In a May 12th letter, thirteen state attorneys general warned the EPA not to negotiate with seven Northeastern states on the subject of potential federal regulation of methane emissions from oil and gas operations, including those employing hydraulic fracturing. The states argue in their letter that the threatened lawsuit is without merit, and that any negotiations should include states that “actually have oil and gas operations and facilities.”

The Northeastern states filed a notice of intent to sue on December 12th, 2012 for an alleged violation of Section 111 of the Clean Air Act, arguing that EPA was required to complete a thorough review of air quality criteria and issue a decision on methane regulation at the end of that review process. These states further contended that the eight-year review period in the New Source Performance Standards (NSPS) required EPA to review new pollutants such as methane, which they argue endanger public health but have not been previously regulated.

The notice of intent filed by the Northeastern states also expressed a desire to engage the EPA in settlement negotiations in the hope of avoiding litigation. This has generated allegations that the Northeastern states are engaged in a strategy of “sue and settle,” in which the EPA will enter negotiations in order to exclude certain interested parties from discussions that could have wide-ranging and binding impacts on these parties’ operations without their participation.

The thirteen states also specified in their letter reasons that methane emissions from oil and gas operations should be excluded from regulation under the NSPS program. They asserted that estimates of methane emissions from the sector have been widely found to be exaggerated, that a review under the CAA need not be conducted where information on the efficacy of the standard is not readily available, and that methane emissions are adequately regulated by existing regulations.

The seven Northeastern states that filed the December notice of intent to sue are Connecticut, Delaware, Maryland, Massachusetts, New York, Rhode Island, and Vermont. The 13 states that warned the EPA not to engage in negotiations with the northeastern states are Alabama, Arizona, Indiana, Kansas, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Dakota, Texas, West Virginia, and Wyoming.

With assistance from Andrew McNamee