US Court Rejects EPA Attempt to Delay Obama Era Methane Regulations

Guest essay by Eric Worrall

The United States Court of Appeals for the District of Columbia Circuit has rejected a motion to delay implementation of Obama era methane emission laws which limit allowed emissions from oil and gas drilling.

Court rejects Trump’s delay of EPA drilling pollution rule

BY TIMOTHY CAMA – 07/03/17 01:40 PM EDT

The Trump administration cannot delay an Environmental Protection Agency (EPA) rule limiting methane pollution from oil and natural gas drilling, a federal court ruled Monday.

In an early court loss for President Trump’s aggressive agenda of environmental deregulation, the Court of Appeals for the District of Columbia Circuit said the EPA didn’t meet the requirements for a 90-day stay of the Obama administration’s methane rule.

The decision means the EPA must immediately start enforcing the standards.

EPA Administrator Scott Pruitt’s decision to delay enforcement of the provision was based on arguments that when the Obama administration wrote the rule, it violated procedures by not allowing stakeholders to comment on some parts of what became the final regulation. The agency used that reasoning to formally reconsider the rule and to pause enforcement.

But the court said the argument doesn’t withstand scrutiny.

Read more: http://thehill.com/policy/energy-environment/340536-court-rejections-trumps-delay-of-epa-drilling-pollution-rule

The full ruling is available here.

I guess the Supreme Court will be working overtime this year.

Correction (EW): h/t commieBob District of Columbia Court of Appeals should be The United States Court of Appeals for the District of Columbia Circuit

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74 thoughts on “US Court Rejects EPA Attempt to Delay Obama Era Methane Regulations

  1. Two to one decision, with the Democratic appointees ruling against the Administration. I do not know enough administrative law to understand why the rule was “delayed” rather than simply withdrawn.

      • Of course, what the Trump administration could do is just not enforce the methane rule while waiting out the long process to amend it. That is what Obama did with immigration laws he disliked, and forcing the government to actually enforce a rule is quite difficult.

      • First, ask yourself how many rules and regulations are on Federal, State, and Local books. Then ask yourself how many people unknowingly or knowingly break one or more of those rules in a day. Finally ask yourself how many people does it take to cover a working knowledge and enforcement of all of those rules.

        My point is that one can get by without full compliance to all of the rules simply because there is not enough Federal, State, and Local resources to handle all of the infractions. Many of the rules and regs are there just to increase coffers with fines whenever a noncompliant entity is found guilty.

        (For decades, I had been using a burn-barrel on my property to get rid of excess burnable trash, before I looked up such activity on the internet and saw that it was outlawed in my state.)

      • Like a good bureaucrat, you ignore the rule. You put your most incompetent people on it, to screw everything up. Let the court deal with the best morons you have. So, being ordered to implement it is no threat.

    • The dissenting judge stated that the Appeals Court does not have the legal authority to rule on the matter.

      My guess is that Pruitt’s legal beavers will either develop a work around or as ask the entire court [not just a panel of three] to review the matter again – diluting the Dems influence.

      While this is a setback politically, the industry had already worked out how to deal with the Obama edicts, so it’s not like they’re hamstrung in their operations.

    • Don’t count on SCOTUS to bail out Pruitt. The SCOTUS “CO2 endangerment finding” ruling is a recurring nightmare.

      • What you have to keep in mind is that appellate courts rule on the law, not the facts. SCOTUS didn’t rule that CO2 was dangerous; they ruled that the EPA had the power to make that finding.

    • Apparently no one felt the need to go to court over that, or anyone who did did not have standing to bring the case. As noted above, even if there had been a ruling, Obama would have ignored it and no one would have done a thing to stop him.

