American Oil and Gas Reporter - July 2022 - 12

IndustryDigest
U.S. Supreme Court
Rules EPA Cannot
Control U.S. Power Mix
WASHINGTON-The U.S.
Environmental Protection Agency's
ability to oversee air quality does not
extend to the country's power
generation mix, the U.S. Supreme
Court ruled on June 30 in West Virginia
v. EPA. If Congress wants to give EPA
power to shutter coal-fired power
plants through regulation, the high
court's majority opinion holds, its
statutory authorization must be clearer
than the language in Section 111(d) of
the Clean Air Act.
" Capping carbon dioxide emissions
at a level that will force a nationwide
transition away from the use of coal to
generate electricity may be a sensible
'solution to the crisis of the day,' " the
ruling allows. " But it is not plausible
that Congress gave EPA the authority to
adopt on its own such a regulatory
scheme in Section 111(d). A decision of
such magnitude and consequence rests
with Congress itself, or an agency
acting pursuant to a clear delegation
from that representative body. "
According to the ruling, the agency
acknowledged asserting such authority
when it explained that using control
technologies to limit emissions does not
adequately limit carbon dioxide
emissions. " Instead, to attain the
necessary 'critical CO2 reductions,' EPA
adopted what it called a 'broader,
forward-thinking approach to the design'
of Section 111 regulations,' " the decision
details. " Rather than focus on improving
the performance of individual sources, it
would 'improve the overall power
system by lowering the carbon intensity
of power generation.'
" And it would do that by forcing a
shift throughout the power grid from one
type of energy source to another, " the
ruling continues. " In the words of the
then-EPA Administrator, the rule was
'not about pollution control' so much as
it was 'an investment opportunity' for
states, especially 'investments in
renewables and clean energy.' "
The policymaking involved in
weighing and choosing such trade-offs
belongs to Congress, the ruling finds.
" Congress certainly has not conferred a
like authority upon EPA anywhere else
in the CAA, " the ruling states. " The last
place one would expect to find it is in
12 THE AMERICAN OIL & GAS REPORTER
the previously little-used backwater of
Section 111(d). "
Numerous oil and gas representatives,
including the Kansas Independent Oil &
Gas Association and the Petroleum
Association of Wyoming, laud the ruling.
" While the oil and natural gas industry
is continually improving operations and
reducing emissions, we believe any
federal regulatory framework must be
based in legal authority granted by an act
of Congress, " PAW comments. " The
legislative branch has long abdicated its
duty in passing coherent, meaningful
legislation that addresses the most
pressing issues of the day. That has
opened a void allowing unelected
bureaucrats to consolidate decisionmaking
power. Today's Supreme Court
ruling is a welcome rebuke of that trend
and a step in the right direction to rein in
unwieldy agency rules made by those
who do not answer to the people. "
According to KIOGA, the ruling
" makes it much more difficult for the
Biden EPA, or any future administration,
to order sweeping environmental changes
without congressional approval. The
eight-year saga of the Clean Power Plan,
and its threat to destroy the American
economy, is now over. The demise of the
CPP not only means that the energy grid
will remain reliable for the foreseeable
future, but also that federal government
agencies will think twice before taking
regulatory actions that are not specifically
authorized by legislation. "
Since the ruling, President Biden has
promised to continue fighting climate
change. " I will take action, " a White
House statement vows. " My
administration will continue using
lawful executive authority, including the
EPA's legally-upheld authorities, to
keep our air clean, protect public health,
and tackle the climate crisis. We will
work with states and cities to pass and
uphold laws that protect their citizens.
And we will keep pushing for additional
congressional action, so that Americans
can fully seize the economic
opportunities, cost-saving benefits, and
security of a clean energy future. " ❒
Federal Appeals Court
Nixes Well Stimulations
Off California Coast
SAN FRANCISCO-A federal
appeals court in early June forbade the
federal government from permitting
stimulation treatments in wells off the
California coast.
In The Environmental Defense
Center et. al. v. Bureau of Ocean
Energy Management et al., the U.S.
Court of Appeals for the 9th Circuit
ruled that federal regulators violated the
National Environmental Policy Act,
Endangered Species Act and Coastal
Zone Management Act because the
government's environmental assessment
allowed hydraulic fracturing and other
completion techniques on 43 active
leases and 23 operating platforms in the
Pacific Outer Continental Shelf.
According to court documents, the
case grew out Freedom of Information
Act requests environmental groups made
to BOEM and the Bureau of Safety and
Environmental Enforcement because the
litigants suspected the agencies had
issued permits for offshore well
stimulation treatments without adequate
environmental review. " Pursuant to
settlements between the environmental
groups and the federal agencies-BOEM
and BSEE-the agencies issued an
environmental assessment evaluating the
use of offshore well simulation
treatments and did not prepare a full
environmental impact statement, " the
court's opinion says.
The agencies concluded that such
well treatments would not pose a
significant environmental impact and
issued a finding of no significant impact
(FONSI), the ruling explains. " Based on
the analysis in the programmatic EA, the
agencies determined that the proposed
action of allowing well stimulation
treatments without restriction 'would not
cause any significant impacts' and
accordingly, the federal agencies issued
a FONSI, which concluded the NEPA
environmental review process, " the
ruling details. " The agencies did not
consult with the U.S. Fish and Wildlife
Service or the National Marine Fisheries
Service pursuant to the ESA before
issuing their final EA and FONSI, nor
did they review the proposed action in
the EA for consistency with California's
coastal management program pursuant
to the CZMA. "
Press accounts note that the ruling
upholds a 2018 district court ruling that
the EA used by BOEM and BSEE
violated NEPA and ESA. Although the
9th Circuit decision concurs with that
aspect of the ruling, the appeals court
also faults federal regulators' adherence
to CMZA. ❒
American Oil and Gas Reporter - July 2022

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