[Congressional Record Volume 167, Number 73 (Wednesday, April 28, 2021)]
[Senate]
[Pages S2285-S2286]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
S.J. RES. 14
Mr. HEINRICH. Madam President, I ask unanimous consent that a letter
from attorneys general of New York, California, Colorado, Connecticut,
Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan,
Minnesota, New Jersey, New Mexico, North Carolina, Oregon,
Pennsylvania, Rhode Island, Vermont, Washington, and the District of
Columbia, and the chief legal officers of Chicago and Denver on the
importance of passing this resolution be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
April 26, 2021.
Re Senate Joint Resolution 14/House Joint Resolution 34--
Disapproval of Environmental Protection Agency Rule
Rescinding Methane Regulation.
Hon. Charles Schumer,
Senate Majority Leader,
Washington, DC.
Hon. Nancy Pelosi,
Speaker of the House,
Washington, DC.
Hon. Mitch McConnell
Senate Minority Leader,
Washington, DC.
Hon. Kevin McCarthy,
House Minority Leader,
Washington, DC.
Dear Senator Schumer, Senator McConnell, Speaker Pelosi,
and Representative McCarthy: The Attorneys General of New
York, California, Colorado, Connecticut, Delaware, Illinois,
Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota,
New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania,
Rhode Island, Vermont, Washington, and the District of
Columbia, and the chief legal officers of Chicago and Denver
support using the Congressional Review Act (CRA) to
invalidate a regulation of the Environmental Protection
Agency (EPA) that eliminated important limits on air
pollution from oil and gas facilities, 85 Fed. Reg. 57,018
(Sept. 14, 2020) (Rescission Rule). Because that rule is
legally flawed and would significantly increase pollution
that harms our residents and natural resources, using the CRA
to expeditiously nullify the rule is justified. Restoring the
prior regulation will ensure that new oil and gas facilities
apply common sense, cost-effective measures to control
emissions of methane and volatile organic compounds (VOCs),
and facilitate state efforts to limit pollution from existing
oil and gas facilities.
methane and vocs emitted by oil and gas facilities
Methane is a potent greenhouse gas that is responsible for
about a quarter of the global warming we are experiencing
today. Oil and natural gas facilities are the single largest
industrial source of methane emissions. Methane emissions
from oil and gas sources are harming the States and our
residents by significantly contributing to climate change.
Our States are experiencing substantial injuries from climate
change, including property damage and hazards to human safety
associated with sea level rise and increased severity of
storms and flooding; increased deaths and illnesses due to
intensified and prolonged heat waves; harms to lives and
property caused by increased frequency and duration of
wildfires; and damage to public health--particularly among
our children, elderly, and those with lung ailments--due to
local air pollution exacerbated by hotter temperatures. These
injuries are often most severe in low-income communities and
communities of color. Scientists have found that substantial
reductions in global methane emissions this decade is
critical if we are to have a realistic chance of avoiding
catastrophic effects from climate change.
Oil and gas facilities are also a substantial source of
VOCs, a primary component of ground-level ozone (smog).
Several of our States experience persistent and widespread
unhealthy levels of smog, which EPA has found results in
numerous harms to public health, including triggering asthma
attacks and even premature death. The States' smog problems
are often substantially caused or exacerbated by the
transport of smog precursors, such as VOCs, from emission
sources located upwind. More than 9 million people live
within a half mile of an existing oil or gas well, including
approximately 600,000 children under the age of five and 1.4
million over 65, groups that are especially sensitive to the
health risks posed by ozone and other local air pollution.
the rescission rule
The Rescission Rule eliminated methane emission standards
for new (including modified and reconstructed) oil and gas
facilities1 that EPA issued four years earlier pursuant to
section 111(b) of the Clean Air Act. See 40 C.F.R. part 60,
subpart OOOOa, 81 Fed. Reg. 35,824 (June 3, 2016). Through
common sense, cost-effective approaches such as more
efficient technology and leak detection and repair, the 2016
rule secured important reductions of methane and VOC
pollution. EPA sensibly required that the emission standards
apply to similar equipment used in the production,
processing, and transmission and storage segments, i.e., up
to the point that natural gas is delivered for distribution
to businesses and consumers. In sum, the 2016 rule helped to
prevent and mitigate significant harms to public health and
the environment while increasing the efficiency of natural
gas operations.
