Aug 92022

EPA Conducts Flyovers in New Mexico and Texas

Hannah Posen, Nicole E. Noëlliste and Samuel B. Boxerman
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On August 1, 2022, the U.S. Environmental Protection Agency (EPA) announced that it is conducting helicopter flyovers of the Permian Basin region in New Mexico and Texas. EPA asserted that the purpose of the flyovers was to “survey oil and gas operations to identify large emitters” of methane and volatile organic compounds. This follows recent flyovers conducted in other regions for the same purpose.

The flyovers, which started August 1 and will continue through August 15, will use infrared cameras to detect hydrocarbon emissions. A technician on the helicopter will document information about the emissions and the emission source, which EPA states it intends to use to initiate enforcement actions against the facility operator. The federal Clean Air Act (CAA) authorizes EPA to bring administrative enforcement actions or refer claims to the Department of Justice to bring judicial actions seeking civil penalties and injunctive relief, which could include demands for corrective actions to prevent alleged noncompliance, additional monitoring, and other measures.

Any challenge to EPA’s actions would need to come to grips with a 1986 Supreme Court case, Dow Chemical Company v. United States, where the Court upheld EPA’s authority to take aerial photographs in order to map an industrial facility. In Dow, the Court rejected the argument that the overflights exceeded EPA’s information-gathering authority under the CAA, holding that because EPA was a regulatory and enforcement agency, it did not need an explicit statutory provision to use methods of observation commonly available to the public at large. It also found that EPA’s overflights did not violate the Fourth Amendment, reasoning that the large industrial complex was more akin to an open field and thus open to observation from the public airspace. It remains to be seen whether any intervening decisions addressing EPA’s CAA authorities (such as the recent West Virginia v. EPA ruling) would provide a basis for reaching a different result here.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Hannah Posen

Chicago

hposen@sidley.com

Nicole E. Noëlliste

Washington, D.C.

nnoelliste@sidley.com

Samuel B. Boxerman

Washington, D.C.

sboxerman@sidley.com

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