The first greenhouse gas actions under the Biden administration are likely to be curbs on the climate “super-pollutant” methane, as both Congressional Democrats and the White House readied moves they can make even without help from Republicans.
Senate Majority Leader Chuck Schumer (D-N.Y.) pledged Thursday to bring a resolution to the floor in April that would reverse one of the Trump administration’s final climate policy rollbacks, the lifting of requirements for oil and gas companies to monitor and fix methane leaks from wells and other infrastructure.
That problem was also on President Joe Biden’s mind, as he indicated that fixing methane leaks was one of the key jobs-creation items he planned to include in the infrastructure package he is rolling out this week that is estimated to cost $3 trillion. Biden’s focus was on so-called “orphaned” wells, those that have been abandoned by defunct companies.
“We have over 100,000 wellheads that are not kept, leaking methane,” Biden said at his first White House news conference Thursday. “We can put as many pipefitters and miners to work capping those wells at the same price that they were charged to dig those wells.”
Both the Trump rule repeal and the infrastructure plan are measures that could be passed in Congress without any support from Republicans (although Biden has said he is seeking bipartisan support.)
Adding to the momentum for action on methane was the American Petroleum Institute’s climate action proposal unveiled last week. Although most attention was on the API’s first-ever endorsement of a carbon tax or other pricing mechanism, the oil and gas industry’s largest trade group included in its package a call for “direct regulation of methane.”
Although methane accounts for a relatively small portion of U.S. greenhouse gas emissions—10 percent, according to the Environmental Protection Agency’s latest estimates—it makes sense for policymakers to tackle it first. Methane is 86 times more potent than carbon dioxide as a heat-trapping gas, so measures to curb emissions can have a large impact. And technology to monitor and fix methane leaks is readily available. Because methane is the main component of the fuel, natural gas, the industry can sell the gas it captures by plugging leaks.
Many large oil companies opposed the Trump administration’s methane rule rollback, preferring a level playing field across the industry. Instead, Trump’s rollback, finalized in September, opened the door for industry competitors to seek a cost advantage by cutting corners on methane control from their operations. Another looming problem for the oil and gas industry was the possibility that the European Union, the world’s largest importer of both oil and gas, might impose trade sanctions on imports from countries that don’t regulate methane as part of its aggressive climate policy.
And then, there is the climate impact. The advocacy group Environmental Defense Fund estimated the Trump rollback would result in the release of an additional 4.5 million metric tons of preventable methane pollution each year, an amount equivalent to the annual emissions of 100 coal fired power plants, nearly one-third of all currently operating in the United States.
The Congressional Review Act resolution to reverse the Trump methane rollback, introduced by Sen. Martin Heinrich (D-N.M.) in the Senate and by Rep. Diana DeGette (D-Colo.) in the House, is just one page long and would need only a simple majority to pass each chamber under special rules the Republican Congress established during former House Speaker Newt Gingrich’s tumultuous reign.
The methane rule could become the first for which Democrats have used a tool that Gingrich devised to give Congress a veto over regulations adopted late in an outgoing administration’s tenure. Early in the Trump administration, the Republican-led Congress used the Congressional Review Act to kill 14 Obama-era rules—the biggest workout the law had ever gotten.
Because of the law’s history and the fact that its provisions have not been tested in court, some legal experts have raised concerns about its use. James Goodwin, of the Center for Progressive Reform, has written that the Congressional Review Act is a bad law that should be repealed, even though he sees it providing some short-term benefit in the current hyper-polarized political atmosphere for undoing Trump actions that have had the worst impacts on health, safety and the environment.
There also is a concern about a provision of the Congressional Review Act that bars federal agencies from issuing any rule that is “substantially the same” as a disapproved rule—that term is undefined in the law, and could leave future federal rulemakings on methane open to legal challenge. Federal appellate judges, about one-third of whom were appointed by Trump, would decide whether a tough Biden methane rule was “substantially the same” as the weak Trump rule because it addressed the same problem at the same facilities.
Nevertheless, major environmental groups were united in support of using the Congressional Review Act rule to sweep the Trump rule from the books, while the Biden team works on stronger standards.
“This resolution stands for the simple and non-controversial proposition that methane from the oil and gas sector is a major challenge that requires urgent action,” said Dan Grossman, senior director of regulatory and legislative affairs at Environmental Defense Fund. “After the chaos and uncertainty of the last four years, all sides want to clear a pathway to solve the problem.”
Heinrich and the other sponsors of the resolution, including Schumer, said in a statement that if it passes, it would reinstate the methane regulations that were put in place by the Obama administration in 2012 and 2016. But the green groups said they would be pushing for additional action by the Biden administration—rules that cover not only new oil and gas operations, as the Obama rules did, but the much larger problem of leaks from existing oil and gas operations.
Lee Fuller, executive vice president of the Independent Petroleum Producers’ Association, which represents many of the smaller oil and gas companies, said his group wants to see a regulatory approach that takes into account the differences between existing small operations and newly built large facilities, and the differing emissions profiles of old and new wells.
Meanwhile, Biden made clear he sees tackling fugitive methane emissions as one of the climate and jobs measures that will be included in the package he is expected to unveil this week to rebuild the nation’s infrastructure and economy, while tackling greenhouse gas emissions. White House National Climate Adviser Gina McCarthy met with oil and gas industry executives last week to discuss the plans for the infrastructure legislation.
“She made clear that the Administration is not fighting the oil and gas sector, but fighting to create union jobs, deploy emission reduction technologies, strengthen American manufacturing, and fuel the American economy,” the White House said in a statement.
By singling out the problem of methane from orphaned wells in his remarks last week, Biden was bringing up an issue that the industry agrees needs to be addressed. “It would be useful to have a sound orphan well program to help the drilling industry maintain employment through these tough times,” said Fuller, of the independent producers, in a statement. He said that such a program should be operated by the states, but his group would encourage Congress to explore the idea of federal funding.
But who should pay for the plugging of orphan wells along with all other elements of Biden’s infrastructure plan will be a key focus of debate in the coming weeks, and may determine the proposal’s fate. The president’s economic advisers are reportedly considering a wide range of ideas, from a national infrastructure bank, to bonds, to tax increases on the wealthy and corporations.
Even carbon taxes may be in the mix, given the American Petroleum Institute’s endorsement, but Congressional Republicans remain staunchly opposed. “Proposals that impose a cost on carbon will hurt American families,” said Sen. John Barrasso (R-Wyo.), the top-ranking Republican on the Senate Energy and Natural Resources Committee, in a statement. “That might be good for international energy companies, but it’s a cost the American people can’t afford.”
The opposition from Republicans means that Biden is likely to break his infrastructure proposal into several separate pieces, some of which may be able to win Republican support. (Barrasso, notably, endorsed transportation infrastructure spending in the last Congress). Other pieces of Biden’s package—specifically, anything like taxing or spending that has an impact on the federal budget—could be included in a budget reconciliation package that will only need 51 votes in the Senate for passage under current rules.
Ironically, methane was a focus of Congressional Republicans when they had a similar slim majority in the Senate at the beginning of the Trump administration. In 2017, they failed by one vote to pass a Congressional Review Act resolution sponsored by Barrasso that would have eliminated Obama regulations for control of methane from oil and gas operations on federal lands. The late Sen. John McCain (R-Ariz.) gave the final thumbs-down; although he said he didn’t like the Obama rules, he wanted to ensure that future administrations would be free to act on methane. Now, the Biden administration may have that chance, but without the help of any Republican advocates of climate action who are quite as vocal as McCain.