Sep 022015

The following release is from the Permian Basin Petroleum Association.


U.S. District Court Finds for PBPA, Vacates Lesser Prairie Chicken Listing

September 2, 2015


(Midland, Texas) Yesterday, the U.S. District Court for the Western District of Texas granted summary judgment in favor of the Permian Basin Petroleum Association and vacated the U.S. Fish and Wildlife Service (FWS) rule listing the Lesser Prairie Chicken (LPC) as threatened under the Endangered Species Act. In PBPA et al. v. Department of Interior et al, Senior U.S. District Judge Robert Junell concluded that the decision to list the LPC was arbitrary and capricious under the Administrative Procedure Act (APA) and that the agency failed to properly apply its Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE Policy) to conservation efforts already undertaken on millions of acres across five states to improve habitat for and diminish threats to the LPC.

In response to the ruling, PBPA President, Ben Shepperd, issued the following statement: “The PBPA applauds Judge Junell’s decision in our suit against the U.S. Fish and Wildlife Service and the Department of the Interior. This ruling serves as vindication of the unprecedented stakeholder participation across the Lesser Prairie Chicken range. Our members' good faith efforts to conserve LPC habitat and recover the species through the Range-wide Plan began long before this listing decision was made and will continue unabated now that the court has thrown it out.”

Under the LPC Range-wide Conservation Plan, more than 180 oil and gas, pipeline, electric transmission and wind energy companies have enrolled in conservation agreements to avoid, minimize, or mitigate impacts to the LPC from their operations. In the process, they committed $45.9 Million in enrollment and impact fees to cover off-site mitigation actions for unavoidable impacts and contribute to habitat conservation. Earlier this year, the Western Association of Fish and Wildlife Agencies, which oversees the conservation efforts under the Range-wide Plan, reported a 25 percent increase in the LPC’s population from 2014 to 2015, in part a result of industry’s conservation efforts.

About the Permian Basin Petroleum Association

Founded in 1961, the PBPA is the largest regional oil and natural gas association in the United States. The Association includes approximately 1,000 member companies that produce oil and gas in the Permian Basin of west Texas and eastern New Mexico. The Association advocates for the safe and responsible development of oil and gas resources. More information is available at

Sep 022015

A federal judge in Texas has removed Endangered Species Act protections for the lesser prairie chicken, which was listed as threatened last year (Permian Basin Petroleum Association v. Dep't of the Interior, MO-14-50, W.D. Tex.).  | FWS press release on listing | FWS LPC page | Hogan Lovells press release | PBPA press release

Specifically, U.S. District Judge Robert Junell said that the Fish and Wildlife Service "failed to properly apply its [Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE)] to its evaluation of the [Rangewide Plan] resulting in material error. This caused FWS to arbitrarily and capriciously list the LPC as a threatened species."

The Center for Biological Diversity has issued a press release, in which CBD endangered species director Noah Greenwald said, “This court decision has no basis in law. Christmas came early this year for the oil and gas industry with a court decision specially gift wrapped for them straight out of Midland, Texas.”

The decision is below:

Sep 022015

The federal government and the 13 states that won an injunction halting implementation of the Clean Water (or “waters of the U.S.”) rule are sparring over the geographic scope of the injunction (North Dakota v. U.S., 15-59-RRE-ARS, D. N.D.).

Both sides filed briefs Tuesday, Sept. 1, as required by Chief U.S. District Judge Ralph Erickson. The feds, as expected, are arguing that Erickson’s Aug. 27 order should apply only in the 13 states that brought the suit. The states contend that the injunction should be nationwide.

“[G]iving nationwide effect to the preliminary injunction would go beyond addressing the specific irreparable harms alleged by the Plaintiffs,” the government said in its brief. In addition, “Because the preliminary injunction is intended to preserve the status quo as to these Plaintiffs, it should not apply nationwide, encompassing waters in States that either have not challenged the Clean Water Rule or that have unsuccessfully sought to preliminarily enjoin it in separate judicial proceedings.”

The government cited two other district court decisions denying relief – one in Georgia’s Southern District and one in West Virginia’s Northern District. Judges in both cases said that jurisdiction over the disputes properly lies in the court of appeals, where eight petitions for review have been consolidated.

Said the government:

“The Plaintiff States cannot contend that if any district court in any proceeding where the Clean Water Rule is challenged finds that the criteria for preliminary injunctive relief have been satisfied, that court’s order is binding in all the other proceedings and throughout the nation. That logic would lead to the absurd situation where if a single regulated entity is able to persuade a single district court that it will potentially incur an irreparable harm, then the Clean Water Rule may be enjoined across the nation with respect to every single regulated and regulating entity, including those who benefit from and support the Rule, and even in the jurisdiction of district courts that have previously denied similar injunctive relief.”

“It would also be inappropriate to conclude, in the name of protecting state sovereignty, that this Court’s order to enjoin the Clean Water Rule applies in the nineteen States that have not challenged the Rule, seven of which have moved to intervene in the Sixth Circuit proceedings to, in fact, support it,” the government said.

The states, however, asserted, “The Agencies persistently characterize the scope of the Rule as ‘nationwide.’ The Court’s Injunction Order properly fits the Rule’s scope and should be read to extend nationwide as well. No useful purpose is served by allowing a wildly overreaching Rule to take geographically defined effect for the interim period between the issuance of the preliminary injunction and final resolution of the case. This point has special salience given that the Agencies are seeking to reassert a massive jurisdictional land-grab that the Supreme Court cautioned them against in both SWANCC and Rapanos.

“A nationwide injunction is necessary to prevent inconsistent rulings on the scope of CWA jurisdiction during the pendency of this litigation, while ensuring a consistent and uniform application of the CWA throughout the country," the states argued. "The Court should affirm that the Injunction Order addresses these concerns by applying nationwide.”

“The Agencies have also argued that harm would be caused by ‘conflicting’ interim applications that would work ‘to the detriment of the plaintiffs, the regulated community, and the public.’ See Brief in Support of the Motion of the United States for Transfer, MDL No. 2663, Doc.1-1 at 11: Memo in Support of Defendants’ Motion to Stay Pending a Ruling from the Judicial Panel on Multi-District Litigation under 28 U.S.C. § 1407 to Transfer and Consolidate at 6, No. 3:15- cv-00059 (D.N.D. July 21, 2015), ECF No. 12-1. The Agencies cannot have it both ways. They cannot be concerned about uniform application and consistency when selling the country on the need for the Rule, but abandon those  principles when faced with litigation adversity. This type of litigation tactic should not be rewarded by limiting the scope of the Court’s Injunction Order.”

More links

Opinion and order in Murray Energy Corp. v. EPA (15-110,  N.D. W. Va.) Aug. 26

Order denying P.I. in Georgia v. EPA (15-79, S.D. Ga.) Aug. 27, 2015

Motion by States of New York, Connecticut, Hawaii, Massachusetts, Oregon, Vermont, and Washington, and the District of Columbia, to Intervene in Support of Respondents in Docket No. 15-3751 and In Each of the Related Cases, Aug. 28, 2015

Memo in Support of Defendants’ Motion to Stay Pending a Ruling from the Judicial Panel on Multi-District Litigation under 28 U.S.C. § 1407 to Transfer and Consolidate (the district court actions)

Order consolidating petitions for review in Sixth Circuit