This post provides an important update to our April 20, 2017 post regarding U.S. EPA’s reconsideration of its rule regulating methane emissions from the oil and gas industry (“NSPS OOOOa”).
On June 5, 2017, EPA published a notice of reconsideration and partial stay of NSPS OOOOa. Specifically, EPA stayed the effectiveness of the fugitive emissions requirements, the standards for pneumatic pumps at well sites, and the professional engineer certification requirements for 90 days, effective June 2, 2017, pending EPA’s reconsideration of the final rule. Shortly after EPA published the notice, six environmental groups filed an emergency motion in the Court of Appeals for the D.C. Circuit requesting that EPA’s stay be vacated. The Court granted the motion and issued an order vacating EPA’s stay of the final rule.
In reaching its decision, the Court first determined that it had jurisdiction to hear the case. The Court held that EPA’s stay was a final agency action and, as such, is reviewable by the Court. The Court also noted that its authority to review EPA’s stay of the final rule is a logical extension of its authority to stay a final rule pursuant to CAA section 307(d)(7)(B).
The Court then turned to its review of EPA’s 90-day stay and held that the stay was unauthorized under CAA § 307(d)(7)(B). The Court explained that EPA is bound by NSPS OOOOa “until that rule is amended or revoked and may not alter [the] rule without notice and comment.” The Court equated the stay, which was issued without notice and comment, to an amendment of the final rule and, because reconsideration of NSPS OOOOa was not mandatory, the Court vacated EPA’s stay of the rule as arbitrary and capricious.
While the Court’s order reinstates the effectiveness of the stayed provisions, those same provisions may soon be stayed again. On June 16, 2017, EPA published a proposed rule that would stay the fugitive emissions requirements, pneumatic pump standards, and professional engineer certification requirements for 2 years. Comments on the proposed 2-year stay are due by July 17, 2017.