA that requires tenants to”take all reasonable precautions to avoid waste of oil or gas developed in the Territorywrites Adam Vann, a legislative attorney with the Congressional Research Service. “This language is the only explicit legislative guidance offered to BLM regarding venting and flaring on federal lands.”
Courts have looked at this language before, Vann said, and interpreted it in different ways. Biden’s effort could therefore benefit from further guidance from Congress.
“Congress can provide more detail about the meaning of wasting oil or gas and the practice of venting and flaring federal lands if it wishes, and it has attempted to do so in the past.”
These attempts were unsuccessful. In 2015, California Rep. Alan Lowenthal introduced the Natural Gas Environmental and Economic Security Act, which would have reduced and eliminated the waste of natural gas on federal lands. He visited two committees before he perished. In 2019, Sen. Edward Markey (D-Mass.) introduced his FLARE Act to do the same. He perished in his first committee.
Congress may not see the need to guide the Bureau of Land Management’s interpretation of “taking every reasonable precaution to prevent the waste of oil or gas,” but Vann suggests that new legislation could clarify the language for courts that might consider challenging it in the future. .
“Congress could also choose to revise or clarify the authority of the BLM in several other ways,” he writes, “including by explicitly authorizing the agency to regulate emissions from drilling operators on federal lands.”
The proposed rule would require drillers to develop waste minimization plans and leak detection and repair programs, in an effort to stem the leak of methane, a potent greenhouse gas. It would cap both the duration and volume of oil well flaring before the government begins collecting royalties on wasted fuel. It would maintain a ban on gas flaring from gas wells unless unavoidable, and it would require drillers to install technology upgrades designed to reduce or prevent venting, flaring and leakage.
“Flaring is the process of burning excess natural gas in a well. Ventilation is the direct release of natural gas into the atmosphere,” according to the Home Office announcement. “Although some amount of venting and flaring is expected during oil and gas exploration and production operations, venting and flaring can be minimized when operators take reasonable precautions to avoid wastage.”
The rule would generate about $39.8 million in additional royalty revenue for the government.
“Nobody likes to waste the natural resources of our public lands,” said BLM Director Tracy Stone-Manning. “This proposed rule is a common-sense and environmentally friendly solution as we address the damage caused by wasted natural gas.”