COALITION TO PROTECT AMERICA’S NATIONAL PARKS
NATURAL RESOURCES DEFENSE COUNCIL
ROCKY MOUNTAIN WILD
THE WILDERNESS SOCIETY
September 2, 2025
U.S. Department of the Interior, Director (630)
Bureau of Land Management
1849 C St. NW, Room 5646
Washington, D.C. 20240
Attention: 1004-AF43
Re: Comments on “Revision to Regulations Regarding Oil and Gas Leasing; Stipulations and Information Notices” (BLM-2025-0140)
To Whom It May Concern:
Please accept these comments from the undersigned organizations on the direct final rule (DFR), “Revisions to Regulations Regarding Oil and Gas Leasing; Stipulations and Information Notices,” issued by the Bureau of Land Management (BLM) on August 1, 2025.
I. The DFR does not qualify for a “good cause” exception.
The use of a DFR in this context contravenes the Administrative Procedure Act (APA), ignores long-established procedures on notice and comment rulemaking, and undermines the role of public participation. As described below, the rescission is based on a faulty premise and will have serious unintended consequences. Moreover, BLM’s reliance on the APA’s “good cause” exception misunderstands the relevant standard, which is not whether the rescinded rule is determined to be unnecessary, but rather whether notice and comment is determined to be unnecessary.1See Mack Trucks, Inc. v. EPA, 682 F.3d 87 (D.C. Cir. 2012); Ronald M. Levin, Direct Final Rulemaking, 64 GEO. WASH. L. REV. 1, 12 (1995); Ronald M. Levin, More on Direct Final Rulemaking: Streamlining, Not Corner-Cutting, 51 ADMIN. L. REV. 757, 763-64 (1999); Mark Squillace, Best Practices for Agency Use of the Good Cause Exemption for Rulemaking, 15 (report to the Admin. Conf. of the U.S.) (Dec. 4, 2024), https://www.acus.gov/sites/default/files/documents/Best%20Practices%20for%20Agency%20Use %20of%20the%20Good%20Cause%20Exemption%20for%20Rulemaking%20%28Final%20Report %29.pdf
When the good cause exception applies because the notice and comment procedure is determined to be “unnecessary,” federal agencies may issue a DFR. The Administrative Conference of the United States has clarified that “direct final rulemaking is a technique for expediting the issuance of noncontroversial rules.”2Admin. Conf. of the U.S., Recommendation S5-4, Procedures for Noncontroversial and Expedited Rulemaking, https://www.acus.gov/document/procedures-noncontroversial-and-expedited- rulemaking (last visited July 31, 2025). 3 Texaco, Inc. v. FPC, 412 F.2d 740, 743 n.6 (3d Cir. 1969); see also South Carolina ex re. Patrick v. Block, 558 F. Supp. 1004, 1016 (D.S.C. 1983). Another court, speaking more generally about the good cause exemption, has noted that this exemption should be “narrowly construed and only reluctantly countenanced.” Tennessee Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C. Cir. 1992).
In other words, a DFR is only appropriate when it involves “a minor rule in which the public is not particularly interested.” BLM’s DFR fails this test because it involves changes to and interpretations of long-standing substantive limitations on federally authorized oil and gas leasing, an environmentally impactful activity in which the public and industry have substantial interests.3 See, e.g., Center for Western Priorities, Analysis: Public comments overwhelmingly support BLM oil and gas rule (Sept. 26, 2023) (noting that BLM received over 260,000 comments on BLM’s 2023 proposed oil and gas leasing rule), https://westernpriorities.org/2023/09/analysis-public-comments- overwhelmingly-support-blm-oil-and-gas-rule/. For similar reasons, BLM cannot (and does not appear to) rely on notice and comment being impracticable or contrary to the public interest under the good cause exception. To the contrary, public comment is entirely practical, necessary, and in the public interest. Under these circumstances, the APA guarantees the public an opportunity to comment. Upon receipt of these significant adverse comments, BLM must withdraw the DFR before the effective date.4See Office of the Federal Register, A Guide to the Rulemaking Process, 9, https://uploads.federalregister.gov/uploads/2013/09/The-Rulemaking-Process.pdf; Squillace, supra note 1, at 29 (“If the agency receives significant adverse comments, it has two options. It can either withdraw the rule or publish a regular proposed rule that is open for public comment. In either case, the agency should promptly publish notice of its decision in the Federal Register so that the public knows whether the rule has gone into effect.”).
