Energy & Resources Notes – Spring 2016

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  • The FAST Act Seeks to Expedite Multi-Agency NEPA Compliance for Large Infrastructure Projects
    A new law offers the prospect of faster Federal approvals and limitations on judicial challenges for certain large infrastructure projects that must comply with the National Environmental Policy Act (“NEPA”). In December 2015, Congress enacted and President Obama signed into law the Fixing America’s Surface Transportation (“FAST”) Act. This article summarizes the key provisions of the FAST Act and implications for targeted industries, including renewable and conventional energy, electric transmission, pipelines, transportation, broadband, and manufacturing. Continue Reading.
  • Endangered Species Act Issues Relevant to Public Lands
    On March 1, 2016, the United States Court of Appeals for the District of Columbia Circuit upheld the United States Fish and Wildlife Service’s (“Service”) decision to not list the dunes sagebrush lizard. The D.C. Circuit validated the Service’s decision to rely on a Texas conservation plan, concluding that evaluating the adequacy of the plan implicated the Service’s judgment and expertise and was entitled to deference. In so doing, the court rejected the appellants’ argument that the Texas plan could not be relied upon because it was not sufficiently certain to be implemented or effective. Continue Reading.
  • New Rules and Draft Policy on Critical Habitat Designations
    On February 5, 2016, The U.S. Fish and Wildlife Service (“FWS”) and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (“NOAA”) finalized two rules and a draft policy that renovate how the agencies implement critical habitat designation requirements under the Endangered Species Act, 16 U.S.C. § 1531 et seq (“ESA”). The rules address implementing Section 4—which establishes critical habitat requirements—and Section 7—which requires federal agencies to consult with the FWS and NOAA before carrying out an action that could adversely affect an endangered species—of the ESA.  Continue Reading.
  • CERCLA Claims against United States and Laguna Pueblo Entities Dismissed
    In a series of early 2016 decisions issued in Atlantic Richfield Co. v. U.S., et. al., Case No. 1:15-cv-00056, the U.S. District Court for the District of New Mexico dismissed claims for cost recovery and contribution asserted by Atlantic Richfield Co. (“ARCO”) against the United States, the Laguna Pueblo (“the Pueblo”), and Laguna Construction Company (“LCC”), a federally-chartered tribal corporation formed by the Pueblo. The claims resulting in the decisions arose from Environmental Protection Agency (“EPA”) investigations into inadequate remediation efforts undertaken decades ago at the Jackpile Paguate uranium mine in the Grants Uranium Belt in west-central New Mexico. Continue Reading.
  • New Mexico Mining Commission Narrowly Expands Minimal Impact Permitting Opportunities for Certain Mining Operations 
    On April 20, 2016, the New Mexico Mining Commission (“NMMC”) conducted a hearing to consider a rule change to the New Mexico Mining Act Reclamation Program (“MARP”) regulations. The New Mexico Mining Association (“NMMA”) proposed the rule change to expand eligibility for permitting under the “Part 3” minimal impact mining operations regulations set forth in 19.10.3 NMAC. The NMMC orally approved the rule expansion at the hearing and subsequently confirmed it by a Final Order issued April 28, 2016. Continue Reading.
  • Update on Challenge to U.S. EPA’s Waters of the United States Rule
    As we previously reported in our Fall 2015 ERN, several industry and environmental groups have challenged the Environmental Protection Agency’s Final Waters of the United States Rule. On February 22, 2016, the Sixth Circuit Court of Appeals decided a threshold issue in the various challenges, namely which court has jurisdiction over such a challenge, the circuit court of appeals or the federal district court. In a 2-1 decision, two judges held that the challenge must be brought in a circuit court of appeals, although on different grounds, while the third judge concluded that the challenge must be brought in district court. Continue Reading.
  • BLM’s Venting and Flaring Proposal 
    On February 8, 2016, the Bureau of Land Management (“BLM”) published its proposed rule concerning Waste Prevention, Production Subject to Royalties, and Resource Conservation in the Federal Register (the “Proposed Rule” or “proposal”). See 81 Fed. Reg. 25, at 6616-6686, available here. While the Proposed Rule is more commonly referred to as the BLM’s “Venting and Flaring Rule,” the proposal contains several other requirements will likely have significant impacts on operations on federal and Indian onshore oil and gas leases. Continue Reading.