American Oil and Gas Reporter - February 2016 - 14

IndustryDigest
House Bill Would Stop
Sue-And-Settle Tactics
WASHINGTON-The U.S. House of
Representatives in January passed
legislation to stop so-called sue-andsettle agreements between government
agencies and nongovernmental
organizations, but a congressional
attempt to block the Environmental
Protection Agency's new definition of
"waters of the United States" (WOTUS)
subject to the Clean Water Act stalled
when the Senate could not override a
presidential veto.
HR 712, the Sunshine for
Regulations and Regulatory Decrees
and Settlements Act, which was
sponsored by Representative Doug
Collins, R-Ga., passed the House 244173 on Jan. 11, according to a report
from the California Independent
Petroleum Association.
According to a Congressional
Research Service summary, HR 712
requires any federal agency against
which a covered civil action is brought
to publish the notice of the intent to sue
and the complaint with 15 days of
being served the notice. The bill allows
parties affected by agency actions to
intervene in the civil action, and
requires an agency seeking to enter a
consent decree or settlement to publish
it in the Federal Register and online at
least 60 days before filing it with the
court.
HR 712 also provides for public
comment and hearings on any consent
decree or settlement, and requires
federal agencies to submit annual
reports to Congress on any such consent
decrees or settlements as well as
attorney fees and costs arising from
them, the CSR summary indicates.
The bill has been assigned to the
Senate Judiciary Committee. CIPA
reports the White House has said it will
veto it, should the bill reach the
president's desk.
Such was the fate of SJR 22, a
Congressional Review Act resolution
sponsored by Senator Joni Ernst, R-Ia.,
to halt the WOTUS rule released in
August by EPA and the Army Corps of
Engineers. SJR 22 passed the Senate in
November and the House on Jan. 12 as
part of HR 583, but was vetoed by
President Obama on Jan. 20. According
to published reports, Senate Majority
Leader Mitch McConnell, R-Ky.,
14 THE AMERICAN OIL & GAS REPORTER

scheduled an override vote the next day,
but a preliminary vote to invoke cloture
failed 52-40. ❒

Budget Act Authorizes
Higher OSHA Penalties
WASHINGTON-Violations of the
Occupational Safety and Health Act
may soon face stiffer penalties, thanks
to an obscure provision within the
Bipartisan Budget Act of 2015, passed
last year, according to Baker &
Hostetler LLP.
Baker & Hostetler reports the budget
agreement passed by Congress and
signed by President Obama calls for
"catching up" OSHA penalties to
reflect inflation since they were last
adjusted in 1990. "The amount of this
catch-up will be the difference between
the Consumer Price Index (CPI) in
2015 and 1990," Baker & Hostetler
says, estimating it could be as much as
82 percent.
In that event, the firm calculates,
"The maximum fine for a repeat or
willful violation would grow to as much
as $125,000. The maximum for a
serious violation would be increased
from $7,000 per violation to $12,500."
After the one-time catch-up, Baker
& Hostetler continues, the budget act
authorizes annual increases in OSHA
fines pegged to the CPI.
The firm adds that state-enforced
safety plans will be required to adjust
their penalties to levels at least equal to
those imposed by OSHA.
"OSHA is allowed to forego the
guidelines if 'increasing the civil
monetary penalty by the otherwise
required amount will have a negative
economic impact (on the country)' or
'the social costs of increasing the civil
monetary penalty . . . outweigh the
benefits," Baker & Hostetler notes.
OSHA is required to announce the
initial increased penalty amounts by
July 1, to become effective by Aug. 1,
Baker & Hostetler says. Thereafter,
OSHA is required to adjust the penalties
by Jan. 15 each year.
Baker & Hostetler says that in
requesting the authority to increase
OSHA's penalties, Assistant Secretary
of Labor for Occupational Safety and
Health David Michaels told a House
subcommittee that "the most serious
obstacle to effective OSHA
enforcement . . . is the very low level of

civil penalties allowed under our law, as
well as weak criminal sanctions." ❒

USFWS Rule Allows
Incidental NLEB 'Takes'
From O&G Activities
WASHINGTON-In its final
conservation rule for the northern longeared bat (NLEB), the U.S. Fish &
Wildlife Service exempts oil and gas
activities from incidental take
prohibitions in the same manner as
forest management activities, the
Independent Petroleum Association of
America reports.
"We welcome USFWS's approach to
this final conservation plan," responds
IPAA Senior Vice President of
Government Relations and Political
Affairs Dan Naatz.
IPAA explains that when USFWS
listed the NLEB as threatened under the
Endangered Species Act in April 2015,
an accompanying interim 4(d) rule
allowed incidental take of bats from the
following activities:
* Forest management practices;
* Maintenance and limited expansion of transportation and utility rights
of way;
* Prairie habitat management; and
* Limited tree removal projects
(such as firewood cutting, drainage
projects and landscaping), provided
these activities protected known roosts
and species habitat.
In comments it filed on the proposed
rule in conjunction with the American
Petroleum Institute, IPAA pointed out
that "oil and gas development activities
have 150 times less impact on NLEB
habitat than forest management
activities" (AOGR, August 2015, pg.
22).
Within the "summary of comments
and recommendations" section of the
final rule, which was published in the
Jan. 14 Federal Register, USFWS
acknowledges comments asking that the
oil and gas industry "be included within
exemptions from take prohibitions," to
which USFWS replies, "Take of
northern long-eared bats attributable to
habitat conversion and habitat loss is
not prohibited under the final 4(d) rule,
provided that developers and project
proponents follow conservation
measures described herein when
activities occur within the White Nose
American Oil and Gas Reporter - February 2016

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