Response to application from respondent California, et al. — Oklahoma, et al., Applicants v. Environmental Protection Agency, et al.
Supreme Court briefSep 20, 2024
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Nos. 24A213, 24A215
In the Supreme Court of the United States
STATE OF OKLAHOMA, et al.,
Applicants,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,
Respondents.
CONTINENTAL RESOURCES, INC., et al.,
Applicants,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,
Respondents.
STATE RESPONDENT-INTERVENORS’ OPPOSITION TO
APPLICATIONS TO STAY FINAL RULE
ROB BONTA
Attorney General of California
TRACY L. WINSOR
Senior Assistant
Attorney General
DENNIS L. BECK, JR.
MYUNG J. PARK
Supervising Deputy
Attorneys General
KAVITA LESSER
KATHERINE GAUMOND
Deputy Attorneys General
MICHAEL J. MONGAN
Solicitor General
HELEN H. HONG
Principal Deputy Solicitor General
JOSHUA PATASHNIK
JULIE VEROFF*
Deputy Solicitors General
STATE OF CALIFORNIA
DEPARTMENT OF JUSTICE
455 Golden Gate Ave.
San Francisco, CA 94102-7004
(415) 519-3776
Julie.Veroff@doj.ca.gov
*Counsel of Record
(Additional counsel listed on signature pages)
September 20, 2024
i
TABLE OF CONTENTS
Page
Introduction ......................................................................................................... 1
Statement ............................................................................................................ 4
A.
Statutory background .................................................................... 4
B.
The challenged rule........................................................................ 6
C.
Procedural background .................................................................. 8
Argument ............................................................................................................. 9
I.
Applicants are unlikely to succeed on the merits.................................. 10
A.
The presumptive standards for existing sources do not
violate Section 111(d) ................................................................... 11
B.
The two-year deadline to submit state plans for existing
sources is reasonable and reasonably explained ........................ 15
C.
Industry applicants’ challenge to the Super Emitter
Program and technical objections to the new source
standards of performance lack merit ......................................... 20
1.
Super Emitter Program .................................................... 20
2.
Best system of emission reduction for
associated gas .................................................................... 21
3.
Net heating value monitoring requirements ................... 26
4.
Enforceable limits ............................................................. 28
5.
Fugitive emissions monitoring requirements .................. 29
II.
Applicants have not satisfied the other criteria for obtaining
a stay ....................................................................................................... 32
Conclusion.......................................................................................................... 38
ii
TABLE OF AUTHORITIES
Page
CASES
Does 1-3 v. Mills
142 S. Ct. 17 (2021) ........................................................................................ 9
Essex Chem. Corp. v. Ruckelshaus
486 F.2d 427 (D.C. Cir. 1973) ................................................................ 22, 31
Freedom Holdings, Inc. v. Spitzer
408 F.3d 112 (2d Cir. 2005) ......................................................................... 34
Hollingsworth v. Perry
558 U.S. 183 (2010) ........................................................................................ 9
Labrador v. Poe
144 S. Ct. 921 (2024) .................................................................................... 32
Louisiana v. Am. Rivers
142 S. Ct. 1347 (2022) .................................................................................... 9
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.
Ins. Co.
463 U.S. 29 (1983) .................................................................................. 19, 30
Murthy v. Missouri
144 S. Ct. 1972 (2024) .................................................................................. 10
Murthy v. Missouri
144 S. Ct. 7 (2023) .......................................................................................... 9
Nken v. Holder
556 U.S. 418 (2009) ............................................................ 8, 9, 10, 32, 34, 35
Ohio v. EPA
144 S. Ct. 2040 (2024) .................................................................. 9, 10, 17, 20
Packwood v. Senate Select Comm. on Ethics
510 U.S. 1319 (1994) ...................................................................................... 9
Teva Pharms. USA, Inc. v. Sandoz, Inc.
572 U.S. 1301 (2014) .................................................................................... 32
West Virginia v. EPA
597 U.S. 697 (2022) ........................................................................ 4, 5, 11, 14
iii
TABLE OF AUTHORITIES
(continued)
Page
Williams v. Zbaraz
442 U.S. 1309 (1979) ...................................................................................... 9
Yeshiva Univ v. YU Pride All.
143 S. Ct. 1 (2022) .................................................................................. 35, 36
STATUTES
15 U.S.C. § 2901 .................................................................................................. 6
42 U.S.C.
§ 7408 .............................................................................................................. 4
§ 7410(a)(1) ................................................................................................... 16
§ 7411(a)(1) ..................................................................... 4, 5, 7, 11, 14, 21, 24
§ 7411(b)(1)(A) ................................................................................................ 4
§ 7411(d) ................................................................... 4, 5, 7, 11, 12, 15, 15, 19
§ 7411(h) ................................................................................................... 7, 13
§ 7412 .............................................................................................................. 4
§ 7414(a)(1) ................................................................................................... 21
§ 7436(e) ....................................................................................................... 37
§ 7436(g) ....................................................................................................... 37
§ 7607(b)(1) ................................................................................................... 15
REGULATIONS
40 C.F.R.
pt. 60, subpt. OOOOc ................................................................................... 11
§ 60.22a(b)(5) ............................................................................................ 4, 11
§ 60.23a ........................................................................................................... 4
§ 60.24a ....................................................................................................... 4, 5
§ 60.27a ................................................................................................... 16, 19
§ 60.1570 ....................................................................................................... 11
§ 60.1575 ....................................................................................................... 11
§ 60.2996 ....................................................................................................... 11
§ 60.2997 ....................................................................................................... 11
§ 60.5361c(a) ................................................................................................... 7
§ 60.5364c ..................................................................................................... 12
§ 60.5371b ..................................................................................................... 21
§ 60.5372c ..................................................................................................... 12
§ 60.5376 ....................................................................................................... 12
§ 60.5465c ..................................................................................................... 12
iv
TABLE OF AUTHORITIES
(continued)
Page
COURT RULES
S. Ct. R. 23.3 ...................................................................................................... 20
OTHER AUTHORITIES
42 Fed. Reg. 12,022 ............................................................................................. 5
60 Fed. Reg. 65,387 ............................................................................................. 5
81 Fed. Reg. 35,824 ............................................................................................. 6
88 Fed. Reg. 80,480 ........................................................................................... 19
89 Fed. Reg. 5,318 ............................................................................................. 37
89 Fed. Reg. 16,820 ..............................................................6-8, 11-30, 33, 35-36
EPA-HQ-OAR-2021-0317-2330, Comment by Kentucky Division
for Air Quality (Feb. 13, 2023),
https://www.regulations.gov/comment/EPA-HQ-OAR-20210317-2330 ..................................................................................................... 19
EPA-HQ-OAR-2021-0317-3988, Background Technical Support
Document (TSD) for the Final New Source Performance
Standards (NSPS) and Emissions Guidelines (EG) (Nov. 25,
2023), https://www.regulations.gov/document/EPA-HQ-OAR2021-0317-3988 ............................................................................................ 31
U.S. EPA, Letter to Hopkins and Kirchoff (May 6, 2024),
https://www.epa.gov/system/files/documents/2024-05/letterto-api-and-apx.-5.6.24-signed_1.pdf ...................................................... 25, 27
1
INTRODUCTION
Exercising its authority under Section 111 of the Clean Air Act, the
Environmental Protection Agency promulgated a final rule setting limits for
emissions of methane and volatile organic compounds from certain oil and gas
sources.
