The Senate failed to advance a resolution Wednesday morning that would have nullified a Bureau of Land Management methane waste prevention rule. Three Republicans — Sens. John McCain (AZ), Susan Collins (ME), and Lindsey Graham (SC) — sided with Democrats against allowing a vote on the resolution to proceed.
The vote marks a surprise defeat of congressional Republicans’ campaign to use the Congressional Review Act (CRA) to repeal a host of Obama-era regulations. The House passed a resolution in February to repeal the rule, but it was uncertain whether the Senate would approve the resolution before the deadline for using the CRA to repeal the rule expired.
As it turned out, the uncertainty over the future of the CRA resolution was justified. The 51–49 vote against advancing the resolution was welcomed by advocates of the rule.
“This is a huge win for our health, our clean air, and our climate, and shows that President Trump’s plans to unravel hard-won environmental protections are not a foregone conclusion,” League of Conservation Voters President Gene Karpinski said in a statement. “The battle for a clean, safe environment is far from over, and we will continue to stay vigilant, but today is a victory for all those who are raising their voice in resistance to the anti-environmental Trump administration, Republican leadership and Congress.”
The BLM, a division of the Department of the Interior, issued the final methane waste rule last November. The rule updated 30-year old regulations governing venting, flaring, and leaks of natural gas. The agency also designed the rule to help curb waste of public resources such as natural gas.
The CRA gives lawmakers 60 legislative days to undo regulations enacted by the executive branch. Congress had used the law just once before Trump took over the presidency. Trump has signed 13 CRA resolutions. With Trump now near the end of four months in office, the failed attempt to pass the CRA resolution against the methane waste rule could mark the end of Republican efforts to overturn Obama-era rules and regulations.
“Today is a victory for our public lands and for the health of families across America, and a defeat for Donald Trump, corporate polluters, and their friends on Capitol Hill,” Sierra Club Executive Director Michael Brune said in a statement in response to the Senate vote. “People across the country will continue to resist and hold Congress and Trump accountable for any efforts to put the profits of polluters before the health of our families and our communities.”
The Interior Department, in response to the Senate vote, said it plans to review the methane waste protection rule. “As part of President Trump’s America-First Energy Strategy and executive order, the Department has reviewed and flagged the Waste Prevention rule as one we will suspend, revise or rescind given its significant regulatory burden that encumbers American energy production, economic growth and job creation,” Kate MacGregor, acting assistant secretary of the Interior for Land and Minerals, said in a statement.
The department contends the rule will reduce rates of oil and gas production in the United States. Small independent oil and gas producers in states like North Dakota, Colorado, and New Mexico could be hit the hardest, MacGregor said.
During a Monday conference call, Sen. Maria Cantwell (D-WA), the ranking member of the Senate Energy and Natural Resources Committee, called the methane waste prevention rule a “common-sense” regulation that was already saving taxpayers money and protecting public health.
Based on estimates, the rule will prevent the waste of 65 billion cubic feet of natural gas a year and save taxpayers $330 million annually. The repeal of the rule would have allowed for the unregulated release of a gas that traps 86 times more heat than carbon dioxide over a 20-year period. Because taxpayers collect royalties from energy produced on public lands, repealing the rule also could have reduced direct payments to taxpayers by $800 million over the next decade, according to the Western Values Project.
In March 1996, President Bill Clinton signed into law the Congressional Review Act, which Congress passed as part of the so-called Contract for America pushed by Rep. Newt Gingrich (R-GA) and other Republicans. The law empowers Congress to review new federal regulations issued by government agencies and, by passage of a joint resolution, overrule a regulation.
The CRA expressly prohibits agencies from issuing new rules “substantially the same” as one it has nullified. In fact, no agency has ever reissued a rule to replace a measure rescinded under the CRA, and no court has addressed whether such a rule would be valid. This ensures that any meaningful effort by the agency to address the problem would be met with years of costly litigation.
Sen. Rob Portman (R-OH), who was on the fence heading into this week, said his decision to vote for advancing the resolution on Wednesday was based on a commitment from Interior Secretary Ryan Zinke to reduce methane waste.
