Christine A. Fazio and Ethan I. Strell ()
Methane, the primary component of natural gas, is a potent greenhouse gas. While it does not last as long as carbon dioxide in the atmosphere, methane absorbs more energy and consequently has a 100-year global warming potential 28 to 36 times greater than that of CO2. The major sources of methane emissions in the United States are energy production, distribution, and use; agriculture; and waste management.1
While the Trump administration’s June 1 announcement of its intention to withdraw from the Paris Climate Accord has been widely discussed, the administration and Congress have simultaneously attempted to roll back Obama-era methane regulations. For instance, although Congress narrowly failed to undo the Bureau of Land Management’s 2016 regulation to reduce methane leaks on public lands and the waste of publicly owned gas (thanks to the votes of Republican Senators John McCain, Lindsey Graham, and Susan Collins), Interior Secretary Ryan Zinke has since delayed implementation of parts of that rule.2
Environmental Protection Agency (EPA) Administrator Scott Pruitt similarly is attempting to delay implementation by a regulatory “reconsideration” proceeding (pending permanent repeal through a full notice and comment rulemaking) of portions of EPA’s 2016 regulation of petroleum industry methane leaks.3 Section 7607(d)(7)(B) of the Clean Air Act permits reconsideration of regulations only if it had been impractical for someone to object during the regulatory comment period and that objection is of central relevance to the rule’s outcome.
This reconsideration has been met by a June 5 challenge by six environmental organizations in the U.S. Court of Appeals in the D.C. Circuit.4 The petitioners argue—convincingly—that the Clean Air Act does not permit the EPA in this circumstance to “reconsider” this validly promulgated regulation. They argue that the reconsideration proceeding is not valid as a threshold matter; that the stay is arbitrary, capricious, and overbroad; and would cause petitioners and the public irreparable harm by releasing 17,000 tons of methane, 4,700 tons of smog-causing volatile organic compounds (VOCs), and 181 tons of hazardous pollutants like benzene during the 90-day stay period alone. The EPA, in a June 15 submission, responded that the petition was not ripe because the stay was not final agency action, that EPA has broad discretion to modify its regulations and issue a temporary stay, that compliance would be costly for industry, and that the environmental petitioners would not suffer irreparable harm from the stay.
In response, New York and other states have filled the void in federal climate leadership and are introducing their own methane programs.
Since 2000, New York has focused on programs to reduce CO2 emissions, resulting in an 18.6 percent reduction in emissions, and now proposes to tackle methane. On May 17, 2017, the state released its Methane Reduction Plan (plan) to reduce methane emissions and enhance accounting by the oil and gas, landfill, and agricultural sectors.5 Methane accounts for nine percent of New York’s greenhouse gas emissions and is second to CO2 in its contribution to climate change.
In releasing the plan, Gov. Andrew Cuomo commits New York to 25 action items to reduce methane emissions, which will be implemented by the Department of Environmental Conservation (DEC), Department of Public Service (DPS), Department of Agriculture and Markets (DAM), Soil and Water Conservation Committee (SWCC) and Energy Research and Development Authority (NYSERDA). As discussed below, the plan is similar to other programs proposed or adopted in California, Colorado, and Pennsylvania.
Oil and Gas
Methane escapes from natural gas and oil storage facilities, transmission and distribution pipelines and facilities, and wells. NYSERDA’s 2014 emissions inventory reports that natural gas leakage makes up about 11 percent of methane emissions, or one percent of New York state greenhouse gas emissions, but that inventory did not include leaks from oil and gas wells. Plan at p. 4-5. Thus improving the emissions inventory to better identify leaks in the natural gas and oil systems is important. Because gas is invisible and largely odorless, the plan includes such action items as evaluating best technology to identify leaks throughout the gas system; propose a program to require adding odorant to natural gas earlier in the process; revise regulations to improve accounting of infrastructure emissions, repairs, operations, equipment and components; and adopt rules to support new monitoring technologies.
