Emergency Application — Oklahoma, et al., Applicants v. Environmental Protection Agency, et al.

Supreme Court briefAug 23, 2024

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No. ______

In the Supreme Court of the United States

STATE OF OKLAHOMA, ET AL.,

APPLICANTS,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND

MICHAEL S. REGAN, in his official capacity as Administrator of the United States

Environmental Protection Agency, ET AL.,

RESPONDENTS.

APPLICATION FOR STAY OF FINAL AGENCY ACTION

DURING PENDENCY OF PETITION FOR REVIEW

On Application For Stay To The

United States Court Of Appeals For The District Of Columbia

To the Honorable John G. Roberts, Jr.,

Chief Justice of the United States and Circuit Justice for the United States

Court of Appeals for the District of Columbia Circuit

GENTNER DRUMMOND

Attorney General

GARRY M. GASKINS, II

Solicitor General

JENNIFER L. LEWIS

Deputy Attorney General

OFFICE OF THE ATTORNEY

GENERAL OF OKLAHOMA

313 NE Twenty-First St.

Oklahoma City, OK 73105

CARROLL WADE MCGUFFEY III

TROUTMAN PEPPER

HAMILTON SANDERS LLP

600 Peachtree St. N.E., Suite 3000

Atlanta, GA 30308

MISHA TSEYTLIN

Counsel of Record

KEVIN M. LEROY

KAITLIN L. O’DONNELL

EMILY A. O’BRIEN

DYLAN DEWITT

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe, Suite 3900

Chicago, Illinois 60606

(608) 999-1240

misha.tseytlin@troutman.com

JEFF P. JOHNSON

TROUTMAN PEPPER

HAMILTON SANDERS LLP

1001 Haxall Point, Ste. 1500

Richmond, VA 23219

Counsel for the State of Oklahoma

(Additional counsel listed on following pages)

STEVE MARSHALL

Attorney General

TIM GRIFFIN

Attorney General

EDMUND G. LACOUR JR.

Solicitor General

OFFICE OF THE ATTORNEY GENERAL OF

ALABAMA

501 Washington Avenue

P.O. Box 300152

Montgomery, Alabama 36130-0152

NICHOLAS J. BRONNI

Solicitor General

Counsel for the State of Alabama

DYLAN JACOBS

Deputy Solicitor General

OFFICE OF THE ARKANSAS ATTORNEY

GENERAL

323 Center Street, Suite 200

Little Rock, AR 72201

Counsel for the State of Arkansas

TREG TAYLOR

Attorney General

ASHLEY MOODY

Attorney General

GARRISON TODD

Assistant Attorney General

ALASKA DEPARTMENT OF LAW

1031 W. 4th Ave., Ste. 200

Anchorage, AK 99501

HENRY C. WHITAKER

Solicitor General

Counsel for State of Alaska

JAMES H. PERCIVAL

Chief of Staff

OFFICE OF THE ATTORNEY GENERAL OF

FLORIDA

The Capitol, Pl-01

Tallahassee, Florida 32399-1050

Counsel for the State of Florida

CHRISTOPHER M. CARR

Attorney General

BRENNA BIRD

Attorney General

STEPHEN J. PETRANY

Solicitor General

OFFICE OF THE ATTORNEY GENERAL OF

GEORGIA

40 Capitol Square, SW

Atlanta, GA 30334

ERIC H. WESSAN

Solicitor General

OFFICE OF THE ATTORNEY GENERAL

OF IOWA

1305 E. Walnut Street

Des Moines, IA 50319

Counsel for the State of Georgia

Counsel for the State of Iowa

RAÚL R. LABRADOR

Attorney General

THEODORE E. ROKITA

Attorney General

JOSHUA N. TURNER

Chief of Constitutional Litigation and

Policy

JAMES A. BARTA

Solicitor General

OFFICE OF THE ATTORNEY GENERAL OF

INDIANA

302 W. WASHINGTON ST.

Indianapolis, IN 46204

ALAN M. HURST

Solicitor General

OFFICE OF THE IDAHO ATTORNEY

GENERAL

P.O. Box 83720

Boise, Idaho 83720

Counsel for State of Indiana

Counsel for the State of Idaho

RUSSELL COLEMAN

Attorney General

KRIS KOBACH

Attorney General

MATTHEW F. KUHN

Solicitor General

OFFICE OF THE KENTUCKY ATTORNEY

GENERAL

700 Capital Avenue, Suite 118

Frankfort, KY 40601

ANTHONY J. POWELL

Solicitor General

KANSAS ATTORNEY GENERAL’S OFFICE

120 SW 10th Avenue, 2nd Floor

Topeka, Kansas 66612-1597

Counsel for the State of Kansas

Counsel for the Commonwealth of

Kentucky

LIZ MURRILL

Attorney General

ANDREW BAILEY

Attorney General

J. BENJAMIN AGUIÑAGA

Solicitor General

LOUISIANA DEPARTMENT OF JUSTICE

1885 N. Third Street

Baton Rouge, LA 70804

JOSHUA M. DIVINE

Solicitor General

Counsel for the State of Louisiana

SAMUEL C. FREEDLUND

Deputy Solicitor General

MISSOURI ATTORNEY GENERAL’S OFFICE

207 West High St.

Jefferson City, MO 65101

Counsel for State of Missouri

LYNN FITCH

Attorney General

AUSTIN KNUDSEN

Attorney General

JUSTIN L. MATHENY

Deputy Solicitor General

OFFICE OF THE MISSISSIPPI ATTORNEY

GENERAL

P.O. Box 220

Jackson, MS 39205-0220

CHRISTIAN B. CORRIGAN

Solicitor General

MONTANA DEPARTMENT OF JUSTICE

215 North Sanders P.O. Box 201401

Helena, MT 59620-1401

Counsel for the State of Montana

Counsel for State of Mississippi

DREW H. WRIGLEY

Attorney General

MICHAEL T. HILGERS

Attorney General

PHILIP AXT

Solicitor General

OFFICE OF ATTORNEY GENERAL OF

NORTH DAKOTA

600 E. Boulevard Ave., Dept. 125

Bismarck, ND 58505

ERIC J. HAMILTON

Solicitor General

NEBRASKA DEPARTMENT OF JUSTICE

2115 State Capitol

Lincoln, Nebraska 68509

Counsel for the State of Nebraska

Counsel for State of North Dakota

DAVID YOST

Attorney General

ALAN WILSON

Attorney General

T. ELLIOT GAISER

Solicitor General

ROBERT D. COOK

Solicitor General

MATHURA J. SRIDHARAN

Deputy Solicitor General

OHIO ATTORNEY GENERAL’S OFFICE

30 E. Broad Street

Columbus, OH 43215

J. EMORY SMITH, JR.

Deputy Solicitor General

Counsel for the State of Ohio

JOSEPH D. SPATE

Assistant Deputy Solicitor General

OFFICE OF THE ATTORNEY GENERAL OF

SOUTH CAROLINA

1000 Assembly Street

Columbia, SC 29201

Counsel for the State of South Carolina

JASON MIYARES

Attorney General

SEAN D. REYES

Attorney General

KEVIN M. GALLAGHER

Principal Deputy Solicitor General

VIRGINIA ATTORNEY GENERAL’S OFFICE

202 North 9th Street

Richmond, VA 23219

STANFORD E. PURSER

Solicitor General

UTAH ATTORNEY GENERAL’S OFFICE

160 East 300 South, 5th Floor

Salt Lake City, UT 84114

Counsel for the Commonwealth of

Virginia

Counsel for the State of Utah

BRIDGET HILL

Attorney General

PATRICK MORRISEY

Attorney General

D. DAVID DEWALD

Deputy Attorney General

OFFICE OF THE ATTORNEY GENERAL OF

WYOMING

109 State Capitol

Cheyenne, WY 82002

MICHAEL R. WILLIAMS

Solicitor General

OFFICE OF THE ATTORNEY GENERAL OF

WEST VIRGINIA

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25301

Counsel for the State of Wyoming

Counsel for the State of West Virginia

WARREN PETERSEN

President Of The Arizona

State Senate

BEN TOMA

Speaker Of The Arizona

House Of Representatives

By Counsel:

BRUNN (BEAU) W. ROYSDEN III

FUSION LAW, PLLC

7600 N. 15th St., Suite 150

Phoenix, Arizona 85020

By Counsel:

BRUNN (BEAU) W. ROYSDEN III

FUSION LAW, PLLC

7600 N. 15th St., Suite 150

Phoenix, Arizona 85020

Counsel for President of the

Arizona State Senate Warren

Petersen

Counsel for Speaker of the Arizona

House of Representatives Ben Toma

PARTIES TO THE PROCEEDINGS

Applicants in this Court and Petitioners below in Case No. 24-1059 are the

State of Oklahoma, State of Alabama, State of Alaska, State of Arkansas, State of

Florida, State of Georgia, State of Idaho, State of Iowa, State of Indiana, State of

Kansas, Commonwealth of Kentucky, State of Louisiana, State of Mississippi, State

of Missouri, State of Montana, State of Nebraska, State of North Dakota, State of

Ohio, State of South Carolina, State of Utah, Commonwealth of Virginia, State of

West Virginia, State of Wyoming, and the Arizona Legislature.

Respondents in this Court and Respondents below are the United States

Environmental Protection Agency and Michael S. Regan, Administrator, United

States Environmental Protection Agency.

Respondents in this Court and Petitioners below are as follows:

24-1059: State of Tennessee;

24-1054: State of Texas, Railroad Commission of Texas, and the Texas

Commission on Environmental Quality;

24-1101: Michigan Oil and Gas Association, Miller Energy Company II, LLC;

24-1103:

Independent

Petroleum

Association

America,

Arkansas

Independent Producers and Royalty Owners, Domestic Energy Producers Alliance,

Eastern Kansas Oil & Gas Association, Gas and Oil Association of West Virginia,

Illinois Oil and Gas Association, Independent Petroleum Association of New Mexico,

Indiana Oil and Gas Association, International Association of Drilling Contractors,

Kansas Independent Oil and Gas Association, Kentucky Oil and Gas Association,

National Stripper Well Association, North Dakota Petroleum Council, Ohio Oil and

Gas Association, Oklahoma Independent Petroleum Association, Petroleum Alliance

of Oklahoma, Panhandle Producers and Royalty Owners Association, Pennsylvania

Independent Oil & Gas Association, Permian Basin Petroleum Association,

Petroleum Association of Wyoming, Texas Alliance of Energy Producers, Texas

Independent

Producers

and

Royalty

Owners

Association,

and

Western

Energy Alliance;

24-1111: GPA Midstream Association;

24-1114: Texas Oil and Gas Association;

24-1115: Interstate Natural Gas Association of America;

24-1116: American Petroleum Institute;

24-1117: American Exploration & Production Council; and

24-1118: Air Alliance Houston, Clean Air Council, and Environmental

Integrity Project.

Respondents in this Court and Intervenors for Respondents below are

as follows:

24-1059: Commonwealth of Pennsylvania, District of Columbia, State of

Delaware, Commonwealth of Massachusetts, State of California, State of Colorado,

State of Connecticut, State of Illinois, State of Maine, State of Maryland, State of

Michigan, State of New Jersey, State of New Mexico, State of New York, State of

North Carolina, State of Oregon, State of Rhode Island, State of Vermont, State of

Washington, and State of Wisconsin; and

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24-1054: American Exploration & Production Council, Center for Biological

Diversity, Clean Air Council, Dakota Resource Council, Earthworks, Environmental

Defense Fund, Environmental Law & Policy Center, Food & Water Watch, Fort

Berthold Protectors of Water and Earth Rights, GreenLatinos, Interstate Natural

Gas Association of America, Natural Resources Defense Council, and Sierra Club.

Respondents in this Court and Intervenors for Petitioners below are as follows:

24-1054: Continental Resources Inc.

