Trump’s SCOTUS Nominee is a Chevron Skeptic

On January 31, President Trump introduced Judge Neil Gorsuch as his nominee for the Supreme Court vacancy left by Justice Antonin Scalia.  Gorsuch, who currently sits on the U.S. Court of Appeals for the Tenth Circuit, has been widely-praised for his lucid, well-reasoned opinions on a wide range of federal law questions.  Like Scalia, his opinions reveal a textual orientation in matters of constitutional and statutory interpretation, a belief that criminal laws should be clear and interpreted in favor of defendants even at the expense of government prosecutions, and a skeptical stance toward administrative agencies.

Unlike Scalia, however, Gorsuch has criticized the so-called Chevron doctrine – the rule that courts must defer to permissible agency interpretations of ambiguous statutory language – which Scalia generally defended.  Indeed, Gorsuch’s view of Chevron is more conservative than Scalia’s.  In the words of Eric Citron at ScotusBlog:

[Gorsuch] believes even . . . broadly worded enforcement statutes have objective meanings that can be understood from their texts; that it is the job of the courts to say what those laws mean and to tell agencies when they do not have the best reading; and that if the agency disagrees, the only proper recourse is for Congress to change the law or the Supreme Court to correct the error.

Scalia, on the other hand, wanted to limit courts to the role of reviewing agency implementations of these kinds of statutes for clear error in order to prevent “ossification,” recognizing that the understanding of these kinds of laws might need to change from time to time to accommodate changing priorities among presidents and changing conditions on the ground. Continue Reading

Chevron Deference and the Proposed “Separation of Powers Restoration Act of 2017”

During its first month in session, Congress has proposed several pieces of legislation designed to reverse the dramatic shift in power over the last 50 years from Congress to the Executive.  The Regulatory Accountability Act of 2017 is one remarkable example.  It was introduced as a free-standing bill in 2016, but the Senate did not act upon it, perhaps because then-President Obama would almost surely have vetoed it.  But now the House of Representatives has re-introduced this legislation (on January 3, 2017) as H.R. 5.  If enacted, the law would have a profound effect on the agendas of administrative agencies, such as the Environmental Protection Agency, the Department of Energy, and the Department of Labor. 

 Title II of Regulatory Accountability Act, styled the “Separation of Powers Restoration Act,” would overturn two landmark Supreme Court decisions—Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984) and Auer v. Robbins, 519 U.S. 452 (1997)—by amending Section 706 of the Administrative Procedures Act.  The key provision states that any court reviewing an administrative action shall “decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies.”  “De novo” review means that the reviewing court gives no deference to the legal opinions of either the parties or lower court judges and administrators.  In Chevron, the Supreme Court held that reviewing courts should defer to an agency’s interpretation of an ambiguous statute.  Auer, written by the late Justice Antonin Scalia, similarly held that for an agency’s “own regulations, [its] interpretation of it is, under our jurisprudence, controlling unless ‘plainly erroneous or inconsistent with the regulation.’”

In recent years, several Supreme Court justices—including Justice Scalia—have questioned both the logic and constitutionality of Chevron and Auer.  These critics contend that judicial deference to agency interpretations of the statutes and regulations they administer violates separation of powers principles (hence the name of Title II).  Legislators who support the Separation of Powers Restoration Act have advanced related concerns: that Congress currently lacks an incentive to draft clear laws, and that the Executive Branch charged with resolving statutory ambiguities faces backlash for unpopular decisions, thus insulating Congress from political accountability.  They also argue that Chevron gives courts an incentive to shirk their role in striking down arbitrary and unlawful agency actions. Continue Reading

EIA – Energy Royalty and Rental Revenue on Federal Lands Declined Again in 2016

According to the U.S. Energy Information Administration (“EIA”) “In fiscal year (FY) 2016, the U.S. government collected almost $6 billion in revenues from royalties, rental costs, and other fees from activities related to energy production on federal and American Indian lands, according to the Department of Interior’s Office of Natural Resource Revenue. These activities include the production of coal, oil, natural gas, and hydrocarbon gas liquids (HGLs) as well as, more recently, renewables. From FY2010 to FY2013, federal revenues increased, driven by growth in offshore and onshore revenue during a time of relatively high oil prices. Revenues in FY2013 exceeded $14 billion and have since decreased in each successive year. Revenues in FY2016 were the lowest since at least FY2004.”

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Study Shows Hydraulic Fracturing Benefits Local Communities

The benefits of hydraulic fracturing on a national scale are well-known: lower energy prices, greater energy security, and reduced greenhouse gas emissions.  Yet there have been concerns that adverse health and social impacts outweigh these benefits for communities where drilling occurs. 

 Now, a new study out of the University of Chicago indicates that the average local benefits of fracking outweigh the costs.

The study examined local impacts in nine different shale regions across the United States.  The costs of fracking were measured by various quality of life factors, such as truck traffic, criminal activity, noise and air pollution from drilling activities, and perceptions about negative health effects. 

 The study found these costs are outweighed by fracking’s benefits, which total $1,200 to $1,900 per year for the average household.

These benefits include a 6 percent increase in average income, driven by increases in wage and royalty payments, a 10 percent rise in employment, and a 6 percent surge in housing prices.  On the cost side, fracking reduces a typical household’s quality of life by about $1,000 to $1,600 annually—discounting the increase in household income. 

 The study also observed that each region is affected differently, with some benefiting more than others.  For example, the estimated effect on housing prices was greater in North Dakota’s Bakken shale and Pennsylvania’s Marcellus shale than in other regions.  This heterogeneity reflects variation in how large fracking activity is relative to the local economy, as well as differences in local housing markets.  Despite the heterogeneity, the overall data is clear: for local communities, the benefits of fracking outweigh its costs.