The plan also requires DEC to implement the currently partially stayed 2016 EPA methane regulations for new oil and natural gas facilities discussed above and requires DEC to adopt regulations to limit emissions from existing gas transmission facilities, which were not part of the EPA regulations. EPA’s information collection from the natural gas and oil sector to support the possible development of emissions standards for existing sources was also ended in March 2017 by the Trump administration.6
Other action items under the plan include having DEC and DPS adopt measures to properly plug abandoned gas and oil wells; inspect and repair active wells for leaks; and prioritize leak repair through rate cases before the state Public Service Commission or the Federal Energy Regulatory Commission.
Over half of New York’s methane emissions (five percent of New York’s greenhouse gas emissions) comes from landfills. The plan envisions that DEC and NYSERDA will adopt programs to divert organic waste from landfills and reduce methane emissions from decomposition at landfills. Action items include developing programs to encourage large generators of food waste to donate edible food; provide additional funding for food banks; and compost, anaerobically digest or otherwise recycle what is not donated. DEC will also require installation of horizontal gas collection systems and other measures to increase methane collection at both active and closed landfills.
Agricultural methane emissions are primarily generated from manure management and animal digestion, and make up about 22 percent of New York’s methane emissions (two percent of New York’s greenhouse gas emissions). Measures to reduce emissions through farm management include expanding climate-resilient farming, retrofitting manure management systems with methane capture equipment, and developing best management practices for animal feeding. The plan also proposes improving agricultural methane monitoring and reporting and exploring the potential of agricultural soil carbon storage.
New York can look to several other states that have, or are in the process of, adopting methane reduction programs.
Colorado was the first state to adopt regulations to reduce methane emissions from the oil and gas sector back in 2014. Colorado requires companies to find and fix methane leaks and to install technology that captures 95 percent of VOC and methane emissions.7 In March, the California Air Resources Board adopted a regulation requiring a stringent leak detection and repair program for new and existing oil and gas wells, gas processing facilities, compressor stations, and other oil and gas processing and delivery equipment. The rules include requirements for daily inspection and quarterly leak monitoring, vapor control and collection, and enhanced monitoring and reporting.8
Pennsylvania currently is establishing requirements through general permits that would require “unconventional” natural gas well sites (hydraulic fracking and horizontal drilling), remote “pigging” operations, compressor stations, transmission stations, and processing plants to meet best available technology to reduce emissions as well as source testing, leak detection and repair, and monitoring and reporting. The comment period on the general permits ended on March 21, 2017 and thus the new permits should be issued soon.9
1. More information on methane emissions as a greenhouse gas is available on the EPA website at www.epa.gov/ghgemissions/overview-greenhouse-gases and the U.S. Energy Information Administration website at www.eia.gov/environment/emissions/ghg_report/ghg_methane.php. See also, EDF, “Methane: The other important greenhouse gas,” available at www.edf.org/methane-other-important-greenhouse-gas.
2. Waste Prevention Rule; Postponement of Certain Compliance Dates, 82 Fed. Reg. 27,430 (BLM, June 15, 2017).
3. The New Source Performance Standards under the Clean Air Act established methane and volatile organic compound emission standards for new, modified, and reconstructed equipment, processes and activities across the oil and natural gas source category. See 40 CFR Part 60 Subpart OOOOa; 81 Fed. Reg. 35824, 35825 -35827 (June 3, 2016).
4. Clean Air Council, Earthworks, EDF, Environmental Integrity Project, NRDC, and Sierra Club. Their petition and emergency motion for a stay is available at www.nrdc.org/resources/nrdc-lawsuit-over-trump-administrations-first-climate-pollution-rollback-oil-gas-methane.
5. The Methane Reduction Plan is available at www.dec.ny.gov/docs/administration_pdf/mrpfinal.pdf.
6. See, e.g., Romany Webb, “New York’s Methane Reduction Plan: A Model for Other States,” Sabin Center for Climate Change Law, Climate Law Blog, May 22, 2017.
7. Colorado’s program for the oil and gas sector is available on the Colorado Department of Public Health and Environment website at www.colorado.gov/pacific/cdphe/summary-oil-and-gas-emissions-requirements.
8. California’s recently adopted oil and gas regulations are available at www.arb.ca.gov/regact/2016/oilandgas2016/oilandgas2016.htm.
9. The proposed Pennsylvania rules to establish the general permit conditions are available at www.elibrary.dep.state.pa.us/dsweb/View/Collection-13330.