Methane is the main component of natural gas, and a potent
greenhouse gas that contributes to near- and long-term climate warming,
causing environmental, health, and other harms. The oil and gas sector is the
largest industrial emitter of methane in the United States. In the Rule, EPA
considered a range of technologies and best practices to monitor and minimize
such emissions from producers of oil and natural gas; determined standards of
performance to govern new sources of these emissions within the oil and gas
industry; and issued emission guidelines for States to follow in regulating
methane emissions from existing sources.
Applicants challenged aspects of the Rule in the D.C. Circuit and sought
an administrative stay of the entire Rule pending resolution of their petitions
for review. The court of appeals denied the stay on July 9, 2024. Six weeks
later, applicants sought a stay from this Court.
This Court should deny the stay applications. Applicants are unlikely to
succeed on their arguments that the Rule’s presumptive standards (i.e., model
rules) for existing sources violate the cooperative federalism framework
established in the Clean Air Act and that the two-year period for submitting
2
state plans is insufficient. The Rule follows the statutory framework by setting
emission guidelines and allowing States to submit plans that meet (or exceed)
those guidelines. Consistent with EPA’s longstanding practice when issuing
emission guidelines under Section 111(d), the Rule includes presumptive
standards to assist States in developing their state plans, but it does not
compel States to adopt any of those presumptive standards in their particular
plans. The Rule’s presumptive standards thus facilitate the Act’s scheme of
cooperative federalism by providing a blueprint from which States can borrow,
as desired, in developing their own plans. Further, EPA acted reasonably in
extending the time allowed for States to submit their plans from 18 months to
two years, striking an appropriate balance between the time necessary to
devise a state plan and the need to expeditiously mitigate health and
environmental harms arising from methane emissions.
Applicants are also unlikely to succeed on their various other technical
objections to the Rule. Most of those objections were not properly presented in
the D.C. Circuit and are not properly before this Court.
In any event,
applicants’
claims
record-intensive
arbitrary
and
capricious
either
misunderstand the Rule’s requirements, ignore record-based findings and
analysis that EPA provided in the Rule, or present challenges to aspects of the
Rule that EPA is currently reconsidering.
3
Finally, applicants fail to demonstrate irreparable harm or that the
equities weigh in their favor. Although state applicants contend that their
sovereign interests would be injured if they were compelled to adopt
presumptive standards, they admit that they are free to devise their own state
plans, consistent with the Act.
And in complaining that two years is
insufficient to complete those plans, applicants conflate the resources needed
for the state-planning process with those needed to eventually implement and
enforce those standards. Applicants also ignore the fact that States are not
required to submit a state plan at all, and that if a federal plan is imposed
because a State fails to adopt a state plan by the two-year deadline, the State
remains free to replace that federal plan with its own plan. The harms that
industry applicants will allegedly suffer from the various provisions they
challenge are illusory. By contrast, staying the challenged provisions of the
Rule would irreparably harm the respondent-intervenor States, the public, and
the Nation, by exacerbating ongoing harms to public health and the
environment from unchecked emissions and injecting uncertainty into the
state planning process. 1
This brief is submitted on behalf of California, Colorado, Connecticut,
Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, New Jersey,
New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island,
Vermont, Washington, Wisconsin, and the District of Columbia, who are
Intervenor-Respondents below (collectively, “State respondent-intervenors”).
1
4
STATEMENT
A.
Statutory Background
Section 111 of the Clean Air Act requires EPA to limit emissions from any
category of stationary sources that it determines causes or significantly
contributes to dangerous air pollution. 42 U.S.C. § 7411(b)(1)(A). For new
sources in the category, EPA determines standards of performance that
“reflect[] the degree of emission limitation achievable through the application
of the best system of emission reduction which (taking into account the cost of
achieving such reduction and any nonair quality health and environmental
impact and energy requirements) the Administrator determines has been
adequately demonstrated.”
Id. § 7411(a)(1).
EPA then issues emission
guidelines to control the same pollution from existing sources in the same
category, including specifying the degree of emission limitation each source
would achieve using the best system of emission reduction. Id. § 7411(d)(1); 40
C.F.R. § 60.22a(b)(5); West Virginia v. EPA, 597 U.S. 697, 709-710 (2022). 2 To
regulate existing sources within its jurisdiction, each State can submit a plan
to EPA explaining the emissions regulations it will adopt and enforce for those
sources to meet the EPA’s emission guidelines. 42 U.S.C. § 7411(d)(1); 40
2 If the pollutant is regulated as a criteria pollutant under Section 108 of the
Act (42 U.S.C. § 7408) or as a hazardous air pollutant under Section 112 (42
U.S.C. § 7412), then EPA may not issue emission guidelines for that pollutant
under Section 111(d). 42 U.S.C. § 7411(d)(1).
5
C.F.R. §§ 60.23a, 60.24a.
In the plan, the State may consider a source’s
remaining useful life and other factors in establishing a standard of
performance. 42 U.S.C. § 7411(d)(1); 40 C.F.R. § 60.24a(e).
The Act directs EPA to assess whether a state plan is “satisfactory.” 42
U.S.C. § 7411(d)(2)(A). Although States can impose emission limits that are
stricter than EPA’s guidelines, each plan must at a minimum adhere to EPA’s
limits or reasonably explain why a more lenient standard is necessary in light
of source-specific considerations. See West Virginia, 597 U.S. at 710; 42 U.S.C.
§ 7411(d)(1); 40 C.F.R. §§ 60.24a(e), (i). If a State does not submit a plan or
EPA finds the state plan unsatisfactory, EPA must promulgate a federal plan.
See 42 U.S.C. § 7411(d)(2)(A). Accordingly, under Section 111(d), EPA has “the
primary regulatory role” for existing sources: “[t]he Agency, not the States,
decides the amount of pollution reduction that must ultimately be achieved.”
West Virginia, 597 U.S. at 710; see 42 U.S.C. § 7411(a)(1), (d)(1). EPA has long
exercised its authority under Section 111(d) to set emission guidelines for air
pollution from a variety of existing sources, ranging from phosphate fertilizer
plants to municipal waste combustors. 3
3 See, e.g., Phosphate Fertilizer Plants, 42 Fed. Reg. 12,022 (Mar. 1, 1977);
Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Municipal Waste Combustors, 60 Fed. Reg.
65,387 (Dec. 19, 1995).
6
B.
The Challenged Rule
Methane is a greenhouse gas that contributes to near- and long-term
climate warming. See 15 U.S.C. § 2901 (note). In 2016, EPA introduced
standards of performance for emissions of methane and volatile organic
compounds at new oil and gas facilities. 81 Fed. Reg. 35,824 (June 3, 2016).
That action triggered EPA’s obligation under Section 111(d) to issue emission
guidelines for methane emissions from existing facilities.
After several
intervening years of administrative and congressional activity (see C.A. No. 241059, EPA Opp’n to Stay Mot. 3-5 (June 11, 2024)), EPA in March 2024
promulgated the final rule at issue here, which provides standards for new
sources as well as emission guidelines for existing sources. See Standards of
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) (“Rule”). The Rule took effect on May 7,
2024. Id.
In the Rule, EPA determined the “best system of emission reduction” for
several subcategories of oil and gas sources that emit methane and volatile
organic compounds, and it issued new source standards of performance that
reflect the degree of emission limitation achievable through the application of
that system.
89 Fed. Reg. at 16,823, 16,830-16,833.
For new sources
constructed, modified, or reconstructed after December 2022, those standards
7
range from leak monitoring and repair requirements, id. at 16,830, to
requirements to route gas emissions from oil wells to a pipeline for sale or to a
control device, such as a flare, under specified circumstances, id. at 16,83216,833.