 

 

SCOTUS Review of WOTUS Rule

On January 13, the Supreme Court granted a writ of certiorari in National Association of Homebuilders v. Department of Defense, a case challenging the Obama Administration’s “Waters of the United States” rule, which vastly expands federal jurisdiction over wetlands, and some not-so-wet lands.

At issue is whether a challenge may be brought in a federal district court or directly in a federal court of appeals.  The U.S. Circuit Court of Appeals for the Sixth Circuit adopted a restrictive approach to judicial relief, allowing only federal appellate courts to hear WOTUS challenges.  If upheld by the Supreme Court, this ruling would bar federal trial courts from hearing challenges brought by members of the regulated public; instead, these suits would be concentrated in the first federal Court of Appeals to hear a challenge.

 While this issue may seem like a legal technicality, determining the proper venue for WOTUS challenges is important for industry and private property owners alike.  If the Court reverses the Sixth Circuit, and allows WOTUS challenges to be filed in district courts across the country, this will allow further judicial review of the government’s justifications for this controversial rule.

 

Make Congress Great Again?

During its first week in session, the 115th Congress passed two bills aimed at reining in the executive branch’s powers. If signed into law, these bills could significantly impact the oil and gas industry, which has been caught in the crosshairs of the Obama administration’s energy and environmental agenda.

On January 4, the House of Representatives approved the Midnight Rules Relief Act, largely along party lines. The Midnight Rules Relief Act amends the Congressional Review Act (“CRA”) and gives Congress authority to revoke regulations issued in the last 60 days of a president’s term. The CRA already allows Congress to overturn regulations individually, but the new legislation empowers Congress to rescind multiple regulations with a single vote.

The CRA was passed in 1996 as part of then-Speaker Newt Gingrich’s “Contract with America.” The CRA created a period of 60 “session days” during which Congress could use expedited procedures to overturn a regulation. During this 60-day period, Congress could pass a resolution of disapproval that would not be subject to Senate filibusters; however, the president could still veto the resolution. This rendered the CRA toothless: to overturn a regulation, the same president who approved the regulation would need to sign the resolution seeking to repeal it (or, Congress would need to override his veto).

The rare conditions where the CRA could be used played out in 2001. The Occupational Safety and Health Administration (“OSHA”) had promulgated an extremely controversial regulation requiring employers to take measures to curb ergonomic injuries in the workplace. The OSHA rule was issued in November 2000, in the waning days of the Clinton Administration. The Republican-controlled Congress voted to revoke the ergonomics regulation in March 2001, and newly-elected President George W. Bush signed the resolution of disapproval.

Some of President Obama’s “midnight” regulations restrict methane production on public lands, impose renewable fuel standards, and prohibit new offshore oil and gas leasing. According to one estimate, all of President Obama’s “midnight” regulations could cost up to $44 billion.

Continue Reading

Recommended Reading: Deregulation and the Trump Administration

Kelley Drye attorneys partner Ira T. Kasdan and associate Mindy B. Pava co-authored The Hill article “Option for deregulation under the Trump administration: Agency non-enforcement.” The article notes that it remains unclear how the Trump administration plans to nullify scores of regulations promulgated and executive actions taken by the Obama administration. While the Trump administration is likely to issue an executive order suspending any new regulation that has not been finalized or published in the Federal Register, but they face a higher hurdle in attempting to rescind final rules that have already been published in the Federal Register and taken effect. Mr. Kasdan and Ms. Pava suggest that officials should consider the idea of issuing an executive order suspending the enforcement of certain rules.

To read the full article, please click here.

Thank You Veterans!

The team at Fracking Insider is honored to work alongside a number of distinguished veterans, including our own fearless leader, John Wittenborn (USAF Ret.), and we are proud of the veterans in our families as well (Thanks Pop!). In honor of Veterans Day, the veterans in our lives, and all the men and women who served, Fracking Insider humbly compiled the following resources for helping veterans find jobs in the oil and gas industry. Giving a veteran a job is not a bad way to say thanks.

  1. http://www.veteranstoenergy.org/
  2. http://military.getintoenergy.com/
  3. http://www.troopstoenergyjobs.com/

Thanks Vets!

Interesting Stats from EIA on the Proliferation of Horizontal Drilling

“In 2015 nearly 77% of the most prolific U.S. oil wells, or those producing more than 400 barrels of oil equivalent (BOE) per day, were horizontally drilled wells. For about 85,000 moderate rate wells producing in 2015, defined here as more than 15 BOE per day and up to 400 BOE per day, 42% were drilled horizontally. Of the approximately 370,000 lowest-rate, marginal oil wells in 2015, also known as stripper wells, only about 2% were horizontal wells.”—EIA

 

An Interesting Perspective from EIA for Fans of Baseball, History, and Domestic Energy

“On Tuesday, the Cleveland Indians are set to host the Chicago Cubs in game six of the 2016 Major League Baseball World Series. In the 68 years since the last title for the Cleveland Indians, and the 108 years since the last World Series title for the Chicago Cubs, energy production and consumption patterns in the United States have changed a great deal…In 1908, the last time the Cubs won the World Series, the United States produced less than half a million barrels per day (b/d) of oil, with crude oil production having only started approximately 50 years earlier. At that time, crude oil was mainly refined to produce kerosene for use in lamps. The first Ford Model T automobile was produced in 1908, kicking off a shift in demand for petroleum products from kerosene for lamps to gasoline for automobiles….The last time the Cleveland Indians won the World Series, in 1948, the United States produced 5.5 million b/d of crude oil. Crude oil production had been steadily increasing since declines in the 1930s and would continue to increase until production declines in the 1970s.”—EIA

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Source: U.S. Energy Information Administration, Petroleum Supply Monthly

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Source: U.S. Energy Information Administration, Monthly Energy Review

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