How EPA’s methane rule is dividing state agencies

By Shelby Webb | 12/13/2023 06:41 AM EST

The federal regulation is part of a push by the Biden administration to slash the amount of greenhouse gas emitted nationwide.

Flared natural gas being burned off in the Permian Basin.

Flared natural gas being burned off in the Permian Basin. Spencer Platt/Getty Images

EPA’s methane rule is revealing a split among state environmental agencies in some of the country’s most prolific oil- and gas-producing regions.

The final rule, announced by EPA Administrator Michael Regan this month at the COP28 climate summit, leans on states to enforce new standards on hundreds of thousands of older fossil fuel wells, pipelines, casings and other pieces of infrastructure.

While some states — including New Mexico, Colorado and California — have started to monitor older equipment and enforce state-level methane emissions standards, officials in other states say the plan will create a mountain of new work for their staffs. It is unclear whether states will file suit against EPA over the final rule, but the state-level response could have a major impact on the Biden administration’s efforts to dramatically cut greenhouse gas emissions.


“We are concerned it’s a lot more paperwork, and paperwork doesn’t necessarily mean more environmental quality,” said David Glatt, director of the North Dakota Department of Environmental Quality. “There will be a cost not only to the state but to industry as well.”

Wyoming Republican Gov. Mark Gordon released a statement to a similar effect, saying the new rule would increase costs for his state’s regulatory agencies, industry and ultimately consumers.

The new federal rule is part of a push by the Biden administration to slash the amount of methane emitted nationwide. Methane has a shorter lifetime than other greenhouse gases like carbon dioxide, but it is over 80 times more potent than carbon dioxide when it exists in the atmosphere.

The Texas Commission on Environmental Quality and the Texas Railroad Commission, which despite its name regulates the state’s oil and gas industry, released a joint comment to EPA during its rulemaking process that their proposed rule would be burdensome and costly to their agencies. Both agencies said they were reviewing the final rule.

Other agencies in Oklahoma, Colorado, Alaska and Louisiana told E&E News they were still reviewing the language.

In response to an E&E News inquiry, EPA spokesperson Shayla Powell said cutting methane emissions will be “a crucial addition to cutting carbon dioxide in slowing the rate of warming Earth’s atmosphere.” She said the final rule includes new performance standards for equipment, as well as emissions guidelines for states to follow as they develop plans for enforcing the rule.

“EPA will work closely with states as they develop their plans,” Powell wrote.

Shortly before the rule was released, EPA officials said they tried to strike a balance between giving states flexibility in how to implement the rules while also ensuring that regulatory regimes are mostly similar between the states. They said their goal was not for enforcement responsibilities to become “onerous” to the states.

“The intent there really is to both reflect what the Clean Air Act provides for in terms of states being able to account for these factors, while also accounting for the need for EPA to ensure consistency in how it evaluates state plans from state to state,” the officials said on background.

Pennsylvania Department of Environmental Protection officials said they had begun a rulemaking process to curb methane emissions from the fossil fuel industry shortly before the EPA rule was announced.

Josslyn Howard, a spokesperson for the Pennsylvania’s environmental protection department, said the agency has not yet identified a need to hire new staff to support the federal rule’s rollout. She also wrote in an email that the department “welcomes the EPA’s new rule and will support our federal partners in the efforts to reduce methane emissions and other harmful air pollution.”

Oil and gas production is responsible for 30 percent of all methane emissions in the United States, according to the EPA.

EPA is aiming to slash that number by as much as 80 percent compared to current projected levels from 2024 through 2038 with its new final methane rule, or a 58 million ton reduction over that time period.

The methane rule will require oil and gas operators to use updated equipment less prone to methane leaks; require operators to monitor for leaks; and ban most operators from burning off excess gas at oil wells, among other things.

States already had to implement building and reporting requirements meant to curb methane emissions on equipment built after 2016, thanks to an Obama-era EPA rule, said Jon Goldstein, a senior director of regulatory and legislative affairs with the Environmental Defense Fund.

The new rule will require states to create and enforce similar standards on designated infrastructure built before then — hundreds of thousands of older wells, compressor stations and other equipment that in most locations have been largely unregulated when it comes to their propensity for leaking methane.

Only New Mexico, Colorado and California have rules that have created and track methane emissions limits on older oil and gas infrastructure, Goldstein said. Others, like Utah and Wyoming, have rules in place that track and limit the emissions of volatile organic compounds in specific areas that have poorer air quality.