Despite these substantial public health, environmental, and
economic benefits, the Trump EPA nonetheless promulgated the
Rescission Rule, which repealed the requirements that
directly targeted methane emissions at new facilities. The
Rescission Rule also eliminated pollution abatement
requirements for methane and VOCs emitted by facilities
engaged in the transmission and storage of natural gas,
despite the fact that this segment uses some of the same
equipment (e.g., compressors, pneumatic pumps) as production
and processing facilities. EPA acknowledged that the
Rescission Rule would result in increased pollution emissions
from new facilities, including 448,000 more tons of
[[Page S2286]]
methane, 12,000 more tons of VOCs, and 400 more tons of
hazardous air pollutants by 2030. 85 Fed. Reg. at 57,065.
EPA also included in the Rescission Rule a new hurdle for
limiting pollution under section 111(b) of the Clean Air Act:
to adopt emission limits on any additional pollutant for
sources already regulated under section 111(b), EPA must make
a pollutant-specific ``significant contribution'' finding.
See 85 Fed. Reg. at 57,019. This new obstacle contravenes
EPA's longstanding position that the agency may require
emission limits for other pollutants from already-listed
sources provided it demonstrates a rational basis for doing
so, and creates an unjustified roadblock making it more
difficult for EPA to carry out its mission to protect public
health and the environment. The D.C. Circuit Court of Appeals
recently vacated a related EPA rule that sought to implement
EPA's new significant contribution finding requirement,
further undermining this theory.
As noted above, the Rescission Rule would result in
significant increases in emissions from new oil and gas
facilities. These pollution increases are just part of the
story, however, because the rule also blocks Clean Air Act
regulation of existing oil and gas facilities--facilities
that collectively emit substantial amounts of methane
pollution. Under the Clean Air Act, there must be pollutant
emission standards in effect for new facilities under section
111(b) of the Act to trigger the requirement under section
111(d) of the Act for EPA to promulgate emission guidelines
that facilitate states' developing plans that limit emissions
of the same pollutant from existing facilities.
EPA is required under its regulations to issue existing
source emission guidelines ``upon or after promulgation'' of
standards for new facilities, 40 C.F.R. 60.22a(a). Although
EPA did not issue the guidelines in 2016 when it finalized
the previous new source rule, it began work that year to
``swiftly'' develop guidelines to limit methane emissions
from existing sources. That work ground to a halt shortly
after the Trump Administration took office, leading a group
of our States to sue EPA in on the grounds that it had
unreasonably delayed issuance of the emission guidelines, New
York v. EPA (D.D.C. No. 18-773). In that litigation, EPA
contended that it could not be compelled to issue the
guidelines because it was in the process of eliminating its
statutory obligation to regulate methane from existing
sources, a process that culminated in the Rescission Rule.
Significantly, the Rescission Rule was opposed by a wide
range of stakeholders, from independent domestic companies
such as Jonah Energy and Pioneer Natural Resources to the
largest oil and gas companies such as BP, Shell, and
ExxonMobil. These industry leaders support the direct
regulation of methane from oil and natural gas facilities
because it is the right thing to do for the environment,
will lead to consistent regulation across the U.S., and
can be cost-effectively achieved.
The Disapproval Resolutions
Pursuant to the CRA, enacting the disapproval resolutions,
once signed by the President, results in the subject rule
``being treated as though such rule had never taken effect.''
