Plaintiffs say EPA’s methane control rollback violates law and its own policies

The Environmental Protection Agency (EPA) violated the Clean Air Act and ignored the agency’s own past policies in rescinding a 2016 control program for methane from oil and gas operations, according to a lawsuit.

The Trump administration rescinded Obama administration regulations for methane from oil and gas production, transmission, and storage operations without the reasoned, fact-based analyses that would comply with the law, the plaintiffs said.

The opening brief in the case was filed Dec. 7 by 20 states and three localities in a case involving new source performance standards (NSPS), which apply not only to new operations but existing operations that are rebuilt or notably modified. The case is California v. Andrew Wheeler, in the US Court of Appeals for the District of Columbia Circuit.

The plaintiffs not only accused EPA of numerous errors but insincerity. The 2020 NSPS changes were “the latest facet of EPA’s efforts to eliminate regulation of existing sources altogether,” the lawsuit said.

The agency has not, and cannot, offer a reasoned explanation” for its regulatory rollbacks, and thus is “arbitrary and capricious” in violation of the Clean Air Act, the plaintiffs said.

Redundancies, costs, findings

EPA announced its revised emission standards in August. It said it was eliminating specific regulations for methane in production operations because they were redundant, given that controls for volatile organic compounds (VOCs) also control methane, making separate methane regulations redundant wastes of time and money (OGJ Online, Aug. 13, 2020).

The plaintiffs’ brief argued that the 2016 rule is not redundant, that it “controls both methane emissions and VOC emissions separately using the same technology and processes.” As for a waste of money, the costs of the 2016 methane controls were minimal when viewed as a percent of industry revenues and profits, the plaintiffs said.

The Trump administration also said the 2016 rule violated the Clean Air Act by not first making a finding of significance and need before applying standards to transmission and storage, where far fewer emissions are detected than in production.

That is a novel interpretation of the law that EPA never applied to its regulations before, the plaintiffs said. It is EPA practice to list industrial categories for regulation without first applying a “standard or established set of criteria,” the lawsuit said.

“EPA relies on an untenably narrow reinterpretation of its statutory authority,” the lawsuit said.

Deadlines for responses

The court has set a deadline of Jan. 6 for EPA to respond. That means the Justice Department, on behalf of EPA, will be arguing the case while Donald Trump is still president. It will make it somewhat awkward for the Justice Department under a President Biden to turn around and disavow its own arguments. A deadline of Jan. 13 was set for responding briefs by intervenors on the side of EPA, such as oil and gas associations.

Joining California in the lawsuit were Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington, plus Chicago, Denver, and the District of Columbia.