The Biden administration has pushed back its timeline for finishing a rule cracking down on pipeline leaks until next year, leaving it more vulnerable if former President Donald Trump returns to the White House.
Supporters of the leak detection and repair proposal had been pushing the federal Pipeline and Hazardous Materials Safety Administration to publish a rule in the Federal Register this summer, though they privately expected it to be closer to the end of the year.
Deputy Administrator Tristan Brown, the top Biden appointee at PHMSA, had told a congressional committee earlier this month that it would be complete by the end of the year.
But the agency recently issued an updated schedule projecting that it won’t be published until January 2025. That puts its fate in the hands of the next presidential administration. Environmentalists suspect the leak rule, part of President Joe Biden’s climate agenda, would not fare well if Trump were to defeat Biden this fall.
“I think anything that comes within range of being climate-related would be a target,” said Hana Vizcarra, a senior attorney for national climate Earthjustice, an environmental law nonprofit. “I can’t say I know why they keep pushing this back.”
Bill Caram, executive director of the advocacy group Pipeline Safety Trust, called the delay a “gut punch.”
“Given the industry opposition to the rule,” Caram said, “we fear that it is less durable if it’s not finalized before a potential change in leadership.”
Industry leaders, though, say they don’t oppose the proposed rule or the goal of limiting methane emissions from the nation’s roughly 2.7 million miles of natural gas pipelines. They say they want changes because PHMSA, a division of the Department of Transportation, has set unrealistic deadlines and fanciful cost estimates that need to be fixed.
“This is all designed to make the rule work,” said Ben Kochman, director of pipeline safety policy at the Interstate Natural Gas Association of America, which represents large pipeline companies. INGAA recently joined several other industry trade groups in a 77-page critique of the current draft of the proposal.
Kochman downplayed concerns that a new president would simply kill the methane regulation, noting that it even if a new administration doesn’t favor the proposal, new methane restrictions remain a congressional mandate. And Vizcarra expressed hope because many large gas companies say they support reducing emissions, meaning they might not push a new administration to reject the regulation.
PHMSA, responding to questions about the agency’s shifting timeline, said in a statement last week that “completing this rule is a top priority and time estimates are only estimates — we are aiming to complete the rule as soon as possible.”
Finding leaks
Trump rejects the idea that climate change is a threat and has made it clear he wants to wipe out restrictions on the oil and gas industry. He recently told oil executives they should contribute $1 billion to his campaign in light of his plans to roll back Biden’s climate agenda.
The Trump campaign did not respond to questions about what it might do with the leak detection and repair rule. White House officials also did not respond to questions about delays in the progress of the proposed regulation.
The leak detection and repair proposal is one of the most high-profile Biden administration rules being handled by the Transportation Department — and certainly the highest profile one being handled by PHMSA.
It would require pipeline companies to use commercially available technologies to find and fix methane leaks from pipelines and other facilities. It also would increase requirements to seek out leaks using aerial surveys, handheld detection devices and continuous monitoring sensors. It would require the use of advanced but commercially available technology to meet a minimum performance standard.
And it would minimize intentional emissions, which often occur when crews empty gas pipelines for maintenance, and encourage companies to consider using equipment to capture the gas for use or sale.
Congress ordered the agency to start aggressively policing methane emissions as part of a massive spending bill passed in the final days of 2020. It was a significant expansion of responsibility for the relatively small agency created in 2004 and drew PHMSA into Biden’s climate agenda.
Environmental issues have long been part of PHMSA’s mandate. Its environmental protection efforts, though, had focused mostly on preventing and dealing with spills of hazardous liquids such as crude oil. Natural gas leaks were not considered an environmental threat.
But methane is a greenhouse gas that’s about 80 times more potent than carbon dioxide on a 20-year time scale. Climate experts have become increasingly concerned about methane as the damaging effects of climate change become more apparent.
The oil and gas industry is the largest industrial source of methane emissions in the United States, and EPA has estimated that about one-third of the oil and gas industry’s emissions come from transmission, storage, processing and distribution of oil and gas.
Gathering lines
Much of the haggling over the PHMSA proposal has to do with whether to include smaller gathering lines in rural areas. Gathering lines, which connect production wells with processing equipment, are generally considered to be smaller than big, long-haul pipelines. They were entirely unregulated in rural areas until 2021, when new rules went into effect.
Oil and gas companies generally want to limit regulation of gathering lines to larger pipes, while environmental and other groups say smaller lines should be covered.
In March, a PHMSA advisory committee divided evenly between representatives of industry, government and nonprofit advocacy groups hammered out consensus on the rules.
On gathering lines, the committee members agreed to recommend subjecting gathering lines 8 inches wide and larger to the leak detection rules. But in rural areas, the smaller pipes would be inspected every five years instead of once or twice a year, as PHMSA had proposed.
Pipeline Safety Trust’s Caram said the advisory panel’s recommendations amount to an overall weakening of PHMSA’s original proposal — yet still represent significant progress.
“In the big picture, it sets a performance standard for that equipment and repair criteria,” Caram said. “Because industry voted for the recommendations, the hope is that maybe they won’t challenge the rule.”
But the industry trade groups who filed comments on PHMSA’s proposal and the advisory panel recommendations said they have “significant concerns” about PHMSA’s finding that the rule’s benefits would outweigh costs by as much as $1.4 billion.
In their comments, groups such as the American Petroleum Institute, INGAA and others warned that flouting the process laid out for developing the cost-benefit analysis “provides a basis for vacating any subsequent final rule.”
Environmentalists have long complained that Congress hobbled PHMSA with a cost-benefit analysis requirement more burdensome than those at other agencies. But Congress may have changed the calculus when it ordered the regulation, ordering PHMSA to weigh environmental benefits along with safety benefits when tabulating the costs of its proposal.
PHMSA has a reputation for moving slowly on drafting rules, routinely receiving tongue-lashings from both Republicans and Democrats in congressional hearings for taking too long. It took more than 10 years to draft and enact rules stemming from a fatal blast in San Bruno, California. Some of those rules are still tied up in litigation.
In addition to the strict cost-benefit rules, environmental groups say the laws and regulations governing PHMSA’s rulemaking process offers opponents of their rules more ways to attack a new rule administratively even before filing court challenges.
The rule could also be undone by Congress and the White House using the Congressional Review Act process if Trump becomes president.
The act allows lawmakers to void rules after they’re finalized by the executive branch but only during a specific time frame, sometimes referred to as a look-back window.
But supporters of the leak detection rule believe it would be impossible for PHMSA to get the rule out in time to protect it from the Congressional Review Act during a second Trump administration.
It would likely be easier, though, for a new administration to suspend the rule before it becomes effective and prevent it from taking effect. Backers of the rule want speedy passage to avoid the prospect of a Trump administration undoing it administratively.
Rules from PHMSA are more vulnerable than those at some other agencies to such administrative tactics. The agency’s rules allow at least 50 days for people or groups to seek administrative reconsideration. If the agency denies that, people or groups can file an administrative appeal.
“It’s time to complete the process,” said Erin Murphy, a senior attorney at the Environmental Defense Fund. “We think it’s essential that PHMSA moves quickly.”
Murphy noted that Congress had ordered that the rule be completed by 2021, though such mandates don’t have enforcement provisions.
