Methane Response Program ‘Foreshadows’ Hyper-Local Monitoring

A proposed EPA program to allow third-party emissions tracking at methane leak sites is a test case for citizen air monitoring, and could preview challenges to community efforts from the oil and gas industry.

Moves to measure methane from oil and gas sources and hyper-local air monitoring programs are separate actions with different scopes, but their use of third parties to provide data that industry must potentially act on is a common thread that will continue to gain traction.

“This is going to foreshadow future similar types of developments,” said Peter Hsiao, partner at King & Spalding LLP’s West Coast environmental practice.

The Environmental Protection Agency introduced plans for a Super Emitter Response Program under a supplemental proposal for methane rules released in November. The program would rely, in part, on approved parties outside the agency to monitor and disseminate data on methane leaks.

Under the program, qualified third parties will notify the EPA and operators if a super-emitting event happens at a facility. An event with emissions of 100 kilograms of methane per hour or larger would trigger the program, according to the agency.

The program targets sources in the oil and natural gas industry, such as leaks from wells, storage sites, and flaring actions. The oil and gas sector is the highest U.S. source of methane, which is a climate pollutant 80 times more potent than carbon dioxide.

Having more data helps to show violations, but it complements industry interests as well, according to Hsiao.

“It’s also beneficial to show compliance, and to demonstrate to the community that the facility is being operated in a manner that complies with all applicable law,” Hsiao said. “So community monitoring is not per se, I would say, good or bad for industry. It’s a little bit of both.”

Similarly, EPA is advancing efforts to bolster air monitoring at the community level.

More than 100 community projects to monitor air emissions were granted EPA funds last year, the biggest investment of its kind in agency history.

The EPA has made hyper-local and community air monitoring a funding priority, and its plans for methane monitoring is another dimension of the “rapidly changing” trend around science and regulation, according to King & Spalding partner Doug Henderson.

“It’s almost like ‘citizen science’ has become ‘citizen regulators,’” he told Bloomberg Law.

Green groups hailed both the air monitoring and methane programs, which would allow areas neighboring facilities to have more control and awareness over what’s in the air.

“Data is like the baseline for the Clean Air Act, and if you don’t have that, then communities don’t get the protections they deserve,” Earthjustice senior legislative representative Terry McGuire said.

Industry Pushback

The Super Emitter Response Program “would leverage expertise and data from regulatory agencies or EPA-approved qualified third parties with access to EPA-approved remote methane detection technology,” according to the agency.

But depending on how the emissions program is rebuked by industry, community air monitoring could face similar challenges from groups critical of third-party monitoring. And groups are already coming forward with their concerns.

At a press call for the American Petroleum Institute last month, Frank Macchiarola, senior vice president of policy, economics and regulatory affairs, expressed “legal, logistical, commercial, safety, and security risks” associated with the program’s implementation.

He told reporters the program could have a “chilling effect” on industry’s work with the EPA, and there are concerns with the dissemination of leak data by third parties onto websites.

“We don’t think the process that’s been laid out by the EPA is one that’s going to be effective, and we also do have some very specific legal and regulatory issues associated with essentially delegating duties that are appropriate for the regulatory agency out to third parties,” Macchiarola said.

Pinpointing Pollution

Local air monitoring helps community members test and see what’s in their air in real time, which will provide potentially life-saving data on when neighbors should limit outdoor activity, for example.

The data gleaned from hyper-local community efforts can’t currently be used for compliance like the super-emitter program, but they do provide fodder for citizen suits under the Clean Air Act or challenges against Title V air permits for new facilities.

That data can also be used to inform the public of leaks, which isn’t a new trend for air pollution-watchers.

The Environmental Defense Fund is one of many groups and non-profits that have taken up methane data collection and dissemination. In 2019, they released the Permian Methane Analysis Project to “pinpoint, measure and report on oil and gas methane emissions in the Permian Basin.”

But the super-emitter program, unlike hyper-local monitoring programs, can compel facilities to act on the data reported from the third parties.

Potential Litigation

And that new element of third-party emissions monitoring is what has industry stakeholders most concerned.

Compelling industry to take action based on third-party data raises legitimate concerns about whether that data is always quality-assured, Hsiao said, which would be key to making a third-party program like this or other local monitoring efforts work.

Hsiao noted that if litigation were to arise from programs like these, it would be from data that isn’t quality assured, which could confuse community members and lead to unfounded action against emitters.

“The rule tries to address that quality check concern by providing that if a pattern can be shown of the certified testing group providing inaccurate or incomplete test results, they can be decertified, but that’s pretty clunky,” Hsiao said.