For existing sources, EPA determined the “degree of emission limitation
achievable through the application of the best system of emission reduction”
for several subcategories of oil and gas sources. 89 Fed. Reg. at 16,833-16,835;
see also 42 U.S.C. § 7411(d). Those determinations pertained only to methane
emissions. Id.; see also 40 C.F.R. § 60.5361c(a). The agency then translated
those emission guidelines into a set of presumptive standards that States may
use, but are not required to use, in developing their state plans. 89 Fed. Reg.
at 16,999-17,000. 4 States may instead choose to submit a plan that includes
different standards of performance that achieve or exceed the emission
guidelines, unless the State can justify, based on certain source-specific
considerations, a standard that achieves a lesser degree of emission limitation.
Id. Alternatively, States may opt out of self-regulation entirely and allow EPA
to directly regulate existing sources. Id. at 17,031. States have two years to
4 Some of these presumptive standards include numerical emission limitations
at particular sources, like a 95% reduction in emissions at storage vessels;
others include non-numerical design, equipment, work practice, or operational
standards, such as regularly checking for leaks. See, e.g., 89 Fed. Reg. at
16,993-16,994, 16,998; 42 U.S.C. §§ 7411(a)(1), (h).
8
submit plans (through March 2026), and existing oil and gas sources have
another three years after plan submission (through March 2029) before they
must begin complying with the provisions of those state plans. Id. at 17,00917,011.
C.
Procedural Background
After EPA issued the Rule, several oil and gas producers, industry groups,
and States filed petitions for review in the D.C. Circuit and sought an order
staying implementation of the Rule pending resolution of those petitions. See
Okla. Appl. i-iii. 5 The court of appeals consolidated the actions. On July 9,
2024, a three-judge panel (comprising Judges Katsas, Rao, and Childs)
unanimously denied those motions on the ground that petitioners “ha[d] not
satisfied the stringent requirements for a stay pending court review.” Okla.
App’x 409a (citing Nken v. Holder, 556 U.S. 418, 434 (2009)). Applicants did
not ask the D.C. Circuit to expedite consideration of their petitions for review.
On August 23 and 26, 2024, more than six weeks after the court of appeals’
order, applicants submitted their requests to this Court seeking a stay of the
Rule pending the adjudication of their petitions for review.
5 “Okla. Appl.” refers to the Application for Stay of Final Agency Action filed
by state applicants in No. 24A213. “Okla. App’x” refers to the appendix filed in
connection with that application. “Indus. Appl.” refers to the Application for
Immediate Stay of Final Agency Action filed by industry applicants in
No. 24A215.
9
ARGUMENT
A stay pending review in the court of appeals is an “intrusion into the
ordinary processes of administration and judicial review.” Nken v. Holder, 556
U.S. 418, 427 (2009) (quotation marks omitted). This Court will grant such a
stay “only in extraordinary circumstances,” Williams v. Zbaraz, 442 U.S. 1309,
1311 (1979) (Stevens, J., in chambers) (quotation marks omitted), and “upon
the weightiest considerations,” Packwood v. Senate Select Comm. on Ethics,
510 U.S. 1319, 1320 (1994) (Rehnquist, C.J., in chambers) (quotation marks
omitted); see also, e.g., Murthy v. Missouri, 144 S. Ct. 7, 8 (2023) (Alito, J.,
dissenting) (similar); Louisiana v. Am. Rivers, 142 S. Ct. 1347, 1348 (2022)
(Kagan, J., dissenting) (similar). For such applications, the Court considers:
(1) whether the stay applicant has made a strong showing that he is
likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the stay
will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.
Nken, 556 U.S. at 434 (quotation marks omitted); see also Ohio v. EPA, 144 S.
Ct. 2040, 2052 (2024) (applying Nken factors in evaluating stay request). In
this Court, an applicant must also show a reasonable probability that the Court
will grant certiorari if the applicant seeks it at the appropriate time.
Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam); see Does 1-3 v.
Mills, 142 S. Ct. 17, 18 (2021) (Barrett, J., concurring in the denial of
application for injunctive relief) (first Nken factor incorporates inquiry into
10
reasonable probability of certiorari). It is “especially important” for this Court
to hold an applicant for preliminary relief to its burdens in a case that will be
resolved on record-intensive grounds. Murthy v. Missouri, 144 S. Ct. 1972,
1991 n.7 (2024); see also Ohio, 144 S. Ct. at 2058 (Barrett, J., dissenting)
(cautioning against granting “emergency relief in a fact-intensive and highly
technical case without fully engaging with both the relevant law and the
voluminous record”). Applicants fail to carry that heavy burden.
I.
APPLICANTS ARE UNLIKELY TO SUCCEED ON THE MERITS
To obtain a stay, applicants must make “a strong showing” that they are
“likely to succeed on the merits.” Nken, 556 U.S. at 434 (quotation marks
omitted). State applicants contend that the Rule is deficient in two principal
respects: that the presumptive standards concerning existing sources violate
Section 111(d)’s cooperative federalism framework and that the Rule’s twoyear deadline for the submission of state plans is irrational. See Okla. Appl.
15-25.
Industry applicants also challenge the presumptive standards on
cooperative federalism grounds.
See Indus. Appl. 11-15.
The industry
applicants mount a similar challenge to the Rule’s “super-emitter” program,
and raise several technical challenges to the Rule’s new source performance
standards. See id. at 15-33. None of these arguments has merit.
11
A.
The Presumptive Standards for Existing Sources Do Not
Violate Section 111(d)
Applicants contend that the Rule’s presumptive standards for existing
sources violate principles of cooperative federalism reflected in Section 111(d).
Okla. Appl. 15-20; Indus. Appl. 11-15. Applicants misunderstand both the
Act’s structure and the Rule’s provisions. Under the cooperative federalism
framework set out in Section 111(d), EPA “retains the primary regulatory role”
and “decides the amount of pollution reduction that must ultimately be
achieved.” West Virginia, 597 U.S. at 710; see also 42 U.S.C. § 7411(d), (a)(1);
supra pp. 4-5. States have flexibility in achieving reductions equivalent to (or
greater than) EPA’s emission guidelines when regulating existing sources in
their jurisdictions, and may justify a standard that achieves a lesser degree of
emission limitation based on certain source-specific considerations. Supra
p. 5.
The Rule follows that framework. See 89 Fed. Reg. at 16,999-17,000; see
also 40 C.F.R. § 60.22a(b)(5). It sets emission guidelines for several categories
of existing oil and gas sources. 89 Fed. Reg. at 16,833-16,835; see also 40 C.F.R.
part 60, subpart OOOOc.
It then translates the emission guidelines into
presumptive standards that meet those limits.
See id.
The presumptive
standards have a “function similar to that of a model rule,” 89 Fed. Reg. at
16,829, which EPA has provided in emission guidelines for decades, see, e.g.,
40 C.F.R. §§ 60.1570, 60.1575, 60.2996-.2997 (model rules governing emissions
12
from steam generators and other plants adopted in 1971). EPA set forth those
presumptive standards “to assist states in developing their plan submissions,”
89 Fed. Reg. at 16,829, and to “assist[] EPA when judging the adequacy of such
plans,” id. at 16,995.
But States are not required to adopt those presumptive standards. See 89
Fed. Reg. at 16,996-17,006; see also 40 C.F.R. § 60.5376. They may instead
choose to adopt different standards of performance tailored to States’ specific
needs so long as those standards meet or exceed the degree of emission
limitation that would be achieved using the presumptive standards, or achieve
a lesser degree of emission limitation based on source-specific considerations.