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TABLE OF CONTENTS

DECISION BELOW ...................................................................................................... 5

JURISDICTION............................................................................................................. 6

STATUTORY PROVISIONS INVOLVED .................................................................... 6

STATEMENT ................................................................................................................. 6

The Clean Air Act Gives The States The Primary Role In Regulating

Emissions Under Section 111(d) ................................................................... 6

EPA Begins Regulating New Sources Emitting Methane Under

Section 111(b) In 2016 ................................................................................... 7

EPA Publishes Its 2024 Methane Rule ......................................................... 8

The D.C. Circuit Denies State-Applicants’ Motion For Stay In An

Unexplained, One-Line Order ..................................................................... 13

REASONS FOR GRANTING THE APPLICATION .................................................. 14

This Court Would Likely Grant Review And Reverse If The D.C. Circuit

Upholds The Section 111(d) Component Of The Rule ....................................... 15

The Rule Violates Section 111(d) By Setting “Presumptive Standards

Of Performance” ........................................................................................... 15

The Rule’s Two-Year Deadline For State Plans Violates The APA

Under Ohio And State Farm ....................................................................... 20

II. State-Applicants Will Suffer Irreparable Harm If This Court Does Not

Grant A Stay ....................................................................................................... 25

III. The Rule’s Devastating Consequences Are Contrary To The Public Interest .. 30

CONCLUSION............................................................................................................. 33

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TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

138 S. Ct. 2305 (2018) ....................................................................................... 26

Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs.,

594 U.S. 758 (2021) (per curiam) ...................................................................... 25

Allentown Mack Sales & Serv., Inc. v. NLRB,

522 U.S. 359 (1998) ........................................................................................... 20

Brock v. Pierce Cnty.,

476 U.S. 253 (1986) ............................................................................................ 30

Cox ex rel. Utah v. EPA,

No.23-1157, 2023 WL 6285159 (D.C. Cir. Sept. 25, 2023) (per curiam) ........... 3

Does 1-3 v. Mills,

142 S. Ct. 17 (2021) ........................................................................................... 15

FCC v. Prometheus Radio Project,

592 U.S. 414 (2021) ........................................................................................... 20

Little v. Reclaim Idaho,

140 S. Ct. 2616 (2020) ................................................................................. 25, 26

Maryland v. King,

567 U.S. 1301 (2012) ......................................................................................... 26

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ............................................................................. 4, 20, 21, 24

Nken v. Holder,

556 U.S. 418 (2009) ........................................................................................... 30

Nken v. Mukasey,

555 U.S. 1042 (2008) ......................................................................................... 14

Ohio v. EPA,

144 S. Ct. 2040 (2024) ..........................3, 6, 14, 15, 20, 21, 24, 25, 27, 28, 30, 33

Philip Morris USA Inc. v. Scott,

561 U.S. 1301 (2010) ............................................................................. 25, 26, 28

Rowland v. Cal. Men’s Colony,

506 U.S. 194 (1993) ........................................................................................... 16

Sierra Club v. Morton,

405 U.S. 727 (1972) ..................................................................................... 30, 33

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St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502 (1993) ........................................................................................... 18

Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994) ........................................................................................... 25

Train v. Nat. Res. Def. Council, Inc.,

421 U.S. 60 (1975) ........................................................................... 25, 26, 27, 28

Union Elec. Co. v. EPA,

427 U.S. 246 (1976) ..................................................................................... 25, 26

West Virginia v. EPA,

577 U.S. 1126 (2016) ......................................................................................... 14

West Virginia v. EPA,

597 U.S. 697 (2022) ..................................................... 1, 6, 15, 16, 17, 18, 25, 26

West Virginia v. EPA,

No.24A95 (U.S. Jul. 23, 2024) ............................................................................ 1

Withrow v. Williams,

507 U.S. 680 (1993) ...................................................................................... 30, 31

Statutes And Rules

5 U.S.C. § 702 ............................................................................................................... 25

5 U.S.C. § 705 ........................................................................................................... 6, 14

5 U.S.C. § 706 ................................................................................................... 16, 20, 21

28 U.S.C. § 1254 ....................................................................................................... 6, 14

28 U.S.C. § 1651 ............................................................................................................. 6

42 U.S.C. § 7401 ............................................................................................................. 7

42 U.S.C. § 7408 ............................................................................................................. 6

42 U.S.C. § 7409 ............................................................................................................. 6

42 U.S.C. § 7410 ................................................................................................... 6, 7, 28

42 U.S.C. § 7411 ............................................................. 1, 3, 6, 7, 10, 15, 16, 17, 18, 26

42 U.S.C. § 7412 ............................................................................................................. 6

Fed. R. Evid. 301 .......................................................................................................... 18

S.J. Res. 14, 117th Cong., 135 Stat. 295 (2021) (enacted) ............................................ 8

Sup. Ct. R. 10 ............................................................................................................... 15

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Regulations

81 Fed. Reg. 35,824 (June 3, 2016) ............................................................................... 8

85 Fed. Reg. 57,018 (Sept. 14, 2020) ............................................................................. 8

86 Fed. Reg. 63,110 (Nov. 15, 2021) ........................................................................ 9, 19

87 Fed. Reg. 74,702 (Dec. 6, 2022) .................................................................... 9, 11, 32

89 Fed. Reg. 16,820 (Mar. 8, 2024)............................................................................ 1, 5

89 Fed. Reg. 39,798 (May 9, 2024) .............................................................................. 18

Other Authorities

Black’s Law Dictionary (12th ed. 2024) ...................................................................... 18

EPA, Response to Public Comments on the November 2021 Proposed Rule and the

December 2022 Supplemental Proposed Rule,

No.EPA-HQ-OAR-2021-0317-4009 (Nov. 2023) ............................................... 32

Exec. Off. of the President, The President's Climate Action Plan (June 2013) ....... 13

Off. of Mgmt. & Budget, Exec. Off. of the President, Statement of Administration

Policy: S.J. Res. 14,

2021 WL 9183956 (Apr. 27, 2021) ...................................................................... 8

U.S. Air Quality Standards and the Manufacturing Sector,

Oxford Economics (Apr. 2023) .......................................................................... 33

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TO THE HONORABLE JOHN G. ROBERTS, JR., CHIEF JUSTICE OF THE UNITED STATES

AND CIRCUIT JUSTICE FOR THE UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT:

The State of Oklahoma, State of Alabama, State of Alaska, State of Arkansas,

State of Florida, State of Georgia, State of Idaho, State of Iowa, State of Indiana,

State of Kansas, Commonwealth of Kentucky, State of Louisiana, State of

Mississippi, State of Missouri, State of Montana, State of Nebraska, State of North

Dakota, State of Ohio, State of South Carolina, State of Utah, Commonwealth of

Virginia, State of West Virginia, State of Wyoming, and the Arizona Legislature

(“State-Applicants”) respectfully request a stay from this Court limited to the Section

111(d), 42 U.S.C. § 7411(d), component of the rule issued by the Environmental

Protection

Agency

(“EPA”)

entitled

“Standards

Performance

for

New,

Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources:

Oil and Natural Gas Sector Climate Review,” 89 Fed. Reg. 16,820 (Mar. 8, 2024) (the

“Rule”), pending resolution of State-Applicants’ petition for review.

Thrashing around for tools to address this Administration’s concerns about

climate change, EPA has once again attempted to conscript the backwater of

Section 111(d). Given its effort to revolutionize that unassuming provision to shut

down power plants in favor of other sources of generation (which effort this Court

rejected in West Virginia v. EPA, 597 U.S. 697 (2022)), and then to impose an

impossible-to-meet standard to achieve that same result (currently pending with an

application for stay before this Court, see, e.g., West Virginia v. EPA, No.24A95 (U.S.

Jul. 23, 2024)), EPA’s use of this provision to attack unlawfully the oil and gas

industry comes as no surprise. The Rule here requires States to design and submit

to EPA state plans under Section 111(d) within a two-year period to regulate methane

and volatile organic compound (“VOC”) emissions from hundreds of thousands of oil

and gas facilities, which facilities many States have never regulated before. For

example, in Oklahoma, the Rule requires the State to regulate over 200,000 existing

oil and gas facilities, although Oklahoma had previously only regulated about 10,000

such facilities. Then, EPA provided that if States do not complete this herculean task

in just two years, EPA itself will directly regulate these existing sources.

EPA understood that, for many States, designing such plans from scratch in a

two-year period would be impossible, given the sheer number and diversity of wells

involved. So, EPA took an unlawful shortcut, promulgating “presumptive standards

of performance,” even though Section 111(d) gives only States the authority to select

the standards for their existing sources, while giving EPA no authority to create nonstatutory presumptive standards. EPA then paired this illegal “presumpti[on]” with

an unrealistic, two-year timeframe for States to create their own standards that

(somehow) rebut this illegal presumption. EPA did this all precisely so that many

States (including State-Applicants) would have no choice but to adopt these

“presumptive standards” to avoid direct federal regulation of wells in their States.

When State-Applicants sought a stay in the D.C. Circuit—explaining that

EPA’s “presumptive standards” gambit was unlawful and deeply harmful to their

sovereign and statutory rights—the D.C. Circuit denied their stay motion in a onesentence order that included no reasoning, as is that court’s unfortunate practice.

See, e.g., Order, North Dakota v. EPA, No.24-1119, Dkt.2068631 (D.C. Cir. Aug. 6,

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2024) (per curiam); Order, West Virginia v. EPA, No.24-1120, Dkt.2065493 (D.C. Cir.

July 19, 2024) (per curiam); Cox ex rel. Utah v. EPA, No.23-1157, 2023 WL 6285159

(D.C. Cir. Sept. 25, 2023) (per curiam); Order, West Virginia v. EPA, No.15-1363,

Dkt.1594951 (D.C. Cir. Jan. 21, 2016) (per curiam). State-Applicants thus have only

one recourse left to safeguard their rights: asking this Court for a stay limited to the

Section 111(d) component of the Rule.

The State-Applicants have a strong likelihood of success on the merits, as this

Court is likely to grant review and reverse any judgment from the D.C. Circuit

upholding the Section 111(d) component of the Rule, for two interrelated reasons.

First, the Rule violates the text of Section 111(d) by setting “presumptive

standards,” rather than merely identifying the “degree of emission limitation

achievable through the application of the best system of emission reduction,” and

leaving it to the States to determine how to achieve that amount of reduction (or

achieve lower reductions based upon considerations of “among other factors, the

remaining useful life of the existing source to which such standard applies”). 42

U.S.C. § 7411(a)(1), (d)(1). Section 111(d) makes clear that EPA is to establish a

“procedure” for States to set their own standards of performance; EPA cannot set the

standards for existing sources itself, presumptive or otherwise.

Second, and relatedly, the Rule’s two-year deadline for States to submit their

Section 111(d) plans violates the Administrative Procedure Act (“APA”) because EPA

“failed to supply a satisfactory explanation for [this] action” and “simply ignore[s]

‘an important aspect of the problem.’” Ohio v. EPA, 144 S. Ct. 2040, 2053–54 (2024)

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(quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983)). During the rulemaking process, State-Applicants explained

that they needed at least three years to submit Section 111(d) plans to EPA,

including because of the hundreds of thousands of new facilities now covered by the

Rule and the complexity of the Rule’s requirements. EPA then simply selected a

two-year period without any meaningful engagement with these concerns,

committing the same arbitrary-and-capricious error that justified a stay from this

Court in Ohio. The effect of EPA’s actions is obvious and intended: States will not

have enough time to develop their own standards of performance under

Section 111(d) for the hundreds of thousands of diverse oil and gas facilities covered

by the Rule that (somehow) rebut (to EPA’s satisfaction) the Rule’s “presumptive

standards.”