  2. I have been involved in several Federal Rule Making processes (as a commentor and technical adviser) involving EPA and DOE. The process is a mess. Briefly, the agency publishes a proposed rule that often includes vague requirements and/or multiple alternatives. It then allows 90 days for public comment and often receives thousands of them. They spend the next 9 months revising the rule and writing a “response to public comment” document. All in secret. One year after publishing the proposal they publish the final rule. The final rule can be very different from the proposed rule. No one has a chance to comment on new or different requirements that were not in the proposal. The agency staff makes all the decisions (although it is widely suspected they consult with favored green NGOs off the record). They frequently dismiss comments they don’t like even when comments include strong scientific data based on nothing more than the “agency’s opinion”.

    Once a rule is published congress has 60 days to review and can hold it up, but they never do. Unfortunately once the rule goes into effect it can not be modified or withdrawn without going through the whole rule making process again. The alternative is an act of congress to modify or repeal the law that enabled the rule to be created in the first place.

    That’s my understanding anyway. I’m sure the legal scholars who comment here will correct any errors.

    • It looks like you’re right.

      What’s more, unwinding federal regulations has to go through the same lengthy process of internal analysis, budget review, inter-agency impact study and public comment period that it took to get them on the books, said Susan Dudley, who headed the regulatory review process for President George W. Bush.

      “In some ways, getting rid of them is harder,” she said. link

      Draining the swamp isn’t going to be easy. President Trump has to contend with the deep state.

      • Eric Worrall July 5, 2017 at 12:15 am

        Perhaps the President needs additional powers …

        Some folks think the president already has too much power. link

        No matter how much you respect and trust this president, there will always be another one who you won’t like at all.

        The problem is that it appears to be easier to implement regulations than to get rid of them. Congress should fix that. It should be hard to make regulations and the whole process should be open to public scrutiny. It should be easy to get rid of regulations. In fact, most regulations should have a sunset clause. As it stands we have a bunch of unelected unaccountable bureaucrats running our lives, and that’s just wrong. link

      • I’m generally comfortable giving the executive power to strike an executive regulation quickly, so long as it’s a proper lifting of the rule and not a selective exemption. And simply ignoring the Law as passed by Congress is not an acceptable option. Creating a rule that imposes a burden on us should take time and effort, and be open to public view.

      • ” They frequently dismiss comments they don’t like even when comments include strong scientific data based on nothing more than the “agency’s opinion”.”

        Correction, they ALWAYS dismiss comments they don’t like. They use pure sophistry to do so if they need to. It’s selective science, custom made to fit their needs. Any government agency that creates draconian laws, e.g. the EPA, needs a complete overhaul that ensures their rules follow that standards of a Republic.

    • Rick CPE, thanks for the “insight”; to me it seems to be credible.

      Further, this insight explains to me WHY the swamp MUST be drained; in a Constitutional Republic, where the People have ELECTED representation, there MUST be a better way; where these ELECTED REPS MUST NOT SHIRK their duties particularly in matters which affect directly our livelihoods. To wit, the following “insights” as provided in your comment, where I ask of you some questions:

      [1] “Briefly, the agency publishes a proposed rule that often includes vague requirements and/or multiple alternatives.” So, you are saying that in the general case the EPA bureaucrats publish a proposed rule; where such MAY OR MAY NOT have been proposed initially by our elected reps, yes? How are these “RULE [LAW] publishing” duties not the primary duty of our elected reps?

      [2] “The final rule can be very different from the proposed rule. NO ONE has a chance to comment on new or different requirements that were not in the proposal. The AGENCY STAFF makes all the decisions (although it is widely suspected they consult with favored green NGOs off the record). They frequently dismiss comments they don’t like even when comments include strong scientific data based on nothing more than the “agency’s opinion”.

