Alabama has joined several other states in a petition filed with the U.S. Court of Appeals for the D.C. Circuit seeking to challenge the Environmental Protection Agency’s final rule regulating emissions standards for certain oil and gas operations. (AG’s Press Release).  This challenge is apparently intended not only to address concerns about the rule for new and expanded projects, but also the potential that the rule will be extended to cover existing oil and gas operations.  The challenge is led by West Virginia, and a copy of the Petition as filed with the D.C. Circuit can be found at the West Virginia’s General Attorney’s office website.  (Petition).

The challenged rule was adopted in three parts in May, as generally outlined by EPA on the Agency’s website. (EPA).  It focuses primarily on emissions from oil and gas production operations due to leaks and uncontrolled emissions particularly as a result of failure to properly operate or maintain pumps, seals, and gaskets associated with production equipment.  The EPA action was taken under the Clean Air Act, Section 111(b).  However, a part of the concern of the various states involves the potential for extending the regulation to existing operations under Section 111(d) of the CAA.  In the past, federal courts have held that EPA may not impose regulations on existing operations under parts of the Clean Air Act without first applying similar regulations to new activities.  Thus, it has become EPA’s recent practice to develop regulations for new operations of various types, and once regulatory challenges are resolved, to extend those same or similar regulations to existing operations.

For their part, the several Attorneys General involved have expressed the view that the regulations are unnecessary because new and existing operations are already moving to prevent emissions problems as a part of improved efficiencies and leak capture equipment.

The Petition was filed with the D.C. Circuit on August 2. Following initial pleadings the Court is expected to issue a briefing scheduling.

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