New Mexico Pit Rule Survives Challenge by Enviro Group

Originally published by Charles Sartain.

Posted by Charles Sartain

In a case displaying the tactics of anti-fossil fuel advocates, Earthworks’ Oil & Gas Accountability Project v. New Mexico Oil Conservation Commission, a court rejected a challenge to the Commission’s amendment of the “Pit Rule”.  This post is not so much about the Pit Rule itself as it is the absence of legal and factual support for the appellant’s arguments. In case you’re interested, the rule governs pits, closed-loop systems, and below-grade tanks and sumps used in connection with oil and gas operations for the protection of fresh water, public health and the environment.

Lack of Authority? No

Claim:  The Commission had no authority to amend the rule because of a pending appeal of the original rule – the one being amended. No authority was cited.

Result: Earthworks conflated the Commission’s rule-making authority and its adjudicative authority, which was improper.

Arbitrary and Capricious? No

Claim:  The rulemaking was arbitrary and capricious.  To succeed on this claim, the opponent must prove that a rule was beyond the authority of Commission, was not in accordance with law, or was unreasonable and without a rational basis.

Result: The Commission had denied Earthworks’ request to take notice of certain of its prior records; Earthworks asked the court to take notice of records anyway, but again cited no authority to support the position.  The Commission elected not to respond to every concern raised by Earthworks. The Commission’s detailed summaries of its findings were satisfactory.

Economic development is a legitimate basis for a rule 

Claim: The Commission acted improperly by promulgating the rule in order to further economic development.

Result: The Commission acted within its statutory authority when it included economic considerations in its stated reasons for the rule. The Oil and Gas Act and the Commission’s regulations give due consideration to economic factors, and authorize the Commission to do whatever is reasonably necessary to carry out the purposes of the Act.  Economic considerations cannot be the sole purpose for creating or amending a rule, but found no indication that economic considerations were the primary purpose behind the rule.  The Commission cited many reasons why the rule was necessary, including encouraging reuse and recycling of oilfield fluids and reducing surface impacts.

Cost-saving is a legitimate purpose for a rule

Claim: The order adopting the 2008 Rule stated that the Commission had made all changes it could to lessen potential effects on small businesses while still protecting fresh water, human health and the environment. Thus, it was argued, because all possible measures were taken in 2008 there could not be any more cost-saving measures to be made in 2013.

• Result:  Denied; no factual basis was cited.

Inadequate notice? No

Claim: Public notice of the rule was inadequate.

Result: Again, no authority was cited.

Takeaways

• Was this suit more to obstruct than obtain legal recourse?
• Who funds these efforts?
• What lawyer has the temerity to assert serial arguments citing no authority?

Stanley Dural a/k/a Buckwheat Zydeco RIP.

He did the zydeco

and the N.O R&B.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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