On October 4, the district court for the Northern District of California in State of California and Sierra Club, et al v. BLM, et al. held that BLM could not postpone its enforcement of various provisions of the Obama-era Methane Rule, which had gone into effect on January 17, 2017, after a district court in Wyoming had refused to enjoin the Rule. State of Wyoming, et al. v. United States Dept. of the Interior. The Methane Rule requires steps to limit methane emissions from oil and gas operations on public land.
The district court held that BLM could not rely on authority in Section 705 of the Administrative Procedure Act to postpone the effective date of a Rule where the Rule had already gone into effect, even if some of its compliance dates in the Rule did not occur until January 2018. The court went on to hold that a repeal of the Rule would require following the same notice and comment procedures as promulgation, and that this could not be circumvented by a notice suspending or delaying enforcement, rather than a repeal. Finally, the court held that the rationale offered by BLM for the delay – the needs of justice – could not be supported by simply considering one half of a cost/benefit analysis, i.e., the costs of implementation.
What It Means. It may have been underway in court for six months in two district courts, but the fight over the Methane Rule is just beginning. On October 4, 2017, BLM published a proposed rule suspending some provisions of the Methane Rule currently in effect, and postponing others until January 18, 2019, a broader action than the postponement just blocked by the Northern District court. The comment process may take some time – when BLM put the proposed rule out for comment in 2016, it generated over 300,000 comments from both sides.
The history of this effort by the Trump Administration to sidetrack the Obama Methane Rule illustrates the fact that it is becoming increasingly aggressive in its efforts to walk back the regulatory efforts of the prior administration. Likewise, opponents are becoming more aggressive in their responses, developing new strategies to match the approach taken by the Administration. It is almost certain that once the comment period is completed, the proposed rule will be challenged by the same groups that succeeded in blocking EPA in State of California v. BLM, through litigation in either the Northern District of California or the Wyoming district court. Where this ends is uncertain. Further litigation is not.