CHAPTER 9 WORKING WITH FEDERAL AND STATE AGENCIES
| Jurisdiction | United States |
(Nov 1980)
WORKING WITH FEDERAL AND STATE AGENCIES
CONSOLIDATION COAL COMPANY
ENGLEWOOD, COLORADO
In recent years and recent months, we have been exposed to a great deal of comment, even here at this institute, over the proliferation of government agencies and regulations and the effect on the nation and its economy. It must be recognized, however, that this regulatory activity on the part of the executive branch of government is for the most part an obligatory response to the heightened activity of the legislative and judicial branches of our government. Over the past few years we have witnessed the enactment of a multiplicity of statutes calculated to address legitimate public concerns and attain worthy objectives. Statutes such as the Clean Air Act, Clean Water Act, National Environmental Policy Act, Endangered Species Act, Archeological and Historic Preservation Act, Resource Conservation and Recovery Act, the National Forests Management Act and the Federal Land Policy and Management act come to mind as illustrative of the situation.1 The courts, too, have interpreted the intent or applicability of these many laws in a manner which obliges the development of regulations of considerable specificity. The bureaucracy has had little choice but to promulgate regulations pursuant to these legislative mandates and judicial decrees.
This is not to say, however, that regulatory excesses are not evidenced. Over-zealous bureaucratic administrators or specialists, well intentioned though they may be, often seek to attain narrow objectives which in themselves may seem to be meritorious, but which may adversely impact other worthy public programs or impede the accomplishment of some other desirable public goal.
It is generally perceived that regulatory authority is too fragmented. There are just too many government agencies with which one must deal on a specific project. The government's regulations are regarded as being too detailed and too rigid.
The complexity and stringency of government regulations have resulted in increased costs for project proponents and often delayed project development. Certainly, lead-times for project development have been significantly increased. I think we would have to acknowledge, though, that these regulatory requirements, while not always efficiently applied or administered, have often resulted in better project design, construction and management. Also, they have generally permitted the realization of private management objectives in a manner not inconsistent with other public resource values or goals.
[Page 9-2]
The widespread concern over what is perceived as excessive government control has stimulated a number of proposals calculated to provide a measure of relief to those most affected by the situation. The creation of legislative oversight committees to monitor regulatory agencies, the development of so-called "one-stop" permitting procedures, measures which would require agencies to undertake assessments of the economic consequences of regulations prior to their promulgation, and other mechanisms have all been advanced and debated in the attempt to ameliorate the problem. The political thrust for increased local influence over the Federal government's land and resource management programs, evidenced in its most extreme form by the "sagebrush rebellion" derives much of its momentum from this situation.
Perhaps we can anticipate some relief from these efforts toward regulatory reform, but it is unlikely that significant change will occur quickly. We are thus faced with the prospect of having to cope as best we can with the existing framework of agency jurisdiction and regulatory structure.
Given the pattern of public land ownership, and particularly the extent of the federal mineral estate, it is essential that an oil and gas operator develop the capability of working effectively with the involved state and federal agencies.
Agencies such as the U.S. Bureau of Land Management, (BLM) and the U.S. Forest Service (USFS), as well as state land departments, have direct land and resource management responsibilities. They issue authorizations for use of public land and resources through mineral leases, use permits or right-of-way grants. They possess what might be construed as regulatory authority, too, which they exercise by prescribing terms or conditions of use.
Agencies such as the U.S. Geological Survey, (USGS) and state oil and gas or conservation commissions, do not have land management responsibilities, but they do possess management responsibilities relative to the development of public mineral resources. They establish requirements and standards with respect to oil and gas extraction, production, well-site management and abandonment, as well as discharging responsibilities concerning accounting, collection of receipts and reporting. A multiplicity of permits and approvals are necessarily acquired from the USGS in conjunction with any operation on federal land.
[Page 9-3]
There are agencies which, in contrast to those with more direct management responsibilities, discharge only a regulatory role. It is often necessary for an operator to work with these agencies, such as the Environmental Protection Agency (EPA), Occupational Health and Safety Administration (OSHA), or state air quality control agencies to acquire various permits or approvals of plans dealing with such things as water discharge, emissions, spills or hazards.
Sometimes it will prove advantageous for a developer to seek technical assistance from a government agency. There are agencies such as the U.S. Soil Conservation Service (SCS) which, while having no direct land management or regulatory responsibilities, have a capability of providing valuable assistance in the development or evaluation of reclamation or site rehabilitation plans.
Thus, an oil and gas operator, in short, needs to work with governmental agencies in an effective manner to obtain authorizations for use of public land or resources, approval of proposed activities, acceptance of proposed operating practices or procedures, or perhaps to acquire technical assistance.
Realizing then the necessity of establishing an effective working relationship with those government agencies from whom some type of decision must be obtained, what might we expect as a standard of performance and what are possible impediments to the realization of our expectations?
Given industry's cynicism about the performance of government generally, it may be too much to say that we "expect" expeditious action on applications or other requests requiring agency response, but we would surely like to receive it. More complaints are lodged over governmental delays than any other aspect of governmental activity. Delays have a tremendous impact on project costs, and the time it takes to obtain a response from a government agency is a matter of extreme concern.
What can be done about this problem? One thing is to recognize that problems arise from deficiencies in industry's operating methods as well as from the government's practices.
An oil and gas developer should recognize that most of the agencies with which he is working serve a broad and diverse clientele and that his is not the only project, activity or industry that the agency must
[Page 9-4]
address. This is particularly true in the case of the Bureau of Land Management and the Forest Service. These agencies possess limited funds and manpower to cope with a workload of considerable dimension. It is extremely important for a project proponent to provide adequate lead time for agency response to an application or proposal. It is important, too, that an application be complete...
To continue reading
Request your trial