Battle lines have been drawn in a fight between oil-producing red states and environmentally-driven blue states over a new regulation by the Environmental Protection Agency.
Critics say is an unauthorized expansion of the EPA’s regulatory authority. But proponents said it’s important to control pollution from methane emissions.
Led by the attorneys general of Texas and Oklahoma, 26 states are suing the EPA over a final rule published March 8 that, in part, sets new regulations for existing methane infrastructure.
Twenty other states, including Colorado and the District of Columbia, filed a motion to intervene in the case in support of the new federal regulation Tuesday.
Colorado Attorney General Phil Weiser said the new rule must be defended in a Monday news release announcing the state’s intervention in the Texas case.
“These protections must remain in place at the federal level for effective oversight of methane emissions from surrounding states; that’s why we are committed to defending the federal methane rule,” Weiser said in the release.
“I’m not sure really why Colorado needs to weigh in on this particular EPA rule, since Colorado already had strict methane rules without it,” said Kathleen Sgamma, president of the Western Energy Alliance. “Perhaps the state senses vulnerability to all the overregulation of the Biden administration or just wants a hand in ensuring that other states’ equally hamstring their oil and natural gas industries.”
“Companies have reduced methane emissions significantly over the last several years, but regulators like to take credit for that with yet more regulation,” Sgamma said.
Texas believes the EPA is regulating outside of its statutory authority.
“The EPA is once again trying to seize regulatory authority that Congress has not granted,” said Texas Attorney General Ken Paxton in an online letter. “I am challenging this blatant overreach by the Biden Administration and will continue to defend vital sectors of the Texas economy.”
The new rule from the EPA regulates methane emissions from both new sources and existing infrastructure, something the EPA has never done before. This raises the question of whether the EPA has legal authority to expand its statutory mandate without asking Congress for permission.
The “major questions” doctrine states that federal agencies must have explicit permission to newly regulate politically and economically significant issues, rather than assuming they have unbridled regulatory authority.
In 2022, EPA passed a rule that critics said expanded its regulatory authority over coal-fired powerplants to apply to all such plants, nationwide, rather than its customary statutory authority to make regulations for specific plants.
Critics said at the time that regulation would have effectively shut all coal plants down at once by imposing unachievable emissions limits.
The U.S. Supreme Court struck down that regulation, stating EPA’s statutory authority was limited to making regulations applying to a specific plant regarding what technology was available and capable of reducing emissions and how the plant operators would have to comply with EPA standards.
In trying to apply one set of regulations to all coal-fired power plants in a way that would force them to close, the court said the EPA had improperly attempted to shift generation away from coal plants nationwide, and that the agency had to get explicit authority from Congress due to the enormous nationwide fiscal impacts it would cause.
The major questions doctrine is being raised here as well, given the fact that EPA has never regulated existing infrastructure in this way, Paxton said.
“EPA’s new rule establishes onerous emissions standards for the oil and gas industry that would require producers to drastically update infrastructure,” said Paxton in a March 8 press release.
Paxton said the new rule usurps the role of the states in establishing emissions standards for existing sources and forces them to adopt nationwide EPA standards.
Before now, the EPA deferred to state agencies to set pollution standards for existing infrastructure, as Colorado has done in the past few years.
The Biden administration rolled out the new regulation to coincide with climate talks in Dubai in December, but didn’t publish the rule in the Federal Register until Friday — an unusually long delay between an announcement and a required publication.
“This federal regulation simply applies paperwork differently than what CDPHE is already doing with little to no additional environmental benefit,” said Dan Haley, president and CEO of the Colorado Oil and Gas Association. “We’re not sure why the AG’s office would get involved in a suit that will only further burden a state agency that’s already drowning in unnecessary legislative mandates and bureaucratic red tape.”
Carrie Jenks, executive director of the Environmental and Energy Law Program at Harvard Law School told The Denver Gazette that the EPA often looks to states or industries for best practices to build on existing regulations.
Jenks confirmed a December statement she made to Politico suggesting that regulations in Colorado and New Mexico were “used to guide the federal regulations.”
“I’m sure I said something like that, but I think I would back it up to say I think EPA is always looking to states or even companies in the industry, that they’re regulating for best practices. (EPA does so) because then there are tested regulatory structures that they can take lessons learned from and build on those existing regulations because it can help mitigate opposition where another entity might say it’s too costly or not feasible,” Jenks said. “If EPA can look to a state like Colorado or New Mexico or some operators that are already doing something, they can say, ‘no, this is feasible because it’s being done.’ So, I think that was the context of my quote.”
When asked about the potential burden on oil and gas production companies, Jenks said that the question should be whether the EPA has the legal authority to require these controls. She believes the EPA does have this authority.
Jeremy Nichols, senior advocate at the Center for Biological Diversity Environmental Health Program told The Denver Gazette in a statement Thursday: “We’re pleased to see Colorado standing up to the oil and gas industry’s attacks on clean air and the climate.”
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