But the nation’s largest and third-largest oil and gas producers — Texas and North Dakota — and other states that don’t have those types of rules in place for older infrastructure could struggle to implement the new standards, according to observers.

“I think leading states are going to have an easier time and have a less steep hill to climb. It’s going to be the Texases and North Dakotas that have not acted that will have more work to do,” he said.

‘A big change’

Questions remain about which state agencies will be responsible for enforcement; whether they’ll have enough inspectors or administrators to track compliance; and how it will affect existing state rules and statutes.

States environmental quality agencies have been responsible for implementing the 2016 Obama Administration rule, said Anne Idsal Austin, a Texas-based environmental attorney with the Pillsbury law firm that has worked as general counsel for the Texas Commission on Environmental Quality and as principal deputy assistant administrator for EPA. That means the responsibility of enforcing the new methane rule will likely fall to state environmental agencies.

“Pulling in existing facilities is going to be a big change. They’ll have to figure out what set as the performance standards for what industry is going to have to do, and the states are then going to have to go through their own process to update their regulations and get approval from EPA on their updated regulatory regime to meet the new federal rules,” Austin said. “It is a heavy lift.”

The 2016 methane requirement required Glatt’s department in North Dakota to hire 10 full-time staffers to keep up with the new monitoring requirements and wade through newly required industry reports.

Glatt said he was frustrated by what seemed to be a regulatory burden then but has ultimately been happy with how North Dakota was able to implement that rule.

“It’s gone pretty good once you figure out a good rhythm of working with various companies, getting out into the field, working with them in making sure their reporting and frequency of monitoring are reflected accurately to us,” he said. “We have higher rates of compliance and increased cooperation with industry.”

States that have already instituted methane emissions requirements and infrastructure upgrades on older equipment said they’ve seen reduced emissions.

New Mexico Democratic Gov. Michelle Lujan Grisham ordered state agencies to begin looking for ways to cut the state’s methane emissions shortly after she was inaugurated in 2019. The rules the state enacted include a ban on routine flaring and venting on oil and gas infrastructure.

Flaring happens when oil and gas operators light natural gas on fire, converting it to carbon dioxide when it burns off. Venting allows methane to seep into the atmosphere unabated.

Operators there must also capture no less than 98 percent of the gas they produce by 2026 and show steps they’re taking to comply in the meantime, and they must report their emissions to the states. Those that fail to comply face fines as high as $500,000.

Some studies have shown that the instances of super-emitting events, when large amounts of methane are leaked into the atmosphere all at once, now trail significantly in New Mexico compared to neighboring Texas.

New Mexico officials have said that since their rules were passed and enacted, methane emissions have decreased while oil and gas production has increased. But they added that it’s hard to make apples-to-apples comparisons with their emissions before the rule because data was more difficult to collect.

“We are proud to have laid the foundation for this national rule, which will not only reduce emissions, but spur innovation and economic development across the country,” Lujan Grisham said at the unveiling of EPA’s new methane rule.

Goldstein with the Environmental Defense Fund said EPA looked into the cost to states to comply with the new measures, which found that the new regulations would be cost-effective for agencies and the oil and gas industry. The Inflation Reduction Act also includes billions of dollars for states and some in the industry to help come into compliance with these new requirements, on top of grants, he said.

Austin said federal dollars may only help state agencies with upstart costs to establish methane tracking programs. She pointed to $48 million made available by the EPA to state agencies to start monitoring carbon dioxide sequestration in states that have been granted the authority to oversee carbon sequestration on their own, without the need to go to EPA for approval for new carbon injection wells.

“That was a one-time infusion of cash,” Austin said. “Ultimately, unless there is a pretty consistent funding source from EPA, a lot of the time states have to go to their state legislatures and ask for more [full-time equivalent employees] and recurring budget dollars to keep up with ongoing changes to federal regulatory requirements.”

Glatt said he expects that to be the case here. And while he’s come to appreciate the rollout of the Obama-era methane rules on newer equipment, he said he worried that the new rules could create a burden on his department and would do little to help methane emissions.

“We commented on the original proposal and provided our concerns that this would create additional bureaucracy and create unfunded mandates,” Glatt said. “Those concerns still remain with this final rule.”

Reporter Carlos Anchondo contributed.