North Dakota Becomes First Petitioner to Challenge EPA’s Methane Rule

sboxermanFeatured Expert Column – Environmental Law and Policy

By Samuel B. Boxerman, Sidley Austin LLP

On July 15, 2016, North Dakota became the first petitioner to challenge the Obama Administration’s unprecedented Clean Air Act rule governing methane emissions from new and modified oil and gas sources (“Methane Rule”).1  More petitions are anticipated.

The rule—also referred to as the “QuadOa” rule,2—sets emissions standards for methane at certain new and modified upstream and midstream oil and gas sources and requires owners and operators of affected sources to implement a leak-detection program to identify and repair fugitive emission leaks.  Home to the Bakken Shale formation and now the nation’s second largest oil-producing state, North Dakota has a substantial interest in the burdens and benefits of the rule.

The administration has touted the Methane Rule as part of the President’s Climate Action Plan to reduce greenhouse gas emissions, including methane emissions from the oil and gas sector.  Industry has opposed the rule as imposing costly and unnecessary regulations and paperwork.  Companies already are taking steps to collect methane—as industry has every incentive to do, because methane is a key ingredient in natural gas.

Filed in the D.C. Circuit, North Dakota’s Petition for Review states that EPA’s Methane Rule “exceeds EPA’s statutory authority, goes beyond the bounds established by the United States Constitution and is arbitrary, capricious, an abuse of discretion and not in accordance with law” and calls for the rule to be set aside.3  The clerk issued a scheduling order directing the petitioner to provide its statement of issues to be raised by August 22.4  In the meantime, other petitioners are expected to challenge EPA’s Methane Rule.  The deadlines for all petitions for review is August 2.

Notes

  1. Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources, 81 Fed. Reg. 35824, 35825 (June 3, 2016).
  2. The Rule is published at 40 C.F.R. § OOOOa.
  3. Petition for Review at *1, North Dakota v. U.S. EPA, Case No. 16-1242 (D.C. Cir. Jul. 15, 2016).
  4. Order, North Dakota v. U.S. EPA, Case No. 16-1242 (D.C. Cir. Jul. 21, 2016).

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