89 Fed. Reg. at 16,996-17,000; 40 C.F.R. §§ 60.5364c, 60.5465c. 6 Far from a
“one-size-fits-all” approach (Indus. Appl. 12), the Rule’s use of presumptive
standards provides a template for obtaining EPA approval from which States
can borrow or not, as best suits each State’s needs. In this way, the Rule
promotes the Act’s cooperative federalism scheme. Applicants thus are wrong
that the Rule “forc[es]” its presumptive standards “upon the States” and
“supplants” their “authority to develop standards.” Okla. Appl. 16-17; see also
Indus. Appl. 1-2, 12-15 (similar).
6 States may also choose to opt out of self-regulation entirely and allow EPA to
directly regulate existing sources.
§ 60.5372c.
See 42 U.S.C. § 7411(d)(2); 40 C.F.R.
13
Applicants complain that the Rule “lists specific technologies and
methods” in the presumptive standards and argue that the identification of
such technologies means that States are required to adopt them. Okla. Appl.
10, 17; Indus. Appl. 13. Applicants ignore that Section 111(h) of the Act allows
EPA to identify specific technology-based “equipment” or “work practice”
standards that reflect the best system of emission reduction when it is not
feasible to prescribe or enforce a numerical standard of performance. 42 U.S.C.
§ 7411(h); see 89 Fed. Reg. at 16,993-16,994 (listing presumptive nonnumerical standards for existing sources promulgated under Section 111(h));
supra n.4.
Consistent with that authority, the Rule merely identifies
particular equipment or methods that the Agency has concluded are likely to
meet emission guidelines; it does not require States to incorporate any
particular equipment or methods into their plans. To the contrary, the Rule
explains that States retain the authority to use alternative technologies and
different approaches to meet emission guidelines. See, e.g., 89 Fed. Reg. at
17,005-17,006 (recognizing state plans may include standards that differ from
the presumptive standards); id. at 17,000-17,001 (identifying process for
demonstrating technology equivalency); id. at 16,998-16,999 (acknowledging
States can demonstrate “qualitative” equivalency to non-numerical guidelines,
such as monitoring and work practice standards).
14
Applicants eventually admit that the Rule authorizes States to “develop
their own standards of performance under Section 111(d)[,] rather than simply
adopt EPA’s ‘presumptive standards.’” Okla. Appl. 21. But they emphasize
that any departure from the presumptive standards will be “thoroughly
reviewed by the EPA,” id. at 19, and contend that requiring “‘equivalency’” with
the presumptive standards is “extra-statutory,” “unlawfully ratchet[ing] up
EPA’s scrutiny of state plans,” id. at 11, 17; see also Indus. Appl. 13. What the
Rule says, however, is that state plans are not “presumptively approvable” if
they depart from the presumptive standards in whole or in part. 89 Fed. Reg.
at 17,006.
Under the Act, EPA must “decide[] the amount of pollution
reduction that must ultimately be achieved,” West Virginia, 597 U.S. at 710,
and whether a State’s submission is “satisfactory” in meeting “the degree of
emission limitation achievable through the application of the best system of
emission reductions,” 42 U.S.C. §§ 7411(a)(1), (d)(2)(A). That determination is
“carried out via rulemaking,” and as EPA explained in the Rule, “[i]nclusion of
presumptive standards” does not “predetermine the outcomes of any future
rulemaking on state plan submittals.” 89 Fed. Reg. at 16,829. Instead, use of
the Rule’s presumptive standards merely provides a means for obtaining
expedited agency approval; plans that propose alternatives to these standards
are reviewed in the normal course. Ultimately, EPA’s decision to approve or
disapprove a state plan is not based on “consistency with the ‘presumptive
15
standards,’” Okla. Appl. 18, but rather on whether the plan is “‘satisfactory’”—
i.e., whether the plan achieves or exceeds the level of reduction called for in
EPA’s emission guidelines, or reasonably explains why a more lenient
standard is necessary given source-specific circumstances. 89 Fed. Reg. at
16,848; see also 42 U.S.C. §§ 7411(d)(1), (2)(A). If EPA disapproves a plan that
a State believes meets the emission guidelines, the State may seek judicial
review. 42 U.S.C. § 7607(b)(1).
B.
The Two-Year Deadline to Submit State Plans for
Existing Sources Is Reasonable and Reasonably
Explained
In the notice of rulemaking, EPA initially proposed an 18-month deadline
for States to adopt and submit a plan to regulate methane emissions from
existing sources.
89 Fed. Reg. at 17,008-17,009.
Several commenters
expressed that the timeframe was too short to finalize a state plan. Id. at
17,009. They pointed to the “volume of sources,” requirements imposed by
state law, and limited regulatory experience as potential impediments to an
18-month timeframe, and they recommended “upwards of 3 years to complete
state plan development.” Id. Other commenters proposed a “minimum 24month timeline.” Id. Still others expressed that “18 months is too long.” Id.
Those commenters expressed the achievability of a 15-month period and
pointed to the “urgent nature of climate change” as a reason to impose a more
rapid deadline. Id.
16
In response to the comments, EPA extended the deadline to submit state
plans to 24 months. 89 Fed. Reg. at 17,009-17,010. It also offered States the
flexibility to meet the deadline with the option of partial-, conditional-, and
parallel-processing approvals and the opportunity to leverage existing state
programs to expedite state planning. See 89 Fed. Reg. at 16,996, 16,99917,000, 17,002, 17,013; 40 C.F.R. § 60.27a. 7 EPA found “compelling reasons”
to extend the deadline and offer those accommodations, in part because some
States would be “undertaking [the regulatory requirements] for the first time”
and because some plans would cover facilities that are “geographically spread
out covering multiple industry segments.” 89 Fed. Reg. at 17,010 But based in
part on EPA’s previous experience with more complex state implementation
plans (SIPs) submitted on a three-year deadline under Section 110, it viewed
24 months as sufficient to account for States’ concerns and to “complete state
administrative processes, conduct public hearings, engage with pertinent
stakeholders, and meet all other applicable requirements.” Id. 8 In EPA’s
7 See also C.A. No. 24-1059, State Respondent-Intervenors Opp’n to Mot. To
Stay, attach. 3 (Lozo Decl. ¶¶ 19, 21) (May 6, 2024); id., attach. 4 (Ogletree
Decl. ¶¶ 7, 9-10).
8 States typically have three years to submit SIPs, which are required under
the National Ambient Air Quality Standards program set out in Section 110 of
the Clean Air Act. 42 U.S.C. § 7410(a)(1). SIPs can apply to any category of
sources, and often require complex atmospheric modeling to understand the
(continued…)
17
judgment, the 24-month deadline would “strike[] an appropriate balance . . .
between the state’s need for time” and EPA’s statutory obligation to ensure the
reduction of harmful emissions. Id.
The two-year deadline is both “‘reasonable and reasonably explained.’”
Ohio, 144 S. Ct. at 2053. Given the justification expressly articulated in the
Rule, applicants’ assertion that EPA “offered ‘no reasoned response’” to their
deadline-related concerns is plainly incorrect. Okla. Appl. 25; supra pp. 16-17.
For example, applicants contend that EPA failed to consider that the process
of “collect[ing] an emission inventory” for existing sources would be “overly
time-consuming.” Id. at 22. EPA directly addressed that concern, however, by
eliminating any emissions inventory requirement, explaining that “due to the
very large number of existing oil and natural gas sources,” it would not be
“practical to require states to compile this information.” 89 Fed. Reg. at 17,006;
see id. (“state plans are not required to include an inventory and emissions
data”). Applicants also accuse EPA of sidestepping their concern that many
States would be “regulating for the first time” a large volume of “diverse oil
and gas facilities.” Okla. Appl. at 21; see also id. at 23 (claiming that EPA
considered only “state-administrative-timing concerns”). But EPA explained
effect of different precursory pollutants and a wide variety of sources on
pollutant levels in the atmosphere. See C.A. No. 24-1059, State RespondentIntervenors Opp’n to Mot. To Stay, attach. 3 (Lozo Decl. ¶ 19) (May 6, 2024).