Thus, States have no option but acceding to EPA’s “presumptive

standards,” forfeiting their rights under Section 111(d).

State-Applicants will also suffer irreparable harm absent this Court’s stay of

the Section 111(d) component of the Rule.

The Rule’s imposition of detailed

“presumptive standards” for hundreds of thousands of facilities, coupled with an

unrealistic two-year deadline, forces State-Applicants into an untenable position. If

State-Applicants want to avoid being subject to direct federal control, they must

either adopt EPA’s “presumptive standards” wholesale or spend unrecoverable

resources designing modified versions of those standards, because it will not be

possible for many of the States to adopt their own standards—not just modified

versions of EPA’s standards—within the rushed deadline of two years. When State-

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Applicants prevail at the end of this litigation, those efforts will have wasted massive,

unrecoverable sovereign resources, as EPA will have to permit State-Applicants to

adopt Section 111(d) plans on a realistic schedule, and without tailoring their

approaches to EPA’s illegal “presumptive standards.”

The public-interest strongly favors a stay of the Section 111(d) component of

the Rule.

The Rule harms the public interest by undermining Section 111(d)’s

cooperative-federalism regime because EPA has unlawfully constrained the States’

sovereign right under Section 111(d) to adopt their own standards of performance.

Further, by effectively requiring the “presumptive standards,” the Rule will—by

EPA’s own estimate—decrease oil and natural gas production, which will force the

closure of many wells and the loss of jobs. Conversely, EPA would suffer no harm

from a stay pending judicial review of EPA’s unlawful actions that were over a decade

in the making, and over a Rule whose proposal languished for nearly three years.

This Court should stay the Section 111(d) component of the Rule pending the

D.C. Circuit’s review of State-Applicants’ petition for review.

DECISION BELOW

The D.C. Circuit’s unpublished order denying the motions for a stay of the Rule

in this consolidated action, including the motion filed jointly by State-Applicants is

included in the Appendix to this Application at App.409a. The Rule is published at

89 Fed. Reg. 16,820 (Mar. 8, 2024), and reproduced at App.1a–408a.

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JURISDICTION

This Court has jurisdiction over this Application under 28 U.S.C. § 1254(1). It

has authority to grant the requested relief pursuant to the Administrative Procedure

Act (“APA”), 5 U.S.C. § 705, and the All Writs Act, 28 U.S.C. § 1651.

STATUTORY PROVISIONS INVOLVED

Pertinent statutory and regulatory provisions are reproduced in the Appendix

at App.410a–17a.

STATEMENT

The Clean Air Act Gives The States The Primary Role In

Regulating Emissions Under Section 111(d)

“The Clean Air Act envisions States and the federal government working

together to improve air quality.” Ohio, 144 S. Ct. at 2048. Within this cooperativefederalism framework, the Act “establishes three main regulatory programs to control

air pollution from stationary sources such as power plants,” including the New Source

Performance Standards program of Section 111, at issue here. West Virginia, 597 U.S.

at 707; see 42 U.S.C. §§ 7408–10 (National Ambient Air Quality Standards (NAAQS)

program); id. § 7411 (New Source Performance Standards program); id. § 7412

(Hazardous Air Pollutants program). As its title suggests, Section 111’s New Source

Performance Standards program primarily focuses on “emissions limits for new and

modified sources,” although it also addresses the “regulation of certain pollutants from

existing sources” in Section 111(d). West Virginia, 597 U.S. at 709–710. Even more

so than other provisions of the Clean Air Act, Section 111(d) reflects the principles of

cooperative federalism on which the Act rests, see Ohio, 144 S. Ct. at 2048, recognizing

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the “responsibility of States” in controlling air pollution in their respective regions

consistent with their unique challenges and circumstances, 42 U.S.C. § 7401(a)(3);

see id. § 7411(d).

While Section 111(b) gives EPA authority to impose standards of performance

on new sources, for regulation of existing sources under Section 111(d), the regime is

entirely different and largely state-run. Section 111(d) merely empowers EPA to

identify “the best system of emission reduction” and the “degree of emission limitation

achievable through application of” that system, 42 U.S.C. § 7411(a), (d), (g), but then—

critically—that Section authorizes States to set their own “standards of performance”

for existing sources within their borders, id. § 7411(d). EPA’s role in this process is

limited to “a procedure similar to that provided by section 7410”—the Clean Air Act’s

NAAQS program, id. § 7411(d)(1); EPA must approve any state plans that are

reasonable and meet the requirements of the Act, see id. § 7410(k)(3). EPA cannot

regulate existing sources by imposing its own standards unless a “State fails to

submit” or “enforce” a “satisfactory plan,” but in that event EPA may “prescribe a plan

for [the] State” and “enforce the provisions of such plan.”

Id. § 7411(d)(2).

Section 111(d)’s balance of responsibility thus mirrors the state-led NAAQS programs,

where the States take the lead in designing and implementing pollution-control plans.

Compare id. § 7411(d)(1), with id. § 7410(a)(1)–(2).

EPA Begins Regulating New Sources Emitting Methane Under

Section 111(b) In 2016

On June 3, 2016, EPA promulgated its first rule that directly regulated

methane emissions from new sources in the oil and gas sector, using EPA’s

-7-

Section 111 authority. 81 Fed. Reg. 35,824 (June 3, 2016) (“2016 Rule”). Before that

point, EPA had never sought to regulate directly sources in the oil and gas industry

emitting methane under Section 111. The 2016 Rule also announced EPA’s plan “to

regulate emissions from existing sources,” explaining that the Agency “will begin with

a formal process to require companies operating existing oil and gas sources to

provide information to assist” with that process. Id. at 35,831–32 (emphasis added).

Numerous States challenged the 2016 Rule, see, e.g., Pet. For Review, West Virginia

v. EPA, No.16-1264 (D.C. Cir. Aug. 2, 2016); Pet. For Review, North Dakota v. EPA,

No.16-1242 (D.C. Cir. July 15, 2016), and—following a change of administration—

EPA promulgated its 2020 Rule to effectively rescind the 2016 Rule’s regulations for

new sources emitting methane, 85 Fed. Reg. 57,018 (Sept. 14, 2020) (“2020 Rule”).

Then, in 2021, Congress passed, and President Biden signed, a joint resolution

disapproving of EPA’s 2020 Rule under the Congressional Review Act. S.J. Res. 14,

117th Cong., 135 Stat. 295 (2021) (enacted).

In a statement, President Biden

explained that the resolution would enable “EPA to evaluate opportunities to

promulgate even stronger standards under section 111 of the Clean Air Act to address

dangerous methane and other pollution from both new and existing sources across

the oil and gas sector.” Off. of Mgmt. & Budget, Exec. Off. of the President, Statement

of Administration Policy: S.J. Res. 14, 2021 WL 9183956, at *2 (Apr. 27, 2021).

EPA Publishes Its 2024 Methane Rule

Later in 2021, EPA proposed a new methane rule that would reimpose and

expand the stringent emissions controls in the 2016 Rule and—for the first time—

regulate an extensive range of existing oil and gas sources under Section 111(d),

-8-

including numerous oil-well components and operations.

86 Fed. Reg. 63,110,

63,169–83 (Nov. 15, 2021); see also 87 Fed. Reg. 74,702, 74,722–842 (Dec. 6, 2022)

(supplemental proposed rule). EPA’s proposed rule provided an extremely truncated

18-month timeline for the States to submit Section 111(d) plans establishing the

standards of performance for the many categories of newly regulated, existing

sources. 87 Fed. Reg. at 74,831; see also 86 Fed. Reg. at 63,255–56.

Many interested parties—including State-Applicants—submitted comments to

EPA objecting to the agency’s truncated timeline for submitting Section 111(d) plans

and requesting a three-year timeline instead, see, e.g., App.712a–13a; App.640a–41a;

App.807a; accord App.749a, emphasizing that additional time was needed given that

EPA was proposing to regulate hundreds of thousands of diverse oil and gas facilities

for the first time, see App.713a; App.844a. Because the Rule “includes thousands of

additional sources for oil and gas states,” App.713a; see also App.844a, the “sheer

number of new regulated entities—and the quantity of data that these new

regulations will require—would make it extraordinarily challenging for States to

develop a plan” in any shortened timeline, App.823a; accord App.641a; App.501a–

02a; App.790a–93a.

On March 8, 2024, EPA promulgated the final Rule at issue here. See App.1a–

408a. Under Section 111(b), the Rule imposes standards of performance for both

methane and VOC emissions from new oil and gas sources spanning the industry’s

production, processing, transmission, and storage segments.

App.52a–83a.

addition—and most relevant here—the Rule imposes numerous, stringent

-9-

requirements and limitations on existing sources and state plans under

Section 111(d). The categories of existing sources that the Rule covers include well

sites, centralized production facilities, and compressor stations, App.52a–54a;

App.66a–72a, as well as facility components utilized in oil and gas production,

processing, transportation, and storage—such as process controllers, pumps,

App.64a–65a, centrifugal compressors, combustion control devices, reciprocating

compressors, and storage vessels, App.72a–80a.

Instead of following Section 111(d)’s directive that the States have the

authority to “establish[ ] standards of performance for [ ] existing source[s],” 42

U.S.C. § 7411(d)(1), the Rule sets “presumptive standards of performance” for these

existing sources, App.10a; App.187a.

The Rule’s presumptive standards detail

specific technologies, processes, and methods that—in EPA’s view—States must

employ to reach certain emission-reduction levels that EPA believes are necessary,

App.14a–16a, extending far beyond identifying the “best system of emission

reduction” (BSER) and “the degree of emission limitation achievable” with the BSER,

as the CAA contemplates, 42 U.S.C. § 7411(a), (d)(1). For example, the Rule lists as

a “presumptive standard” for “Single Wellhead Only Well Sites and Small Well Sites”

and “Multi-wellhead Only Well Sites” quarterly “Audio, Visual, and Olfactory”

monitoring, with multi-wellhead only well sites also requiring semiannual

monitoring via more expensive optical gas imaging. App.11a–14a. For “existing oil

wells” that produce “associated gas,” the Rule designates two “presumptive

standard[s]” “based on the amount (mass) of methane in the associated gas” produced

- 10 -

by a covered well. App.70a. For wells producing less than 40 tons of methane per

year, the Rule prohibits all flaring, requiring the associated gas to be recovered and

collected, and if possible, rerouted and used for a beneficial purpose. App.70a; 87 Fed.

Reg. at 74,780–81. For wells producing more than 40 tons of methane annually, the

Rule only permits flaring if there is no feasible alternative and requires “the flare or

control device [to] achieve 95.0 percent reduction in methane.” App.70a. For “Pumps”

well sites, centralized production facilities, onshore natural gas processing plants,

and compressor stations, the Rule’s “presumptive standard” mirrors the emissionlimit standard for new sources—a zero-emission standard for any covered facility

with electrical power or more than three pumps. App.64a–66a.

The Rule also imposes extra-statutory factors and requirements that States

must meet if their plan deviates from EPA’s presumptive standards.

App.73a;

App.187a.

“physical

States

must

demonstrate

“unreasonable

cost”

and

impossibility,” among other showings, to justify submitting a plan that adopts

different standards and methods from those urged by the Rule. App.183a. The Rule

also directs States to identify “fundamental differences” between the information

available to the States and the information that was available to the EPA, noting that

EPA’s judgment will prevail if EPA and a State simply draw different conclusions

from the same data sets. App.183a. Even States that are already regulating methane

under state-law programs must complete this burdensome process, as the Rule rejects

a “total program evaluation” option that would have allowed a more streamlined plan

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review process for such States.

App.178a–81a.

The Rule’s “one-size-fits-all”

standards thus curtail the States’ statutory authority to design Section 111(d) plans

tailored to their circumstances and penalizes States that choose alternative

standards, App.575a–76a, as any deviation from these standards will prompt EPA’s

“thorough[ ] review[ ],” App.187a.

