Regulatory Developments

EPA Stalls Two More Obama-Era Rules

Administrator Scott Pruitt’s still young EPA has already established that it will act aggressively both to delay defending in court and to reconsider significant rules issued by the Obama EPA. The EPA recently took the following two actions.


In a motion, the Agency asked the U.S. Court of Appeals for the D.C. Circuit to postpone oral arguments in an industry-state challenge to the Agency’s Supplemental Finding that It Is Appropriate and Necessary to Regulate Hazardous Air Pollutants from Coal- and Oil-fired Electric Utility Steam Generating Units (April 25, 2016, Federal Register (FR)).

The supplemental finding is the Obama EPA’s argument that consideration of the cost of the Agency’s February 2012 Mercury and Air Toxics Standards (MATS) did not cause the EPA to change its determination that regulation of hazardous air pollutant (HAP) emissions from fossil-fuel power plants is appropriate and necessary and that these plants are, therefore, properly included on the Clean Air Act (CAA) Section 112(c) list of sources that must be regulated under CAA Section 112(d). The supplemental finding responded to the U.S. Supreme Court’s ruling in Michigan v. EPA that it was unreasonable for the Agency not to consider the annual $9.6 billion compliance cost of the MATS in any determination that the rule is appropriate and necessary.

In its motion to the D.C. Circuit, the EPA states that it is well established by the courts that a new executive branch has the discretion to reappraise the cost and benefits of its regulations and policies.

“The Clean Air Act complements EPA’s inherent authority to reconsider prior rulemakings by providing the Agency with broad authority to prescribe regulations as necessary to carry out the Administrator’s authorized functions under the statute,” says the EPA.

The Agency adds that it needs sufficient time to complete an orderly review of the large body of scientific and technical evidence that provided the basis for the MATS supplemental finding. A delay of oral arguments is also warranted given President Donald Trump’s March 28, 2017, Executive Order directing the EPA to review for possible reconsideration any rule that could potentially burden the development or use of domestically produced energy resources, especially oil, natural gas, coal, and nuclear energy.

The Agency requests that the court grant a renewable 90-day continuance of the scheduled May 18, 2017, oral arguments.

O&G Methane Rule

The EPA has granted a request from several oil and gas (O&G) industry associations that want the Agency to reconsider its final rule, Oil and Natural Gas Sector: Emissions Standards for New, Reconstructed and Modified Sources (June 3, 2016, FR). In a letter to the associations, Pruitt notes that at least one issue—regarding fugitive emissions monitoring requirements—raised by industry warrants reconsideration because it was impracticable to raise objections to this requirement during the proposed rule’s public comment period and because the provision is of “central relevance to the rule.”

The final standards are intended to regulate emissions of volatile organic compounds (VOCs) and greenhouse gas (GHG) emissions (in the form of methane emissions limitations) from a range of new, modified, and reconstructed equipment, processes, and activities across the O&G source category. Much of the rule is concerned with the control of leaks and fugitive emissions.

“Among the issues raised in the petitions that meet the requirements for reconsideration are objections regarding the provisions for requesting and receiving an alternative means of emission limitations and the inclusion of low production wells,” states Pruitt in his letter. “These provisions, or certain aspects of these provisions, were not included in the proposed rule, so the public could not have raised objections to these provisions during the public comment period. As part of the reconsideration process, the EPA will provide an opportunity for notice and comment on the issues raised in the petitions as well as any other matter we believe will benefit from additional comments.”

As a result of the reconsideration, the Agency is allowing a 90-day stay of the compliance date for the fugitive emissions monitoring requirements.

Pruitt’s letter is here.


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