DENVER (CN) — An environmental group on Friday told a 10th Circuit panel the U.S. Environmental Protection Agency’s approval of a Colorado regulation defining when oil and gas operations commence violates the Clean Air Act because it leaves key emissions unregulated.
Ozone, also known as smog, is harmful to human health, and the Denver Metro North Front Range area — which spans eight counties east of the Rocky Mountains — has failed to meet national ambient air quality standards for more than 15 years.
The state is therefore required to submit plans to the EPA showing actions that will improve air quality for the 3.3 million people living in the area. While Colorado officials say they are making progress, environmentalists have contested many aspects of the state implementation plan, notably when it comes to regulating oil and gas operators.
In 2023, the 10th Circuit ordered the EPA to revisit Colorado’s rule exempting temporary emissions from oil and gas permits. In September, environmental advocacy group the Center for Biological Diversity asked the 10th Circuit to vacate the EPA’s approval of portions of Colorado’s plan allowing “reasonable further progress” goals that did not bring the state closer to attaining cleaner air.
In Friday’s argument, the center focused on a November 2022 rule change that it believes overlooks oil and gas emissions produced during pre- and post-production phases of extraction, including drilling and fracking.
“The commencement of operation is the dividing line: pollution released before operations commence is not considered in permitting and is given a free pass,” the center’s attorney Ryan Maher said. “When something is added to the state implementation plan it becomes federal law for the first time.”
U.S. Circuit Judge Robert Bacharach asked whether axing the rule would do more harm than good.
“We would be left with Colorado regulators having the new more lenient regulations that exclude emissions through completion of the well, drilling and fracking, but under the federally enforceable state implementation plan, the EPA federal regulators also have a stricter set of regulations,” the Barack Obama appointee said. “Why would that not be disruptive?”
Maher and the center advocated for vacating the rule change entirely, reasoning that if given the opportunity the federal agency would add to the record to support the rule without actually changing it.
U.S. Circuit Judge Joel Carson, a Donald Trump appointee, drilled into where emissions might be produced before an extraction project formally commences.
“Fracking is the process of pumping fluid down into the sandboard. There isn’t any emissions produced during that, is there?” the Donald Trump appointee asked. Carson posited that flowback emissions might be adequately regulated under the regulation that specifies permits must be obtained “by no later than the completion of well operations including flowback.”
Senior U.S. Circuit Judge Bobby Baldock, a Ronald Reagan appointee, asked Maher to clarify sources of primary and secondary emissions, and whether any secondary emissions weren’t covered under another regulation covering temporary operations.
On behalf of the EPA, U.S Attorney David Mitchell described a vast gulf between what the rule change did and what the center is rallying against.
“This regulation continues Colorado’s lawful prohibition of construction without a permit,” Mitchell said. “This was a limited revision that replaced some words and made a technical change to the regulatory text to align it to Colorado’s text.”
Mitchell claimed the center should have raised its concerns during public commentary, and that if the court took issue with the rule, it should remand so the agency can review and propose its own fix.
Colorado Senior Assistant Attorney General Laura Mehew seconded many of the federal government’s arguments.
“The reason Colorado does not permit emissions from drilling, fracking and well completion is because they are secondary emissions, or emissions from non-road engines and they are properly excluded from the permitting process,” Mehew said. “However, the question of what emissions should be included in Colorado’s permitting program is outside of the scope of what EPA considered, because nothing changed.”
As presiding judge, Bacharach patiently allowed each party to answer questions into overtime, and then granted additional rebuttal time. The Barack Obama appointee concluded the hearing by commending the parties for their superb briefing and advocacy, but did not indicate when or how the court would decide the issues presented.
The hearing was held remotely and broadcast to the public via YouTube.