      [a] “The final rule can be very different from the proposed rule.” okay, but where, if anywhere, are at least the general guidelines? If there is none, then what is the purpose of our elected reps?
      [b] “The AGENCY STAFF makes all the decisions (although it is widely suspected they consult with favored green NGOs off the record).” These NGO’s, are they part of the massive K-Street lobbyist establishment or something different altogether? You say that the EPA staff “consults” with these NGO’s; does this also include, at times, the NGO’s actually writing the final text for some of the proposed rules?
      [c] “They frequently dismiss comments they don’t like even when comments include strong scientific data based on nothing more than the “agency’s opinion”.” This one, sadly, speaks for itself. Is there any permanent record of the public comments, or, is all this evidence done away with?

      [3] “Once a rule is published congress has 60 days to review and can hold it up, BUT THEY NEVER DO.” But they [our elected congressman] MUST. Such rules MUST NOT be made by unelected yet politically-motivated bureaucrats. And, more to the point but I am afraid to ask … because I suspect that already I know the disgusting answer, WHY does Congress NOT review such things?

      [4] “Unfortunately once the rule goes into effect it cannot be modified or withdrawn without going through the whole rulemaking process again. The alternative is an act of Congress to modify or repeal the law that enabled the rule to be created in the first place.” This is why such rules, IN THE FIRST PLACE, many of them POWERFUL AND INFLUENTIAL with respect to their negative stifling impacts on the daily lives of citizens and the companies for which they work, MUST NOT BE PERMITTED TO BE MADE BY UNELECTED BUREAUCRATS; at least, not through the process as you describe; rather, they SHOULD BE MADE TO BE MADE by our elected reps in Congress.

      [5] “Briefly, the agency publishes a proposed rule that often includes vague requirements and/or multiple alternatives. It then allows 90 days for public comment and often receives thousands of them. They spend the next 9 months revising the rule and writing a “response to public comment” document. All in secret. One year after publishing the proposal they publish the final rule.” How can we find out what proposals are open to “public comment”? Note: I for one would be surprised if 5% of the American people are aware of such places to submit their comments; and even less where those citizens understand that their comments, most likely, will be tossed down a rabbit hole. Note: After 1-yr in secret negotiations I would think that any Americans remaining, with a personal or altruistic interest in any one of these particular matters, would be almost nil; where these bureaucrats know how to tamp down that pesky interference, via the citizenry, to their command and control govt style; where they consider such to be a feature and not a design flaw.

      This really is a rat’s nest; where the chances of the unraveling of such, given the current DC self-serving environment [read: not-public-serving, in fact, screw the public], would be next to zero, yes? In view of this, how could any freeborn USA citizen, for their interest and that for the interest of their families and communities, not be advocating the draining of this swamp?

      DJT, warts and all, is far from perfect; such is not the point; rather, the point being that piece by piece, fits and starts, in general, he is moving us away from this swamp type fed-governing style. One who is objective, IMO, can see this readily by noting his swamp establishment opponents.

      • I think you’ve answered most of your own questions. The Dudley-Peacock paper (link below) cited in the previous WUWT post describes in some detail how the EPA goes about creating massive amounts of new law based on very broad and general laws enacted by our elected representatives – e.g. the Clean Air Act. In fact, EPA and all Federal regulatory agencies have a pretty free hand in interpreting the primary legislation. I’ve seen a number of cases were senators and congresspeople have written to the agencies saying “that’s not what we meant” and challenging the agency’s actions. The response is almost always “thanks, but we get to decide what your legislation allows us to do”.

        The process is accessible but you have to learn the system. E.g. all proposals and notices are published in the Federal Register. Comments are published on line in “dockets” at regulations.gov and are searchable to some degree. But you need to spend a lot of time to really see what goes on. Businesses and trade associations often have a staff that deals with this process full time.

        It is a swamp, but I don’t think anyone knows how to find the drain plug.

        https://regulatorystudies.columbian.gwu.edu/sites/regulatorystudies.columbian.gwu.edu/files/downloads/SDudley%2BMPeacock_Regulatory-Science-and-Policy-6-30-2017.pdf

    • Your experience was pretty much my experience. But don’t get too discouraged.

