EPA’s Attempt to Regulate Methane Emissions
By David Woodsmall, Staff Contributor
On January 14, the Environmental Protection Agency announced a landmark decision to directly regulate methane emissions from new and modified oil and natural gas wells as part of a larger, cross-agency effort to reduce methane emissions.  Regulating methane emission from oil and gas wells has the potential to significantly reduce greenhouse gas emissions, especially if EPA passes a robust rule and promulgates a regulation for existing wells under section 111(b) of the Clean Air Act. Methane emissions, which constitute 9% of greenhouse gas emissions from human activity, impact the climate twenty times greater than carbon dioxide over a 100-year period. The 40-45% decrease in methane emissions from current levels, which the administration hopes to achieve by 2025, could have a significant climate impact.
The 40-45% reduction goal will be achieved only if EPA passes a stringent regulation, paired with the Agency and states ensuring compliance with the rule. This could present a problem.
“Regulations covering oil and gas wells are difficult to enforce due to the sheer number of wells and their geographic dispersal over vast swaths of land. There are currently over 1.1 million active oil and gas wells in the United States.”
Last year, the Bureau of Land Management issued over 3,700 additional permits for drilling on federal land and over 2,500 new wells were drilled. Consequently, even a federal regulation covering new and modified wells will place tens of thousands of wells under federal regulatory authority in the coming years. A rule governing emissions from existing wells would extend that authority to over a million more wells.
In light of recent budget cuts stemming from a congressional republican assault on EPA, it is unlikely that the federal government will be able to effectively regulate methane emissions without state environmental agencies assuming the bulk of the enforcement effort. In fact, a 2014 report from the Government Accountability Office found that EPA currently lacks the necessary resources to enforce some of its current oil and gas well regulations.
“In the current political climate, EPA cannot expect an influx of funds to enforce a methane emission rule.”
EPA may struggle to garner the state cooperation necessary to enforce the methane rule. State governors have shown a recent resolve to prevent implementation of EPA regulations they do not like. Missouri, Michigan, and Virginia recently passed legislation barring state enforcement of a new EPA rule governing air emissions from wood-burning heaters. Similar legislation is pending before three other states.
The aim of this state-level dissent is to use the states’ position as primary enforcer of federal regulations to send EPA a message—abandon the new rule or find federal funds to enforce the regulation, because we will not do it for you.
“This type of “uncooperative federalism” threatens to derail federal efforts to curb methane emissions from the oil and gas industry.”
Uncooperative federalism refers to states leveraging the federal government’s reliance on state governments as enforcer of federal regulations to resist and change federal policy. Because the federal government cannot compel the states to administer federal regulations, states are able to influence national policy by refusing to implement federal rules they do not like. This is particularly powerful with agencies such as EPA, who heavily rely on states to enforce their regulatory scheme due to funding constraints.
If EPA is unable to garner robust state cooperate in enforcing its methane rule, the regulation will likely be ineffective in significantly reducing methane emissions or will force EPA to water down the standard to a level palatable to oil and gas friendly states. Recent state efforts to regulate oil and gas wells, or lack thereof, does not bode well for EPA. If oil and gas friendly states refuse to cooperate with EPA and implement and enforce the Agency’s methane rule for oil and gas wells, as some have done with the Agency’s recent wood-burning stove rule, the future will be grim for federal efforts to curb methane emissions—and global warming.
 Andrew Childress, EPA Will Regulate Methane from New Oil, Gas Wells as Part of White House Strategy, Bloomberg BNA (Jan 15, 2015), http://www.bna.com/epa-regulate-methane-n17179922122/.
 Overview of Greenhouse Gases, EPA (July 2, 2014), http://epa.gov/climatechange/ghgemissions/gases/ch4.html.
 Matt Kelso, Over 1.1 Million Active Oil and Gas Wells in the US, FrackTracker Alliance (Mar. 4, 2014), http://www.fractracker.org/2014/03/active-gas-and-oil-wells-in-us/.
 Bureau of Land Management, Number of Permits Approved By Fiscal Year on Federal Lands (2014); Bureau of Land Management, Number of Well Bores Started (Spud) During the Fiscal Year on Federal Lands (2014).
 Coral Davenport, EPA Funding Reductions Have Kneecapped Environmental Enforcement, National Journal (Mar. 3, 2013), http://www.nationaljournal.com/daily/epa-funding-reductions-have-kneecapped-environmental-enforcement-20130303
 Associated Press, Missouri, Michigan Defy EPA Standards; Other States May Follow, Olean Times Herald (Mar. 9, 2015, 12:51 PM), http://www.oleantimesherald.com/news/article_fe82ec28-c612-11e4-ad0e-2f836e0f092f.html.
 Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 Yale L.J. 1256, 1263-64 (2009).
 Id. at 1259; New York v. United States, 505 U.S. 144, 188 (1992).
 See Deborah Sontag & Robert Gebeloff, The Downside of the Boom, N.Y. Times (Nov. 22, 2014), http://www.nytimes.com/interactive/2014/11/23/us/north-dakota-oil-boom-downside.html.