Section 111 state plans, by contrast, are “more straightforward.” Id. ¶¶ 19, 20.
18
that it had credited those concerns, directly addressing them by extending the
deadline from 18 to 24 months and offering other submission-related
accommodations. See 89 Fed. Reg. at 17,009 (discussing “volume of sources”);
id. at 17,010 (acknowledging “designated facilities” that are “geographically
spread out covering multiple industry segments”); id. (recognizing that “states
may be undertaking” certain requirements “for the first time”); id. (finding
“compelling reasons” to extend deadline); supra pp. 16-17.
That EPA declined to extend the deadline further does not reflect that it
ignored applicants’ “fundamental concern[s].”
Okla. Appl. 23.
EPA
acknowledged that some commenters preferred “upwards of 3 years” to submit
state plans. 89 Fed. Reg. at 17,009. The agency also acknowledged that some
of the requisite analysis could be “time consuming.” 89 Fed. Reg. at 17,010; see
Okla. Appl. 23. But based on the agency’s substantial experience with more
complicated state plan requirements, supra n.8, EPA explained that an
overlong deadline could allow States to unduly delay the adoption of a plan and
to implement “procedures that are longer than necessary” to complete a state
plan. Id. at 17,010. Importantly, EPA also explained that allowing methane
emissions to remain unregulated would present serious health and climate
risks. Id.
In light of those considerations, EPA’s judgment that a two-year deadline
“strikes an appropriate balance,” 89 Fed. Reg. at 17,010, is hardly
19
“implausible,” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983). Indeed, some of the state officials charged with
submitting applicants’ own plans agreed during the comment period that a
two-year deadline would be adequate. 9 And the Rule imposes no sanctions if a
State is unable to meet the deadline. See 42 U.S.C. § 7411(d); 40 C.F.R.
§ 60.27a(c)(1); Adoption and Submittal of State Plans for Designated Facilities:
Implementing Regulations Under Clean Air Act Section 111(d), 88 Fed. Reg.
80,480, 80,493 (Nov. 17, 2023). The failure to submit a state plan would trigger
EPA’s obligation to promulgate a federal plan for the State within a year. 42
U.S.C. § 7411(d). But “EPA would not be required to promulgate the Federal
plan if the state corrects the deficiency giving rise to the EPA’s duty and the
EPA approves the state’s plan before promulgating the Federal plan.” 89 Fed.
Reg. at 17,013. And a State may submit a replacement plan even after a
federal plan has been adopted. 88 Fed. Reg. at 80,495.
9 See EPA-HQ-OAR-2021-0317-2330, Comment by Kentucky Division for Air
Quality at 2 (Feb. 13, 2023), https://www.regulations.gov/comment/EPA-HQOAR-2021-0317-2330 (commenting that EPA should “extend[] the deadline for
state plan submissions to a minimum of 24 months after a final emission
guideline is published.”); C.A. No. 24-1054, Okla. Mot. To Stay, Ex. 13
(Hodanbosi Decl. ¶ 7) (Apr. 3, 2024) (describing proposed schedule for Ohio to
submit a state plan to EPA within 18 months).
20
C.
Industry Applicants’ Challenge to the Super Emitter
Program and Technical Objections to the New Source
Standards of Performance Lack Merit
Industry applicants challenge the Super Emitter Program and raise
various technical objections to several aspects of the new source standards.
Indus. Appl. 15-33. Most of those arguments (id. at 17-31) were not properly
presented to the court of appeals and are therefore not properly before this
Court.
See S. Ct. R. 23.3; C.A. No. 24-1054, EPA Reply Addressing
Continental’s Response 1-2 (May 17, 2024). In any event, the arguments are
unpersuasive and provide no basis for a stay. See Ohio, 144 S. Ct. at 2070
(Barrett, J., dissenting) (“we should proceed all the more cautiously in cases
like this one with voluminous, technical records”).
1.
Super Emitter Program
The Rule’s Super Emitter Program does not exceed EPA’s authority under
Section 114 of the Act. Industry applicants contend that the Super Emitter
Program “deputize[s] non-governmental third parties to enforce the Final
Rule.” Indus. Appl. 15. It does not. The Super Emitter Program establishes
a process for entities certified by EPA, using technologies and processes
approved by EPA, to inform the Agency of certain events involving significant
emissions of methane (i.e., a rate of at least 100 kilograms/hour). See 89 Fed.
21
Reg at 16,876-16,881. 10 That information-gathering program is consistent
with EPA’s authority under Section 114(a) to review data from “any person”
and to require owners and operators to investigate and report sources of
emissions. Id. at 16,877-16,878; see also 42 U.S.C. § 7414(a)(1) (authorizing
EPA to obtain information from several categories of sources, including “any
person . . . who the Administrator believes may have information necessary for
purposes of” implementing the Clean Air Act). It is also consistent with other
longstanding EPA programs, under which “citizens and other entities can
report concerns about regulatory compliance.”
89 Fed. Reg. at 16,917.
It remains EPA’s obligation under the Act to verify data, notify operators,
receive operator reports, and otherwise enforce the Act. Id. at 16,877. 11
2.
Best System of Emission Reduction for Associated
Gas
Section 111 directs EPA to identify the best system of emission reduction
that “the Administrator determines has been adequately demonstrated,”
“taking into account the cost of achieving such reduction.”
42 U.S.C.
10 The Program also requires owners and operators of emissions sources to
investigate and report information about certain emissions events to EPA. See
40 C.F.R. §§ 60.5371b(d)-(e); 42 U.S.C. § 7414(a)(1).
11 Industry applicants raise concerns about potential reputational harm from
errant third-party reporting.
Indus. Appl. 16-17, 35-36.
But EPA
independently reviews notifications of significant emissions and provides “an
opportunity to respond before the super-emitter event is publicly attributed to
a particular owner/operator.” 89 Fed. Reg. at 16,880.
22
§ 7411(a)(1). A system is “adequately demonstrated” if it “has been shown to
be reasonably reliable” and “reasonably efficient.”
Essex Chem. Corp. v.
Ruckelshaus, 486 F.2d 427, 433 (D.C. Cir. 1973), cert. denied, 416 U.S. 969
(1974). Industry applicants contend that the best system of emission reduction
for associated gas is arbitrary and capricious under that standard on several
grounds. Indus. Appl. 17, 19, 23, 25. They argue that EPA failed to consider
the cost of routing associated gas; failed to demonstrate that routing gas is
generally achievable; and adopted an infeasibility exception that is “unduly
vague.” Id. at 17-26. Applicants are unlikely to succeed on any of those recordintensive objections.
“Associated gas” is the natural gas, made up primarily of methane, that
is released directly into the air during a particular phase of the oil-production
process.
89 Fed. Reg. at 17,129.
Although some wells have historically
disposed of associated gas through routine flaring, “‘standard business
operations for thousands of wells’” has evolved to “recovering associated gas”
and routing it to a flow line or collection system for commercial sale. Id. at
16,942; see id. at 16,943 (noting that 54 oil companies pledged to eliminate
routine flaring by 2030 and that ExxonMobil had committed to end routine
flaring). For new sources, the Rule establishes that the best system of emission
reduction for associated gas is routing the associated gas to a sales line. Id. at
16,832-16,833, 16,886.
23
The Rule provides “an orderly ‘phase in’” of the new source requirements
for several subcategories of wells.
