Bruce M. Penderey, program director and a staff attorney with the Wyoming Outdoor Council, 2010, “BLM’s Retained Rights: How Requiring Environmental Protection Fulfills Oil And Gas Lease Obligations”, http://law.lclark.edu/live/files/5647, acc online
There are approximately 39,000,000 acres of federal mineral estate in the eleven western states subject to onshore oiland gas leases issued by the Bureau of Land Management (BLM). The leases grant the lessee the right to extract any oil or natural gas that may be found on the lease. However, the leases make the grant of rights "subject to" a number of reservations of authority to the federal government. The BLM lease provides that these retained rights stem from applicable laws; the terms, conditions, and stipulations in the lease; the Secretary of Interior's regulations and formal orders in effect when the lease is issued; and regulations and formal orders issued afterward if not inconsistent with the lease rights granted. A BLM regulation makes the lease subject to three further reservations of authority: stipulations; restrictions deriving from specific, nondiscretionary statutes; and reasonable measures the BLM authorized officer might require. A review of these authorities shows BLM retains substantial rights allowing it to regulate the time, place, and manner of oil and gas development. Development can be conditioned by regulating the timing of operations and the siting and design of facilities, as well as specification of the rates of oil and gas development and production. BLM can suspend operation of leases and can even prohibit developmentif impacts are substantially different or greater than normal. BLM retains the right to prevent "adverse impacts" by requiring "reasonable measures" to prevent environmental harms. These rights stem from provisions in the Mineral Leasing Act, Federal Land Policy and Management Act, National Environmental Policy Act, Endangered Species Act, Clean Air Act, Clean Water Act, National Historic Preservation Act, other statutes, BLM's leasing and operations regulations, the terms in the lease itself, and formal orders such as BLM Resource Management Plans, Onshore Oil and Gas Order Number 1, Executive Orders, and Secretarial and Department of Interior Solicitor Orders and Opinions, all of which the lease is made "subject to. "If BLM fully exercises these retained rights it can considerably reduce environmental disturbance due to oil and gas development on the public lands. Means available for exercising these retained rights include requiring phased or paced development, directional drilling, suspension of operations on leases in the interest of conservation of resources, unitization of leases, and a number of best management practices, including placing netting over waste pits to reduce wildlife mortality, requiring "closed-loop" drilling fluid systems to reduce pollution, and requiring mats to be placed on the ground during drilling to reduce chilling impacts, to name a few. This Article argues that given the mandatory, nondiscretionary nature of many of the authorities a federal onshore oil and gas lease has been made subject to, not only does BLM have numerous retained rights, it in fact has an obligation to fully assert them, and several policy changes that could accomplish this are suggested.