Several environmental organizations have petitioned the D.C. Circuit Court of Appeals and moved to block EPA from implementing a 90-day administrative stay of the New Source Performance Standards covering methane emissions from oil and gas infrastructure. A group of states, plus the District of Columbia and the City of Chicago, have since moved to intervene in favor of petitioners. Industry groups and conservative leaning states have lined up to support the agency’s action. The rule, which focuses on detecting and repairing methane leaks, would have required oil and gas well owners and operators to complete initial monitoring by June 3, 2017.
Petitioners ague that EPA lacks the authority to issue a stay of finalized regulations under the Clean Air Act other than pursuant to 42 U.S.C. § 7607(d)(7)(B), which requires identification of an objection of central relevance to the rule that could not have been raised during the initial public comment period. The groups claim that these conditions are not satisfied, as all the issues relied on by EPA were extensively deliberated during the public comment period, or at least could have been, and in any event are not centrally relevant. For example, petitioners attack EPA’s claim that its rationale for including low producing well sites in the leak detection and repair program was not presented to the public, noting that EPA explicitly sought comment on this issue in its 2015 proposal.
Petitioners also contend that the stay is overboard and that the EPA’s failure to narrowly tailor it to the specific issues under reconsideration, or balance the equities involved, is arbitrary and capricious.
In response, EPA submits that 42 U.S.C. § 7607(d)(7)(B) establishes only when the agency must reconsider a rule, but that it has inherent authority to reconsider its decisions. Its argument runs into a bit of trouble because the authority for the three month stay EPA initiated appears to be tied to a reconsideration pursuant to 42 U.S.C. § 7607(d)(7)(B). Only secondarily does it defend its decision on the grounds that the conditions required by that section are satisfied.
This legal fight is part of a larger battle between the EPA and the environmental community over the rule. On June 13, 2017, the EPA proposed an additional 2-year stay of portions of the regulations. In particular, the agency has proposed to stay the fugitive emissions requirements, the well site pneumatic pump standards, and the requirements for certification of closed vent system by professional engineers. Even if petitioners are successful before the D.C. Circuit, they will still have an uphill battle to maintain the rules indefinitely. They do not dispute that the agency can initiate a separate rulemaking and likely permanently eliminate as much of the rule as it would like.