Vol. 6, No. 17

Topics discussed in this week’s Report include:

  • EPA announced review of final rule governing methane emissions from new and modified oil and gas sources.
  • New York: Intermediate appellate court dismissed challenge to state’s hydraulic fracturing ban on standing grounds.

Federal

EPA announces review of final rule governing methane emissions from new and modified oil and gas sources. On April 18, the U.S. Environmental Protection Agency (EPA) granted industry requests to reconsider certain aspects of EPA’s New Source Performance Standards (NSPS) for the oil and natural gas sector, issued as a final Clean Air Act rule (Rule) in June 2016. In response to concerns raised in August 2016 administrative petitions, EPA states that it will reconsider the Rule’s fugitive emissions monitoring requirements, alternative emissions limitations and coverage of low-production wells. According to EPA, these topics concern issues that arose after the comment period or were not included in the proposed NSPS. EPA also granted a 90-day stay of the compliance date for the Rule’s fugitive emissions monitoring requirements. The Rule set emissions standards for methane at certain new and modified upstream and midstream oil and gas sources and would require owners and operators of certain sources to implement a leak detection program to identify and repair fugitive emission leaks, among other requirements. Separately, EPA has asked the U.S. Court of Appeals for the District of Columbia Circuit to hold litigation concerning the Rule in abeyance while EPA re-evaluates the Rule.

States

New York: Intermediate appellate court dismisses challenge to state’s hydraulic fracturing ban, finding that property owner lacked standing. The New York State Supreme Court, Appellate Division, Third Department dismissed a challenge by a landowner who sought a determination that the state’s prohibition on the use of hydraulic fracturing within the state applied only to commercial operations. In December 2014 and January 2015, the petitioner sent letters to the Department of Environmental Conservation (DEC) seeking permission to conduct hydraulic fracturing operations on his property and seeking clarification on whether the prohibition applied only to the technique’s use on a commercial scale. After the DEC clarified that the ban applied to all uses of hydraulic fracturing in New York State, the petitioner sued. In dismissing the case, the Appellate Division argued that the petitioner had not demonstrated that he had standing to bring the suit as he “had not applied for a permit nor offered any proof that he met any of the requirements to obtain a permit.” The court also noted that the petitioner had not engaged any oil and gas exploration companies, and thus his “standing at the time of filing was no different than that of any landowner in the state.” The court declined to reach the merits of the petitioner’s case concerning the scope of the ban. The petitioner has indicated that he will appeal the court’s decision.