American Oil and Gas Reporter - June 2016 - 16

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plaintiffs' claims "are more about public
messaging then an honest review of oil
and gas regulation."
The lawsuit was filed by the
Environmental Integrity Project (EIP),
Natural Resources Defense Council,
Earthworks, Responsible Drilling
Alliance, San Juan Citizens Alliance,
West Virginia Surface Owners' Rights
Organization, and the Center for Health,
Environment and Justice.
A statement from EIP says the
groups are pushing EPA to halt the
disposal of "fracturing wastewater" in
underground injection wells, ban
spreading of wastewater on roads or
fields, and to require landfills and ponds
that receive drilling and fracturing waste
"be built with adequate liners and
structural integrity."
Russell says the activists' lawsuit
accuses EPA of failing a statutory
requirement to review its RCRA
Subtitle D regulations every three years,
contending the agency has not changed
them since its 1988 regulatory
determination that RCRA Subtitle C
(hazardous waste) was inappropriate for
oil and gas production wastes.
"The activists completely ignore that
there are dynamic regulations governing
oil and gas waste, all of which are
reviewed regularly by both states and
EPA," Russell responds, explaining that
primary responsibility for solid waste
management lies with the states.
Moreover, he points to EPA's 2014
Review of State Oil & Natural Gas
Exploration, Development and
Production (E&P) Sold Waste
Management Regulations report as
evidence of active federal oversight.
"EPA also conducts various annual
reviews of its regulations," Russell
continues. "Every year, EPA publishes a
regulatory agenda for the coming year
and beyond. The agency holds various
workshops in states to examine aspects
of RCRA as well. EPA also reviews its
programs and submits a budget to the
Office of Management and Budget and
Congress annually.
"These activists groups are denying
the existence of a robust regulatory
framework governing waste, which
involves the cooperation of local, state
and federal regulators," Russell
concludes. "Their ultimate goals are to
find new pathways to file civil litigation
at oil and gas producers, and to shut
down the industry altogether." ❒
16 THE AMERICAN OIL & GAS REPORTER

Full D.C. Circuit Court
To Review Challenge To
EPA's Clean Power Plan
WASHINGTON-In what legal
experts call a surprise decision, the full
U.S. Court of Appeals for the District of
Columbia Circuit will hear states'
challenges to the Environmental
Protection Agency's Clean Power Plan,
formally known as the "Carbon
Pollution Emission Guidelines for
Existing Stationary Sources: Electric
Utility Generating Units."
The case, West Virginia v.
Environmental Protection Agency, in
which are consolidated several lawsuits
challenging the regulations, had been
assigned to a three-judge panel with
oral arguments set for June (AOGR,
February 2016, pg. 19). After the court's
announcement, the case will be argued
before the appeals court starting Sept.
27.
According to a legal analysis by the
Energy & Environment Legal Institute,
ordinarily a review of a federal agency
rule would be heard first by a threejudge circuit court panel. The losing
party would have the right to appeal,
asking the full circuit court to hear the
case. The institute says it is extremely
rare for a case to go straight to the full
circuit.
"The rarity of such an action by the
D.C. Circuit, combined with the timing,
coming only a few weeks before oral
arguments were set to take place,
suggests the circuit has decided this was
no ordinary case, despite repeated
protestations by EPA that this rule is a
'garden-variety administrative law case'
that can be dealt with under ordinary
administrative law precedents," the
institute states.
On June 18, 2014, EPA published a
proposed rule that would require states
to regulate carbon dioxide emissions
from fossil fuel-fired power plants. The
final rule was issued Aug. 3, 2015.
According to West Virginia's legal
filing, the Clean Power Plan seeks to
shut coal-fired power plants and stop
new ones from being built. It asserts
EPA's actions will upset the balance
between ensuring reliable and
affordable electricity while encouraging
job growth and responsible protection
of the environment.
A Crowell & Moring analysis points
out the circuit court's willingness to rule

on the Clean Power Plan may be an
anticipation of the U.S. Supreme Court
remaining deadlocked with eight
justices through 2017. With no guidance
likely emerging from the higher court,
the circuit court decision likely will be
the effective final decision, the analysis
predicts.
The Supreme Court voted to stay the
Clean Power Plan pending completion
of all judicial review (AOGR, March
2016, pg. 107). Crowell & Moring say
this was another possible reason for the
circuit court decision. "That stay
signaled the Supreme Court's clear
interest in the issues and its own sense
that the case is unique and one of vital
importance," the analysis says. ❒

U.S. Government Drops
Appeal On LPC Status
AUSTIN, TX.-The federal
government has at least temporarily
dropped its attempts to designate the
lesser prairie chicken as threatened
under the Endangered Species Act,
according to a couple Texas
associations.
The Texas Independent Producers &
Royalty Owners Association and the
Texas Alliance of Energy Producers say
the U.S. Department of Justice filed a
motion on May 10 to dismiss its appeal
of rulings on the LPC's status issued by
the U.S. District Court for the Western
District of Texas.
Last September, Western Texas
District Judge Robert Junell found the
U.S. Fish & Wildlife Service failed to
fully evaluate the effectiveness of the
rangewide conservation plan developed
by Texas, New Mexico, Oklahoma,
Kansas and Colorado before it listed the
LPC as threatened in March 2014
(AOGR, October 2015, pg. 20).
Then in February, the court denied a
request by USFWS and the Department
of Interior to reconsider its September
ruling (AOGR, April 2016, pg. 18).
TIPRO says USFWS has indicated it
will continue to assess "the status of the
species, based on the court's ruling and
the best available scientific data."
According to TIPRO, the Western
Association of Fish and Wildlife
Agencies' annual report, released March
31, estimates the LPC population has
increased 25 percent, to more than
29,000 chickens.
The Texas Alliance adds that in
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