If you are a conventional or unconventional oil and gas operator in Pennsylvania, you have likely received a recent letter from DEP requiring, for the first time, reporting of your greenhouse gas (GHG) emissions. In requiring GHG reporting, DEP may be exceeding its statutory and regulatory authority. Oil and gas operators may wish to explore their options in responding to the letter, which could include a legal challenge, responding with the requested information but with a reservation of rights to object to DEP’s authority in the future, or other action/inaction. If a legal challenge is considered, it must be brought within 30 days of the date of the operator’s receipt of the letter
On December 31, 2012, the Pennsylvania Department of Environmental Protection (DEP) sent a letter (the "December 31 Letter") to conventional and unconventional oil and gas operators regarding 2012 Source Reports. In this letter, DEP identified as "new for reporting year 2012," mandatory reporting of GHGs (CO2, CH4 and N2O) (the "Mandatory GHG Reporting").
As recently as November 2012, the DEP has admitted in a letter to Kids v. Global Warming and Ashley Funk re Petition for Rulemaking: Promulgation of Rule to Regulate Fossil Fuel Carbon Dioxide (the Funk Letter) that its sole authority for GHG reporting and inventory requirements is under the Pennsylvania Climate Change Act (Act 70 of 2008) (the "Climate Change Act"). The Climate Change Act only requires voluntary GHG reporting.
It is a complete contradiction for DEP to argue in the Funk Letter that it lacks authority to require mandatory GHG reporting, and then nearly simultaneously issue the December 31 Letter demanding mandatory GHG reporting.
If you wish to review your options, our environmental attorneys are available to discuss them with you.