Regulation Database – Bureau of Land Management
Waste Mine Methane Capture, Use, Sale, or Destruction (Coal and Other Minerals)
On April 29, 2014 the Bureau of Land Management published an advance notice of proposed rulemaking to establish a program which would “capture, use, or destroy waste mine methane that is released into the mine environment and the atmosphere as a direct consequence of underground mining operations.” In addition to improving the safety and health of miners, this proposed rule would reduce mine methane leakage into the atmosphere, reducing greenhouse gas emissions. This rule would therefore promote the Climate Action Plan’s Strategy to Reduce Methane Emissions (March 2014) as well as Secretarial Order 3289, Amendment No. 1 (“Addressing the Impacts of Climate Change on America’s Water, Land, and other Natural and Cultural Resources,” dated February 22, 2010).
The primary goal of the advance notice was to request comments and suggestions that might assist the agency in the establishment of a program to capture, use, or destroy waste mine methane that is released into the mine environment and the atmosphere as a direct consequence of underground mining operations on Federal leases for coal and other minerals.
BLM has not yet issued a final rule for this program (see docket, RIN-1004-AE23).
Methane Waste Prevention Rule
In November 2016, BLM published a final rule to reduce waste of natural gas (methane) from oil and natural gas production activities on federal and tribal land. The rule includes new requirements for flaring, capture, leak detection, and venting. According to BLM, the rule could eliminate 175,000-180,000 tons of methane emissions annually (equivalent to 4.4-4.5 million metric tons of carbon dioxide).
- Final Rule (Nov. 18, 2016)
- Proposed Rule (Feb. 8, 2016)
Deregulatory Action: On February 3, 2017, the House passed a resolution to (H.J. Res. 36) to repeal the Bureau of Land Management (BLM)’s methane waste prevention rule using the Congressional Review Act (CRA). However, on May 10, 2017, the Senate voted against the resolution (S.J. Res 11).
On March 28, 2017, President Trump issued an executive order directing BLM to review the methane waste rule and to rescind or rewrite the rule as needed to promote the President’s goals of energy independence and economic growth. On March 29, 2017, the Department of Interior issued Secretarial Order 3349, which directs BLM to review the the methane waste prevention rule and report on whether the rule is fully consistent with the executive order’s policy of promoting domestic energy production.
On June 15, 2017, BLM issued a federal register notice announcing that it was postponing the compliance dates for certain provisions of the Methane Waste Prevention Rule (finalized on November 10, 2016), which aims to reduce waste of natural gas (methane) from oil and natural gas production activities on federal and tribal land. BLM said that it was delaying the compliance dates pending the outcome of litigation over the rule. On October 5, 2017, BLM issued a follow-up proposal to postpone key requirements of the rule until January 17, 2019.
On November 1, 2017, BLM sent a proposal for “revision or rescission” of the Methane Waste Prevention Rule to the White House Office of Information and Regulatory Affairs.
On December 8, 2017, BLM issued a final rule postponing several key requirements of the Methane Waste Prevention Rule.
On February 22, 2018, BLM published its proposed revisions to the Methane Waste Prevention Rule. BLM proposed to rescind several provisions of the 2016 rules, including those governing leak detection and repair. Other provisions, including those dealing with venting and flaring, would be substantially revised. On September 28, 2018, BLM finalized the changes to the Methane Waste Prevention Rule. Read more on our blog>>>
Litigation: On July 5, 2017, the States of California and New Mexico filed suit in the U.S. District Court for the Northern District of California, challenging BLM’s decision to postpone certain compliance dates of the Methane Waste Prevention Rule. A second suit challenging BLM’s decision was filed by 17 environmental groups (led by the Sierra Club) on July 10, 2017.
On October 4, 2017, the U.S. District Court for the Northern District of California issued a decision holding that BLM had violated the APA by postponing the compliance dates after the rule’s effective date had already passed. The court vacated the postponement notice, thereby reinstating the original deadlines for compliance with the rule.
