September 2023

September 2023

Natural Resources Law Insights

Council on Environmental Quality Proposes Phase Two Revision to Its NEPA Implementing Regulations
Ted Boling | Perkins Coie, LLP
On July 31, 2023, the Council on Environmental Quality (CEQ) proposed further amendments to its National Environmental Policy Act (NEPA) implementing regulations as part of its phased rulemaking initiated in 2021. The proposed rule is the second phase of CEQ’s rulemaking effort and reflects a broad proposal to “revise, update and modernize” the regulations at 40 C.F.R. pts. 1500–1508. The proposed rule includes implementation of bipartisan permitting reforms in the Fiscal Responsibility Act and first-time codification of climate change and environmental justice principles for NEPA purposes.
Read more here.

Texas Appellate Court Holds That Produced Water Belongs to Mineral Owners
Jana Grauberger, Alma Shields, James T. Kittrell, and Sam Allen | Liskow & Lewis
In Cactus Water Services, LLC v. COG Operating, LLC, the Texas Court of Appeals determined, for instruments executed prior to September 1, 2019, that produced water is owned by mineral owners when those instruments convey “oil and gas” or “oil, gas and other hydrocarbons” without specifically reserving produced water or oil and gas waste. However, the dissent argued that traditional oil and gas laws view produced water as property of surface owners, and the leases at issue did not cover water rights outside of mineral extraction needs.
Read more here.

Alsea Valley, “Al-see You Later? After Center for Biological Diversity v. BLM, the Ninth Circuit May Reconsider Longstanding Precedent Limiting Appealability of Orders Remanding with Vacatur
Bradley J. Pew Fennemore Craig, P.C.
A recent Ninth Circuit decision suggests that the court may reconsider a nearly 20-year-old precedent that has frustrated many unsuspecting appellants in natural resources cases. In 2004, the Ninth Circuit held, in Alsea Valley Alliance v. Department of Commerce, that district court orders vacating and remanding federal agency actions are not final and not appealable unless certain conditions are met. Earlier this year, two Ninth Circuit judges called Alsea Valley into question and urged the court to reevaluate that holding. For many would-be appellants, this could foreshadow a welcome change to this frequently litigated question of appellate jurisdiction.
Read more here.

Corporate Lives and the Rule Against Perpetuities
Christopher Kulander | South Texas College of Law Houston
In 1682, The Duke of Norfolk’s Case launched the Rule Against Perpetuities into the common law tradition. Norfolk established that executory interests are only valid and enforceable if they were sure to become possessory within a certain span of years. The Norfolk court and subsequent courts held that the point in the future at which possession must have been achieved was set according to the lives of the people involved in the grant—the so-called “lives in being.” One situation to consider is where one or more of the lives in being are corporate entities or partnerships or the like – raising the question of what length of time could be tacked on to 21 years for these entities if there are no individuals involved. 
Read more here.

The Endangered Species Act and the Precautionary Principle: The D.C. Circuit’s Maine Lobstermen’s Decision Has Legs
Stacey Bosshardt Perkins Coie LLP
In Maine Lobstermen’s Ass’n v. National Marine Fisheries Service, the U.S. Court of Appeals for the D.C. Circuit ruled that section 7 of the Endangered Species Act mandates using the “best scientific and commercial data available,” preventing the NMFS from making speculative, worst-case assumptions about whether a fishery is “not likely” to jeopardize a protected whale species’ survival. The court also dismissed the notion of a mandatory “precautionary principle” favoring protected species without a clear statutory foundation. This decision, now unchallenged, sets a precedent for future administrative and judicial considerations.
Read more here.

Colorado Commission Adopts Regulation to Force Owners of Larger Existing or New Commercial, Multifamily, and Public Buildings to Abandon Use of Natural Gas
Paul M. Seby and Mathew K. Tieslau | GreenbergTrauig
On August 17, 2023, the Colorado Air Quality Control Commission sided with agency staff and special interest advocacy groups to impose an unprecedented legal mandate setting building performance standards for “covered buildings” (commercial, multifamily, and public buildings 50,000 sq. ft. and larger). The Commission voted to adopt the regulation despite two days of undisputed testimony from over a dozen local and county government officials and owners of multifamily and commercial buildings across Colorado that the building performance standards were too stringent to be realistically achievable and would have severe adverse impacts on commercial real estate and the rental market.
Read more here.

New CLE Available On-Demand from the 69th Annual Institute

The Foundation has an Online Natural Resources Education Program with more than 130 streaming, on-demand presentations including our most recent Annual Institute that was held in July.  Most on demand presentations include top-notch papers written by the speakers and can be accessed online 24/7, making them the easiest and most convenient way to receive natural resources, energy, and environmental legal education. Foundation members receive a substantial discount, and additional discounts are available for group viewing (think practice group or department meetings). Discounts are also available for bundled purchases for those who are looking to purchase more than one presentation.

Here  is just a sample of the presentations from the 69th Annual Institute that are available in the Online CLE Library:

Registration is Open for These Upcoming 2023 and 2024 In-Person Programs

40th Annual Oil and Gas Law Short Course
October 16-20, 2023, Westminster, Colorado

Federal Oil & Gas Leasing Short Course
October 16-19, 2023, Westminster, Colorado

Indian Law and Resource Development
November 2-3, 2023, Chandler, Arizona

Water Law Institute
November 2-3, 2023, Chandler, Arizona

Third Annual U.S. Oil and Gas and Renewable Energy Law Seminar at NAPE
February 7, 2024, Houston, Texas

Carbon Capture, Utilization, and Storage
March 7-8, 2024, Houston, Texas

Book Your Room Now for the 70th Annual Institute!

In July 2024 we will return to Santa Fe, New Mexico, for the 70th Annual Institute! The 413-year-old city of Santa Fe is nestled in the western foothills of the Sangre de Cristo Mountains and offers a delightful array of attractions, including museums, the Santa Fe Opera, endless art galleries and shops, historic churches, Indian pueblos, and many superb restaurants. You can golf on the mesas, hike in the Sangre de Cristos, raft on the Rio Grande, or explore abandoned Pueblo ruins. And marvelous side trips abound to Taos, Los Alamos, Chimayo, or Bandelier National Monument. It is no wonder that Santa Fe has become our most popular annual institute location!

The Institute will be held at the Santa Fe Community Convention Center (SFCCC). Now is the time to book your hotel room and take advantage of the Foundation’s discounted rates at 11 hotels within walking distance of the SFCCC. Discounted rooms for the Annual Institute go fast, especially in Santa Fe! The Santa Fe Regional Airport (SAF) is about 14 miles from downtown Santa Fe and has direct flights from Denver, Dallas, and Phoenix. Albuquerque International Sunport (ABQ) is about 70 miles from downtown Santa Fe. There is train service between the ABQ airport and Santa Fe.