Joint Resolution Puts Future of Methane Fee in Doubt
The Biden administration's rule requiring the payment of a fee for methane emissions has effectively been rescinded, although, for now at least, the statutory provision imposing the fee remains in effect along with other Biden administration regulations addressing methane.
The House of Representatives and Senate have passed a joint resolution, disapproving of the regulations issued by the United States Environmental Protection Agency ("EPA") at the end of the Biden administration imposing a fee on certain methane emissions. Once the joint resolution is signed by President Trump as expected, the fee regulations will have no further force or effect.
Note that the joint resolution only addresses the methane fee regulations. Other regulations addressing methane emissions during the Biden administration, such as the 2024 methane emission standards and the revised methane emission reporting rules, are not impacted by the joint resolution. It is likely, however, that these rules will be addressed as part of the regulatory rollback announced by EPA on March 12, 2025.
The joint resolution was passed under authority granted by the Congressional Review Act, 5 U.S.C. §§ 801-808. The act allows Congress, through a joint resolution approved by the majority of both houses and signed by the president, to mandate that a regulation will not be in effect. As is the case with the methane fee rules, it has nearly always been used to address regulations issued in the last 60 legislative days of a presidential administration when there is a presidential transition. Once the regulation has been disapproved, the agency may not reissue the rule "in substantially the same form," absent additional Congressional action.
Here, the methane fee rules were published in the Federal Register on November 18, 2024. EPA developed the rules to implement Section 136 of the Clean Air Act. See 42 U.S. Code § 7436. Section 136 was added to the Clean Air Act by the 2022 Inflation Reduction Act and requires that EPA collect a fee of at least $900 per metric ton of designated methane emissions starting with 2024 emissions.
One currently open question is whether voiding the regulations implementing the methane fee ends any fee obligation when the statutory requirement to collect the fee remains in effect. Congressional Republicans have suggested that the Clean Air Act will be amended to remove the statutory fee requirement. Until the statutory amendment occurs, however, the continued existence of the fee is an open question. If the statutory amendment does not occur, a future presidential administration could seek to collect the fee, although the ability to issue regulations providing payment procedures would be limited by the ban on a rule "in substantially the same form" under the Congressional Review Act.