89 Fed. Reg. at 16,943.
For wells
constructed after May 2026, the Rule requires associated gas to be: routed to
a sales line; “used for another useful purpose that a purchased fuel, chemical
feedstock or raw material would serve”; or recovered and reinjected into the
well or another well. Id. at 16,832. EPA explained that the 24-month phasein period would allow new sources “to plan for managing the associated gas
when construction [is] beginning” and build the lines necessary to route
associated gas or comply with the alternative options. Id. at 16,944; see also
id. at 16,942 (“operators of newly drilled wells have the flexibility to plan and
coordinate the construction of gas gathering systems”); id. at 16,943 (observing
that the regulatory alternatives were “consistent with the options allowed in
New Mexico and Colorado”).
For other new sources (including wells that are reconstructed or modified
after December 6, 2022), the performance standards include an additional
option: wells may route associated gas to “a flare or other control device that
achieves at least 95 percent reduction” in methane and volatile organic
compounds emissions under specified conditions, if the well can demonstrate
that “routing to a sales line and the alternatives are not technically feasible.”
89 Fed. Reg. at 16,832-16,833. The Rule explains that these wells “may be
limited in the options to route to a sales line or comply with one of the other
24
options,” supporting the existence of a flaring option if the alternatives are
technically infeasible. Id. at 16,944.
Industry applicants argue that EPA “simply assume[d], without any data
or analysis, that there are no cost impacts” of routing associated gas. Indus.
Appl. 21. The Rule flatly contradicts that claim. In a section of the Rule titled
“BSER Cost Analysis,” EPA estimated “the costs for connecting the associated
gas from a well site to a nearby gathering system/sales line.” 89 Fed. Reg. at
16,941-16,942; see also id. at 16,946 (considering costs for certain recently
reconstructed or modified wells).
Based on “detailed cost information”
submitted during the comment period, including a study commissioned by an
industry organization, EPA estimated the costs and savings of routing
associated gas, id. at 16,941; concluded that “the cost of routing to sales is
reasonable,” id. at 16,943; and noted that it had incorporated considerations of
“costs when setting the standard,” id. at 16,951.
And while industry applicants also assert that EPA failed to “consider
costs of alternative control technologies, such as enclosed combustion devices,
thermal oxidizers, catalytic incinerators, and deep well injection” (Indus. Appl.
23), EPA was under no obligation to individually assess the precise costs of any
of those alternatives. See 42 U.S.C. § 7411(a)(1) (Administrator is to account
for “cost” of “best system of emission reduction”). Regardless, the Agency
25
considered such costs in authorizing those alternative control options. 89 Fed.
Reg. at 16,940-16,943.
Industry applicants also speculate (Indus. Appl. 22-24) that some subset
of well operators would be denied access to existing sales lines by “midstream
companies,” making routing not “achievable.” EPA explained that “[w]here
distances or logistics might make connection to sales lines less attractive,” both
“cost and qualitative” considerations would support the “likely . . . use[]” of the
“other alternatives.” 89 Fed. Reg. at 16,944. In circumstances where wells
subject to the new source standards are “limited in the options to route to a
sales line or comply with one of the other options,” the Rule includes “special
allowances” for routine flaring under specified circumstances of technical
infeasibility. Id. 12
Industry applicants argue that the technical infeasibility exception itself
is arbitrary and capricious because the “useful purpose” alternative is
“unbounded” and “vague.”
12 Industry
Indus. Appl. 25-26.
But the Rule specifically
applicants are thus wrong that the Rule “effectively prohibits
flaring.” Indus. Appl. 18. And, as industry applicants acknowledge (Indus.
App. 25), the Rule also authorizes temporary flaring in circumstances when it
is infeasible or unsafe to capture associated gas. 89 Fed. Reg. at 16,994 (“the
final rule allows temporarily routing to a flare or other control device in
specified situations”). Additionally, EPA recently “grant[ed] reconsideration”
for “temporary flaring provisions for associated gas in certain situations.” U.S.
EPA,
Letter
to
Hopkins
and
Kirchoff
(May
6,
2024),
https://www.epa.gov/system/files/documents/2024-05/letter-to-api-and-apx.5.6.24-signed_1.pdf.
26
describes what sorts of useful purposes are covered. 89 Fed. Reg. at 16,88716,888. Operators in New Mexico and Colorado have been able to comply with
state methane emission regulations that include alternatives “consistent” with
the alternatives identified in the Rule, allowing “other” uses such as power
generation or liquids removal. Id. at 16,943. That experience undermines
industry applicants’ claim that the “useful purposes” alternative “gives no
clarity to operators.” Indus. Appl. 26. More broadly, that reality undermines
industry applicants’ assertions about a greater need for flaring. Id. at 18.
Colorado and New Mexico have even stricter venting and flaring requirements
than the Rule, with both States prohibiting routine flaring and venting. C.A.
No. 24-1054, State Respondent-Intervenors Opp’n to Mot. To Stay, Ex. A
(Comment of States and Cities at 14-15) (June 11, 2024); id., Ex. B (Comment
of Colorado Local Government Coalition at 6-13); see also id., Ex. C (Miano
Decl. ¶ 8). Yet, with some of these regulations in place for years, these States
continue to be among the top oil and gas producers in the nation. See, e.g., id.,
Ex. C (Miano Decl. ¶ 5.).
3.
Net Heating Value Monitoring Requirements
Industry applicants challenge (Indus. Appl. 26-29) certain monitoring
requirements for operators that use combustion-based control devices to meet
the 95 percent emission reduction standard. See 89 Fed. Reg. at 16,894. For
certain “enclosed combustion devices and flares,” the Rule provides that an
27
operator must “maintain the net heating value (NHV) of the gas sent to the
device above a minimum amount.”
Id.
The net heating value provides
evidence that a combustion device is operating efficiently, and an operator may
demonstrate that the device meets the net heating value minimums through
certain specified sampling methods. Id. at 17,105-17,106. An operator may
also use an “alternative test method” to demonstrate “that the combustion
device continuously achieves 95.0 percent combustion efficiency.” Id. at 16,894.
But as industry applicants acknowledge (Indus. Appl. 28 n.6), EPA
granted reconsideration of the net heating value monitoring and sampling
requirements on May 6, 2024. See U.S. EPA, Letter to Hopkins and Kirchoff
(May 6, 2024), https://www.epa.gov/system/files/documents/2024-05/letter-toapi-and-apx.-5.6.24-signed_1.pdf. The Agency noted that it intended to “issue
a Federal Register notice initiating public review and comment on these issues.”
Id.
In light of that development, the D.C. Circuit recently severed the
challenge to the net heating value monitoring and sampling requirements,
assigned it a separate docket number, and held the matter in abeyance pending
28
administrative reconsideration. 13 Given this posture, there is no basis for this
Court’s consideration of the issues at this time. 14
4.
Enforceable Limits
The Rule requires a 95 percent reduction in emissions for storage vessels
that emit more than a threshold quantity of methane or volatile organic
compounds. 89 Fed. Reg. at 16,973-16,984. In determining whether a storage
vessel is subject to the emissions requirements, operators had historically
pointed to state or local permitting requirements (such as laws requiring a
reduction of emissions by 95 percent) to claim that their storage vessels did not
emit more than the threshold quantity of emissions. Id. at 16,974. Based on
EPA’s historical experience with enforcement actions, however, EPA concluded
in the Rule that the permits or their requirements were often not “legally and
practicably enforceable,” meaning that the requirements did not bring
emissions down below the regulatory threshold. Id. That allowed operators of
storage vessels to evade federal emissions requirements by pointing to state
permitting requirements that did not “actually limit and maintain potential
13 C.A. No. 24-1054, Order 2 (Sept. 4, 2024).
14 Industry applicants argue that they need relief based on compliance testing
obligations due by November 2024, which they now contend they will need “400
days” to complete. Indus. Appl. 29. But they represented to the D.C. Circuit
that they would require “at least 79 days to conduct the required sampling,”
C.A. No. 24-1054, Cont. Resp. 16 (May 6, 2024)—and as of this filing, it has
been 136 days since the Rule took effect.
