Groups sue to force EPA's hand on oil and gas emissions

Pollution from oil and gas extraction should be included in the Toxics Release Inventory, plaintiffs say



Oil pump jacks work behind a natural gas flare in December, 2014, near Watford City, N.D. 

Eric Gay/AP

The way environmental groups see it, there’s a gaping hole in what the public knows about toxic chemicals released into communities. A wide range of factories and facilities must report to a key federal inventory, but not the companies that extract oil and gas.

Environmental and open-government groups petitioned the U.S. Environmental Protection Agency two years ago to add the industry to its Toxics Release Inventory, saying the agency’s own estimate suggests those firms emit more hazardous air pollutants than any sector except power plants. The EPA has yet to respond. This morning nine groups sued to press for action.

“The oil and gas extraction industry is somewhat unique in being really almost the last major industry group not to report,” said the suit’s lead attorney, Adam Kron of the Environmental Integrity Project, a nonprofit group that presses for enforcement of pollution laws. “We’re not talking about a tiny industry that doesn’t matter.”

The EPA did not comment on the suit. A spokeswoman said the agency hadn't received it yet.

The lawsuit, filed in U.S. District Court in Washington, D.C., doesn’t ask the court to order the EPA to include the extraction industry in the inventory — though that could be the subject of a later suit. For now, the plaintiffs simply want the EPA to act on the 2012 petition, whether yay or nay.

Two trade groups, the American Petroleum Association and the Independent Petroleum Association of America, did not respond to requests for comment. But the tug-of-war over the Toxics Release Inventory isn’t a new battle. The EPA considered including oil and gas extraction firms in the 1990s and chose not to do so.

The Marcellus Shale Coalition, a Pennsylvania-based industry group, argued in a response to the 2012 petition that the agency’s original decision remains the right one.

Though the industry has grown substantially since the 1990s, the many thousands of wells and related sites dotting rural and urban landscapes don’t individually emit enough chemicals to get above the threshold required for firms to report to the Toxics Release Inventory, the coalition said in a 2012 filing with the EPA.

“While Oil and Gas has undoubtedly evolved over the past fifteen years, the basis of EPA’s determination has not changed,” wrote the coalition’s then-president, Kathryn Z. Klaber.

Last year the Environmental Integrity Project released an analysis suggesting that the larger sites, at least, meet the threshold that a facility use at least 10,000 pounds of any one chemical. The group collected air-emissions data from six major oil and gas states and said nearly 400 sites, including compressor stations and processing facilities, reported releases of at least that amount.

Kron thinks the number of locations meeting the threshold is far higher, given that the states provided information on what was ultimately emitted into the air, not what was used on site.

That information offers a taste of toxic releases, but it’s not the bigger picture offered by the national inventory, which also tracks releases into water and soil. The inventory is free and readily accessible online, whereas state information must be requested and can come with a fee attached, Kron said.

The Toxics Release Inventory, also called the TRI, dates to 1986. Congress launched it after a methyl isocyante gas leak from a Union Carbide pesticide plant in Bhopal, India, killed thousands in 1984.

“By making information about industrial management of toxic chemicals available to the public, TRI creates a strong incentive for companies to improve environmental performance,” the EPA says on the inventory’s website.

At first, only manufacturers — including oil refiners — had to report to the inventory. Other sectors were added later.

The new lawsuit’s plaintiffs, including the Natural Resources Defense Council and the Center for Effective Government, see little difference between the downstream petroleum sites classified as manufacturing and the large ones upstream in the process.

“If you drive by a natural gas processing plant, you wouldn’t necessarily be able to tell it from a petrochemical plant or an oil refinery, and both of those already report to the TRI,” Kron said.

Groups frequently turn to the courts to make the EPA take action — or undo one.

The agency’s recent rule on coal-ash disposal came after a court order following years of delays. So did its proposal to tighten the ozone standard. The EPA's Office of General Counsel estimates that about 150 lawsuits involving environmental statutes are filed against the agency each year.

The state of Texas alone has nine cases pending against the EPA. Earthjustice, a nonprofit environmental law group, has sued the EPA “innumerable” times over the decades, said Abigail Dillen, vice president of litigation for climate and energy there.

Citizen lawsuits can play an important watchdog role, holding the EPA accountable for protecting public health, she said.

“EPA is charged with implementing so many fundamental statutes, from the Clean Water Act to the Clean Air Act, … and there are, as you know, political forces that discourage action,” Dillen said. “Lawsuits can be one way to give the agency cover to do what it actually needs to do.”

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