RIGHTS OF AN APPLICANT TO PARTICIPATE IN THE PERMITTING PROCESS

• Jurisdiction: United States

REGULATION AND DEVELOPMENT OF COALBED METHANE
(Nov 2002)
CHAPTER 10C
RIGHTS OF AN APPLICANT TO PARTICIPATE IN THE PERMITTING PROCESS
Scott W. Hardt
Temkin Wielga & Hardt LLP
Denver, Colorado

In permitting a coalbed methane project, the operator must obtain numerous federal, state and local approvals. While the permitting agencies make the ultimate decision whether to issue the required approvals and what conditions will be attached thereto, it is essential that the applicant actively participate in the process to ensure that approvals a re obtained in a timely fashion, and any conditions imposed by the regulators are technical y and economically acceptable.

Applicants have a right to participate in the permitting process, and permitting agencies should welcome an applicant's active participation since it will generally facilitite the compiling of relevant information, the preparation of necessary analyses and the creation of a defensible administrative record. Nevertheless, project opponents are generally on the lookout for any evidence that agencies have failed to exercise independent decisionmaking authority, and often challenge project approvals on the grounds that applicants and contractors that assisted in permitting, have asserted undue influence on the agency. This litigation threat may cause agencies to unnecessarily distance applicants from the permitting process.

The specific rules governing the extent to which a permitting agency may or must coordinate with an applicant are dictated by each regulatory program. As a general rule, the permitting agency may, and in many cases must, coordinate with the applicant and consider applicant input. Provided the agency continues to exercise independent decisionmaking authority, close coordination of permitting activities between the agency and applicant is consistent with legal mandates.

Examples of relevant principles governing agency/applicant coordination under Federal permitting programs will be discussed.

A. Freedom of Information Act ("FOIA")

Under FOIA, and applicable State open records statutes, members of the public are generally entitled to review the administrative record concerning oil and gas permitting decisions. 5 U.S.C. § 552(a). This includes all non-confidential communications between an applicant and the permitting agency.

Exemptions:

1. 5 U.S.C. § 552(b)(5): The Deliberative Process Exemption. Inter-agency or intraagency memoranda or letters, which would not be...