      For example my regulatory advisory team did manage to contribute to delaying the EPA’s 111 rules just before Obama’s 2ed election cycle via the Office of Management and Budget (OMB). This occurred when OMB incorporated my team’s comments, as well as other agency comments, into their recommendations.

      Also keep in mind your individual comments can have unexpected dividends… even when you think it likely your “spitting in the wind” at the time. For example, my personal comments were directly quoted by the OMB and served as the basis for several suits against the EPA. Impact I never expected.

      Our team’s comments forced President Obama to back off and scuttle the EPA’s first attempt at regulating GHG”s. The cumulative impact helped delay Obama’s EPA GHG regulatory process just enough to move the EPA’s GHG zealots to desperate action in the Obama’s last term. As consequence the EPA hasmade plenty of mistakes… more than enough to give the new EPA administration rope to hang the zealots.

      I also succeeded. individually, while serving as a technical advisor to the Utility Air Regulatory Group (UARG). In this capacity I my agency executives to financed and move forward with “Utility Air Regulatory Group v. Environmental Protection Agency”. (Note: I’ve since semi-retired).

      Here we met with success as the Supreme Court ruled:

      “Environmental Protection Agency acted arbitrarily and capriciously in interpreting Clean Air Act to require regulation of greenhouse gas emissions in motor vehicles under act to trigger requirement for stationary sources to obtain prevention of significant deterioration permits or operating permits if their emissions of greenhouse gases exceed threshold pollutant amounts, because: (1) even though greenhouse gases constitute pollutants under act’s general definition of air pollutants, context of permit provisions does not require EPA to interpret greenhouse gases as pollutants under those provisions that trigger obligations to obtain permits, and (2) EPA’s interpretation would unreasonably place excessive demands on limited governmental resources and bring about enormous and transformative expansion of regulatory authority without clear congressional authorization.”

      My thanks to the fine lawyers at UARG.

      So, again, don’t get to disheartened. Play the long game and grab advantage where you can.

      • Damned dyslexia. The sentence that reads:

        “In this capacity I my agency executives to financed and move forward with “Utility Air Regulatory Group v. Environmental Protection Agency”.”

        Should read:

        “In this capacity I convinced my agency’s executives to finance and move forward with UARG’s “Utility Air Regulatory Group v. Environmental Protection Agency” lawsuit.”

        There are other typos in my comment, but, the above rendered the sentence incomprehensible.

        Sorry folks

        P.S. God… I miss having a good secretary.

  3. There is an error.

    The District of Columbia Court of Appeals has rejected …

    That isn’t the correct court. It shouldn’t be confused with:

    United States Court of Appeals for the District of Columbia Circuit

    • The court didn’t rule on the technical merits of the regulation.

      The court just said that the EPA couldn’t delay enforcing the regulation that it had already implemented.

      • Yes it can. You don’t have to competently or coherently implement it. You can screw everything up. Put your best morons on it, and let them have at it.

  4. …the Court of Appeals for the District of Columbia Circuit said the EPA didn’t meet the requirements for a 90-day stay of the Obama administration’s methane rule.

    So they didn’t reject it because it was wrong per se but just because EPA didn’t follow the book. I think it is just fair to throw the book at both of them. And a whole library at Obama.

  5. When Obama didn’t like a law, he just ignored it. Or he just made up new rules to his liking, as he did with immigration laws.

    • We don’t want Trump following Obama’s example and ignoring laws he doesn’t like. If something is a problem, the problem should be solved legally.

      I don’t think Trump would ignore enforcing laws on the books, even those he doesn’t like.