5 U.S.C. 801(f). Here, by restoring the 2016 rule's emission
standards for new facilities and paving the way for EPA to
facilitate state regulation of methane from existing
facilities, passing the disapproval resolutions under the CRA
would result in substantial public health, environmental, and
economic benefits. According to EPA, the 2016 rule was
expected to reduce 510,000 tons of methane, 210,000 tons of
VOCs, and 3,900 tons of hazardous air pollutants in 2025
alone. 81 Fed. Reg. at 35,827. Between the health benefits of
the 2016 rule and the increased revenues that operators would
realize from recovering natural gas that would otherwise be
released, EPA determined that the 2016 rule would result in a
net benefit of $170 million in 2025. Id. at 35,827-28.
Enacting the disapproval resolutions would also help EPA
promptly fulfill its obligation to develop emission
guidelines that states can use to craft plans to limit
methane from existing sources. Had EPA continued on the path
it began in 2016, those guidelines would have been issued
some time ago and states would now be implementing them.
Although Congress cannot turn back the clock, it can take
action now that gives EPA clear direction to promptly
discharge its overdue statutory duty to limit emissions from
these existing, polluting facilities.
Finally, passing the disapproval resolutions would not risk
invalidating any subsequent regulations pursuant to the CRA's
``substantially the same'' language. See 5 U.S.C. 801(b)(2)
(prohibiting a ``new rule that is substantially the same as
the [disapproved] rule'' unless specifically authorized by
Congress). The Trump EPA acknowledged that the Rescission
Rule is a ``deregulatory action.'' 85 Fed. Reg. at 57,067. As
discussed above, it (1) eliminates direct regulation of
methane from new facilities (removing the predicate for state
regulation of existing facilities pursuant to section 111(d)
of the Clean Air Act), (2) repeals methane and VOC limits on
new facilities in the transmission and storage sector, and
(3) creates a new legal requirement for EPA to regulate
additional pollutants from already-listed source categories
under section 111.
Disapproving the Rescission Rule thus would restore the
provisions in the 2016 rule that directly regulated methane
and VOCs from sources in the transmission and storage sector,
and would reinstate EPA's legal interpretation permitting
regulation of additional pollutants from already-listed
sources. Accordingly, disapproval of the rule would not stand
in the way of EPA using its statutory authority in the future
to promulgate more protective standards for new facilities
under section 111(b) of the Clean Air Act and more protective
emission guidelines for existing facilities under its section
111(d). Indeed, it would be absurd to contend that a CRA
resolution disapproving a purely ``deregulatory action''
would bar a protective future regulation under the statute's
``substantially the same'' language.
We urge the Senate and the House to promptly pass the CRA
resolutions disapproving the Rescission Rule. Thank you for
your consideration of this important matter.
Sincerely,
Letitia James, Attorney General of New York; Matthew
Rodriquez, Acting Attorney General of California; Philip J.
Weiser, Attorney General of Colorado; William Tong, Attorney
General of Connecticut; Kathleen Jennings, Attorney General
of Delaware; Kwame Raoul, Attorney General of Illinois; Tom
Miller, Attorney General of Iowa; Aaron M. Frey, Attorney
General of Maine; Brian E. Frosh, Attorney General of
Maryland; Maura Healey, Attorney General of Massachusetts;
Dana Nessel, Attorney General of Michigan; Keith Ellison,
Attorney General of Minnesota; Gurbir S. Grewal, Attorney
General of New Jersey.
Hector Balderas, Attorney General of New Mexico; Josh
Stein, Attorney General of North Carolina; Ellen Rosenblum,
Attorney General of Oregon; Josh Shapiro, Attorney General of
Pennsylvania; Peter Neronha, Attorney General of Rhode
Island; T.J. Donovan, Attorney General of Vermont; Bob
Ferguson, Attorney General of Washington; Karl Racine,
Attorney General for the District of Columbia; Celia Meza,
Acting Corporation Counsel for the City of Chicago; Kristin
M. Bronson, Attorney for the City and County of Denver.
____________________