II. The DFR is overly broad and could be applied in a manner that improperly limits BLM’s duty to address the impacts of oil and gas leasing on multiple use and other values.
The DFR is overly broad – broader than what’s required by the recent reconciliation act (Act) – and inappropriately minimizes BLM’s continuing duty to evaluate and, as needed, mitigate the impacts of oil and gas leasing.
First, BLM states in the DFR that it must remove existing 3101.13(a) and (b) to comply with the Act. Doing so is unwarranted, however, because there is no conflict between the Act and existing regulations:
- Existing 3101.13(a) describes the manner in which BLM must evaluate the effectiveness of lease stipulations, consistent with its responsibilities under NEPA, FLPMA, and other statutes. This information is relevant not only to assessing the adequacy of lease stipulations, but also to determining whether lease notices are necessary – and, as discussed below, whether additional mitigation measures should be adopted to address the impacts of future development either at the leasing stage or the APD stage.
-
Similarly, existing 3101.13(b) merely states: “The authorized officer may require stipulations as conditions of lease issuance. Stipulations will become part of the lease and will supersede inconsistent provisions of the standard lease form.” This reiterates BLM’s ongoing authority to condition lease issuance on acceptance of lease stipulations and is entirely consistent with the Act. The Act simply states that when the Secretary issues a lease, that lease “may not require any stipulations or mitigation requirements not included in the applicable resource management plan.” Thus, if an RMP requires the use of a stipulation, then BLM can – and must, under 43 U.S.C. § 1732(a) – obligate lessees to accept it.5In the DFR, BLM also states that “[t]he last sentence in 43 CFR § 3101.13(b) has been moved into 43 CFR § 3101.13(a).” However, the regulatory text provided in the DFR does not reflect this change.
Second, the Act did nothing to disturb BLM’s broad responsibilities under FLPMA, NEPA, and other statutes to evaluate and, as necessary, mitigate the impacts of oil and gas leasing on multiple use and other values.6See, e.g., 43 U.S.C. § 1732(b) (“the Secretary shall . . . take any action necessary to prevent unnecessary or undue degradation of the lands.”); 42 U.S.C. § 4332(C)(iii) (requiring consideration of project alternatives). As noted above, the Act just prevents leases from including stipulations or mitigation measures that are not required by the applicable RMP. It does not prohibit BLM from evaluating or adopting new mitigation measures at the leasing stage altogether. The rule should reflect that continuing legal authority.
For all the reasons above, BLM must withdraw this DFR.
Respectfully,
Ben Tettlebaum (on behalf of the below-listed parties)
Director & Senior Staff Attorney
The Wilderness Society
1801 Pennsylvania Ave NW, 2nd Floor
Washington, D.C. 20006
be************@*ws.org
(720) 647-9568
Phil Francis
Chair
Coalition to Protect America’s National Parks
2 Massachusetts Ave NE
Unit 77436
Washington, DC 20013
(202) 819-8622
Aimee Delach
Director of Energy & Biodiversity
Defenders of Wildlife
1130 17th Street NW
Washington, DC 20036
ad*****@*******rs.org
(202) 682-9400
Josh Axelrod
Senior Policy Advocate
Natural Resources Defense Council
1152 15th St, NW, Suite 300
Washington, D.C. 20005
ja******@**dc.org
(202) 289-2379
Alison Gallensky
Conservation Geographer, Leadership Team
Rocky Mountain Wild
Denver, Colorado
al****@***************ld.org
(303) 546-0214 x 9