Environmental Groups Petition EPA to Regulate Air Emissions from Oil and Gas Production and Fracking in Urban Areas

On Tuesday, May 13, 2014, a coalition of environmental organizations led by EarthJustice submitted a Petition to the United States Environmental Protection Agency calling for the regulation of air emissions associated with oil and gas wells, particularly fracking, under the federal Clean Air Act. The environmental groups allege that toxic pollutants emitted by these operations present health risks and that such health risks are increasing as fracking operations move closer to urbanized communities.

Due to the alleged risk to public health, the environmental groups:

urgently request[] EPA to exercise its authority under the Clean Air Act to list oil and gas wells (and associated equipment) located in the appropriate geographical areas as area sources, and set limits on hazardous air pollutant emissions from oil and gas wells and associated equipment in accordance with 42 U.S.C. §§ 7412(c), (d), (k), and (n)(4)(B).

The Petition also argues that EPA “has a responsibility under the Clean Air Act to protect people from the toxic air emissions [from oil and gas operations] nationwide, and under section 112(n)(4)B) it must do so.”

The Petition requests that EPA take two specific actions pursuant to the Clean Air Act:

1. Exercise its authority provided by the area source program of the Clean Air Act by listing oil and gas production wells (including fracking activities) as an area source. The Petition argues that the Clean Air allows regulation of “hazardous air pollutants from area sources [that] may individually, or in the aggregate, present significant risks to public health in urban areas,” that oil and gas activities can be properly classified as area sources, and that the Act provides authority to designate such area sources in metropolitan statistical areas (and/or consolidated metropolitan statistical areas) with a population in excess of one million; and
    
2. Set emissions standards for oil and gas production wells (and associated equipment) within the newly listed area source category in accordance with 42 U.S.C. §§ 7412(c)(2), 7412(d)(2)-(3), and 7412(k), that would require implementation of the “maximum achievable” degree of emission reduction.

Under the Clean Air Act, EPA is required to respond to the Petition. Although the Petition seeks a response within 180 days, the Clean Air Act imposes no specific deadline for EPA action.

There will almost certainly be future litigation over the issues raised in the Petition. The environmental groups that filed the Petition may sue EPA if the petition is denied, or if the Agency fails to act in response to the Petition. Alternatively, if EPA moves forward with some type of regulation of oil and gas production and fracking under the Clean Air Act, litigation would likely be brought by either environmental groups (claiming that the regulations are inadequate to protect human health), industry groups (challenging the basis and scope of any regulation of these activities), or both.

A copy of the petition is available here.

-- Tom Boer

For more information, contact Tom Boer at jtb@bcltlaw.com, or (415) 228-5413.