US EPA illegally fails to regulate methane emissions from fracking and other gas and oil operations, as alleged by 7 states in planned lawsuit

January 24, 2013 | By Robert Emmet Hernan

Under the Clean Air Act, states have the right to sue EPA over alleged legal failures but it must first give EPA a 60-day Notice of their intent to sue.  This Notice provides an opportunity for EPA to take action to correct any failure brought to its attention in the Notice.  The Notice was issued to EPA on December 11, 2012 so the earliest a lawsuit could be filed would be June 11, 2013.

In August 2012 EPA revised its New Source Performance Standards (NSPS) that regulate industrial sectors that cause or significantly contribute to air pollution that endangers public health and welfare.  While the August 2012 regulations provided some federal air emission standards for natural gas wells, including operations using fracking, the 7 states, led by New York’s Attorney General, claim that EPA failed to address the industries methane emissions, including for fracking operations.

The Notice of Intent (see link below) states that EPA has already determined that methane is a powerful greenhouse gas (GHG) that warms the climate about 25 times more than carbon dioxide (CO₂) and that it, and other GHGs, endanger the public’s health and welfare.  According to EPA, methane contributes to “increased air and ocean temperatures, changes in precipitation patterns, melting and thawing of global glaciers and ice, increasingly severe weather events — such as hurricanes of greater intensity — and sea level rise.”  77 Federal Register pages 49,490; 49, 535 (23 Aug 2011).

The Notice also state that EPA has already determined that oil and natural gas wells, gathering lines, processing facilities, storage tanks and transmission and distribution lines emit over 15 million metric tons of methane each year.  This is the equivalent of climate change pollution from 64 million cars each year.  These figures represent the emissions from all oil and gas operations, not just those using fracking.

Oil and gas systems are the largest source of methane emissions in the US and second largest industrial source of GHGs in US, behind electric power plants.

EPA argues that, in the August 2012 regulations, it was not yet taking final action with respect to the regulation of methane but had “an eye toward taking additional steps if appropriate.”  In other words, it put methane regulation on the long finger.

The states argue that EPA is legally obliged to have taken action to regulate methane emissions in August 2012, or to have declared that no methane regulations are necessary, the latter an unlikely outcome.

Sources

A.G. Schneiderman (NY AG) Leads Multi-state Coalition In Action To Curb Climate Change Pollution From Oil And Gas Industry: Oil And Gas Industry Is The Single Largest Emitter Of Greenhouse Gas Methane In The U.S. www.ag.ny.gov/press-release/ag-schneiderman-leads-multi-state-coalition-action-curb-climate-change-pollution-oil

Attorney Generals’ Notice of Intent to Sue EPA       www.ag.ny.gov/pdfs/ltr_NSPS_Methane_Notice.pdf