The Rule mandates that the States must submit plans establishing the

standards of performance for existing sources covered by the Rule to EPA within two

years. App.159a. Given the numerous categories of existing sources that the Rule

covers, see supra pp.8–9, the deadline is particularly burdensome for States with

more oil and gas facilities, such as many State-Applicants.

While the Rule

acknowledged many States’ comments objecting to this timeline, it failed to address

State-Applicants’ core argument that they needed three years to submit Section

111(d) plans due to the diversity and number of oil and gas facilities covered by the

Rule.

Supra p.9.

Rather, EPA’s only explanation for not providing the time

requested by States is that “[e]xtending the state plan submittal deadline beyond 24

months to account for any and all unique state procedures would inappropriately

delay reductions in emissions that have been found under CAA section 111 to

endanger health or the environment.” App.191a. EPA did not explain either how

this addresses State-Applicants’ concerns, or how this claimed urgency comports

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with the agency’s delay of more than a decade. See generally App.191a; Exec. Off. of

the President, The President's Climate Action Plan 10–11 (June 2013).1

The D.C. Circuit Denies State-Applicants’ Motion For Stay In An

Unexplained, One-Line Order

On March 12, 2024, State-Applicants filed a petition for review challenging the

Rule in the D.C. Circuit under the Administrative Procedure Act (“APA”). See Case

No.24-1059, Dkt.2045175. Many other parties also challenged the Rule, see generally

Case Nos.24-1054, -1101, -1103, -1111, -1114, -1115, -1116, -1117, -1118, and the D.C.

Circuit consolidated the challenges, see, e.g., Case No.24-1059, Dkt.2045181. On

April 12, 2024, State-Applicants moved for a stay pending the D.C. Circuit’s review

of the consolidated challenges. See Case No.24-1059, Dkt.2049412. On the merits,

State-Applicants argued that the Rule was unlawful because it violated

Section 111(d)’s text and the CAA’s cooperative-federalism framework, id. at 7–11,

and because the Rule’s two-year deadline for state plans was arbitrary and capricious,

id. at 11–15. State-Applicants further explained that they would suffer irreparable

harm to their sovereign, economic, and quasi-sovereign interests absent a stay, and

that the public interest strongly favors a stay. Id. at 15–21. In 14 supporting

declarations, State-Applicants showed that the Rule imposed an immense burden by

imposing compliance requirements on hundreds of thousands of previously

unregulated oil and gas facilities. See id., Exs.5–13, 15–18, 26 (declarations of state

Available at https://obamawhitehouse.archives.gov/sites/default/files/image/

president27sclimateactionplan.pdf (all websites last visited Aug. 23, 2024).

- 13 -

officials from Alaska, Kentucky, North Dakota, Utah, Montana, Alabama, West

Virginia, Oklahoma, Ohio, Virginia, Idaho, South Carolina, and Tennessee).

On July 9, 2024, the D.C. Circuit denied State-Applicants’ stay motion, stating

without explanation that “Petitioners have not satisfied the stringent requirements

for a stay pending court review.” App.409a.2

REASONS FOR GRANTING THE APPLICATION

This Court “may issue all necessary and appropriate process to postpone the

effective date of an agency action,” including by staying an agency order under review

in a case still pending before an appellate court. 5 U.S.C. § 705; see also 28 U.S.C.

§§ 1254, 2101; Ohio, 144 S. Ct. at 2052; West Virginia v. EPA, 577 U.S. 1126 (2016);

Nken v. Mukasey, 555 U.S. 1042 (2008). In deciding whether to issue a stay, this

Court “appl[ies] the same sound principles as other federal courts.” Ohio, 144 S. Ct.

at 2052 (citation omitted; alteration omitted).

Specifically, this Court asks

“(1) whether the applicant is likely to succeed on the merits, (2) whether it will suffer

irreparable injury without a stay, (3) whether the stay will substantially injure the

other parties interested in the proceedings, and (4) where the public interest lies.”

Id. Further, some Justices have taken the position that this Court’s assessment of

the likelihood of success on the merits may “encompass not only an assessment of the

underlying merits but also a discretionary judgment about whether the Court should

Industry petitioners had sought a stay of other aspects of the Rule on different

grounds, see Mot. to Stay, Texas v. EPA, No.24-1054, Dkt.2055134 (D.C. Cir. May 17, 2024),

and the D.C. Circuit disposed of that motion within the same single-sentence order,

App.409a.

- 14 -

grant review in the case.” Does 1-3 v. Mills, 142 S. Ct. 17, 18 (2021) (Barrett, J.,

concurring in the denial of application for injunctive relief). State-Applicants have

satisfied these standards here, and so this Court should grant a stay of the Section

111(d) component of the Rule.

This Court Would Likely Grant Review And Reverse If The D.C.

Circuit Upholds The Section 111(d) Component Of The Rule

If the D.C. Circuit were to deny State-Applicants’ petition for review, that

would “decide[ ] an important question of federal law” that this Court would review

and reverse, including because such a decision would conflict with principles in the

Court’s decision in West Virginia. Sup. Ct. R. 10(c). As particularly relevant to this

Application, the Rule is unlawful for two reasons, explained immediately below.

The Rule Violates Section 111(d) By Setting “Presumptive

Standards Of Performance”

1. Section 111(d) creates distinct roles for EPA and the States for the

“regulation of certain pollutant from existing sources,” West Virginia, 597 U.S. at 710

(emphasis omitted); see 42 U.S.C. § 7411(d), consistent with the Clean Air Act’s

cooperative-federalism regime, see Ohio, 144 S. Ct. at 2048.

Section 111(d) sets specific roles for EPA and the States, respectively.

Section 111(d) provides EPA with the authority to determine the best system of

emission reduction and the degree of emission limitation achievable for certain

pollutants. 42 U.S.C. § 7411(a), (d). Once EPA sets an emission-reduction amount

for a particular pollutant from existing sources under Section 111(d), the States

“establish[ ] [the] standards of performance for any existing source for [that] air

pollutant,” id. § 7411(d)(1)—meaning that the States “set the actual rules governing

- 15 -

existing” sources to meet the emissions guidelines set by EPA, West Virginia, 597

U.S. at 710.

And when a State creates such a plan, the State may “take into

consideration, among other factors, the remaining useful life of the existing source to

which such standard applies.” 42 U.S.C. § 7411(d)(1). Only if a State has “fail[ed] to

submit a satisfactory plan” to EPA under Subsection 111(d) may EPA then develop

its own standards of performance for existing sources by imposing a federal plan. Id.

§ 7411(d)(2)(A). Section 111(d) explicitly references the States’ and EPA’s respective

authorities under Section 111(d) to their respective authorities under Section 110 of

the Clean Air Act, see 42 U.S.C. § 7411(d)(1),(2)—a statutory cross-reference that

reinforces the States’ role in setting standards of performance for existing sources

under Section 111(d), see generally Rowland v. Cal. Men’s Colony, 506 U.S. 194, 199–

202 (1993) (relying on statutory context).

2. Here, the Court is likely to grant review and reverse any judgment from the

D.C. Circuit upholding the Rule because the Rule violates Section 111(d), see 5 U.S.C.

§ 706(2)(A), (C) (“not in accordance with law”; “excess of statutory jurisdiction”), by

forcing “presumptive standards of performance” upon the States, rather than

respecting the States’ authority to adopt any appropriate standards of performance

under Section 111(d) that reflect EPA’s determinations as to the amount of emission

reduction, after the States’ consideration of remaining useful life and other factors.

That is, the Rule supplants the States’ authority to develop standards for existing

sources under Section 111(d) by purporting to impose “presumptive standards,”

- 16 -

which “presumptive standards” a State must then (somehow) rebut to EPA’s

satisfaction before the State may establish its own standards of performance.

In the Rule, EPA did not limit itself to its statutory role for existing sources

and then leave it to the States to adopt appropriate standards of performance. See

42 U.S.C. § 7411(d)(1); West Virginia, 597 U.S. at 710. Instead, the Rule lists specific

technologies and methods for States to adopt in their Section 111(d) plans. App.10a;

App.176a; App.14a–16a. For example, the Rule lists as a “presumptive standard” for

certain smaller wells quarterly monitoring requirements, with other larger wells

additionally having semiannual monitoring via more expensive optical gas imaging.

App.11a–14a; supra pp.10–11.

The Rule lists as a “presumptive standard” the

prohibition of flaring of methane for smaller methane-producing wells, while larger

wells may only flare methane under certain defined circumstances. App.70a; supra

p.11. And for facilities with pumps powered by natural gas, the Rule lists a zeroemission of methane standard as a “presumptive standard.” App.14a–16a; supra

p.11. The Rule then explains that a State adopting these presumptive standards as

the standard of performance in its state plan under Section 111(d) would

presumptively satisfy the Rule. See App.10a.

The Rule’s use of “presumptive standards” violates Section 111(d), as these

standards unlawfully ratchet up EPA’s scrutiny of state plans under Section 111(d)

by requiring States to justify any departure from the “presumptive standards” before

EPA will deem the plans “satisfactory,” 42 U.S.C. § 7411(d).

A “presumption”

operates to establish some “predicate fact” that “produces a required conclusion in

- 17 -

the absence of an explanation,” such that the party against whom a presumption is

directed has “the burden of producing an explanation to rebut” the presumption. St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (citations omitted); see also Fed.

R. Evid. 301; accord “Presumption,” Black’s Law Dictionary (12th ed. 2024). So, the

Rule presumes that its “presumptive standards” satisfy the State’s obligations to set

standards of performance for existing sources, with the States having the obligation

to explain in their plan submissions why they are departing from that presumption.

See App.10a. The Rule makes clear that EPA will measure a State’s plan according

to its consistency with the “presumptive standards,” not solely according to its ability

to meet the Rule’s emissions guidelines. See App.29a. This is contrary to Section

111(d), which endows the States with the authority to establish the “standards of

performance for any existing source” that they deem fit, 42 U.S.C. § 7411(d)(1),

meaning that the States—not EPA—“set the actual rules governing existing power

plants,” West Virginia, 597 U.S. at 710.3

3 EPA’s violation of Section 111 with the Rule here is different than EPA’s violation of

Section 111 in its final rule entitled “New Source Performance Standards for Greenhouse Gas

Emissions From New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating

Units; Emission Guidelines for Greenhouse Gas Emissions From Existing Fossil Fuel-Fired

Electric Generating Units; and Repeal of the Affordable Clean Energy Rule,” 89 Fed. Reg.

39,798 (May 9, 2024)—which many parties (including State-Applicants) raised in stay

applications pending before this Court, see, e.g., West Virginia v. EPA, No.24A95 (U.S. Jul.

23, 2024). In that other rule, numerous parties have explained that EPA violated Section 111

by relying upon unproven control technology to set “the degree of emission limitation

achievable through application of the best system of emission reduction . . . [that] has been

adequately demonstrated.” 42 U.S.C. § 7411(a)(1), (b)(1); 89 Fed. Reg. 39,798. Here, StateApplicants have explained that EPA has subverted the federal-state roles by attempting to

impose “presumptive standards of performance” for existing sources upon the States, rather

than allowing States to adopt their own appropriate standards for existing sources as

they see fit.

- 18 -

The Rule’s discussions of the “presumptive standards” demonstrates that—as

the name indicates—States must rebut those standards to set their own standards of

performance. The Rule expressly states that “components of a state plan that differ

from any presumptively approvable aspects of the [emissions guidelines] . . . will be

thoroughly reviewed by the EPA.” App.187a (emphasis added). The Rule provides

that, if States have “existing programs [that] they may want to leverage for purposes

of satisfying their CAA section 111(d) state plan obligations” that differ from the

“presumptive standards,” the States must satisfy an onerous, multi-step process to

demonstrate that the preexisting state programs have “equivalency . . . with the

proposed presumptive standards.”

