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Climate Change Hero

Climate Change Blog

  • 08
  • March
  • 2016

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Court Rules that Pipeline Methane Leaks Are Not Subject to RCRA Claims

On February 10, 2016, a federal district court in Illinois held that methane leaking from natural gas distribution pipelines into the environment is not a "solid waste" under the Resource Conservation & Recovery Act (RCRA).

District Court Decision

The recent ruling in Northern Illinois Gas Company (Nicor), et al. v. City of Evanston, IL, holds that methane gas is not a “solid waste” as defined by RCRA. RCRA is a federal law that governs the treatment, storage, and disposal of solid and hazardous waste. RCRA allows suits “against any person, … including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.”

The City of Evanston (the City) alleged that Northern Illinois Gas Company (Nicor) had violated RCRA in two ways: first, by disposing of waste oil from past manufactured gas operations that was “likely to have leaked into the environment . . . leading to the creation of methane gas as the oil biodegrades,” and second by allowing “leakage of natural gas from active gas pipelines and associated infrastructure into the soil, groundwater, and bedrock.” The court rejected these arguments, and granted Nicor’s motion to dismiss the RCRA claims.

Although the RCRA definition of “solid waste” also includes certain non-solids, the court concluded that it does not cover “‘uncontained’ gaseous material” like the methane allegedly leaking from the pipelines. Because the court considered this question to be ambiguous under text of the definition, it looked to guidance from EPA. The court noted that EPA has concluded in at least two rulemakings that uncontained gases do not fall within RCRA’s definition of solid waste. The district court’s approach suggests EPA could alter the definition to included “uncontained” gases through future rulemakings such that methane leaks might fall within the RCRA definition. By contrast, if the court had stated that the text of the RCRA definition unambiguously excluded uncontained gases, it would be authority for the proposition that EPA could not regulate methane leaks under RCRA in the future without action by Congress.

The City pointed to a rulemaking where the EPA concluded that streams of CO2 for sequestration qualified as a RCRA solid waste, but the court declined to expand that decision to apply to methane leaks. The court explained that, EPA “was careful” in the sequestration rulemaking “to specify that the CO2 in question was a ‘supercritical fluid,’ which is neither a gas nor a liquid. The court thus dismissed the second claim with prejudice because it determined that methane gas leaks are not “solid waste” and thus not subject to RCRA.

The court explained that by contrast, the City could base a claim (as it did under its first claim) on the discharge of a RCRA solid waste that breaks down into methane gas. The court dismissed the first claim without prejudice because the City had failed to comply with the statute’s notice requirements, but the City may bring this claim again if it provides the proper notice. 

Why this Decision Matters

Methane is considered a potent greenhouse gas (GHG), and federal agencies such as the EPA, as well as private advocacy groups, have sought to limit methane emissions using environmental laws. For example, the EPA proposed a rule under the authority of the Clean Air Act this past September that would regulate methane, standing alone, for the first time. More information about that proposal is available here. While this proposal only applies to certain sources of methane emissions in the oil and gas industry, it could have implications for other sources of methane emissions in the future. So far, most attempts to regulate methane have relied on Clean Air Act. The City of Evanston’s attempt to compel remedial action for methane emissions under RCRA, a statute designed to address waste, could have had profound impacts on sources of methane emissions, such as natural gas pipelines, that are not currently covered by EPA’s proposed methane rule. As noted by the court, other courts that have considered this issue have likewise found that uncontained gases, such as methane leaks, are not subject to RCRA. This decision further clarifies that RCRA does not apply to methane leaks. Instead, RCRA only applies to methane when it results from the biodegrading of another substance that meets the definition of a RCRA “solid waste.”

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