A federal appeals court vacated the US Environmental Protection Agency’s 90-day pause and ordered it to implement the Obama administration’s limits on methane emissions from oil and gas operations.
But the July 3 decision did not limit EPA’s authority to reconsider the final rule and proceed with its June 16 Notice of Possible Rulemaking, the US Appeals Court for the District of Columbia added in its majority ruling. EPA is accepting comments on its proposed rule through July 17.
The appeals court said EPA granted reconsideration and stayed the requirements because:
• Industry groups had not had sufficient opportunity to comment on provisions at low-production wells.
• The final rule’s alternative rule compliance provision was not part of its original proposal.
• A requirement that a professional engineer certify a closed-vent system did not consider costs or provide adequate notice.
• An exemption by a professional engineer for wellsite operators to regulate pneumatic pumps was not technically feasible.
“The administrative record makes clear that industry groups had ample opportunity to comment on all four issues on which EPA granted reconsideration, and indeed, that in several instances the agency incorporated those comments directly into the final rule,” the court said in its opinion.
“Because it was thus not ‘impracticable’ for industry groups to have raised such objections during the notice and comment period, [Clean Air Act] Section 307(d)(7)(B) did not require reconsideration and did not authorize the stay,” it said. “EPA’s decision to impose a stay, in other words, was ‘arbitrary, capricious, [and]…in excess of [its]…statutory…authority.’”
But the court emphasized that EPA still can move ahead with its reconsideration of the oil and gas operations’ methane limits final rule. “Although EPA had no Section 307(d)(7)(B) obligation to reconsider the methane rule, it is free to do so as long as ‘the new policy is permissible under the statute…, there are good reasons for it, and…the agency believes it to be better,’” it said.
In a dissent, Judge Janice Rogers Brown said the majority decision by Judges David S. Tatel and Robert L. Wilkins created “a peculiar backdoor” by insisting that EPA has authority to reconsider the final methane emissions rule while requiring its implementation to move forward.
The stay was not a final agency action because it was interlocutory and did not create obvious consequences for oil and gas operators, she wrote. “Without either element of the ‘final agency action’ inquiry satisfied, I cannot conclude EPA’s stay falls within our jurisdictional reach,” Brown said.
Contact Nick Snow at [email protected].