App.177a.

And the Rule explains that it is

“extremely unlikely” that States could depart from the “presumptive standards”

based on cost considerations. App.185a. That is why, when proposing the Rule, EPA

explained that “it would likely be difficult for States to demonstrate that the

presumptive standards are not reasonable for the vast majority of designated

facilities.” 86 Fed. Reg. at 63,251.

The Rule’s “presumptive standards” represent EPA’s attempts to gut the

States’ standard-setting authority under Section 111(d).

As explained above,

Section 111(d) gives States the authority to adopt standards of performance for

existing sources, with EPA serving only as a reviewer for compliance with the Act.

Supra pp.15–16.

The Rule impermissibly flips the federal-state structure in

Section 111(d) on its head, essentially requiring EPA-set standards as the default.

The Rule even admits as much, stating in a footnote that the “presumptive standards

- 19 -

would serve as a guide to the development of a Federal plan,” even as EPA claims

that they “are not the same as a Federal plan under CAA section 111(d)(2).” App.10a.

The Rule’s Two-Year Deadline For State Plans Violates The APA

Under Ohio And State Farm

1. The APA mandates that agencies engage in “reasoned decisionmaking,”

State Farm, 463 U.S. at 43–44, 52, prohibiting agencies from taking actions that are

“arbitrary [and] capricious,” 5 U.S.C. § 706(2)(A). Agency action is “arbitrary [and]

capricious,” 5 U.S.C. § 706(2)(A), when the agency fails to “reasonably consider[ ] the

relevant issues,” FCC v. Prometheus Radio Project, 592 U.S. 414, 423 (2021). This

means that an agency may not “simply ignore ‘an important aspect of [a] problem,’”

Ohio, 144 S. Ct. at 2053 (quoting State Farm, 463 U.S. at 43), and must reasonably

“examine the relevant data and articulate a satisfactory explanation for its action,”

State Farm, 463 U.S. at 43 (citation omitted); see also Ohio, 144 S. Ct. at 2053.

Further, an agency must provide reasoned responses to comments raising important

concerns. See Ohio, 144 S. Ct. at 2054. So, at bottom, “the process by which [an

agency] reaches [a particular result] must be logical and rational,” Allentown Mack

Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998).

This Court recently applied these principles in the stay context in Ohio, 144

S. Ct. 2040. There, a group of States (joined by members of industry) sought a stay

from this Court of EPA action imposing a “uniform federal plan” for “controlling ozone

pollution” from 23 States. Id. at 2048–50. In granting the stay, this Court concluded

that EPA’s plan was likely arbitrary and capricious in violation of “long-settled [APA]

standards.” Id. at 2053–54. Specifically, EPA had “failed to supply a satisfactory

- 20 -

explanation for its action,” given that it “ignored an important aspect of the problem

before it”—namely, what happens when many of the covered States “fall out” of the

plan and it “may now cover only a fraction of the States and emissions EPA

anticipated.” Id. at 2053–54 (citations omitted). And “[a]lthough commenters posed

this concern to EPA during the notice and comment period, EPA offered no reasoned

response,” in violation of the APA. Id. at 2054 (citations omitted).

2. Here, this Court is also likely to grant review and reverse a judgment from

the D.C. Circuit holding that the Rule’s two-year deadline for States to submit their

Section 111(d) plans is lawful, as EPA did not adequately consider an important

aspect of this problem. See 5 U.S.C. § 706(2)(A). Specifically, EPA did not explain

how the Rule’s two-year deadline provides States with sufficient time to develop

their own standards of performance under Section 111(d) rather than simply adopt

EPA’s “presumptive standards.”

This is especially so for State-Applicants like

Oklahoma, who must regulate for the first time methane and VOC emissions from

hundreds of thousands of new and diverse oil and gas facilities. See Ohio, 144 S. Ct.

at 2053; State Farm, 463 U.S. at 43–44.

As many State-Applicants explained to EPA in comments during the

rulemaking process, many States absolutely need at least three years to prepare a

state plan under Section 111(d), given that the Rule contemplates many States

regulating for the first time hundreds of thousands of diverse oil and gas facilities.

See App.713a; App.844a; accord App.749a; App.641a; App.807a; see generally

App.624a–25a (discussing the “incredibly diverse [oil and gas] industry”). So, as

- 21 -

State-Applicants informed EPA, the Rule “includes thousands of additional sources

for oil and gas states,” which makes even the process of “gathering an inventory of

[these] designated facilities” alone overly time-consuming.

App.713a; see also

App.844a. This “sheer number of new regulated entities—and the quantity of data

that these new regulations will require—would make it extraordinarily challenging

for States to develop a plan” in any shortened timeline. App.823a; see also App.778a

(discussing the “scale of the task that [EPA] has now thrust on the States”); accord

App.641a (“[S]tates must have time to assess all affected sources in light of their

remaining useful lives, and other factors.”); App.624a–25a (discussing the

“incredibly diverse [oil and gas] industry”).

Additionally, “[methane] is not a

pollutant that has been previously regulated by [at least some States] and as such

to collect an emission inventory, understand the monitoring and quantification of

potential methane emissions, determination of stakeholders to have meaningful

engagement with, evaluation of equivalency of current standards . . . and

understanding the impacts of compliance with the plan” necessitates at least a threeyear deadline. App.749a; accord App.641a; App.790a–93a.

EPA imposed a two-year deadline for the States to submit their Section 111(d)

plans, while providing no meaningful response to State-Applicants’ concerns.

App.189a–91a. EPA recognized that a “large number of state commenters in addition

to other commenters” warned that the original 18-month submission deadline in the

proposed rule was insufficient, but the agency only discussed the States’ argument

that more time was needed for States to “complete state administrative processes,

- 22 -

conduct public hearings, engage with pertinent stakeholders,” and the like.

App.189a–91a. But those state-administrative-timing concerns are different in kind

than State-Applicants’ more fundamental concern discussed above—that it will take

three years for the States to design their own standards of performance under Section

111(d) given that the Rule covers, for the first time, hundreds of thousands of diverse

oil and gas facilities.

The Rule then aggravated State-Applicants’ timing concerns tied to the scope

and diversity of covered oil and gas facilities by imposing several more complexities

upon the States as they develop their Section 111(d) plans. For example, the Rule

imposes heightened requirements for considering the remaining useful life of a facility,

which will require States to perform hyper-technical analyses. App.183a–86a. State

regulators will also need to learn a new system of assessment, given the Rule’s shift in

evaluating emissions from throughput to component parts. App.192a. The Rule adopts

more rigorous “meaningful engagement” requirements, App.187a–88a, and it requires

States to undertake a distinct (and substantial) regulatory effort to create new

permitting requirements that meet the Rule’s rewritten “legally and practicably

enforceable” standard, App.159a.

Two years is simply not enough time for States to exercise their Section 111(d)

rights to design their own standards of performance, especially for those States that

must now regulate for the first time hundreds of thousands of new and diverse oil

and gas facilities. See supra pp.21–22. The myriad oil and gas facilities now covered

by the Rule are “incredibly diverse.” See App.624a–25a. These facilities include, for

- 23 -

example, well sites, centralized production facilities, and compressor stations,

App.52a–54a; App.66a–72a, and they are located throughout the entire oil and gas

supply chain—production, processing, transportation, and storage, App.64a–65a. In

the face of this “incredibly diverse industry,” States must have the option of rejecting

a “one-size-fits-all approach” for the covered oil and gas facilities in their Section

111(d) plans, see App.624a–25a. Rather, they must carefully adopt standards of

review that, for example, “assess all affected sources in light of their remaining

useful lives, and other factors.” App.641a. States need more than two years to

complete this daunting regulatory task, otherwise they risk “submittal of an

inadequately prepared plan that EPA would have to review and reject, leading to

unnecessary use of already limited resources.” App.749a. The upshot of EPA’s

truncated, two-year timeline is obvious: this shortened timeframe will force States

into adopting the (unlawful, supra Part I.A) “presumptive standards” in the Rule,

rather than crafting standards of performance of their own as Section 111(d)

provides.

The Rule’s imposition of a two-year deadline upon the States while “ignor[ing]”

the “important . . . problem” with this timeline that the States raised makes the Rule

arbitrary and capricious, just like the EPA rule at issue in Ohio, 144 S. Ct. at 2053

(citation omitted); see also State Farm, 463 U.S. at 43–44. Like the States in Ohio,

the State-Applicants here raised their important concerns to EPA in public

comments, see 144 S. Ct. at 2054, explaining that they needed three years to adopt

Section 111(d) plans, given the Rule’s inclusion of hundreds of thousands of new and

- 24 -

diverse oil and gas facilities, supra pp.21–22. Yet, like in Ohio, EPA offered “no

reasoned response” to the State-Applicants on this score. See 144 S. Ct. at 2054;

supra pp.22–23. So, like in Ohio, EPA’s “fail[ure] to supply a satisfactory explanation

for its action” in this way violates the APA’s “long-settled standards” against

arbitrary and capricious agency action.

Ohio, 144 S. Ct. at 2053–54 (citation

omitted); supra pp.22–23.

II.

State-Applicants Will Suffer Irreparable Harm If This Court Does Not

Grant A Stay

A. Monetary losses that “cannot be recouped” constitute “irreparable harm.”

Philip Morris USA Inc. v. Scott, 561 U.S. 1301, 1304 (2010) (Scalia, J., in chambers);

see also Ohio, 144 S. Ct. at 2053. Because the APA does not permit recovery of money

damages against an offending agency, 5 U.S.C. § 702, there is “no guarantee of

eventual recovery” of losses resulting from a final rule issued by EPA, Ala. Ass’n of

Realtors v. Dep’t of Health & Hum. Servs., 594 U.S. 758, 765 (2021) (per curiam); see

Ohio, 144 S. Ct. at 2053, such that “complying with a regulation later held invalid

almost always produces the irreparable harm of nonrecoverable compliance costs,”

Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 220–21 (1994) (Scalia J., concurring).

Moreover, States have both a statutory right to “set the actual rules governing

existing [sources]” by developing their own Section 111(d) plans, West Virginia, 597

U.S. at 710, see also Train v. Nat. Res. Def. Council, Inc., 421 U.S. 60, 79 (1975); Union

Elec. Co. v. EPA, 427 U.S. 246, 269 (1976), and a “sovereign interest in the

enforcement” of their laws, Little v. Reclaim Idaho, 140 S. Ct. 2616, 2617 (2020)

(Roberts, C.J., concurring in the grant of stay). Thus, the “inability to enforce its duly

- 25 -

enacted plans clearly inflicts irreparable harm on [a] State.” Abbott v. Perez, 138

S. Ct. 2305, 2324 n.17 (2018); see also Maryland v. King, 567 U.S. 1301, 1303 (2012)

(Roberts, C.J., in chambers).

B. State-Applicants will suffer significant irreparable harm if this Court does

not stay the Section 111(d) component of the Rule.

The Rule’s “presumptive standards” and two-year deadline for state plans will

impose significant, irreparable harm to State-Applicants’ sovereign interests. See

Philip Morris USA Inc., 561 U.S. at 1304 (Scalia, J., in chambers); Reclaim Idaho,

140 S. Ct. at 2617 (Roberts, C.J., concurring); Abbott, 138 S. Ct. at 2324 n.17. Under

Section 111(d), States have a statutory right to “set the actual rules governing

existing [sources],” West Virginia, 597 U.S. at 710, by “establish[ing]” appropriate

“standards of performance for any existing source” to meet the emissions guidelines

set by EPA, 42 U.S.C. § 7411(d)(1); accord Train, 421 U.S. at 79; Union Elec. Co., 427

U.S. at 269. Yet, as discussed above, supra Part I.A, the Rule imposes an extrastatutory burden on any State that exercises this right and deviates from the Rule’s

“presumptive standards,” requiring the State to rebut EPA’s preferred standard and

subjecting the state plan to “thorough[ ] review[ ] by the EPA,” App.187a. Moreover,

the Rule “require[s] [S]tates to reduce methane emissions from hundreds of

thousands of existing sources nationwide for the first time,” App.485a; App.494a, and

imposes a mere two-year deadline for States to account for each designated facility

and provide an extensive rebuttal for every deviation from the Rule’s presumptive

standards, App.159a; App.190a.

