February 5, 2023

Volume XIII, Number 36

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February 03, 2023

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Aggregation Update: Oil & Gas Industry Permitting Under Heightened Scrutiny in 2015

Recent and anticipated litigation from the United States Environmental Protection Agency (EPA or the Agency) and environmentalists signals that permitting decisions involving whether to aggregate emissions from separate facilities will be at the forefront of environmental enforcement in 2015 and beyond. Schiff Hardin continues to closely follow these on-going developments, the results of which will likely have significant impact on the oil and gas industry.

At issue is EPA’s so-called “aggregation policy” and the meaning of “adjacent.” As we previously reported,[1] the aggregation policy was intended to establish a method for determining when physically separate emission sources are considered “adjacent” and their emissions appropriately “aggregated” as a single source. EPA has never defined by regulation the meaning of “adjacent,” and a wave of changing guidance issued by the Agency has left state agencies and industry alike uncertain of whether adjacency is based on physical proximity, some functional relationship between the emission sources, or a combination of the two. The U.S. Court of Appeals for both the Sixth Circuit and the District of Columbia, however, struck down EPA’s attempt to aggregate solely on the basis of the “functional interrelatedness” of separate sources without consideration of physical proximity.[2] Indeed, the Sixth Circuit inSummit Petroleum went so far as to require that aggregation be based exclusively on whether the emissions sources were “sufficiently physically proximate to be considered ‘adjacent’ within the ordinary, i.e., physical and geographical, meaning of that requirement.”[3]

Those decisions have sparked concern among environmentalists and EPA alike, who both seek to impose more stringent air permitting requirements on the rapidly expanding natural gas industry. Because of the physical distance that often exists between the various facilities that comprise gas extraction and distribution systems (compressor stations, gas wells, regulation stations, etc.) these sources historically have not triggered major source air permitting requirements that otherwise may have been triggered if the emission sources had been aggregated.

Most recently, the District Court for the Middle District of Pennsylvania tackled aggregation and the meaning of “adjacent,” further muddying the waters. In Citizens for Pennsylvania’s Future v. Ultra Resources, Inc., No. 4:11-CV-1360 (Feb. 23, 2015) (hereinafter PennFuture), the District Court departed from the Sixth Circuit’s interpretation of “adjacent” in two important respects:

(1) first, despite finding the distance between the compressor stations at issue in the case dispositive against aggregation, it “decline[d] to hold that functional interrelatedness [could] never lead to, or contribute to, a finding of…adjacency”; and

(2) second, it suggested that even absent physical proximity sufficient to establish adjacency, natural gas emission sources could be aggregated if they are connected to each other such that “each source…is a stop along a single physically connected process.”[4]

The Plaintiffs in PennFuture challenged the issuance of separate air permits to eight compressor stations owned by Defendant Ultra Resources. Had the Pennsylvania Department of Environmental Protection (PADEP) aggregated the facilities, a major source permit and significant emission controls would have been required. The compressor stations operate to compress gas from wells at nearby locations. While the compressor stations are not so interconnected that one station relies on the other to operate, the compressor stations were designed to operate collectively to boost pressure at a given well, and all eight compressor stations push gas to a common metering and regulation station where the gas is then distributed to the main transmission pipeline. The eight compressor stations are located approximately 1-mile apart from one another and cover an area of roughly 5-square miles.

With little factual analysis, the Court in PennFuture ruled that the compressor stations should not be aggregated. The Court found that the 5-square mile area between the compressor stations was not “sufficiently close to, or near enough, each other to be considered adjacent.”[5] Nevertheless, the Court went on to note in dicta that even though the stations were too physically distant to be aggregated, unlike Summit Petroleum, it found that consideration of the functional interrelatedness between facilities was appropriate.[6] Upon examination, the Court found that independently functioning compressors that deposited gas from individual wells into a common pipeline did not create a functional interrelationship sufficient to warrant aggregation.[7]

The PennFuture decision likely signals a wave of citizen and government action to force a broader approach to aggregation, including  potential regulatory action and litigation challenging decisions to separately permit related but physically separate facilities.   Indeed, in February 2015, WildEarth Guardian (an environmental group with a long history of aggregation-based permit challenges to natural gas facilities) filed a notice of intent to sue EPA Region 8 on certain compressor station permits in Utah, seeking application of the functional interrelatedness test to aggregate emissions from oil and gas wells surrounding the facilities. In addition, EPA itself has announced that it plans to take regulatory action as early as May 2015 to bypass case-by-case aggregation determination for the oil and gas industry by defining what constitutes an oil and gas emission source.

[1] [cite 6/2/14 SH update]

[2] See National Environmental Development Assoc.’s Clean Air Project v. EPA, 752 F.3d 999 (D.C. Cir. 2014); Summit Petroleum Corp. v. EPA, 690 F.3d 733 (6th Cir. 2012).

[3] Summit Petroleum, 690 F.3d at 735.

[4] PennFuture, at *13 (quoting Summit Petroleum, 690 F.3d at 753).

[5] PennFuture, at *10.

[6] Id. at 12.

[7] Id. at 14.

© 2023 ArentFox Schiff LLPNational Law Review, Volume V, Number 91

About this Author

David M. Loring, Associate, Schiff Hardin Law Firm

David M. Loring is a senior associate concentrating his practice in all areas of environmental law. Mr. Loring has counseled and represented electric generating and large industrial clients on a variety of federal, state and administrative litigation and regulatory matters, including:

  • Negotiation of a multi-facility Clean Air Act New Source Review (NSR) settlement agreement between an electric generating utility and the United States
  • Defense of an NSR enforcement action brought by the United States against an electric generating utility
  • Representation of an...