Under the Clean Air Act, a facility that emits air pollutants may not be constructed unless an air permit has been issued to the facility. For decades, EPA has interpreted the statute to prohibit almost any construction or modification activities until a permitting authority issues a final permit. But on March 25, 2020, EPA proposed new guidance to clarify that, according to regulations adopted 40 years ago, the only construction prohibited prior to issuance of an air permit is construction on the emitting unit itself. If adopted by state permitting authorities, this guidance should provide companies, such as pipeline project proponents, with more flexibility by allowing more construction activities pre-permit. That said, project proponents should carefully consider the risks associated with initiating construction prior to receiving an air permit.

Continue Reading EPA Shifts Policy on Construction Prior to an Air Permit

By Margaret Campbell & Mack McGuffey on July 6, 2017

The DC Circuit issued a decision on July 3, 2017, vacating the 90-day stay of the Oil & Gas Industry NSPS rules – the first rules to regulate methane from that sector.  In a June 5 Federal Register notice, the new Trump EPA stayed the rules pending reconsideration under Section 307(d) of the Clean Air Act.  Environmental Groups filed an emergency challenge to the stay, asking for either a stay of that decision or summary vacatur of it.  Issuing its decision less than a month later, the court vacated EPA’s stay of the rules.


Continue Reading DC Circuit Vacates EPA Stay of Oil & Gas Rule

In an April 18, 2017 letter, EPA Administrator Scott Pruitt stated that the Agency will reconsider final rules governing new sources of methane emissions from the oil and gas industry. This decision was prompted by issues raised in petitions for reconsideration filed by a number of groups—including API and the Texas Oil and Gas Association—concerning EPA’s final rule amending the oil and natural gas sector New Source Performance Standards (NSPS) (the Final Rule), which was published on June 3, 2016 and became effective August 2, 2016. Under Clean Air Act Section 307(d)(7)(B), the Agency must convene a proceeding if a petition for reconsideration raises issues that are of central relevance to the rule and arose after the public comment period closed or were impracticable to raise during the public comment period.
Continue Reading EPA Reconsiders and Stays Compliance with Oil and Gas Methane Rule