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Court rejects stay of EPA methane rule DC Circuit says delay of rule for oil and gas facility emissions constitutes final rule making that requires public process Alan Bailey Petroleum News
In a majority decision, a panel of three judges in the U.S. Court of Appeals for the District of Columbia has ordered that the Environmental Protection Agency cannot defer implementation of a new rule placing limits on methane and some other emissions from new or modified oil and gas facilities. The rule, introduced by the Obama administration, required industry compliance by June 3. But in April Scott Pruitt, the new EPA administrator, said that he was staying the compliance requirement by 90 days - petitioners from the oil and gas industry had requested reconsideration of the rule. And on June 16 EPA announced for public comment a proposal to extend the stay for two years, to enable a review of the entire rule.
Six environmental organizations appealed the stay of the rule in the D.C. Circuit Court. And on July 3 the court issued an order, upholding the appeal. The court said that the stay of the rule constituted a final rule-making action, requiring a formal public rule-making procedure. The dissenting judge argued that, because the stay did not force industry compliance with a rule, the stay was not a final action by the agency.
Opportunity for comment? When he originally announced the stay, Pruitt argued that some regulations within the emissions rule had not been included in the draft rule that had been released for public comment. Thus, the public had not been given the opportunity to object to these regulations, Pruitt said. The Clean Air Act, the statute under which the rule was issued, includes a section that allows reconsideration of rules or procedures which have been finalized but which a petitioner can demonstrate could not feasibly have been commented on during a public comment period.
The D.C. Circuit judges disagreed with Pruitt’s position, saying that, although the regulations in question had not been spelled out in the draft version of the rule issued for public comment, the notice of proposed rule-making had in each instance solicited comments on the possibility of including the regulations in the final rule. Thus, the regulated entities had ample opportunity to comment on all of the regulations included in the final rule, the judges said.
The methane emissions regulations that were introduced in the new rule apply to emissions sources already subject to regulations issued in 2012 for the reduction of volatile organic compound emissions. However, the methane regulations apply to some new emissions sources, including hydraulically fractured oil wells. The Alaska North Slope was exempted from the routine monitoring of certain types of equipment. And the regulations do not apply to offshore operations.
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