      • The President has the power to pardon and from that he derives the right of prosecutorial discretion. He can choose to not prosecute someone who has violated a law. The President does not have the power to disregard other statutory obligations that apply to the Executive Branch. This was spelled out in vivid detail when the Courts found Obama had violated the law by trying to stop the Yucca Mountain Project. See the Court’s order for a good explanation of the differences:
        http://www.scag.gov/wp-content/uploads/2013/08/Yucca-Mountain-Order.pdf

  6. Simples. Pruitt uses his authority as CEO of a major US Dept. and decides upon enforcement priorities in accordance with the interests of the American people (who, indirectly, elected him). If his boss doesn’t like what he’s doing, he can be sacked. That’s how it actually works.

    • “generated experiment data that was altered,” and that “to the extent she altered” it, “she knew the altered experiment data was false,”

      • “In 2013 Potts-Kant was accused of embezzlement, which triggered an investigation of her work by Duke. She resigned from the school and was eventually convicted of embezzlement.

      • Everything the EPA and FWS has been involved in over the past 9 years needs thoroughly audited.

  7. Trump will have to reduce the budget for the EPA to such levels that for the interim it is impossible to enforce the extraneous ecofascist rules…. and for EPA’s Administrator Scott Pruit to get EPA officials to issue wavers to anyone who wants one. Don’ need no steenkin’ judges for thees.

  8. It’s a “Rule”, not a Law. So it’s entirely up to the executive branch to kill it. Perhaps they thought it might have some merit, but wanted comments from the stake holders as the law requires. So now just kill the thing, and reintroduce it, only this time following the law by taking comments…

  9. My impression is that oil companies drilling for oil/gas have a system of valves that constitute blow-out preventers, and additionally have a constantly lit flame to burn any actual inadvertant gas production. So the drilling somewhat converts methane (and some other gases) to CO2. Additionally, production lowers the gas pressure in a field and spontaneous gas escape events are virtually eliminated. So why did this rule get written and put into effect in the first place? Could it be the CO2 issue?

    • NSPS OOOOa was in part a rewrite of the OOOO (Quad O) regulation that they implemented a few years ago to address the equipment added to rigs and process equipment involved in hydraulic fracturing (fracking). Quad Oa applies to just well pads and compressor stations and is primarily about monitoring. Owner/operators need to have inspection plans in place to detect fugitive emissions above certain levels. It gives great leeway in inspection, recommending optical gas imaging (OGI) as the Best System for Emissions Reduction (BSER) but still allows sniffers (the legacy method 21 flame ionization but method at a lower threshold for action). The regulation takes into account qualification of the inspector, observation paths, difficult to monitor components, impossible to monitor components, minimum delta T, wind conditions, maximum distance and daily qualification of the test instruments.

      Obviously I have been working in this industry for quite some time. EPA overreaches on many topics, particularly during the last Administration. However, this regulation was the first one that actually made sense (IMHO) and while many in industry did indeed initially resist it as another burden, once their inspection plans were written they appreciated the logic behind it. Some tweaks would be appreciated however, I hope they will be effected with this Administration but the regulation need not be rejected.

      • There is utterly no logic to monitoring for Methane to combat “Climate Change”…. If it is necessary to monitor Methane for other reasons like explosion potential, etc, then okay…. But not for the scam of Global Warming politics.

      • Bizarre, there is nothing about this that makes sense from a scientific or societal standpoint. It has wasted a bunch of our time and money for sure, the EPA requesting information and data on the methane escaping from our tank batteries.

    • I dont think its associated with oil and gas drilling, we don’t allow gas to escape simply because it can explode. I believe this is associated with completions and the production phase. And they really aren’t such a big deal.

      • Correct. The fugitive emissions are just that: fugitive. Relatively small. The largest sources are from human error, primarily thief hatches left open or not properly repaired. These are on tops of tanks and are typically opened when the tank is unloaded by a driver. They should be closed but sometimes are not. The driver is the one who should be help accountable but the owner/operator is the one who gets the violation. The thief hatches are also pressure relief devices as well.

        Compressors are large, noisy, hot and vibrate a lot. A few leaks when run 24/7 but very small in comparison to the amount of gas they handle. Even though the surfaces are hot, fires are almost unheard of. Gas turbine compressors (jet engines) are even hotter and failures are rare.

