On December 11, 2012, a group of seven states led by New York Attorney General Eric T. Schneidermann notified the U.S. Environmental Protection Agency (EPA) of their intent to sue the agency. The states–Connecticut, Delaware, Maryland, Massachusetts, New York, Rhode Island, and Vermont–claim that EPA failed to address methane emissions standards for the oil and gas industry in a timely manner, as required by the Clean Air Act. Notably, states that are more active with respect to shale development in the Utica and Marcellus regions (such as Pennsylvania, Ohio, and West Virginia) are not part of this proposed suit.
The Clean Air Act requires EPA to establish emissions standards for new, modified, and existing stationary sources in many industries, including the oil and gas industry (a category into which hydraulic fracturing operations fall). Every eight years, EPA must also revisit any existing standards, determine whether they are “appropriate,” and decide whether revised standards are warranted. Earlier this year, EPA promulgated new oil and gas industry emissions standards for several different pollutants, and we provided a summary of those new standards on two occasions. However, the states argue that EPA failed to make a timely appropriateness determination for methane, and is unreasonably delaying doing so. As a result, according to the coalition’s notice of intent to sue, EPA is in violation of the Clean Air Act’s mandatory and non-discretionary requirements.
Under section 304 of the Clean Air Act, the states cannot file their suit until sixty days after providing EPA of their notice of intent to sue the agency. The primary purpose of this mechanism is to provide the parties with a reasonable time to resolve the allegations. Should EPA fail to act before the sixty-day period expires, or if the parties are unable to resolve their issues, the states plan to file suit in U.S. District Court.
A press release from the New York Attorney General summarizing the notice of intent to sue can be found here. This blog will provide additional updates on this issue if the states file suit after the 60-day notice period expires.