- 26 -

Consequently, whether State-Applicants adopt EPA’s presumptive standards

or attempt to design their own, the Rule imposes inevitable and irreparable harm on

them. States that do not wish to adopt the Rule’s “presumptive standards” wholesale

must quickly expend substantial resources during the pendency of this case given the

Rule’s unreasonable two-year deadline, supra Part I.B—to develop modified versions

of EPA’s “presumptive standards,” as there is simply not enough time to develop their

own standards of performance that are both “best suited to [their] particular

situation[s],” Train, 421 U.S. at 79, and that sufficiently rebut (somehow, to EPA’s

satisfaction) the agency’s “presumptive standards,” see App.590a–91a; App.597a–

98a; App.603a–04a; App.613a–14a. These are significant “nonrecoverable” “costs,”

Ohio, 144 S. Ct. at 2053 (citation omitted), as State-Applicants will not spend these

resources developing their Section 111(d) plans in this way if they were to succeed in

their challenge to the Rule.

See App.591a–92a; App.597a–99a; App.604a–07a;

App.613a–14a; App.618a–19a. That is, if State-Applicants did not need to adopt a

Section 111(d) plan within two years that also rebuts (to EPA’s satisfaction) the Rule’s

“presumptive standards,” State-Applicants would choose to adopt different standards

of performance to meet the Rule’s emissions guidelines for the myriad and diverse

existing sources within their borders. See App.590a–92a; App.597a–598a; App.604a–

07a; App.611a–13a; App.618a–19a. The only other alternative for the States is to

forsake their statutory rights to design their own standards of performance, contrary

to their significant sovereign interests, and instead either adopt the “presumptive

- 27 -

standards” in full or have EPA impose a federal plan. Train, 421 U.S. at 79; Ohio,

144 S. Ct. at 2048; see App.590a–91a; App.597a–99a; App.604a–05a; App.613a–14a.

So, if State-Applicants elect to undertake the monumental task of designing a

Rule-compliant plan that deviates from the presumptive standards in some respects

within the two-year deadline, they will suffer immense and irreparable economic

harm developing a Section 111(d) plan that they will not use if they ultimately prevail

here. See Philip Morris USA Inc., 561 U.S. at 1304 (Scalia, J., in chambers). To

begin, the Rule requires States to account for a staggering number of additional

“sources”: 200,000 wells in Oklahoma, App.571a; 60,000 sources in Kentucky,

App.531a; tens of thousands of facilities, including 18,000 oil and gas production wells

alone, in North Dakota, App.561a; 70,000 oil and gas wells in West Virginia,

App.438a; 51,000 well sites in Ohio, App.471a; App.474a; 2,900 oil and gas facilities,

608 permitted oil and gas minor sources, and 20 permitted oil and gas major sources

in Utah, App.424a; 8,000 production wells and 75 compressor stations in Virginia,

App.448a; 1,100 oil and gas registrations in Montana, App.587a–88a; at least 60

facilities in Alaska, App.545a; at least 20 sources in Idaho, App.457a; and

eight compressor stations in South Carolina, App.582a–83a. Further, each state plan

must include an inventory of all designated facilities, all attendant performance

standards, and all compliance schedules. App.563a–64a; see also App.423a–24a;

App.458a; 42 U.S.C. § 7410.

Finally, each plan must go through state-level

rulemaking and public participation processes that have substantial procedural and

substantive demands. See App.451a–52a; App.458a; App.463a; App.474a; App.482a;

- 28 -

App.534a; App.441a–42a; App.544a–45a; App.563a–64a; App.575a–76a; App.587a–

88a. For example, not only must North Dakota issue public notices, hold one or more

public hearings, and gather public input; state regulators must meticulously

document that they have achieved “meaningful engagement” by listing pertinent

stakeholders, summarizing the engagement and input received, and detailing how

this input influenced the plan or its revisions. App.563a–64a.

Given EPA’s truncated, two-year timeline, States must quickly invest these

considerable resources to craft Section 111(d) plans that impose standards of

performance for the newly covered facilities, and States must do so within the context

of the Rule’s “presumptive standards” that limit the States’ statutory leeway under

Section 111(d).

App.427a–28a; App.440a–42a; App.451a; App.458a; App.473a;

App.482a; App.532–33a; App.544a–45a; App.562a–63a; App.574a–75a; App.587a–

88a; see also App.590a–92a; App.597a–99a; App.603a–05a; App.607a. States with

the highest number of designated facilities will need to hire hundreds of new

employees and reallocate scarce financial resources from other state programs, lest

they abandon their Clean Air Act obligations altogether. See App.572a; App.574a–

75a; App.441a–42a; App.450a–51a; App.471a–72a; App.532a–33a; App.587a–88a.

For example, Kentucky expects it will need to hire at least 100 new employees

“immediately,” App.532a, while Oklahoma projects it will need to increase its existing

permitting and compliance staff by 50%, App.572a. Meanwhile, Ohio’s EPA projects

it may need up to $16,375,000 per year to comply with the Rule. App.472a. The cost

for these workers is also high because these tasks require skilled workers to help

- 29 -

implement permit programs and develop programs based on individual components

of well systems. See App.532a–33a. And as this is the first nationwide methaneemissions rule, demand for this skilled labor is extraordinarily high with the States

competing against each other and private industry. These costs will force States to

take millions of dollars from other programs in already strained budgets.

See

App.481a–82a; App.427a; App.441a–42a; App.583a; App.575a; App.563a–64a;

App.587a–88a; App.533a; App.542a–43a. And the Rule’s short, two-year window to

develop plans, App.159a, requires States to begin spending money now, during the

pendency of this case.

See App.590a–91a; App.597a–99a; App.604a–05a;

App.613a–14a.

III.

The Rule’s Devastating Consequences Are Contrary To The Public

Interest

A. In cases where the “Government is the opposing party,” as it is here, the

“third and fourth factors” in the stay analysis—that is, “harm to the opposing party

and the public interest”—will “merge.” Nken v. Holder, 556 U.S. 418, 420, 435 (2009).

There is a clear “public interest” in ensuring that an “agency has . . . compl[ied] with

its statutory mandate.” Sierra Club v. Morton, 405 U.S. 727, 737 (1972); see Ohio,

144 S. Ct. at 2053.

The public likewise has an interest in “maint[aining] the

constitutional balance upon which the doctrine of federalism is founded.” Withrow v.

Williams, 507 U.S. 680, 687 (1993) (citation omitted). Finally, “the protection of the public

fisc is a matter that is of interest to every citizen.” Brock v. Pierce Cnty., 476 U.S.

253, 262 (1986).

- 30 -

B. Here, the public interest strongly supports staying the Rule while the D.C.

Circuit considers the petition for review.

The Rule harms the public interest in “the maintenance of the constitutional

balance upon which the doctrine of federalism is founded,” including during the pendency

of State-Applicants’ challenge. Withrow, 507 U.S. at 687. The Rule effectively forces

the States to accept EPA’s “presumptive standards,” thereby limiting the States’

authority to adopt their own standards of performance for regulating methane and

VOC emissions from existing facilities. See supra pp.26–30. That harms the public

interest in the cooperative-federalism regime in the Clean Air Act, generally, and

Section 111(d), specifically.

See Withrow, 507 U.S. at 687; supra pp.6–7, 15–16.

Indeed, the Rule’s federal overreach all but eliminates the States’ statutorily defined

role—including during the pendency of this case—thus depriving the public of the

knowledge and region-specific expertise that the States would have utilized when

regulating these emissions from these existing sources, but for the Rule’s unlawful

“presumptive standards.” See supra pp.6–7, 26–30. Such a harm to the public

interest is especially apparent where state agencies must contend with unique local

circumstances, such as the challenges of regulating methane in remote regions of

Alaska. See App.546a; see also App.590a–92a; App.597a–99a; App.603a–04a.

Further, the Rule’s “presumptive standards” are onerous, imposing costs on

the oil and gas industries that will—as even EPA admits—inevitably be passed onto

consumers across the country. To take just a few examples, the Rule imposes as

“presumptive standards” costly monitoring requirements, including the use of

- 31 -

expensive optical gas imagining technology for certain wells. App.11a–14a; see also

App.639a; App.834a. The Rule prohibits or severely limits flaring, App.70a; 87 Fed.

Reg. at 74,780–81, although it may at times be appropriate, especially for wells

located in remote or inaccessible locations, see App.766a. And for certain pumps at

existing facilities, the Rule imposes a zero-emission standard—the same standard

applied to new facilities, App.64a–66a—requiring costly retrofitting and engineering

to achieve, App.803a. Each of these “presumptive standards,” and the many more

imposed in the Rule, App.64a–66a, will raise the cost of oil and gas, as EPA’s own

cost-estimates show, EPA, Response to Public Comments on the November 2021

Proposed Rule and the December 2022 Supplemental Proposed Rule, at I-20-63,

No.EPA-HQ-OAR-2021-0317-4009 (Nov. 2023) (“EPA Resp. to Public Comments”);

accord App.604a–06a (discussing “economic and social damage to the state as a whole

and rural communities in particular” as a result of the Rule); App.591a; App.597a–

99a. Unsurprisingly, industry members will assuredly pass those costs onto the

Nation’s consumers, EPA Resp. to Public Comments at I-20-63, No.EPA-HQ-OAR2021-0317-4009, further demonstrating the Rule’s substantial harms to the

public interest.

These consequences are a direct result of EPA’s statutory violation: Congress

wisely provided States with broad discretion to design regulations that best fit their

existing sources, allowing States to leverage nuanced, region-specific knowledge and

experience to achieve the CAA’s environmental goals with far greater efficiency and

at a fraction of the cost. Yet, EPA’s imposition of one-size-fits-all “presumptive

- 32 -

standards” defies Congress’ intent and imposes unnecessary costs that coincide with

the effect of other recent EPA regulations that similarly impact vital industries and

services while endangering hundreds of thousands of jobs, such as EPA’s recent

PM2.5 rule. See e.g., U.S. Air Quality Standards and the Manufacturing Sector,

Oxford Economics (Apr. 2023)4; App.543a; App.739a–44a.

EPA, for its part, will suffer no cognizable harm from a stay during the

pendency of this case. See Ohio, 144 S. Ct. at 2053–54. EPA shares the public’s

interest in ensuring it has “compl[ied] with its statutory mandate.” Sierra Club, 405

U.S. at 737. Moreover, EPA has delayed regulating methane for more than a decade,

and so cannot now claim timing is critical to achieving its goals. See supra pp.12–13.

Staying the Rule’s effects until the courts have reached a decision on the merits will

not impose any measurable harm on EPA or the public, particularly given the longterm nature of the climate-change concerns that the Rule is intended to address.

CONCLUSION

This Court should stay the Section 111(d) component of the Rule pending

resolution of State-Applicants’ petition for review.