        Some components are designed to vent natural gas, such as flow controllers. These are permitted by EPA and exempt from monitoring under OOOOa but inspected anyway by industry to make sure they are not excessively leaking. Industry wants to sell gas, no money if they leak it to the environment.

  10. Then proceed with the implementation as directed by the court only without enforcement or fines until the new rules can be written.

  11. Mr. Pruitt used to be attorney general of Oklahoma – one would think he has anticipated something like this, and would have some kind of ‘coping strategy’ in his bag!?

  12. Donald Trump as the most powerful man in the nearby universe, by now must be getting a bit envious of the presidential powers of Vladimir Putin.

  13. Why stop with methane “pollution” from oil and NG drilling? How about about the dangerous “pollution” emitted by cows, and from rice farming, among other things? Pseudoscience and hypocrisy go so well together, don’t they?

  14. Interesting choices for Sessions. He has several options including waiting until Kennedy retires before going to SCOTUS. Aslo, Trump has several options including getting Congress to simply sunset the EPA and/or remove Federal Court jurisdiction from the laws the EPA cases. All will take time. On the plus side, the Left will be spending increasingly larger amounts of effort on these cases while Trump focuses on the 2018 elections to remove the Democrat Senators blocking things in the Senate.
    Patience. Pruitt will prevail in the end.

  15. The courts ruling is really poor. They extended the right to implement a rule because they were given the right to stop a rule, and they hardly addressed whether the rules was properly heard.

  16. When judges vote Democrat or Republican on legal cases the court system is seriously broken. Whatever happened to impartial rule of law in the USA. Perhaps they have learned their impartiality from the BBC?

    • Obama appointed approximately 40 percent of sitting Federal Judges, according to a report I saw the other day.

      Trump supposedly will have the opportunity to appoint around 100 Federal Judges during his first term.

      It would be very good to get one or two more conservatives like Gorsuch on the Supreme Court. Kennedy is again hinting at retiring. A conservative Supreme Court will help to offset Liberal Federal Judges in the Lower Courts.

      The rulings some of the Liberal Federal Judges have made regarding Trump’s immigration ban are a travesty. The law plainly says the president has the power and authority to prevent any alien from entering the U.S. at any time, for *any* reason, and at the president’s *sole* discretion. There are no qualifiers in this law. But somehow some Liberal Federal Judges claim to have found qualifiers.

      And although the Surpreme Court ruled in Trump’s favor 9-0 on this issue, they stuck in qualifiers themselves which are not in the U.S. Constitution. The U.S. Supreme Court should stick to interpreting the law instead of creating new laws out of thin air.

      I don’t know if this case will actually be heard by the Supreme Court in October as scheduled (a hearing may be unnecessary by then), but if it is, they should rule in Trump’s favor 9-0 again, but without the qualifiers.

      The president is the final authority on this issue. The Supreme Court should affirm that and throw out the Lower Court rulings.

      • Everything would be pretty much screwed up now and in the future, if Hillary had been elected. The Swamp would have their Champion, and the little guy can get used to being a second-class citizen.

  17. I used to dismiss talk of “deep state” corruption working to end the rule of law by interfering with President Trump. I don’t dismiss the idea so much anymore.

  18. As I recall, there has been and still is a question as to the Constitutionality of these rule makings. Now, if Congress had 90 day to approve the rule or it is a nullity, that would be a helluva lot better. The old Chevron rule is up for reconsideration; maybe, we will inch our way back to rationality.

  19. A first solution would be for Scott Pruitt to assign an office staff of 1 to enforce these regulations. That might slow things down a bit

  20. If the EPA made the rule it can unmake the rule too. Of course the EPA and every other government agency that makes rules that haven’t been explicitly reviewed and approved by Congress and the President are violating the Constitution, but that’s another matter.

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