On July 3, 2017, the US Court of Appeals for the District of Columbia vacated EPA’s stay of an Obama administration rule implementing limits on methane gas emission in the oil and gas industry. EPA had moved to stay portions of the methane new source performance standards (NSPS) in order to reconsider the provisions. See Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources; Grant of Reconsideration and Partial Stay, 82 Fed. Reg. 25,730 (June 5, 2017). Environmentalists argued that EPA’s stay was illegal because the agency did not meet the standards for a say pursuant to Clean Air Act Section 307 (d)(7)(B).
The court sided with the environmentalists challenging the reconsideration, holding that pursuant to Section 307(d)(7)(B), EPA may only issue a stay during a mandatory reconsideration when a party presents an objection of “’central relevance’ that was ‘impracticable’ to raise during the period for public comment.” The court concluded that EPA’s reconsideration was not mandatory and EPA did not have the power to issue the stay. EPA has asked the court to reconsider its decision vacating the stay and industry has requested an en banc review.
In the absence of the stay, EPA is pursuing rulemaking to stay the implementation of the methane NSPS requirements for two years. Comments on that proposal are due on August 9, 2017. More information on EPA’s ongoing initiative on methane on oil and gas air pollution is available at: https://www.epa. gov/controlling-air-pollution-oil-and-naturalgas-industry/actions-and-notices-about-oiland-natural-gas
In addition to pursuing new rules, the EPA Inspector General has also launched an investigation into how EPA estimates oil and gas methane emissions. The investigation will consider “(1) how the EPA estimates methane emissions from the oil and natural gas production sector, including the extent to which the EPA has used the results of 2013 and 2014 emission studies conducted jointly by the Environmental Defense Fund and the University of Texas-Austin to estimate those emissions; and (2) whether concerns about technical or other problems with the Environmental Defense Fund and University of Texas-Austin studies were identified or brought to the EPA’s attention, and how the EPA addressed and resolved any such concerns.
On August 4, 2017, environmentalists asked the D.C. Circuit to overturn a similar administrative stay of the methane rules for landfills.