4 Available at https://bit.ly/3TLwVJA.

- 33 -

Respectfully submitted,

GENTNER DRUMMOND

Attorney General

GARRY M. GASKINS, II

Solicitor General

JENNIFER L. LEWIS

Deputy Attorney General

OFFICE OF THE ATTORNEY

GENERAL OF OKLAHOMA

313 NE Twenty-First St.

Oklahoma City, OK 73105

CARROLL WADE MCGUFFEY III

TROUTMAN PEPPER

HAMILTON SANDERS LLP

600 Peachtree St. N.E., Suite 3000

Atlanta, GA 30308

August 2024

/s/ Misha Tseytlin

MISHA TSEYTLIN

Counsel of Record

KEVIN M. LEROY

KAITLIN L. O’DONNELL

EMILY A. O’BRIEN

DYLAN DEWITT

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe, Suite 3900

Chicago, Illinois 60606

(608) 999-1240

misha.tseytlin@troutman.com

JEFF P. JOHNSON

TROUTMAN PEPPER

HAMILTON SANDERS LLP

1001 Haxall Point, Ste. 1500

Richmond, VA 23219

Counsel for State of Oklahoma

- 34 -

STEVE MARSHALL

Attorney General

TIM GRIFFIN

Attorney General

EDMUND G. LACOUR JR.

Solicitor General

OFFICE OF THE ATTORNEY GENERAL OF

ALABAMA

501 Washington Avenue

P.O. Box 300152

Montgomery, Alabama 36130-0152

NICHOLAS J. BRONNI

Solicitor General

Counsel for the State of Alabama

DYLAN JACOBS

Deputy Solicitor General

OFFICE OF THE ARKANSAS ATTORNEY

GENERAL

323 Center Street, Suite 200

Little Rock, AR 72201

Counsel for the State of Arkansas

TREG TAYLOR

Attorney General

ASHLEY MOODY

Attorney General

GARRISON TODD

Assistant Attorney General

ALASKA DEPARTMENT OF LAW

1031 W. 4th Ave., Ste. 200

Anchorage, AK 99501

HENRY C. WHITAKER

Solicitor General

Counsel for State of Alaska

JAMES H. PERCIVAL

Chief of Staff

OFFICE OF THE ATTORNEY GENERAL OF

FLORIDA

The Capitol, Pl-01

Tallahassee, Florida 32399-1050

Counsel for the State of Florida

CHRISTOPHER M. CARR

Attorney General

BRENNA BIRD

Attorney General

STEPHEN J. PETRANY

Solicitor General

OFFICE OF THE ATTORNEY GENERAL OF

GEORGIA

40 Capitol Square, SW

Atlanta, GA 30334

ERIC H. WESSAN

Solicitor General

OFFICE OF THE ATTORNEY GENERAL

OF IOWA

1305 E. Walnut Street

Des Moines, IA 50319

Counsel for the State of Georgia

Counsel for the State of Iowa

- 35 -

RAÚL R. LABRADOR

Attorney General

THEODORE E. ROKITA

Attorney General

JOSHUA N. TURNER

Chief of Constitutional Litigation and

Policy

JAMES A. BARTA

Solicitor General

OFFICE OF THE ATTORNEY GENERAL OF

INDIANA

302 W. WASHINGTON ST.

Indianapolis, IN 46204

ALAN M. HURST

Solicitor General

OFFICE OF THE IDAHO ATTORNEY

GENERAL

P.O. Box 83720

Boise, Idaho 83720

Counsel for State of Indiana

Counsel for the State of Idaho

RUSSELL COLEMAN

Attorney General

KRIS KOBACH

Attorney General

MATTHEW F. KUHN

Solicitor General

OFFICE OF THE KENTUCKY ATTORNEY

GENERAL

700 Capital Avenue, Suite 118

Frankfort, KY 40601

ANTHONY J. POWELL

Solicitor General

KANSAS ATTORNEY GENERAL’S OFFICE

120 SW 10th Avenue, 2nd Floor

Topeka, Kansas 66612-1597

Counsel for the State of Kansas

Counsel for the Commonwealth of

Kentucky

LIZ MURRILL

Attorney General

ANDREW BAILEY

Attorney General

J. BENJAMIN AGUIÑAGA

Solicitor General

LOUISIANA DEPARTMENT OF JUSTICE

1885 N. Third Street

Baton Rouge, LA 70804

JOSHUA M. DIVINE

Solicitor General

Counsel for the State of Louisiana

SAMUEL C. FREEDLUND

Deputy Solicitor General

MISSOURI ATTORNEY GENERAL’S OFFICE

207 West High St.

Jefferson City, MO 65101

Counsel for State of Missouri

- 36 -

LYNN FITCH

Attorney General

AUSTIN KNUDSEN

Attorney General

JUSTIN L. MATHENY

Deputy Solicitor General

OFFICE OF THE MISSISSIPPI ATTORNEY

GENERAL

P.O. Box 220

Jackson, MS 39205-0220

CHRISTIAN B. CORRIGAN

Solicitor General

MONTANA DEPARTMENT OF JUSTICE

215 North Sanders P.O. Box 201401

Helena, MT 59620-1401

Counsel for the State of Montana

Counsel for State of Mississippi

DREW H. WRIGLEY

Attorney General

MICHAEL T. HILGERS

Attorney General

PHILIP AXT

Solicitor General

OFFICE OF ATTORNEY GENERAL OF

NORTH DAKOTA

600 E. Boulevard Ave., Dept. 125

Bismarck, ND 58505

ERIC J. HAMILTON

Solicitor General

NEBRASKA DEPARTMENT OF JUSTICE

2115 State Capitol

Lincoln, Nebraska 68509

Counsel for the State of Nebraska

Counsel for State of North Dakota

DAVID YOST

Attorney General

ALAN WILSON

Attorney General

T. ELLIOT GAISER

Solicitor General

ROBERT D. COOK

Solicitor General

MATHURA J. SRIDHARAN

Deputy Solicitor General

OHIO ATTORNEY GENERAL’S OFFICE

30 E. Broad Street

Columbus, OH 43215

J. EMORY SMITH, JR.

Deputy Solicitor General

Counsel for the State of Ohio

JOSEPH D. SPATE

Assistant Deputy Solicitor General

OFFICE OF THE ATTORNEY GENERAL OF

SOUTH CAROLINA

1000 Assembly Street

Columbia, SC 29201

Counsel for the State of South Carolina

- 37 -

JASON MIYARES

Attorney General

SEAN D. REYES

Attorney General

KEVIN M. GALLAGHER

Principal Deputy Solicitor General

VIRGINIA ATTORNEY GENERAL’S OFFICE

202 North 9th Street

Richmond, VA 23219

STANFORD E. PURSER

Solicitor General

UTAH ATTORNEY GENERAL’S OFFICE

160 East 300 South, 5th Floor

Salt Lake City, UT 84114

Counsel for the Commonwealth of

Virginia

Counsel for the State of Utah

BRIDGET HILL

Attorney General

PATRICK MORRISEY

Attorney General

D. DAVID DEWALD

Deputy Attorney General

OFFICE OF THE ATTORNEY GENERAL OF

WYOMING

109 State Capitol

Cheyenne, WY 82002

MICHAEL R. WILLIAMS

Solicitor General

OFFICE OF THE ATTORNEY GENERAL OF

WEST VIRGINIA

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25301

Counsel for the State of Wyoming

Counsel for the State of West Virginia

WARREN PETERSEN

President Of The Arizona

State Senate

BEN TOMA

Speaker Of The Arizona

House Of Representatives

By Counsel:

BRUNN (BEAU) W. ROYSDEN III

FUSION LAW, PLLC

7600 N. 15th St., Suite 150

Phoenix, Arizona 85020

By Counsel:

BRUNN (BEAU) W. ROYSDEN III

FUSION LAW, PLLC

7600 N. 15th St., Suite 150

Phoenix, Arizona 85020

Counsel for President of the

Arizona State Senate Warren

Petersen

Counsel for Speaker of the Arizona

House of Representatives Ben Toma

- 38 -

APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A – 89 FED REG 16,820 (MARCH 8, 2024) . . . . . . . . . . . . . . 1a

APPENDIX B – DENIAL OF STAY OF THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT, FILED JULY 9, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409a

APPENDIX C – 42 USC 7411 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410a

APPENDIX D – DECLARATIONS:

BIRD DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418a

CROWDER DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434a

DOWD DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444a

FLOYD DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454a

GORE DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460a

HODANBOSI DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 466a

JOHNSON DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476a

KENNEDY DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526a

OLDS DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 537a

OWENBY DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548a

SEMERAD DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 557a

STEGMANN DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 567a

THOMPSON DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 579a

WILKINS DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 585a

Table of Contents

Page

OLDS SUPPLEMENTAL DECLARATION . . . . . . . . . . . . . . . . . . . 589a

PARFITT SUPPLEMENTAL DECLARATION . . . . . . . . . . . . . . . . 594a

STEGMANN SUPPLEMENTAL DECLARATION . . . . . . . . . . . . . 602a

TAYLOR DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609a

DOWD SUPPLEMENTAL DECLARATION . . . . . . . . . . . . . . . . . . . 615a

APPENDIX E – COMMENT LETTERS:

ALASKA COMMENT LETTER, DATED FEBRUARY 13, 2023 . . 621a

A R K A N S A S D E PA R T M E N T O F E N E R G Y A N D

E N V I R O N M E N T C O M M E N T L E T T E R , D AT E D

FEBRUARY 13, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 634a

I N D E P E N D E N T P E T R O L E U M A S S O C I AT I O N O F

AMERICA, ET AL. COMMENT LETTER, DATED

FEBRUARY 13, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 645a

OKLAHOMA SECRETARY OF ENERGY AND ENVIRONMENT

COMMENT LETTER, DATED FEBRUARY 13, 2023 . . . . . . . 693a

U.S. SMALL BUSINESS ADMINISTRATION COMMENT

LETTER, DATED FEBRUARY 13, 2023 . . . . . . . . . . . . . . . . . . . 739a

UTAH PUBLIC LANDS POLICY COORDINATING OFFICE

COMMENT LETTER, DATED FEBRUARY 13, 2023 . . . . . . . 745a

WEST VIRGINIA ATTORNEY GENERAL COMMENT

LETTER, DATED FEBRUARY 13, 2023 . . . . . . . . . . . . . . . . . . . 773a

WYOMING DEPARTMENT OF ENVIRONMENTAL QUALITY

COMMENT LETTER, DATED FEBRUARY 13, 2023 . . . . . . . 785a

iii

Table of Contents

Page

WEST VIRGINIA ATTORNEY GENERAL COMMENT

LETTER, DATED JANUARY 31, 2022 . . . . . . . . . . . . . . . . . . . . . 808a

OKLAHOMA SECRETARY OF ENERGY AND ENVIRONMENT

COMMENT LETTER, DATED JANUARY 25, 2022 . . . . . . . . . 826a

OKLAHOMA DEPARTMENT OF ENVIRONMENTAL QUALITY

COMMENT LETTER, DATED NOVEMBER 30, 2021 . . . . . . 843a

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Federal Register / Vol. 89, No. 47 / Friday, March 8, 2024 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 60

[EPA–HQ–OAR–2021–0317; FRL–8510–01–

OAR]

RIN 2060–AV16

Standards of Performance for New,

Reconstructed, and Modified Sources

and Emissions Guidelines for Existing

Sources: Oil and Natural Gas Sector

Climate Review

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection

Agency (EPA) is finalizing multiple

actions to reduce air pollution

emissions from the Crude Oil and

Natural Gas source category. First, the

EPA is finalizing revisions to the new

source performance standards (NSPS)

regulating greenhouse gases (GHGs) and

volatile organic compounds (VOCs)

emissions for the Crude Oil and Natural

Gas source category pursuant to the

Clean Air Act (CAA). Second, the EPA

is finalizing emission guidelines (EG)

under the CAA for states to follow in

developing, submitting, and

implementing state plans to establish

performance standards to limit GHG

emissions from existing sources

(designated facilities) in the Crude Oil

and Natural Gas source category. Third,

the EPA is finalizing several related

actions stemming from the joint

resolution of Congress, adopted on June

30, 2021, under the Congressional

Review Act (CRA), disapproving the

EPA’s final rule titled, ‘‘Oil and Natural

Gas Sector: Emission Standards for

New, Reconstructed, and Modified

Sources Review,’’ September 14, 2020

(‘‘2020 Policy Rule’’). Fourth, the EPA is

finalizing a protocol under the general

provisions for optical gas imaging (OGI).