On December 19, 2017, the States of California and New Mexico sued the administration, challenging issuance of the December 2017 rule postponing implementation of the Methane Waste Prevention Rule. A second suit challenging the rule was filed by 17 conservation and tribal citizens groups.
On February 22, 2018, the U.S. District Court for the Northern District of California granted a preliminary injunction enjoining BLM from enforcing the December 2017 rule. The court held that the plaintiff’s “are likely to prevail on the merits,” indicating that BLM’s reasons for adopting the December 2017 rule are “untethered to evidence contradicting the reasons for implementing the Waste Prevention Rule,” and BLM appears to be “casually ignoring all of its previous findings and arbitrarily changing course.” The court further found that, without a preliminary injunction, the plaintiffs would suffer “irreparable injury caused by the waste of publicly owned natural gas, increased air pollution and associated health impacts, and exacerbated climate impacts.” On March 28, 2019, the parties jointly agreed to dismiss the case because the December 2017 suspension order was no longer in effect.
Litigation: On July 15, 2020, the U.S. District Court for the Northern District of California vacated the 2018 rescission of the Methane Waste Prevention Rule. The Court concluded that BLM "was required to provide its reasoned explanation for its abrupt reversal as to the findings in the Waste Prevention Rule and to comply with its obligations under NEPA by considering the impacts of its rulemaking on the environment both thoroughly and thoughtfully. Instead, in its zeal, BLM simply engineered a process to ensure a preordained conclusion." On September 14, 2020, BLM appealed the decision to the Ninth Circuit.
Litigation: On October 8, 2020, the U.S. District Court for the District of Wyoming vacated the Obama Administration's Methane Waste Prevention Rule. The Court concluded that the rule unlawfully sought to control air pollution rather than waste, and that BLM therefore intruded on the purview of the EPA and states under the Clean Air Act.
Programmatic Environmental Review of Coal Leasing Program
Consistent with the Department of Interior Secretarial Order no. 3338, BLM has commenced a programmatic review of the federal coal leasing program to evaluate the environmental and social effects of the program and determine whether the program should be modernized. BLM has published a scoping document in which it has stated that it will evaluate the life-cycle emissions from coal production, transportation and use in determining the effect of the program on climate change. BLM has also stated that it plans to evaluate whether it makes sense to account for climate-related impacts when establishing lease royalties or fees.
- Coal Program PEIS Scoping Report (Jan. 2017)
- Notice of Intent to Prepare PEIS (Mar. 30, 2016)
Deregulatory Action: on March 29, 2017, Interior Secretary Zinke issued Secretarial Order no. 3348, which rescinded Secretarial Order no. 3338 and permitted coal leasing to resume on federal land. On May 22, 2019, BLM issued a draft environmental assessment for its decision to lift the moratorium on federal coal leasing, which concluded that the action would have no significant effect on greenhouse gas emissions or other environmental impacts other than to change the timing of the emissions and impacts.
Renewable Energy Development
Segregation of Land for Renewable Energy Right-of-Way
On April 26, 2011 the Bureau of Land Management published a proposal to allow the BLM to segregate public lands intended for a current or future wind or solar energy right-of-way (ROW) application, promoting renewable energy production in accordance with the Energy Policy Act of 2005 and executive order 13212. This rule would add to 43 CFR parts 2090 and 2800, and prevent land from appropriation under the public land laws for up to two years with the possibility to extend for an additional two years. The amendment would give priority to renewable energy development by eliminating competing claims and applications for other uses of the public land (i.e. mining). On the same day, the Bureau of Land Management issued an interim temporary final rule enforcing the proposed amendment for a period of up to two years, effective immediately.
The Bureau of Land Management replaced the interim temporary rule “Segregation of Lands—Renewable Energy” with a final rule, effective May 30, 2013, with no substantive differences in content from the proposed and temporary rule.
