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December 20, 2012
AGs threaten methane suit

The attorneys general (AG) of seven Northeastern and Mid-Atlantic states are alleging that the EPA has evaded its statutory obligation to decide whether to regulate methane emissions from the oil and gas (O&G) industry.  As a result, on December 11, 2012, the AGs notified the EPA that they intended to sue the Agency within 60 days unless the Agency makes “timely decisions” on setting standards to curb methane from the O&G sector.

Leading emitter

The AG coalition notes that methane is a very potent GHG–pound for pound it warms the climate about 25 times more than CO2.  Also, the O&G industry is the largest source of methane emissions in the United States, and ranks second behind electric power plants in releasing the most GHGs.  Under the Clean Air Act, the EPA must establish standards of performance governing the emissions of air pollutants from new sources (NSPS) in the O&G sector and review and, if necessary, revise those standards at least every 8 years.  In addition, for any sector for which NSPS have been issued, the Agency must issue performance standards and guidelines that the states use to regulate the emissions of regulated pollutants from existing sources. 

Continue to evaluate

In April 2012, the EPA claimed to have executed this responsibility for the O&G sector (rule published in the August 16, 2012, FR.  This action revised the standards for several air pollutants, but, according to the AG complaint, the Agency did not make the required appropriateness determination regarding methane.  Nor did the EPA establish performance standards or emissions guidelines for methane emissions from this industrial sector, allege the AGs in their notice to EPA Administrator Lisa Jackson:

“Instead, EPA stated that ‘(i)n this rule, we are not taking final action with respect to regulation of methane.  Rather, we intend to continue to evaluate the appropriateness of regulating methane with an eye toward taking additional steps if appropriate.’  The agency further stated that ‘over time,’ it would assess emissions data received pursuant to the recently implemented greenhouse gas emissions reporting program, but set forth no timetable for taking action to address methane emissions.” 

One way or another

The AGs are asking that the EPA make a decision on methane, not necessarily that methane be regulated.

“EPA’s failure to decide one way or another within the eight-year statutory review deadline whether it is appropriate to revise the oil and gas NSPS to regulate methane emissions violates section 111(b)(1)(B) of the Clean Air Act,” the notice states.  “That section imposes a clear-cut nondiscretionary duty of timeliness that requires EPA to make a decision within the eight-year review period whether it is ‘appropriate’ to revise the standards to regulate methane, regardless of whether the substance of that decision is discretionary.”

The AGs add that the EPA failed to act on regulating methane despite possessing “extensive” information that adding methane standards for O&G operations is “appropriate” as that word is used in the relevant CAA section.  They go on to say that in its O&G final rule, the Agency stated that methane emissions from the O&G industry represent about 40 percent of the total methane emissions from all sources and account for about 328 million metric tons of CO2-equivalent emissions in the U.S., or about 5 percent of the nation’s total CO2e emissions.  Natural gas systems, including hydraulic fracturing systems, are the single largest contributor to U.S. anthropogenic methane emissions. 

Incidental benefit

The EPA stated that other standards in the rule, specifically those governing volatile organic compounds (VOCs) and hazardous air pollutants (HAPs), will have the incidental benefit of reducing annual methane emissions by about 19 million metric tons of CO2e.  But this will leave the vast majority of emissions uncontrolled, state the AGs.

The notice emphasizes that methods to reduce methane emissions from the O&G industry are “readily available” and include more than 100 “cost-effective technologies” the EPA and the O&G sector identified in the Agency’s Natural Gas Star Program.

The petition was signed by officials in AG offices in Connecticut, Delaware, Maryland, Massachusetts, New York, Rhode Island, and Vermont. 

Click here for the AG’s notice of intent to sue the EPA.