29
emissions below the rule’s applicability thresholds.” Id. The Rule addressed
EPA’s concern by setting criteria before an operator may rely on “legally and
practicably enforceable limit[s]” to claim that their vessels fall below the
regulatory threshold. Id. at 17,045.
Industry applicants argue that the Rule’s criteria will “generat[e] zero
emissions benefits” because operators of storage vessels are generally subject
to state “permitting schemes requiring 95%+ emissions controls.” Indus. Appl.
30. That ignores EPA’s experience with some permitting requirements that
did not operate to “actually limit” emissions. 89 Fed. Reg. at 16,974. Industry
applicants further object that they will be required to comply with “onerous”
emissions requirements because they cannot know if a State’s regulations meet
the Rule’s criteria. Indus. Appl. 30. But EPA explained that it did not apply
the criteria “retroactively” to “permit limits or other requirements that owners
and operators had previously relied upon.” 89 Fed. Reg. at 16,977. And for
new storage vessels, EPA observed that owners or operators “were on notice of
the EPA’s proposed . . . criteria when obtaining” legally and practicably
enforceable limits to cap potential emissions and all owners may seek to
“reopen[]” existing permits to incorporate the new criteria. Id.
5.
Fugitive Emissions Monitoring Requirements
Finally, industry applicants argue that EPA acted arbitrarily by imposing
technological monitoring requirements, like optical gas imaging, for fugitive
30
emissions at marginal wells. Indus. Appl. 31. In particular, they fault EPA
for basing its fugitive emissions monitoring requirements on a well site’s
equipment count. Id. at 31-32.
EPA “articulate[d] a satisfactory explanation” for its decision to base the
rigor of its fugitive emissions monitoring requirements on a well site’s
equipment count.
State Farm Mut. Auto. Ins. Co., 463 U.S. at 43. EPA
undertook a detailed analysis of the available data and found that “the
frequency and magnitude of emissions from well sites are more strongly
correlated with equipment counts than with production rates.” 89 Fed. Reg. at
16,906; accord id. at 16,990 n.661. That finding aligns with the common-sense
insight that well sites with more pieces of potentially leaky equipment are
generally more prone to leaks than sites with fewer pieces of equipment. Id.
at 16,871. EPA also opted to require more rigorous emissions monitoring—in
the form of leak-detection technology, rather than just audio-visual-olfactory
inspections—at sites with relatively more equipment. Id. at 16,904-16,905.
And the Rule includes numerous flexibilities to accommodate a range of
wellsite conditions that could affect marginal wells. See id. at 16,830 (tailoring
requirements to equipment counts, presence of processing equipment, and
geographic location).
Industry applicants argue that the Rule’s fugitive emissions monitoring
requirements are not “achievable” for marginal wells.
Indus. Appl. 32.
31
“An achievable standard is one which is within the realm of the adequately
demonstrated system’s efficiency and which, while not at a level that is purely
theoretical or experimental, need not be routinely achieved within the industry
prior to its adoption.” Essex Chem. Corp., 486 F.2d at 433-434. Industry
applicants do not contend that the Rule’s requirements are unachievable
within the meaning of the statute, only that the costs may be “prohibitive” for
a subset of marginal well owners. Indus. Appl. 32. But the available data
indicate that most marginal wells will be subject to EPA’s least stringent
inspection requirements, which cost less than $660 annually—far less than the
average annual net profits of $42,033 for marginal oil wells and $5,648 for
marginal gas wells.
See EPA-HQ-OAR-2021-0317-3988, Background
Technical Support Document (TSD) for the Final New Source Performance
Standards (NSPS) and Emissions Guidelines (EG) at 6-8 & 6-9, table 6-4 (Nov.
25, 2023), https://www.regulations.gov/document/EPA-HQ-OAR-2021-03173988.
Moreover, EPA had ample evidence before it that the Rule’s requirements
for marginal wells are achievable despite their additional expense: the oil and
gas industry has been meeting similar—and sometimes more stringent—state
regulatory requirements for years. For over a decade, California, Colorado,
and New Mexico have had fugitive emissions requirements that mandate the
use of approved surveying instruments.
See C.A. No. 24-1054, State
32
Respondent-Intervenors Opp’n to Mot. To Stay, Ex. A (Comment of States and
Cities at 6-7) (June 11, 2024); id., Ex. B (Comment of Colorado Local
Government Coalition at 17). None of those States provides exemptions for
marginal wells. Id., Ex. A. (Comment of States and Cities at 6-7, 14-15); id.,
Ex. B (Comment of Colorado Local Government Coalition at 6-7, 9-13, 17); see
also id., Ex. C (Miano Decl. ¶ 8-9). Yet they have remained among the top oil
and gas producers in the Nation. Id., Ex. C (Miano Decl. ¶¶ 5, 6, 11, 13).
II.
APPLICANTS HAVE NOT SATISFIED THE OTHER CRITERIA FOR
OBTAINING A STAY
In addition to a “strong showing” of likely success on the merits, stay
applicants must establish that they “will be irreparably injured absent a stay”
and that the balance of equities and “the public interest” favor issuance of a
stay. Nken, 556 U.S. at 434 (describing irreparable harm showing as “critical”)
(quotation marks omitted). Applicants cannot meet those elements, and the
applications may be denied on the failure to show irreparable harm alone. See,
e.g., Labrador v. Poe, 144 S. Ct. 921, 929 (2024) (Kavanaugh, J., concurring)
(“If the moving party has not demonstrated irreparable harm, then this Court
can avoid delving into the merits.”); Teva Pharms. USA, Inc. v. Sandoz, Inc.,
572 U.S. 1301, 1301 (2014) (Roberts, C.J., in chambers) (denying stay for lack
of irreparable harm even though there was “reasonable probability” of granting
certiorari and “fair prospect” of reversal).
33
State applicants’ claims of sovereignty-related harms broadly duplicate
their (incorrect) merits arguments.
Okla. Appl. 25-26.
Neither the
presumptive standards nor the two-year deadline harms state applicants’
“sovereign interests.” Id. at 26. The Rule affords States flexibility to choose
how to achieve methane reductions from existing sources. Supra pp. 7, 11-15.
And EPA’s reasonably explained decision to provide States with two years to
submit their plans was a reasonable effort to balance the regulatory burden on
States with the need to mitigate climate change and protect human health.
Supra pp. 15-19. If a State cannot immediately comply with the two-year
deadline and EPA implements a federal plan, the Rule allows States to devise
their own plans to replace a federal plan at a later time. See supra p. 19.
State applicants’ arguments about economic harm (Okla. Appl. 27-30)
fare no better. They focus on purported requirements (e.g., “an inventory of all
designated facilities,” Okla. Appl. 28) that do not exist, supra p. 17, and
conflate the resources necessary for the state planning process with resources
needed to implement and enforce state regulations after they take effect, Okla.
Appl. 29-30 (describing costs of increasing “permitting and compliance staff”
and “implement[ing] permit programs”). And because existing sources are not
required to comply with the Rule’s emission guidelines until 2029, long after
the D.C. Circuit will have rendered its decision on the merits, state applicants’
costs for enforcement and permitting are not imminent. See 89 Fed. Reg. at
34
17,012 (“When the compliance timeline of 36 months is considered in
conjunction with the state plan submittal deadline of 24 months, that means
that sources could have up to 5 years between when the [emission guidelines]
are final and when they are required to fully comply with the applicable
standards of performance.”).
