Court rejects Trump’s delay of methane rules

By Daniel de Vries
8 July 2017

A federal appellate court in Washington, D.C. earlier this week blocked the Trump administration from arbitrarily postponing compliance with a rule to limit methane pollution from new oil and gas industry sources. The court’s 2-1 ruling is a modest, temporary hurdle for the administration as it attempts to unravel the regulatory framework put in place decades ago.

The decision grants a request by an environmental group to void a 90-day administrative freeze by the Environmental Protection Agency (EPA) and requires immediate implementation of the rule. However, it does nothing to prevent the agency from moving forward with a formal proposal to delay compliance, provided it follows public review and comment procedures laid out in the Clean Air Act. EPA administrator Scott Pruitt announced earlier this year that he is pursuing just such a course as he considers rewriting or scrapping the rule altogether, as required by a March executive order.

The methane regulation, finalized in May 2016, was a component of President Barack Obama’s Climate Action Plan. It places minimal requirements on new hydraulic fracturing and conventional oil and gas wells such as mandating formal schedules or procedures to repair gas leaks. In most cases it requires no additional pollution control equipment to be installed.

Methane is a potent global warming gas 25 times more powerful over the long term than carbon dioxide. The rapid expansion of natural gas production via fracking under the Obama administration has been accompanied by concerns about the impact on climate change, in addition to the harm caused by the poisoning of water resources. While carbon pollution from power plants has declined over the last decade with a shift to cheap natural gas, many scientists have concluded that methane leakage has offset if not worsened the net climate impact of electricity generation in the US when evaluated from the point of extraction through to combustion in the power plant.

Even if strictly complied with, the methane rule would still allow industry to spew large amounts of climate-degrading pollutants into the atmosphere. Yet even these modest restrictions are too much for a section of industry which sees in the Trump administration an opportunity to not only to roll back Obama-era rules, but constraints stretching back decades.

Among the first targets in this effort are climate-related regulations. Prior to Trump’s announcement last month to withdraw from the Paris climate accord, strongly backed by his environmental chief Pruitt, EPA announced the reversal or delay of several climate-related rules affecting power plants, vehicle manufacturers, landfills and fossil fuel producers.

In a move that would give prominence to fellow climate deniers, Pruitt is preparing an official program to critique the science underpinning climate change. The program would recruit “experts” to perform a “red team, blue team” evaluation of supposed scientific controversies. Coal boss Robert Murray, according to Climate Wire, interpreted the step as preparation for an attempt to reverse the EPA’s determination that greenhouse gases pose a danger to health and welfare. Reversing this endangerment finding, if it withstands legal challenges, would facilitate the Trump administration’s wholesale withdrawal of all regulations governing greenhouse gas emissions.

Revoking the endangerment finding or even individual rules is a time-consuming bureaucratic process. However, issuing compliance delays, whether through a formal public review and comment process or via administrative fiat, is a means for the Trump administration to temporarily or in some cases indefinitely exempt industry from regulatory constraints. In less than half a year of the Trump administration, EPA has issued delays for existing programs not only related to climate change, but also national air quality standards for smog, certification and training requirements for workers using pesticides, wastewater discharges from power plants, energy efficiency standards and emergency response planning for chemical exposures, among others.

The methane decision may impact some of these delays. EPA’s justification for a two-year compliance postponement for emergency response plans, for example, relies upon the same statutory provisions at issue in the methane rule. This week the states of California and New Mexico filed suit to block the delay of a companion oil and gas methane rule issued by the Department of the Interior.

Nonetheless, the current and forthcoming legal challenges seeking to force the Trump administration to implement existing rules, let alone complete mandatory new ones, may well amount to little. The courts typically give broad leeway to the Executive Branch to review and postpone rules. Among the EPA regulations currently on hold, most fall under unique authorities, so the methane ruling may not be directly relevant. Furthermore, Trump’s budget proposal, which would slash funding for the EPA by a third and eliminate more than 3,000 jobs, is intended to cripple the agency’s ability to carry out existing regulations.

The broader deregulatory push by the Trump administration, building on decades of bipartisan policy, is moving forward without hesitation. Trump underscored this during his fascistic remarks Thursday in Poland. He decried “The steady creep of government bureaucracy that drains the vitality and wealth of the people.” “The West became great, not because of paperwork and regulations, but because people were allowed to chase their dreams.” Trump is determined to remove all constraints, environmental or otherwise, on the wealth and privilege of the ruling elite.

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