Photo Courtesy/WV Legislative Photography Former State Auditor J.B. McCuskey took his oath of office last week as West Virginia’s 35th Attorney General with Justice Beth Walker.  

CHARLESTON — Making good on campaign promises to challenge federal overreach, new Attorney General J.B. McCuskey joined his first multi-state lawsuit since being sworn in last week as the state’s top attorney.

The Attorney General’s Office announced Wednesday that it was joining with 22 other states to file a lawsuit in the U.S. Court of Appeals for the District of Columbia against the U.S. Environmental Protection Agency and acting EPA Administrator Jane Nishida.

The states are challenging EPA plans to implement the waste emissions charge – also called the methane tax rule. The rule was put in place by the Inflation Reduction Act, the 2022 law supported by the administration of former President Joe Biden and negotiated by former U.S. Senator Joe Manchin.

“The days of Biden’s dangerous and illogical energy policies are done,” McCuskey said. “Common sense will prevail, and we are excited to do everything we can to get the men and women of our gas industry back to work making America the world’s leader in energy production. This challenge will reduce costs to consumers, spur manufacturing and make us more secure.”

When passed in 2022, the Inflation Reduction Act amended the Clean Air Act to create the Methane Emissions Reduction Program. The waste emissions charge applies to any oil and natural gas facility that emits more than 25,000 metric tons of carbon dioxide per year.

The methane tax rule would set a retroactive charge of $900 per metric ton for 2024 reported methane emissions, increasing annually to $1,200 per metric ton for 2025 emissions, and $1,500 per metric ton for emissions years 2026 and later. 

“The final Waste Emissions Charge is the latest in a series of actions under President Biden’s methane strategy to improve efficiency in the oil and gas sector, support American jobs, protect clean air, and reinforce U.S. leadership on the global stage,” said former EPA Administrator Michael Regan in a statement last year. 

“EPA has been engaging with industry, states, and communities to reduce methane emissions so that natural gas ultimately makes it to consumers as usable fuel – instead of as a harmful greenhouse gas,” Regan continued. “Along with EPA’s complementary set of technology standards and historic financial and technical resources under the Inflation Reduction Act, today’s action ensures that America continues to lead in deploying technologies and innovations that lower our emissions.”

The methane tax rule was finalized by the EPA last November, with an additional proposed rule released earlier this month on how to implement the methane tax. The EPA estimating that the rule could help reduce methane emissions by 1.2 million metric tons by 2035. But natural gas industry advocates argue that the methane tax rule will make it harder to meet the nation’s growing electricity needs.

“API supports smart, effective methane regulations, yet this rule hampers our ability to meet the growing energy needs of American families and businesses and fails to advance meaningful emissions reduction,” said Dustin Meyer, senior vice president of Policy, Economics and Regulatory Affairs for the American Petroleum Institute. “This is the wrong approach on methane policymaking, and we look forward to working with the incoming administration and new Congress to get this right.”  

Supporters of the methane tax rule believe it will be an important tool in incentivizing the fossil fuel industry to find ways to curb methane emissions and would only effect companies not making active changes.

“The waste emission charge is an important tool to help curb dangerous methane pollution from the oil and gas industry,” said Mahyar Sorour, director of Beyond Fossil Fuels Policy for the Sierra Club. “Reducing methane pollution is a win-win for communities, the climate, and corporations who can keep more gas in the pipes to deliver to customers. This bill is nothing but a handout to companies who want to pollute our air and waste our energy without oversight or consequence.”

McCuskey and the partner states are petitioning the U.S. Court of Appeals to review the final rule. They argue that the rule exceeds the EPA’s statutory authority and are asking the court to declare the rule unlawful and vacate the rule.

McCuskey, the former two-term State Auditor and a former member of the House of Delegates, won his primary and general election last year to succeed former Attorney General Patrick Morrisey, who was also sworn in last week as Governor.

The courts could rule in the favor of the 23 states and Congress could overturn the methane tax rule using the Congressional Review Act, but it would take Congress amending the Inflation Reduction Act in order to remove the requirement for the methane tax rule. An executive order signed by President Donald Trump Monday has already paused any spending of money on Inflation Reduction Act programs.

Senate Environment and Public Works Committee Chairwoman Shelley Moore Capito, R-W.Va., is opposed to the methane tax rule. In a letter to the EPA last year, Capito and several Republican senators outlining their concerns with the rule, including the possibility of companies passing on the costs to consumers.

“The Biden administration is continuing its anti-consumer agenda by implementing the natural gas tax enacted by Democrats in the Inflation Reduction Act,” Capito said. “This natural gas tax will inflate prices for consumers and reduce domestic energy production, which will empower our adversaries abroad. American voters firmly have said ‘enough,’ and rejected Democrats’ destructive energy policies last week. I look forward to working with my colleagues and President Trump to repeal this misguided tax early in the next Congress.”