In 2016, the Environmental Protection Agency implemented a rule for fugitive methane gas and other greenhouse gasses to reduce pollution. Methane gas is considered a greenhouse gas because in the air, unused methane absorbs the heat from the sun and poses a global warming potential that is about 21 times greater than carbon dioxide. The Methane Gas Rule imposed “new source performance standards” on the oil and gas industry.
The new performance standards, which were effective as of August 2, 2016, required the oil and gas industry to conduct an initial monitoring survey and identify and repair any methane leaks by June 3, 2017. Just two days before the June 3 deadline, the EPA published a “notice of reconsideration and partial stay” that included a stay to four aspects of the Methane Gas Rule. The EPA claimed that the partial stay was necessary to provide industry with an opportunity to comment on the rule. Initially, the EPA imposed a 90-day stay effective June 2, but on June 16, 2017, the EPA published a proposed rule that extended the stay for two years and would include a broad review of the entire 2016 rule during the stay.
On July 3, 2017, six environmental groups filed an emergency application to contest EPA’s proposed rule extending the stay.
In the case of Clean Air Council v. E. Scott Pruitt, Administrator, Environmental Protection Agency and Environmental Protection Agency, 2017 WL 2838112 (D.C. Cir. 2017), the environmental groups claim that the EPA’s “stay” violates the Clean Air Act. The environmental groups claim that “all of the issues Administrator Pruitt identified could have been, and actually were, raised (and extensively deliberated) during the comment period.”
The D.C. Circuit Court rejected the EPA’s and oil and gas’s arguments, finding it had the power under the Clean Air Act to review the Administrator’s decision to issue a stay. The court also determined that the 90 day stay was not authorized by the CAA and that it was unreasonable. The court held there are only “two reasons for a stay — impracticability and central relevance – neither of which were present.”
According to the court, “the EPA’s decision to impose a stay was …. arbitrary, capricious, [and] … in excess of [its] … statutory … authority.” The court further rejected EPA’s reconsideration and partial stay because it determined that “industry already had ample opportunity to comment on all four issues on which EPA granted reconsideration.”
It appears that environmentalists may have prevailed at this time, but what’s evident is that the battle between the supporters of the rule and those who seek to eliminate it is not over.