D.C. federal appeals court blocks EPA’s effort to suspend Obama-era methane pollution rule

[Source: POWERSOURCE–The Washington Post and The New York Times contributed] A federal appeals court in Washington ruled Monday that the head of the Environmental Protection Agency overstepped his authority in trying to delay implementation of a new rule requiring oil and gas companies to monitor and reduce methane leaks.

In a split decision — the first major legal setback for Scott Pruitt, the EPA administrator — the three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit ordered the environmental agency to move forward with the Obama-era requirement that aims to reduce planet-warming emissions from oil and gas operations.

The ruling signals that President Donald Trump’s plans to erase his predecessor’s environmental record are likely to face an uphill battle in the courts.

Mr. Pruitt announced in April that he would delay by 90 days the deadline for oil and gas companies to follow the new rule, so that the agency could reconsider the measure. The American Petroleum Institute, the Texas Oil and Gas Association and other industry groups had petitioned Mr. Pruitt to scrap the requirement, which had been set to take effect in June.

Last month, Mr. Pruitt announced he intended to extend the 90-day stay for two years. A coalition of six environmental groups opposed the delay in court, urging the appeals judges to block Mr. Pruitt’s decision.

In a recent interview with The Washington Post, Mr. Pruitt said, “Just because you provide a time for implementation or compliance that’s longer doesn’t mean that you’re going to necessarily reverse or redirect the rule.”

In a detailed 31-page ruling that could set back the Trump administration’s broad legal strategy for rolling back Obama-era rules, the court disagreed with Mr. Pruitt’s contention that industry groups had not had sufficient opportunity to comment before the 2016 rule was enacted. The judges also said Mr. Pruitt lacked the legal authority under the Clean Air Act to delay the rule from taking effect with an “unreasonable,” “arbitrary” and “capricious” decision.

“EPA’s stay, in other words, is essentially an order delaying the rule’s effective date, and this court has held that such orders are tantamount to amending or revoking a rule,” Judges David Tatel and Robert Wilkins wrote. They dismissed “the flimsiness” of the EPA’s “claim that regulated entities had no opportunity to comment” on one aspect of the rule limiting methane and smog-forming pollutants emitted by oil and gas wells.

The third member of the three-judge panel, Janice Rogers Brown, dissented.

Monday’s decision does not mean the rule imposing the first-ever federal limits on leaks of methane cannot be reversed. But to do so, the judges said, the agency would have to undertake a new rule-making process to undo the regulation and must comply with the Obama-era rule in the meantime.

EPA spokeswoman Amy Graham said the agency was reviewing the court’s opinion and examining its options. The EPA could seek to appeal the matter to the Supreme Court.

The ruling underscores the extent to which activists are turning to the courts to block Mr. Trump’s most ambitious policy shifts.

Last month, for example, the Interior Department announced that it would delay compliance with a rule finalized in November that would limit methane burned off from drilling operations on federal and tribal lands. And the Labor Department just proposed delaying until December a rule that was set to take effect July 1 that would require companies to electronically report injuries and illnesses.

Mr. Pruitt has moved to suspend or revoke several other rules adopted during the Obama administration, including a two-year delay on a regulation aimed at minimizing chemical accidents like the 2013 ammonium nitrate explosion at a plant in West, Tex.

“This ruling declares EPA’s action illegal — and slams the brakes on Trump Administration’s brazen efforts to put the interests of corporate polluters ahead of protecting the public and the environment,” said David Doniger, director of climate and clean air program for the Natural Resources Defense Council.

“The court’s decision ends the continued pollution by the oil and gas industry that’s been illegally allowed by Pruitt,” weighed in Fred Krupp, president of the Environmental Defense Fund, one of the plaintiffs in the case.

The EDF says that reducing leaks would keep large quantities of smog-forming volatile organic compounds, cancer-causing benzene and methane from being emitted into the air.

Richard Lazarus, an environmental-law professor at Harvard Law School, said in an email that the court’s “ruling is yet another reminder, now in the context of environmental protection, that the federal judiciary remains a significant obstacle to the president’s desire to order immediate change.”

At the same time, Reid Porter, a spokesman for the American Petroleum Institute, said that standards set in 2012 are already reducing methane emissions. “A stay is needed to allow for regulatory certainty as EPA continues the formal process to review the rule-making,” he said in a statement.

The methane rule applied only to new or modified wells. Mr. Doniger said it would so far apply to about 11,000 wells drilled since September 2015.

Natural gas is largely made up of methane, a potent greenhouse gas that traps dozens of times more heat in the planet’s atmosphere than the same amount of carbon dioxide. Environmental groups contend that actual methane emissions from leaks and intentional venting at fossil-fuel operations are many times greater than what is now publicly reported.

Oil and gas companies say they were already working with the EDF to reduce methane emissions and that complying with the new rules would make many low-production wells unprofitable.

The administration has already suffered several reverses in federal court to its plans to limit immigration from a group of majority-Muslim nations. A federal judge in California also blocked the administration’s threat to penalize cities that provide legal sanctuary for unauthorized immigrants.

Mr. Pruitt has repeatedly moved in recent months to block or delay environmental regulations opposed by corporate interests.
A number of other EPA actions to undo regulations it inherited, including a rule on landfills and another on chemical spills, are likely to receive close scrutiny from the courts because of this ruling.

Prior to his appointment by Mr. Trump to serve as the nation’s chief environmental regulator, Mr. Pruitt was attorney general of Oklahoma and closely aligned with the state’s oil and gas industry. In recent weeks, Mr. Pruitt has moved to scrap or delay numerous EPA regulations enacted during the Obama administration to curb air and water pollution from fossil fuel operations.

Even as one aspect of the administration’s push to promote domestic energy production faced a legal setback Monday, it advanced on a separate front. The Interior Department launched a new offshore-leasing planning process for 2019 to 2024, a move that could open up new areas for drilling in the Arctic, Atlantic and Pacific oceans, as well as the Gulf of Mexico.

In a Federal Register notice published Friday, the Interior Department invited public comment on a plan that would “replace the 2017-2022 Program” established during the Obama administration and represent “a key aspect of the implementation of President Donald J. Trump’s America-First Offshore Energy Strategy.”

Source: POWERSOURCE: The Washington Post and The New York Times contributed
July 3, 2017