Zinke gave Portman a letter pledging that his department would “take concrete action to reduce methane waste” by oil and gas companies operating on federal and tribal land, even if Congress overturned the rule to accomplish just that. Telling people that repealing the rule would not prohibit DOI from taking action on methane waste was “a very disingenuous argument,” Cantwell contended.
If Republicans thought the methane waste rule went too far and if they wanted to change it, Democrats were “more than happy to sit down and discuss that,” Cantwell said. By enacting the rollback, Republicans bar Congress from taking any action on that agenda legislatively. Nothing else can be done on this subject matter for that particular rule, she said.
This resolution’s defeat marks a victory for the climate and public interest, according to the Union of Concerned Scientists. “The fact that the Senate rejected this short-sighted resolution is an encouraging sign,” Jeremy Martin, senior scientist with the Clean Vehicles Program at the Union of Concerned Scientists, said in a statement on the vote. “Methane is a potent contributor to climate change, and letting companies simply vent or flare methane in vast quantities from their operations on publicly-owned lands is foolhardy.”
— Tom Udall (@SenatorTomUdall) May 10, 2017
Over the past three months, Democrats have blasted Republicans’ use of the CRA to repeal Obama-era rules. “Republicans and Democrats alike know that the CRA is a terrible way to legislate because [it] takes a sledgehammer to the law, preventing the agency from addressing the issue again,” Sen. Tom Udall (D-NM) said in a statement. “The natural gas waste prevention rule was written with careful consideration after months of public and stakeholder comment, and it follows the examples set by Colorado and Wyoming, which have state-level rules that are successfully creating jobs and preventing the waste of resources and revenue.”
The vote represented a major defeat for the American Petroleum Institute (API), the powerful lobbying group for the oil and gas industries, which had strongly pushed for the repeal of the rule. The trade group called the BLM rule “redundant, technically flawed, and unnecessary.” API claimed that the rule’s requirements “could impede U.S. energy production by shutting in a significant number of wells on federal lands.”
Patrick Von Bargen, executive director of the Center for Methane Emissions Solutions, questioned why API described the methane waste rule as a job killer and a burden on the industry. “If it’s an enormous burden on the industry, why isn’t the entire state of Colorado’s oil and gas industry up in arms?” Von Bargen said on the conference call. “Why have they not filed a single lawsuit against the regulation or requested that the legislature repeal it… None of that has happened.”
The rule was similar to a law passed in Colorado, which became the first state to regulate methane emissions from oil and gas drilling. Many of the state’s dominant oil and gas producers, including Encana, Devon Energy, and Anadarko, supported the measure and worked with environmental groups to help write the rule.
Sen. Cory Gardner (R-CO) had stayed publicly neutral on whether he wanted to rollback the rule but ultimately voted in favor of advancing the CRA resolution.
The rule has widespread support in Colorado and across the West. In Colorado, 83 percent of residents supported the BLM rule, including a majority of support among Republican voters. Among seven Western states with significant amounts of public lands, the rule had overwhelming support among voters, according to a Colorado College poll.
The final BLM rule updated the agency’s regulations to reduce the waste of natural gas from flaring, venting, and leaks from oil and gas production operations on public and Native American lands. The rule required oil and gas producers to take “commonsense and cost-effective measures” to reduce this waste of gas.
John Messner, a commissioner in Gunnison County, Colorado, said that two years after the Colorado methane waste rule was enacted, the state has seen an increase in natural gas production and job growth in the oil and gas production sector and methane mitigation industries.
The BLM rule was needed because other states have not implemented a rule similar to Colorado’s, Messner said. Methane waste from natural gas production in neighboring states is harming air quality in Colorado. The BLM rule will help provide assistance to the Western Slope of Colorado, which struggles with ozone pollution due to oil and gas production occurring across state lines, he said.
Between 2009 and 2015, oil and gas producers on public and Native American lands vented, flared, and leaked about 462 billion cubic feet of natural gas, the BLM said. The methane losses create many problems, including releasing harmful emissions, including methane, into the atmosphere, safety issues, if not properly handled, and waste of a valuable domestic energy resource, the agency said.
Update: This article has been updated to include comments from a Department of the Interior official responding to the Senate vote.