September 7-13, 2019
In this week's issue:
- NACAA Urges Senate to Increase State and Local Air Grants (September 12, 2019)
- Senate Approves Top-Line Interior-EPA Appropriation Number; Differences With House Remain (September 12, 2019)
- D.C. Circuit ACE Rule Litigation: 21 States Move to Intervene in Support of Rule; More Petitions for Review Filed; Petitioners Oppose Expedition of Case (September 6-13, 2019)
- D.C. Circuit Grants in Part and Denies in Part Petitions Challenging CSAPR Update Rule (September 13, 2019)
- House Passes Bill to Reauthorize DERA Through 2024 (September 9, 2019)
- EPA Publishes Marine Diesel NPRM in Federal Register with October 21 Comment Deadline (September 6, 2019)
- EPA Announces Availability of Draft Policy Assessment for PM NAAQS Review, Sets November 12 Comment Deadline (September 11, 2019)
- Two House Committees Examine Climate-Related Economic and Job Growth Opportunities (September 10, 2019)
- EPA Publishes Risk and Technology Review Proposal, Requests Public Comment (September 9, 2019)
- EPA Updates Language in Strategic Plan (September 9, 2019)
This Week in Review
NACAA sent a letter to Senators Richard Shelby (R-AL) and Patrick Leahy (D-VT), Chair and Vice Chair of the Senate Appropriations Committee, respectively, urging the Senate to increase state and local air grants under Sections 103 and 105 of the Clean Air Act by $82 million above FY 2019 levels (i.e., approximately $158 million above the Administration’s FY 2020 request), for a total of $310 million. NACAA notes in the letter that federal grants to state and local air quality agencies are the same now as they were 15 years ago in FY 2004 – $228 million. If the FY 2004 figure is adjusted for inflation, level funding would be approximately $310 million in today’s dollars. The association states that air pollution remains a serious public health problem and that state and local air agencies have many responsibilities to address this issue. At the same time, federal grants to state and local agencies to address air quality have been insufficient for many years. The Senate is currently addressing legislation containing EPA’s FY 2020 funding and is expected to act within the next two weeks (see related article in this week’s Washington Update). The House adopted funding legislation on June 25, 2019, calling for a $10-million increase in state and local air grants, for a total of $238 million. Since it is unlikely that Congress will complete its work on FY 2020 funding by the end of the fiscal year on September 30, 2019, it is probable that a Continuing Resolution (CR) will be adopted to temporarily extend funding at FY 2019 levels. Reportedly, the CR under consideration will last until November 22, 2019.
For further information: http://www.4cleanair.org/sites/default/files/Documents/NACAA_Senate_Letter_Sept_2019.pdf
The Senate Appropriations Committee met to consider how to allocate the FY 2020 federal budget, divvying funds across 12 bills that are considered each year that determine the funding of the U.S. government. In a party-line vote, the Committee backed $35.8 billion for the FY 2020 Interior-EPA appropriations bill. This would mean a $200-million increase over the $35.6 billion that was authorized for 2019, but $1.4 billion less than the $37.27-billion FY 2020 proposed budget passed by House appropriators in June. The Senate Appropriations Committee will use the overall figures to guide it in writing FY 2020 appropriations bills, including one to fund EPA, the Department of Interior and various other agencies. More detailed program-level budget numbers will need to be proposed and passed as part of a Senate Interior-EPA bill, which is tentatively scheduled to be marked up the third week of September. Senate Democratic appropriators offered their own proposed budget allocations that would have increased the Interior-EPA top-line number by an additional $200 million; that proposal failed on a party-line vote. Any Senate-approved Interior-EPA appropriations bill will have to be reconciled with a divergent House bill, with significant compromises likely to be required, before a spending bill can be sent to the White House for signature. The deadline for completing this process is midnight on September 30, 2019; both parties’ appropriators have predicted that it is unlikely the bill will be passed and signed by the President in time, and that ongoing funding for EPA and other federal agencies will be passed via a stopgap Continuing Resolution that would provide level funding for a short period until lawmakers assemble their FY 2020 spending bills in an omnibus package. Also this week, NACAA submitted a letter to leaders of the Senate Appropriations Committee calling for increases to state and local clean air program grants (see related story in this week’s Washington Update).
For further information: https://www.appropriations.senate.gov/hearings/full-committee-markup-of-defense-energy-and-water-development-sfops_labor-h-bills-for-fy2020
The U.S. Court of Appeals for the District of Columbia Circuit saw a flurry of filings in litigation challenging EPA’s Affordable Clean Energy (ACE) rule. The ACE rule repeals and replaces the Obama Administration’s Clean Power Plan to regulate greenhouse gas (GHG) emissions from existing power plants and revises the regulations implementing Section 111(d) of the Clean Air Act regarding the process by which EPA develops emission guidelines and states develop implementation plans for EPA approval. As the deadline for filing petitions for review passed, the total number of cases challenging the rule reached 13. Together, these 13 petitions were brought by 66 individual parties, including 23 states, the District of Columbia and seven cities and counties (most of the states and cities joined together in one petition, discussed in earlier issues of the Washington Update, while the City and County of Denver, CO and the State of Nevada each filed separate petitions). Additional petitioners include environmental and public health groups, power companies and renewable energy groups that believe the ACE rule is not stringent enough; as well as groups and companies that are expected to challenge EPA’s authority to regulate power plant GHG emissions at all. In addition, 10 parties and groups of parties have moved to intervene to support EPA in defending the ACE rule, including 21 states. Twenty of those states have grouped themselves together, led by West Virginia, along with Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah and Wyoming. North Dakota moved to intervene separately. Other respondent-intervenors include utilities, industry and business groups. Also this week, several petitioners filed responses in opposition to EPA’s August 28, 2019 motion to expedite the litigation, including the state and city petitioners, environmental and public health groups, and power company petitioners. All of them argued in their responses that EPA has not met the court’s stringent standard for expedition. The North American Coal Corporation, which intends to argue that the ACE rule is invalid due to EPA’s failure to make a separate endangerment finding for electric generating units, filed a response in support of EPA’s motion to expedite.