Solar and Wind Energy Leasing Program
On September 30, 2014, the Bureau of Land Management proposed a rule to amend current solar and wind energy regulations by creating designated leasing areas defined as “a parcel of land with specific boundaries identified by the BLM land-use planning process as being a preferred location, conducted through a landscape-scale approach, for solar or wind energy where a competitive process must be undertaken.” On December 19, 2016, BLM published the final rule. The rule aims to promote renewable energy development rights-of-way consistent with the Energy Policy Act’s provision to approve non-hydropower renewable energy projects on public lands with a total combined generation capacity of 10,000 MW of electricity by 2015 (Section 211, Public Law 109-58, 119 Stat. 660 (2005)). The Bureau of Land Management (BLM) finalized the rule in 2016.
BLM also prepared environmental impact statements (EISs) for solar and wind energy development on public lands in conjunction with the new solar and wind program. These include:
(1) Programmatic EIS for Solar Energy Development in the Southwest (July 2012)
- Executive Summary
- Volume 1: Chapters 1-7 and 14-16
- Volume 2: Chapters 8 and 9, Arizona and California Solar Energy Zones
- Volume 3: Chapter 10, Colorado Solar Energy Zones
- Volume 4: Chapter 11, Nevada Solar Energy Zones
- Volume 5: Chapters 12 and 13, New Mexico and Utah Solar Energy Zones
- Volume 6: Appendices (Appendices A-I / Appendices J-O)
- Volume 7: Comments and Responses
- Overview of Solar Energy Program
(2) Wind Energy Final Programmatic EIS (June 2005)
Land Use Planning
Landscape Approach to Climate Change Adaptation
BLM has announced that it plans to implement a “landscape approach” to climate change adaptation, consistent with Department of Interior Secretarial Orders 3289 and 3285. This approach involves five core elements: (1) the preparation of Rapid Ecoregional Assessments (REAs)—reports that examine ecological values, conditions, and trends (including climate change-related trends) within large connected areas with similar environmental characteristics; (2) the incorporation of REA findings into landscape-level management strategies, referred to as Ecoregional Direction; (3) field implementation of the Ecoregional Direction, (4) monitoring for adaptive management; and (5) coordinating with DOI’s Climate Science Centers throughout this process.
BLM is currently implementing the first step of the Landscape Approach, conducting REAs for fifteen regions in the western United States and Alaska. As of April 2016, BLM had completed ten of the fifteen REAs. The REA reports that have been released thus far contain a detailed analysis of projected trends related to climate change, including changes in temperature, precipitation, and sea level rise (where applicable), and the corresponding impacts on landscapes, wildlife, and other natural resources. The REAs thus serve a function that is quite similar to the regional vulnerability assessments prepared by other agencies.
Planning 2.0 Rule
The Planning 2.0 rule aims to improve BLM’s land use planning and environmental review processes by providing BLM with the tools needed to respond to changing conditions in a timely manner. Several key components of the rule are that it would: (i) give BLM flexibility to plan across traditional administrative boundaries and implement landscape-level management approaches, and (ii) introduce new guidelines aimed at ensuring that BLM officials incorporate the most current data and technology into their plans and reviews, and (iii) provide more opportunities for input from state and local governments and the public during the planning process. BLM states that the rule will enable it to more readily address resource issues at a variety of scales, such as wildfire, wildlife habitat, appropriate development, or the demand for renewable and non-renewable energy sources, and to respond more effectively to change (including climate change).
In a related effort, the BLM is revising its land use planning handbook that provides detailed guidance on implementing the planning processes. The agency anticipates releasing a draft of the handbook for review in 2017.
- Final Rule (Dec. 12, 2016)
Deregulatory Action: On Feb. 7, 2017, the House passed a resolution (H.J.Res.44) to overturn the Bureau of Land Management (BLM)’s Planning 2.0 rule using the Congressional Review Act (CRA). The Senate passed the same resolution on March 7, 2017. President Trump signed the resolution on March 27, 2017.