EPA Defeat on Methane Could Hinder Other Regulatory Rollbacks

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By Andrew Childers and Sam Pearson

A defeat in court of the EPA’s plan to postpone methane standards for oil and gas wells could bolster challenges to delays of emissions limits for landfills and regulations for new chemical plant security.

A federal appellate court’s ruling that the Environmental Protection Agency lacked the authority to halt the oil and gas methane emissions standards for 90 days could be a signal the agency’s regulatory rollback is in line for additional legal scrutiny, environmental advocates said. While the decision is only a bump in the EPA’s larger efforts to reconsider rules set by the Obama administration, environmental groups hope to capitalize on it to get other environmental rules enforced even as the Trump team seeks to quash regulation.

“If the court has now sat up and is going to look carefully at these arguments, they’re going to see the EPA has no justification for what they’re doing,” Ann Weeks, senior counsel at the Clean Air Task Force, which is challenging the delays of the methane standards for both oil and gas wells and landfills, told Bloomberg BNA.

While environmental advocates are emboldened, landfill operators and and oil and gas operations are preparing for the re-imposition of compliance deadlines they thought had been eased. The concern is particularly acute for smaller producers who operate on thinner margins than major companies like ExxonMobil or BP.

“Small and midsize producers are suffering and don’t have the resources to absorb the additional regulatory costs in combination with a very challenging market,” Ed Longanecker, president of the Texas Independent Producers & Royalty Owners Association, which represents small oil and gas companies, told Bloomberg BNA.

Other Industries Take Notice

The EPA had made similar arguments—that the regulated industries were never given an opportunity to comment on several provisions in the rules—for temporarily halting methane standards for landfills and for chemical safety requirements.

The EPA’s loss on the oil and gas rule has those industries now carefully watching to see if they might also have to comply with regulations EPA Administrator Scott Pruitt wants to see overturned or significantly revised. That could force those landfill operators or chemical facilities to invest in expensive efforts to comply with rules that could later be eased or revised.

The Solid Waste Association of North America and the National Waste & Recycling Association—as well as companies such as Waste Management Inc. and Republic Services—have petitioned the EPA to reconsider the landfill requirements, arguing the standards would force operators to install expensive gas capture systems costing millions of dollars on smaller landfills where it would not be economical.

“The EPA is driving those requirements onto smaller and smaller landfills and it becomes a real cost-benefit concern,” a waste industry official, not authorized to speak publicly on the issue, told Bloomberg BNA. .

EPA Invoking Multiple Authorities

Though getting the methane rule reinstated even as the EPA reconsiders the rules is a victory for environmental advocates, that one success doesn’t guarantee that other regulatory rollbacks also are in jeopardy.

The EPA has invoked a variety of its authorities to halt or delay Obama-era regulations, which means the approach that worked in this instance may not apply elsewhere, Lisa Heinzerling, an environmental law professor at Georgetown Law who advised former EPA Administrator Lisa Jackson on climate policy, told Bloomberg BNA.

“Where the Clean Air Act is available, they’ve used that, and where it’s not, they’ve used other theories based on the Administrative Procedure Act,” Heinzerling said.

The EPA has invoked the same Clean Air Act authority under Section 307(d) to halt the methane standards for landfills and oil and gas wells as well as the risk management program requirements for chemical facilities. While portions of both methane rules had been halted for 90 days, the EPA has issued a final rule to postpone the risk management plan requirements for two years while it reconsiders the rules, something that it has proposed to do for oil and gas wells also.

Pruitt invoked a separate Clean Air Act provision in a June 6 letter to states announcing his plans to postpone for one year decisions on which areas of the country fail to meet new, more stringent ozone pollution requirements. Pruitt has said the EPA lacks the data necessary to make those determinations, which sets up a much different fight for environmental groups opposed to the delay.

Weeks said Pruitt has made no attempt to show that the agency doesn’t have sufficient data necessary to make the determinations.

Separately, the EPA’s attempt to roll back a rule determining the jurisdiction of the Clean Water Act is being done under Administrative Procedure Act authority.

Methane Ruling Among ‘Milestone Victories’

The U.S. Court of Appeals for the District of Columbia Circuit’s July 3 decision in Clean Air Council v. Pruitt will inevitably be referenced in pending challenges to the landfill and risk management plan delays. Weeks wouldn’t say if environmental groups would seek the same emergency motion in the landfill case that secured them victory in the oil and gas well delay, but opponents of the risk management program delay have made a similar request.

Ultimately, getting the regulatory delays overturned is only a prelude to larger battles over the EPA’s reconsideration of its various regulations.

The oil and gas decision is one of environmental groups’ "milestone victories and at the end of the day the agency could still go back and fix its mistakes,” Heinzerling said.

To contact the reporters on this story: Andrew Childers in Washington at achilders@bna.com; Sam Pearson in Washington at spearson@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

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