Senator Heitkamp’s Fence Sitting on Federal Flaring Rules Is Perplexing

There is a push in Congress right now to disapprove an Obama administration regulation aimed at the oil industry. The so-called “venting and flaring” rule imposed by the Bureau of Land Management is so colossally broad it impacts not just federal lands but state lands as well.

This rule creates a jurisdictional quagmire, which I’m sure was the point given the Obama administration’s attitudes about oil and gas development.

“The Venting and Flaring rule, as written, impermissibly intrudes upon the sovereign authority of the State to define and control oil and gas waste on State and fee lands, and it unnecessarily creates jurisdictional confusion over the specific regulatory standards that operators of wells must meet,” Governor Doug Burgum wrote in a February 13 letter to the Senate (see it in full below).

North Dakota, along with other state governments, have challenged this rule in the federal courts, though the outcome of that case isn’t clear at this point.

Congress may use their authority under the Congressional Review Act to disapprove the rule. The House has passed a resolution disapproving of the rule. Now it’s up to the Senate.

Senator John Hoeven is on board with disapproval, but Senator Heidi Heitkamp is balking according to this report in Politico.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]…the Obama administration’s rules weren’t about controlling flaring so much as undermining energy development. The rules are yet another landmine put in place by a President who has no compunctions about using onerous regulation to harass and industry he hates.[/mks_pullquote]

I’m told that members of the MHA Nation of the Fort Berthold Reservation will be meeting with Heitkamp some time today. The tribe is concerned about this rule too. I’m sure they’re thinking of their own sovereignty on their lands to balance the economic benefits of energy development with prudent regulatory restrictions.

This rule could diminish, by no small amount, the level of oil and gas activity taking place on Fort Berthold.

The question is why Senator Heitkamp is so reticent to act in support of overturning this rule. “I know enough about oil drilling to know that not every hydrocarbon can get captured,” she acknowledges to Politico. “And for safety reasons there is a need to have flares, and we have a pretty good record of closing that loophole in North Dakota.”

She’s right. While flaring was a real issue in the early days of North Dakota’s oil boom, today it’s largely under control because state regulators took the right steps to address the issue. According to the most recent report from the ND Industrial Commission’s Oil and Gas Division, flaring has declined to just 10 percent of gas produced. That’s down from a historic high of 36 percent in 2011.

Flaring is a real issue which needs to be kept in check. But the Obama administration’s rules weren’t about controlling flaring so much as undermining energy development. The rules are yet another landmine put in place by a President who has no compunctions about using onerous regulation to harass and industry he hates.

Normally Senator Heitkamp can be counted on to understand these situations, and side with what’s best for North Dakotans. In fact, that level headed pragmatism  on issues like this is a big reason why the Democratic Senator has managed to survive in the politics of this Republican-dominated state.

And it’s not just that Heitkamp is undecided. It’s that she’s also not helping to lobby her fellow Democrats to get them down off the fence.

This issue may be a bit down in the weeds for the average voter, but given the political tight rope Heitkamp must walk to stay in office in 2018 (assuming she runs again), it could spark the sort of turbulence she can’t afford.

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