Last week, Judge Scott Skavdahl vacated BLM’s 2016 methane Waste Prevention Rule. The Judge spends 10 pages documenting the “loopty-loops” of the litigation surrounding the 2016 Rule and the Trump administration’s efforts to rescind the rule. Here, I’m with him. It’s difficult to review the tangled process of judicial review of this rule without being embarrassed for our judicial system.
Judge Skavdahl then spent 47 pages on the merits. Here, however, if I may continue Judge Skavdahl’s metaphor, I think that he went seriously off the rails – a dangerous outcome on a roller coaster. I’ll largely stand by my analysis of this issue in reviewing Judge Yvonne Gonzalez Rogers’s decision vacating the Trump rule rescinding the Waste Prevention Rule. As I said then, “venting or flaring gas into the air, damaging the air without creating any benefits, has to fit within the definition of waste.”
Put simply, Judge Skavdahl’s error is in confusing the definition of what is waste with how the costs associated with that waste are measured. Just because Congress was not aware of the cost of methane emissions when it wrote the Mineral Leasing Act doesn’t mean that BLM had to ignore the costs of such emissions in 2016 when it assessed the propriety of regulating activity that is clearly “waste”, i.e., the avoidable flaring or venting of methane.
This error brings me back to my speculation in July regarding whether Justice Gorsuch might side with Judge Rogers, because the plain meaning of “waste” so clearly includes avoidable venting and flaring. In light of her stated judicial philosophy, I’ll now add likely Justice Barrett to my speculation regarding the ultimate fate of BLM methane regulation.