Energy expert weighs in on 23 state attorneys general suing EPA over new methane emissions fee

Texas Attorney General Ken Paxton is leading 22 other attorneys general in suing the Environmental Protection Agency (EPA) over a new rule that would fine the oil and natural gas sector for methane emissions that exceed a certain level. 

The GOP states are alleging the new rule, which was established in President Biden’s Inflation Reduction Act, is ‘arbitrary, capricious, [and] an abuse of discretion.’ The complaint against the EPA is scant on details, other than asserting the new rule is ‘unlawful’ because ‘the final rule exceeds the agency’s statutory authority.’ 

While the Supreme Court has articulated a very narrow authority on how Congress can delegate its legislative power, Steve Milloy, former Trump administration EPA transition adviser and senior fellow at the Energy and Environmental Legal Institute, said it is unclear to him how the EPA’s rule circumvents Congress. 

‘The IRA clearly says EPA is to levy a tax and prescribes the tax rate,’ Milloy told Fox News Digital, pointing to the section of the IRA’s ‘Waste Emissions Charge’ that sets a threshold for methane emissions at 25,000 metric tons. ‘I will be interested to see how the states support their claims.’ 

Nonetheless, Milloy is against the new fee on the oil and gas sector, noting methane is an ‘irrelevant greenhouse gas.’

‘The tax is pointless and will accomplish nothing except to make oil and natural gas more expensive,’ he said.

Milloy suggested the move to sue in the final days of the Biden administration is to start the process for the plaintiffs to settle with the Trump administration. According to him, this is a tactic that has been used by both sides of the green energy debate. He added that in the past, the Trump administration has sought to get rid of ‘sue and settle’ tactics.

‘Congress needs to change the law,’ Milloy said. ‘Because, let’s say that they sue and settle, well, the next administration can come back and undo it.’

Meanwhile, another forthcoming lawsuit from the Michigan Oil and Gas Association (MOGA) and the American Free Enterprise Chamber of Commerce (AMFree) has also asserted that the new rule circumvents Congress, but provided details explaining why.

‘Under Subpart W, facilities in the natural gas and petroleum supply chains must report greenhouse gas emissions if they emit 25,000 metric tons or more of carbon-dioxide-equivalent emissions each year,’ the second lawsuit explains. ‘For gases other than carbon dioxide, ‘equivalent’ emissions are determined by multiplying emissions by the gas’s ‘global warming potential’ (‘GWP’).’ 

Michael Buschbacher, a partner at Boyden Gray PLLC, which is representing MOGA and AmFree in their lawsuit, agreed with Milloy that it will take legislation to reverse the new methane rule, but said the purpose of their legal filings is ‘to get the most onerous mandates off the books, so the American energy industry can begin its march back to dominance under the new administration.’

‘The Biden-era environmental regulations aren’t going to magically vanish at 12:01 on Monday. It’s going to take time and legislation to unwind the mess that he has left behind,’ Buschbacher said.

The EPA declined to comment on the matter, citing the pending nature of the litigation.