EPA has proposed something new, and oil and gas advocates are sounding the alarm.
The agency’s draft methane rules released last fall would, for the first time, give citizens and communities a formal role in policing petroleum operations for spikes in pollution from equipment malfunctions or other mishaps.
There’s nothing new about cities or citizen organizations keeping a watchful eye on emissions from local energy developers to safeguard their air quality. But when a sudden leak is found, the state regulators and the company have largely had the discretion to respond as they see fit.
That would no longer be the case under EPA’s proposed program, called the Super‐Emitter Response Program, or SERP. If it survives in the final rule later this year, the program would compel operators to inspect their operations within five days of being notified of a potential leak by third-party monitors, and to make any fixes within 10 days. Data on the event would be made public.
The proposal has earned kudos from environmentalists, who say it will safeguard public health in oil and gas fields — including the tribes and environmental justice communities that the Biden administration has promised to prioritize. But it has also catapulted to the top of the industry’s list of concerns about the standards, which otherwise enjoy qualified support from a sector that has largely dropped its former opposition to federal methane regulation.
Frank Macchiarola, senior vice president of policy, economics and regulatory affairs at the American Petroleum Institute, told reporters on a call last month that the fenceline monitoring program is “the single most discussed problem within the rule across the industry.”
“It definitely raised the most concerns when it was released in the fall,” he said.
Macchiarola said the program as proposed by EPA would give local activists and environmental groups an opening to participate directly in oversight of industry — something he and other industry advocates have argued strenuously is not supported by the Clean Air Act.
“Congress doesn’t set those [statutes] up for third parties to regulate our industry,” he said on the Feb. 14 call, which was timed for the end of the draft rule’s public comment period. “They set them up for experts and officials within the government to regulate our industry.”
Macchiarola suggested that API might back a voluntary program that takes advantage of third-party data to detect leaks. But he decried EPA’s proposal to load that data on a publicly searchable online portal — especially if EPA hasn’t vetted it first.
EPA’s proposal is an attempt to solve a problem. Traditionally the agency has relied on industry estimates for its data on oil and gas methane. But in the last decade, studies based on empirical data collected and analyzed by third parties — academic scientists and organizations like the Environmental Defense Fund — have shown that the industry’s climate footprint exceeds the levels shown in EPA inventories. EPA has moved to incorporate some of those findings in its inventory and in the oil and gas rules due to be final this summer.
For example, evidence points to a wildly outsize share of oil and gas emissions coming from a tiny number of oil and gas operations. A study last year published in the Proceedings of the National Academy of Sciences found that these super-emitters were responsible for 40 percent of the petroleum methane emissions in five major U.S. oil and gas basins between 2019 and 2021.
Small producers can be super-emitters as well — a finding that prompted EPA to strengthen inspection requirements for them between its 2021 and 2022 proposals. And the leaks that spew the most methane can be short and sharp, evading the regular inspection schedule laid out by EPA in its upcoming rules.
Advocates say communities on the front lines of oil and gas development have not had consistent access to information when high-emissions events occur, even though hazardous pollution might impact their health. Some communities have responded by sponsoring their own monitoring activities. And advocates say the results of third-party monitoring should be publicly disclosed on a database for increased transparency.
But industry groups in their comments to EPA say the agency’s proposal doesn’t provide an adequate legal justification for giving outside groups a role in regulation. Details of the proposal — such as the 100-kilogram-per-hour threshold EPA proposes to define a super-emitter event — are all absent from the Clean Air Act, they say, in ways that are likely to come back to haunt EPA in court.
“The proposed ‘Super‐Emitter Response Program’ is not lawful,” said the Western Energy Alliance in its submission to EPA.
The Colorado-based group twice called EPA’s proposed monitoring program “arbitrary and capricious” and hinted broadly that it might run afoul of the so-called major questions doctrine — a legal doctrine that holds that all significant actions by an agency must be predicated on clear direction from Congress. Congress didn’t expressly direct EPA to “delegate” data-collection responsibilities to outside parties as part of the Clean Air Act, WEA states.
The major questions doctrine figured in last year’s West Virginia v. EPA Supreme Court decision, which had the effect of limiting EPA discretion in regulating power plant carbon. Legal experts last year said EPA’s upcoming methane package would be hard to challenge on similar grounds (Climatewire, July 27, 2022). But that was before EPA fleshed out its third-party monitoring program.
Kathleen Sgamma, president of WEA, told E&E News that EPA is proposing to delegate enforcement authority to third parties, even though the Clean Air Act reserves it for the states.
That could lead to “industry harassment,” she predicted.
“You could tie up a company with false alarms, you could tie up a company with false reports or false monitoring,” Sgamma said. “We just don’t see that there is enough safeguards in the way EPA has proposed this program.”
The proposal requires EPA certification of monitors and their methodologies — a provision some environmental commenters said could limit participation to professional air quality monitoring companies and those wealthy enough to hire them. Advocates separately filed comments urging EPA to make funds available under a $1.55 billion methane reduction program in last year’s climate law to train and support communities and tribes to become certified monitors.
Practitioners can also lose their certification if their data collection is substandard. But EPA wouldn’t review the results in advance.
“Given the urgency with which the EPA believes such large emissions events should be addressed, any additional role for the EPA in the notification process would unnecessarily delay mitigation of ongoing harms,” the draft rule states.
Like Macchiarola, Sgamma said the program would improperly outsource work EPA should do itself.
“I mean, it’s as if EPA doesn’t even have enforcement people anymore, and they can just deputize outside groups,” she said.
But EPA has never had the capacity to conduct 24/7 monitoring of the nation’s wellheads and production sites. And that’s unlikely to change as EPA expands regulations to cover hundreds of thousands of additional older sources of methane and a Republican-controlled House promises to slash the agency’s budget.
Sgamma said her group isn’t anxious to see EPA do more monitoring itself, either.
“I don’t think we want the EPA to grow even larger than it already is,” she said. “That’d be a huge increase of manpower for EPA.”
Company monitoring should be sufficient, she said.
But environmentalists say EPA’s past reliance on industry emissions estimates has not ensured reliable data. And that’s doubly true, they say, for the freak events EPA hopes this program will find and fix.
Frances Reuland, a manager for RMI’s Climate Intelligence Program, said the monitoring proposal is one opportunity for the agency to “lean” on outside experts for work it can’t do itself.
“The staffing at EPA is unknown in the future,” she said. The solution: “building sustainable programs that kind of live in some ways not fully inside EPA, but also involve external people.”
Lawyers with environmental organizations say EPA provides enough legal basis in its draft rule by describing the monitoring program as a way to ensure that companies meet the proposal’s other requirements.
“Emission events exceeding the threshold for notification under SERP indicate major problems resulting from either non-compliance or serious operational issues,” said Rosalie Winn, an attorney with EDF, in an email.
EDF, Clean Air Task Force, Earthjustice and other groups submitted joint comments to EPA last month in which they note that two sections of the Clean Air Act allow third-party data in regulation and enforcement. Section 113 permits EPA to use “any available information” that shows a facility has violated a standard or legal requirement. Section 114 lets EPA force third parties to make relevant information available to inform regulations.
Caitlin Miller, a senior associate attorney with Earthjustice, said EPA is not delegating regulatory authority in setting up the program.
“There’s a lot of EPA oversight,” she said. “SERP is really a backstop here.”