By Romany Webb

It’s no secret the Trump Administration opposes federal regulation of methane emissions. In his Energy Independence Executive Order, President Trump directed the Bureau of Land Management (BLM) and Environmental Protection Agency (EPA) to reconsider Obama-era regulations, aimed at reducing emissions from oil and gas production. Both BLM and EPA have sought to stay the regulations pending reconsideration, but have faced push back from the courts. In October, for example, the District Court for the Northern District of California ruled that BLM had violated the Administrative Procedure Act (APA) by staying its methane regulations. On Tuesday, December 5, BLM announced it would appeal the district court’s decision to the 9th Circuit Court of Appeals.

BLM maintains that it has authority to stay the methane regulations under section 705 of the APA, which allows an agency to “postpone the effective date of action taken by it, pending judicial review.” That argument was, however, roundly rejected by the district court. In a stinging rebuke to BLM, the court held that the stay was arbitrary and capricious, including because it was not motivated by pending litigation over the methane regulations, but rather BLM’s desire to reconsider them. Despite this, however, EPA is now considering relying on the APA to stay its own methane regulations pending reconsideration. The Sabin Center today submitted a letter to EPA, explaining that the stay is not authorized under the APA, nor the Clean Air Act (CAA).

In a notice issued on November 8, EPA requested public input on its legal authority, under the APA and CAA, to stay the methane regulations for two years. In our view, neither statute authorizes the stay. As we explain in our submission:

  • With respect to the APA, EPA has not satisfied the requirements for issuing a stay under section 705. EPA has not provided any evidence to show that its stay is motivated by pending litigation over the methane regulations. In fact, in proposing the stay, EPA did not even mention the litigation and merely described the stay as necessary to “provide the EPA sufficient time . . . to complete its reconsideration process.” EPA also did not demonstrate that justice requires the stay and failed to adequately consider the benefits of immediately implementing the regulations.
  • With respect to the CAA, EPA cannot issue the stay under its general rulemaking authority, conferred by section 301. While recognizing that rules promulgated under this section must be reasonably related to the purposes of the CAA, EPA fails to explain how its proposed stay meets this requirement. The evidence before EPA demonstrates that the stay is actually contrary to the purposes of the CAA. It is also inconsistent with the clear statement, in section 111 of the CAA, that regulations “shall become effective upon promulgation.”

We also dispute EPA’s authority to extend the compliance deadlines in the methane regulations (i.e., as an alternative to staying its requirements). Again, EPA has failed to justify its action, providing no evidence to show that regulated entities need additional time to comply with the methane regulations.

Click here to read our comment letter in full.

Information about EPA’s methane regulations and the proposed stay is available here. BLM’s regulations are discussed here.

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