DATES: This final rule is effective on

May 7, 2024. The incorporation by

reference (IBR) of certain publications

listed in the rules is approved by the

Director of the Federal Register as of

May 7, 2024.

ADDRESSES: The EPA has established a

docket for this rulemaking under Docket

ID No. EPA–HQ–OAR–2021–0317. All

documents in the docket are listed on

the https://www.regulations.gov/

website. Although listed, some

information is not publicly available,

e.g., Confidential Business Information

(CBI) or other information whose

disclosure is restricted by statute.

Certain other material, such as

copyrighted material, is not placed on

the internet and will be publicly

available only in hard copy form.

Publicly available docket materials are

available electronically through https://

www.regulations.gov/.

FOR FURTHER INFORMATION CONTACT: Ms.

Amy Hambrick, Sector Policies and

Programs Division (E143–05), Office of

Air Quality Planning and Standards,

U.S. Environmental Protection Agency,

109 T.W. Alexander Drive, P.O. Box

12055, Research Triangle Park, North

Carolina, 27711; telephone number:

(919) 541–0964; email address:

hambrick.amy@epa.gov.

SUPPLEMENTARY INFORMATION: Preamble

acronyms and abbreviations.

Throughout this document the use of

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is intended to refer

to the EPA. We use multiple acronyms

and terms in this preamble. While this

list may not be exhaustive, to ease the

reading of this preamble and for

reference purposes, the EPA defines the

following terms and acronyms here:

AMEL alternative means of emission

limitation

ANSI American National Standards

Institute

API American Petroleum Institute

ARPA–E Advanced Research Projects

Agency–Energy

ASME American Society of Mechanical

Engineers

ASTM ASTM, International

AVO audible, visual, and olfactory

AWP alternative work practice

bbl barrels of crude oil

BLM Bureau of Land Management

boe barrels of oil equivalents

BOEM Bureau of Ocean Energy

Management

BSER best system of emission reduction

Btu/scf British thermal units per standard

cubic foot

°C degrees Celsius

CAA Clean Air Act

CBI Confidential Business Information

CCR Code of Colorado Regulations

CDX EPA’s Central Data Exchange

CEDRI Compliance and Emissions Data

Reporting Interface

CFR Code of Federal Regulations

CO carbon monoxide

CO2 carbon dioxide

CO2 Eq. carbon dioxide equivalent

COS carbonyl sulfide

CRA Congressional Review Act

CS2 carbon disulfide

CVS closed vent systems

D.C. Circuit U.S. Court of Appeals for the

District of Columbia Circuit

DOE Department of Energy

EAV equivalent annual value

EDF Environmental Defense Fund

EG emission guidelines

EIA U.S. Energy Information

Administration

EJ environmental justice

E.O. Executive Order

EPA Environmental Protection Agency

ESD emergency shutdown devices

°F degrees Fahrenheit

FEAST Fugitive Emissions Abatement

Simulation Toolkit

FR Federal Register

FrEDI EPA’s Framework for Evaluating

Damages and Impacts model

FRFA final regulatory flexibility analysis

g/hr grams per hour

GHG greenhouse gas

GHGI Inventory of U.S. Greenhouse Gas

Emissions and Sinks

GHGRP Greenhouse Gas Reporting Program

GOR gas-to-oil ratio

H2S hydrogen sulfide

HAP hazardous air pollutant(s)

ICR information collection request

IRFA initial regulatory flexibility analysis

IWG Interagency Working Group on the

Social Cost of Greenhouse Gases

kg kilograms

kg/hr kilograms per hour

kt kilotons

lb/yr pounds per year

low-E low emission

LDAR leak detection and repair

LPE legally and practicably enforceable

Mcf thousand cubic feet

MW megawatt

NAAQS national ambient air quality

standards

NAICS North American Industry

Classification System

NDE no detectable emissions

NIE no identifiable emissions

NESHAP national emission standards for

hazardous air pollutants

NGO non-governmental organization

NHV net heating value

NOX nitrogen oxides

NSPS new source performance standards

NTTAA National Technology Transfer and

Advancement Act

O2 oxygen

OAQPS Office of Air Quality Planning and

Standards

OGI optical gas imaging

OMB Office of Management and Budget

PM particulate matter

PM2.5 particulate matter with a diameter of

2.5 micrometers or less

ppb parts per billion

ppm parts per million

PRA Paperwork Reduction Act

PSD prevention of significant deterioration

PTE potential to emit

PV present value

REC reduced emissions completion

RFA Regulatory Flexibility Act

RIA regulatory impact analysis

RTC response to comments

RULOF remaining useful life and other

factors

SBAR Small Business Advocacy Review

SC–CH4 social cost of methane

SC–CO2 social cost of carbon dioxide

SC–GHG social cost of greenhouse gases

SC–N2O social cost of nitrous oxide

scf standard cubic feet

scfh standard cubic feet per hour

scfm standard cubic feet per minute

SIP State Implementation Plan

SO2 sulfur dioxide

SPeCS State Planning Electronic

Collaboration System

tpy tons per year

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TAR Tribal Authority Rule

TIP Tribal Implementation Plan

TSD technical support document

UMRA Unfunded Mandates Reform Act

U.S. United States

VCS voluntary consensus standards

VOC volatile organic compound(s)

VRU vapor recovery unit

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Organization of this document. The

information in this preamble is

organized as follows:

I. General Information

A. Does this action apply to me?

B. Where can I get a copy of this document

and other related information?

C. Judicial Review and Administrative

Review

II. Executive Summary

A. Purpose of the Regulatory Actions

B. Summary of the Major Provisions of

This Regulatory Action

C. Costs and Benefits

III. Air Emissions From the Crude Oil and

Natural Gas Sector and Public Health

and Welfare

A. Impacts of GHGs, VOCs, and SO2

Emissions on Public Health and Welfare

B. Profile of the Oil and Natural Gas

Industry and Its Emissions

IV. Statutory Background and Regulatory

History

A. Statutory Background of CAA Sections

111(b), 111(d), and General

Implementing Regulations

B. What is the regulatory history and

litigation background of NSPS and EG

for the oil and natural gas industry?

C. Congressional Review Act (CRA) Joint

Resolution of Disapproval

V. Legal Basis for Final Rule Scope

A. Introduction

B. Overview

C. Comments

D. Response to Comments and Discussion

VI. Other Actions and Related Efforts

A. Related State Actions and Other Federal

Actions Regulating Oil and Natural Gas

Sources

B. Industry and Voluntary Actions To

Address Climate Change

C. Methane Emissions Reduction Program

VII. Summary of Engagement With Pertinent

Stakeholders

VIII. Overview of Control and Control Costs

A. Control of Methane and VOC Emissions

in the Crude Oil and Natural Gas Source

Category—Overview

B. How does the EPA evaluate control costs

in this final action?

IX. Interaction of the Rules and Response to

Significant Comments Thereon

A. What date defines a new, modified, or

reconstructed source for purposes of the

final NSPS OOOOb?

B. What date defines an existing source for

purposes of the final EG OOOOc?

C. How will the final EG OOOOc impact

sources already subject to NSPS KKK,

NSPS OOOO, or NSPS OOOOa?

X. Summary of Final Standards NSPS

OOOOb and EG OOOOc

A. Fugitive Emissions From Well Sites,

Centralized Production Facilities, and

Compressor Stations

B. Advanced Methane Detection

Technology Work Practices

C. Super Emitter Program

D. Process Controllers

E. Pumps

F. Wells and Associated Operations

G. Centrifugal Compressors

H. Combustion Control Devices

I. Reciprocating Compressors

J. Storage Vessels

K. Covers and Closed Vent Systems

L. Equipment Leaks at Natural Gas

Processing Plants

M. Sweetening Units

N. Electronic Reporting

O. Prevention of Significant Deterioration

and Title V Permitting

XI. Significant Comments and Changes Since

Supplemental Proposal for NSPS

OOOOb and EG OOOOc

A. Fugitive Emissions from Well Sites,

Centralized Production Facilities, and

Compressor Stations

B. Advanced Methane Detection

Technology Work Practices

C. Super Emitter Program

D. Process Controllers

E. Pumps

F. Wells and Associated Operations

G. Centrifugal Compressors

H. Combustion Control Devices

I. Reciprocating Compressors

J. Storage Vessels

K. Covers and Closed Vent Systems

L. Equipment Leaks at Natural Gas

Processing Plants

M. Sweetening Units

XII. Significant Comments and Changes

Since Proposal for NSPS OOOOa and

NSPS OOOO

A. Low Production Well Site Exemption

Rescission

B. Compressor Station Quarterly

Monitoring

C. Delay-of-Repair Provisions

D. Applicability/Scope of the Rule

XIII. Significant Comments and Changes to

Emission Guidelines for State, Tribal,

and Federal Plan Development for

Existing Sources

A. Overview

B. Components of EG

C. Establishing Standards of Performance

in State Plans

D. Components of State Plan Submission

E. Timing of State Plan Submissions and

Compliance Times

F. EPA Action on State Plans and

Promulgation of Federal Plans

G. Tribes and the Planning Process Under

CAA Section 111(d)

XIV. Use of Optical Gas Imaging in Leak

Detection (Appendix K) and Response to

Significant Comments

A. Changes Since Supplemental Proposal

B. Summary of Requirements

XV. Prevention of Significant Deterioration

and Title V Permitting

XVI. Summary of Cost, Environmental, and

Economic Impacts

A. What are the air quality impacts?

B. What are the secondary impacts?

C. What are the cost impacts?

D. What are the economic impacts?

E. What are the benefits?

F. What analyses of environmental justice

did we conduct?

XVII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory

Planning and Review and Executive

Order 14094: Modernizing Regulatory

Review

B. Paperwork Reduction Act (PRA)

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act

(UMRA)

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation

and Coordination With Indian Tribal

Governments

G. Executive Order 13045: Protection of

Children From Environmental Health

Risks and Safety Risks

H. Executive Order 13211: Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use

I. National Technology Transfer and

Advancement Act (NTTAA) and 1 CFR

Part 51

J. Executive Order 12898: Federal Actions

To Address Environmental Justice in

Minority Populations and Low-Income

Populations and Executive Order 14096:

Revitalizing Our Nation’s Commitment

to Environmental Justice for All

K. Congressional Review Act (CRA)

I. General Information

A. Does this action apply to me?

The source category that is the subject

of this final rulemaking is composed of

the Crude Oil and Natural Gas source

category regulated under CAA section

111 New Source Performance Standards

and Emission Guidelines. The North

American Industry Classification

System (NAICS) codes for the industrial

source category affected by the NSPS

actions finalized in this rulemaking are

summarized in table 1. The NAICS

codes serve as a guide for readers

outlining the type of entities that the

final NSPS actions are likely to affect.

The NSPS codified in 40 Code of

Regulations (CFR) part 60, subpart

OOOOb, are directly applicable to

affected facilities that begin

construction, reconstruction, or

modification after December 6, 2022.

Final amendments to 40 CFR part 60,

subpart OOOO, are applicable to

affected facilities that began

construction, reconstruction, or

modification after August 23, 2011, and

on or before September 18, 2015. Final

amendments to 40 CFR part 60, subpart

OOOOa, are applicable to affected

facilities that began construction,

reconstruction, or modification after

September 18, 2015, and on or before

December 6, 2022. As shown in table 1,

Federal, state, and local government

entities would not be affected by the

NSPS actions.

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TABLE 1—INDUSTRIAL SOURCE CATEGORIES AFFECTED BY NSPS ACTIONS

NAICS Code1