Who’s the sucker: Portman takes a bad deal on methane waste rule
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By throwing his support behind a controversial bill that will cause needless waste of taxpayer resources, U.S. Sen. Rob PortmanRobert (Rob) Jones PortmanCommittee chairman aims for House vote on opioid bills by Memorial Day Flake to try to force vote on DACA stopgap plan Congress punts fight over Dreamers to March MORE (R-Ohio) just staked his credibility on a promise from Interior Secretary Ryan Zinke that the Trump administration cannot legally keep. Whether the administration is fooling the senator, or the senator is trying to fool his constituents, one can only guess. Either way, others should not be taken in.

Questionable Legality

Secretary 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 overturns a rule to accomplish just that.

But the method being considered by Congress -- the Congressional Review Act -- 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 In fact, no agency has ever reissued a rule to replace a measure rescinded under the CRA, and no court has addressed whether such a rule would be valid.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. 

However well-intentioned he might be, Zinke cannot promise otherwise. Portman certainly knows this, because it has been a central argument in the three-month fight over the bill. 

The issue was underscored again on Monday in a letter to Senate leadership written by 40 distinguished law professors describing the legal hurdles. “If the Interior Department believes that the Waste Prevention Rule needs to be improved,” they said, “by far the best course of action is simply to move forward with the new rulemaking that has already been initiated.” 

Zinke’s Paltry Alternative

The potential remedies identified in Zinke’s letter to Portman do not add up to any meaningful waste reduction. In fact they are so devoid of content that they undercut the secretary’s promises. His letter offers nothing to address the vast methane waste from sources other than deliberate venting and flaring. 

Waste from these sources – leaks from pipelines and storage tanks, and malfunctioning or inefficient equipment – totals more than 30 billion cubic feet or $90 million worth of taxpayer owned natural gas resources per year.

Indeed, most of the “strategies” identified in the letter are things BLM is already doing – and still losing $330 million worth of gas a year. For example, “beneficial onsite use” has been incentivized for decades. Other actions in the letter, such as compressing methane and reinjecting gas, are already permitted. The secretary doesn’t say how he would further encourage these practices absent the flaring limits he wants Congress to repeal.  

Similarly, pipeline approval is already a priority for BLM, which will continue with or without the CRA. Either way, faster pipeline approvals will have no impact in the many situations where flaring wells are already connected to pipelines or where operators simply don’t build new pipelines.

The Art of a the Bad Deal

In fact, of the six “strategies” listed by Zinke, only one -- revising flaring restrictions -- could possibly have any meaningful impact on methane waste, and authority for that action may well be eliminated by use of the CRA. That’s because the current BLM waste rule also revises flaring restrictions. Opponents will argue, and a court may agree, that tightening restrictions violates the CRA prohibition on substantially similar rules. (If the revision did not tighten flaring restrictions, it clearly would not reduce waste.)

Overall, Zinke offers not one a single “concrete action” that his department might take to reduce waste.

Instead, he asks Portman and others to accept a single page of vague and unfounded assurances in place of an 80-page technical rule, enforceable by law, produced by BLM petroleum engineers and solicitors from the Department of Interior over a five-year rulemaking process that included input from states, tribes, industry, local residents, environmental advocates, and many others, as well as the Department of Justice and other federal agencies.   

Gilding the CRA with Zinke’s unfounded assurances does not make it one iota better. The CRA would deprive American taxpayers of revenue, allow waste of our energy supplies, and harm Americans’ health and the environment. 

That’s a lousy deal and we hope no other senators are fooled by this insiders’ game. 

Mark Brownstein is a Vice President in the Climate and Energy Program at Environmental Defense Fund.

The views expressed by this author are their own and are not the views of The Hill.