In early January 2018, the U.S. Environmental Protection Agency (“EPA”) decided to halt previous proposals to stay methane rules for new and existing landfills.  The Obama Administration’s EPA issued the final New Source Performance Standards (“NSPS”) and Emissions Guidelines (“EG”) for municipal solid waste landfills on August 29, 2016 (jointly “Methane Rules”).  These updates to the NSPS were promulgated to reduce emissions of methane-rich landfill gas from new, modified and reconstructed municipal solid waste (“MSW”) landfills.  EPA’s current announcement to desert plans for an administrative stay comes after the EPA announced a 90-day administrative stay for the Methane Rules, which went into effect on May 31, 2017.

EPA has faced at least two lawsuits over the proposed stay to the Methane Rules and a separate proposed stay for oil and gas methane rules.  In Clean Air Council v. Pruitt, the D.C. Circuit held that the EPA “lacked authority under the Clean Air Act to stay the rule, and we therefore grant petitioners’ motion to vacate the stay.”  In that case, EPA had stayed the oil and gas methane rules for 90 days “pending reconsideration” of the rules.  The Court ruled that EPA could not issue a stay where the rule reconsideration was discretionary.  In Natural Resources Defense Council et al. v. EPA, the environmental plaintiffs set forth similar arguments challenging EPA’s stay of the Methane Rules for landfills.  Although the Court denied plaintiff’s request to vacate the stay in September 2017, plaintiffs have subsequently argued that EPA has not been enforcing the Methane Rules, again asking the Court to vacate the stay of the Methane Rules – even though the stay ended in August 2017.

EPA’s recent decision to rescind the proposed stay of the Methane Rules signifies that EPA has identified weaknesses in its legal arguments from the Natural Resources Defense Council litigation.  However, in reality, because the EPA is not actively imposing compliance deadlines for the Methane Rules, environmental plaintiffs are likely to pursue further litigation to push EPA to enforce the Methane Rules.

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