Moreover, if merely being required to develop a state plan or consider
other compliance options would always constitute irreparable harm to a State’s
sovereignty (see Okla. Appl. 25-28), most rules under the Clean Air Act (or
other similar cooperative-federalism statutes) could satisfy that part of the test
for a stay. That would subvert the principle that a stay is an “extraordinary
remedy” that is not a “matter of right.” Nken, 556 U.S. at 428, 433 (quotation
marks omitted); see also Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 115
(2d Cir. 2005) (“ordinary compliance costs are typically insufficient to
constitute irreparable harm”).
Industry applicants likewise fail to demonstrate that they will suffer
irreparable harm absent a stay. They too emphasize the costs of complying
with the Rule’s presumptive standards (Indus. Appl. 33), even though a State
may deviate from those standards—and full compliance is up to five years
away, see supra pp. 5, 7-8, 12-15. As to the asserted operational harms (Indus.
Appl. 34-35), they are largely relevant only to a subset of sources that were
reconstructed or modified after December 2022, and did not have the “benefit
35
of planning to accommodate each option best suited to the site.” 89 Fed. Reg.
at 16,944; see also supra pp. 21-26 (addressing associated gas arguments); 2932 (addressing fugitive gas arguments). The claimed operational harms are
also illusory. See supra pp. 28 (net heating value monitoring requirements are
being reconsidered); 28-29 (legally and practicably enforceable limits may be
incorporated into new and existing permits). Nor will industry applicants
suffer any immediate or irreparable harm from the Super Emitter Program,
which is consistent with EPA’s authority under the Act, does not subject
operators to risk of reputational harm from errant third-party reporting, and
does not impose any unreasonable administrative burden. See supra pp. 2021; see also 89 Fed. Reg. at 16,877, 16,879-16,880, 16,916-16,917 (discussing
EPA’s oversight of notifications from certified third parties and Program’s
safeguards against error).
Lastly, applicants did not ask the D.C. Circuit “to expedite consideration
of ” their petitions for review. Yeshiva Univ v. YU Pride All., 143 S. Ct. 1, 1
(2022). And they waited more than six weeks after the D.C. Circuit issued its
stay order to file their applications.
Applicants also have failed to show that the balance of equities and the
public interest favor issuance of a stay. See generally Nken, 566 U.S. at 435
(factors “merge” when “the Government is the opposing party”).
On the
36
contrary, any delay to the Rule’s deadlines to limit methane emissions would
harm the public interest and State respondent-intervenors.
Methane is a “highly potent” pollutant responsible for near-term climate
warming. 89 Fed. Reg. at 16,823. And the oil and gas sector is the largest
industrial emitter of methane in the United States. Id. State respondentintervenors, along with communities across the country, have suffered from
climate impacts such as severe drought, wildfires and smoke, coastal and
inland flooding, storm surges, insect outbreaks, and sea-level rise that are
caused by emissions of greenhouse gases, including methane. Id. at 16,83616,838; see C.A. No. 24-1059, State Respondent-Intervenors Opp’n to Mot. To
Stay, attach. 5 (Soleau Decl. ¶¶ 17-25) (May 6, 2024); id., attach. 2 (Fleishman
Decl. ¶¶ 17-26); id., attach. 1 (Chamberlin Decl. ¶¶ 6-15). If the Rule is stayed
and methane emissions continue unabated (or increase), those harms will only
worsen. See id., attach. 1 (Chamberlain Decl. ¶ 15); id., attach. 5 (Soleau Decl.
¶ 7). A stay would also delay the significant health and environmental benefits
that will result from the Rule’s reduction in volatile organic compounds, which
contribute to worsened air quality. See 89 Fed. Reg. at 16,836, 16,841.
Finally, a stay of the Rule would create regulatory uncertainty, harming
both regulators—including respondent-intervenor States—and regulated
entities. For example, state planners in respondent-intervenor States and
elsewhere would face more difficulty moving state plans forward. They might
37
have to push compliance planning beyond the planning period for state-level
rulemakings and move forward with state regulatory development without the
benefit of EPA regulatory decisions regarding state plans. See C.A. No. 241059, State Respondent-Intervenors Opp’n to Mot. To Stay, attach. 3 (Lozo
Decl. ¶¶ 24-26) (May 6, 2024). That uncertainty would trickle down to certain
oil and gas facilities, which would not know whether they are exempt from a
forthcoming waste emissions charge on excessive methane emissions, because
exemption determinations can be made only after all Section 111(d) plans have
been approved and put into effect.
See 42 U.S.C. §§ 7436(e), (g); Waste
Emissions Charge for Petroleum and Natural Gas Systems, 89 Fed. Reg. 5,318,
5,337 (Jan. 26, 2024).
38
CONCLUSION
The applications should be denied.
Respectfully submitted,
ROB BONTA
Attorney General of California
MICHAEL J. MONGAN
Solicitor General
HELEN H. HONG
Principal Deputy Solicitor General
TRACY L. WINSOR
Senior Assistant Attorney General
JOSHUA PATASHNIK
JULIE VEROFF
Deputy Solicitors General
DENNIS L. BECK, JR.
MYUNG J. PARK
Supervising Deputy
Attorneys General
KAVITA LESSER
KATHERINE GAUMOND
Deputy Attorneys General
September 20, 2024
(Counsel listing continues on next page)
39
PHILIP J. WEISER
Attorney General
State of Colorado
1300 Broadway
10th Fl.
Denver, CO 80203
ANDREA JOY CAMPBELL
Attorney General
Commonwealth of
Massachusetts
One Ashburton Place
Boston, MA 02108
WILLIAM TONG
Attorney General
State of Connecticut
165 Capital Ave.
Hartford, CT 06106
DANA NESSEL
Attorney General
State of Michigan
P.O. Box 30212
Lansing, MI 48909
KATHLEEN JENNINGS
Attorney General
State of Delaware
820 N. French Street
Wilmington, DE 19081
MATTHEW J. PLATKIN
Attorney General
State of New Jersey
25 Market Street
Trenton, NJ 08625
KWAME RAOUL
Attorney General
State of Illinois
115 S. LaSalle St.
Chicago, IL 60603
RAÚL TORREZ
Attorney General
State of New Mexico
408 Galisteo St.
Santa Fe, NM 87501
AARON M. FREY
Attorney General
State of Maine
6 State House Station
Augusta, ME 04333
LETITIA JAMES
Attorney General
State of New York
28 Liberty Street
New York, NY 10005
ANTHONY G. BROWN
Attorney General
State of Maryland
200 Saint Paul Place
Baltimore, MD 21202
JOSHUA H. STEIN
Attorney General
State of New Carolina
P.O. Box 629
Raleigh, NC 27602
(Counsel listing continues on next page)
40
ELLEN F. ROSENBLUM
Attorney General
State of Oregon
1162 Court St. NE
Salem, OR 97301
ROBERT W. FERGUSON
Attorney General
State of Washington
P.O. Box 40100
Olympia, WA 98504
MICHELLE A. HENRY
Attorney General
Commonwealth of
Pennsylvania
Strawberry Square,
16th Fl.
Harrisburg, PA 17120
JOSHUA L. KAUL
Attorney General
State of Wisconsin
17 W. Main St.
Madison, WI 53703
PETER F. NERONHA
Attorney General
State of Rhode Island
150 South Main Street
Providence, RI 02903
CHARITY R. CLARK
Attorney General
State of Vermont
109 State Street
Montpelier, VT 05609
BRIAN L. SCHWALB
Attorney General
District of Columbia
400 6th Street, NW
Suite 8100
Washington, DC 20001
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.