New York Attorney General Files Intent to Sue EPA for Failing to Address Methane Emissions

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By Glynn Wilson

Leading a coalition of seven states, including Connecticut, Delaware, Maryland, Massachusetts, Rhode Island and Vermont, New York Attorney General Eric T. Schneiderman notified the U.S. Environmental Protection Agency of his intent to sue the agency on Tuesday for violating the Clean Air Act by failing to address methane emissions from the oil and natural gas industry.

While the agency determined in the past that methane was a powerful climate change pollutant emitted by the industry in large quantities, and since the availability of affordable methods for controlling the industry’s methane emissions are limited, the coalition charges that EPA violated the Clean Air Act when it largely ignored methane in recent updates to air pollution emission standards for the industry.

Methane is a very potent greenhouse gas. Pound for pound, it warms the climate about 25 times more than carbon dioxide, according to the best available science. The agency has concluded in past findings that the impacts of climate change caused by methane include “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.”

In 2009, EPA determined that methane and other greenhouse gases endanger the public’s health and welfare. Yet the EPA’s decision not to directly address the emissions of methane from oil and natural gas operations — including hydrofracking — leaves almost 95 percent of these emissions uncontrolled.

“We simply can’t continue to ignore the evidence of climate change or the catastrophic threat that unabated greenhouse gas pollution poses to our families, our communities and our economy,” Attorney General Schneiderman said in a press release announcing the legal action. “While it is clear that methane from oil and natural gas development contributes substantially to climate change pollution, regulators have failed to require the industry to use available and cost-effective measures to control these emissions. Our coalition is putting EPA on notice that we are prepared to sue to force action on curbing climate change pollution from the oil and gas industry.”

The EPA has determined that oil and natural gas production wells, gathering lines, processing facilities, storage tanks and transmission and distribution pipelines emit more than 15 million metric tons of methane annually — the equivalent yearly climate change pollution of 64 million cars — making the industry the single largest source of man-made methane emissions in the U.S. and the second largest industrial source of domestic greenhouse gas emissions behind only electric power plants.

The Clean Air Act requires EPA to set emission controls, known as “New Source Performance Standards,” for industrial sectors that cause or significantly contribute to air pollution that endangers public health and welfare.

In August 2012, EPA revised NSPS regulations for the oil and natural gas industry and, for the first time, eliminated federal air emission standards for natural gas wells developed through hydraulic fracturing or “fracking.” The revised regulations do not address the industry’s methane emissions, in other words.

In fact, although EPA concluded that its regulations would have “co-benefits” in reducing methane emissions, its decision not to directly address the emissions of methane from oil and natural gas operations leaves almost 95 percent of these emissions uncontrolled.

In the notice of intent to sue, Attorney General Schneiderman’s coalition charges that the EPA violated the Clean Air Act when it failed to address methane emissions in the August 2012 regulations. Specifically, the coalition argues that because EPA recognizes that methane endangers public health and welfare and is emitted in large quantities by the oil and gas industry, and has 18 years of data demonstrating that many methods of controlling these emissions are available and cost-effective, the agency broke the law by deferring a decision on whether to set NSPS standards for methane emissions from the industry.

The coalition’s notice indicates that it intends to file suit against EPA in federal district court unless the agency makes timely decisions on setting standards to curb these methane emissions from the oil and gas industry.

The Clean Air Act requires parties to provide EPA a 60-day notice of intent to sue under provisions of the Act.

“From severe droughts and heat waves to a string of devastating storms in the northeast over the last two years, it is becoming ever more apparent that increasing greenhouse gas pollution contributes to climate disruption in the U.S. and around the globe,” Schneiderman said.

Since taking office, Schneiderman has become a leader in the fight against climate change. He leads a coalition of states in pressing EPA to honor its legal commitment to regulate emissions of climate change pollution from their largest source: fossil fuel powered electric generating plants.

The agency is expected to issue final regulations limiting greenhouse gas emissions from new fossil fuel power plants early next year.

Earlier this year, Schneiderman successfully defended New York State’s participation in the “Regional Greenhouse Gas Initiative” — a multi-state effort to reduce emissions of climate change pollution — against a lawsuit backed by the out-of-state organization Americans for Prosperity.

Last month, Attorney General Schneiderman joined California and a number of environmental organizations by intervening in federal court to defend a national program to reduce greenhouse gas and improve fuel economy for passenger cars and light duty trucks.

This follows on the heels of a successful defense of EPA’s first-ever greenhouse gas regulations. In a landmark decision handed down in June 2012 by a federal court of appeals, Schneiderman argued on behalf of a coalition of states for the court to uphold these regulations.

© 2012, Glynn Wilson. All rights reserved.

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