For further information: http://4cleanair.org/sites/default/files/Documents/AffordableCleanEnergyRuleLitigants-09132019.pdf (NACAA chart showing all ACE rule litigants); http://4cleanair.org/sites/default/files/Documents/ALAvEPA-State-CitiesOpptomotiontoexpedite-09092019.pdf (state and city petitioners’ response in opposition to EPA motion to expedite); http://4cleanair.org/sites/default/files/Documents/ALAvEPA-EnvOpptoMotiontoExpedite-09092019.pdf (environmental and public health petitioners’ response in opposition to EPA motion to expedite); http://4cleanair.org/sites/default/files/Documents/ALAvEPA-PowerCosOpptoMottoExpedite-09102019.pdf (power company petitioners’ response in opposition to EPA motion to expedite); http://4cleanair.org/sites/default/files/Documents/ALAvEPA-NACoalRespinSupportofMotiontoExpedite-09092019.pdf (North American Coal Corp. response in support of EPA motion to expedite)
The U.S. Court of Appeals for the District of Columbia Circuit issued its opinion in the case of State of Wisconsin, et al., v. EPA (No. 16-1406), in which various petitioners challenged EPA’s October 16, 2016 final Cross-State Air Pollution Rule Update Rule (CSAPR Update Rule). Environmental groups and the State of Delaware argued that the CSAPR Update Rule is not sufficiently stringent; industry and other state petitioners argued that the rule is overly stringent. EPA maintained that neither position had merit and that the final rule should be upheld because it “appropriately balance[d] the obligation to implement Good Neighbor emission reductions as expeditiously as practicable to benefit impacted downwind states, while also ensuring that upwind states are not ‘over-controlled,’ consistent with the instructions of the Supreme Court and this Court.” The D.C. Circuit – which granted the petitions in part and denied them in part – held, “When upwind States pollute, downwind States can suffer the consequences. Congress addressed that problem in the Clean Air Act by enacting a “Good Neighbor Provision.” The Provision requires upwind States to eliminate their significant contributions to air quality problems in downwind States. In 2016, the Environmental Protection Agency implemented that requirement by promulgating a regulation addressing the interstate transport of ozone, or smog. A number of parties brought challenges to the Rule, some contending that the Rule is too strict and others contending that it is too lenient. We conclude that, in one respect, the Rule is inconsistent with the Act: it allows upwind States to continue their significant contributions to downwind air quality problems beyond the statutory deadlines by which downwind States must demonstrate their attainment of air quality standards. In all other respects, though, we determine that EPA acted lawfully and rationally.”
For further information: http://4cleanair.org/sites/default/files/Documents/Litigation-DC_Circuit_Decision_in_CSAPR_Update_Case-091319.pdf
The House of Representatives voted, 295 to 114, to approve legislation reauthorizing the Diesel Emissions Reduction Act (DERA). The bill, H.R. 1786, was introduced by Rep. Doris Matsui (D-CA) on March 14, 2019; its Senate companion bill, S. 757, introduced by Senator Tom Carper (D-DE) on March 12, 2019, passed the Senate Environment and Public Works Committee on April 10, 2019. The DERA program, first established in 2005 as part of the Energy Policy Act, is a federally funded grant and rebate program administered by EPA and intended to leverage state and other non-federal funding to finance the voluntary replacement of, and installation of retrofits on, existing heavy-duty diesel vehicles and engines. Upon passage by the House of H.R. 1786, Rep, Matsui stated, “DERA creates American jobs, protects our environment, and generates thirty dollars in public health benefits for every dollar spent. It is the very definition of a commonsense, good government program. Passing this bill through the House is an example of what we can accomplish when we work together, and I am proud to have spearheaded this reauthorization alongside Chairman Pallone and Congressman Long. I look forward to seeing the Senate finish this important work so we can usher this bipartisan bill into law.”
For further information: https://www.congress.gov/bill/116th-congress/house-bill/1768 and https://matsui.house.gov/news/documentsingle.aspx?DocumentID=1890
EPA published in the Federal Register (84 Fed. Reg. 46909) a Notice of Proposed Rulemaking to amend the federal marine diesel engine program to provide relief to address the concerns of some over finding and installing certified Tier 4 marine diesel engines in certain high-speed commercial vessels with rated power between 600 and 1,400 kilowatts (kW).. In particular, EPA proposes two phases of additional lead time (“adjusted implementation dates”) for qualifying engines and vessels. Phase 1 would set model year (MY) 2022 as the implementation deadline for propulsion engines with a maximum power output up to 1,400 kW and a power density of at least 35.0 kW per liter displacement and would be limited to vessels up to 65 feet in length with total nameplate propulsion power at or below 2,800 kW. The targeted vessels are lobster fishing boats, pilot boats and some research boats. Phase 2 would set MY 2024 as the implementation deadline for engines installed “in a narrower set of high-speed vessels that [EPA] believe[s] will require additional lead time,” namely vessels with a single propulsion engine, maximum power output to 1,000 kW and power density of at least 40.0 kW per liter displacement, made with a nonmetal hull and having a maximum length of 50 feet; EPA expects these vessels to be primarily lobster or other fishing boats. The proposal would provide further relief in the form of a waiver process beginning in 2024 for vessels that meet the Phase 2 specifications but for which Tier 4 engine certification does not proceed as expected so that certified Tier 4 engines with appropriate performance characteristics are available. The agency also proposes “technical corrections” to the diesel fuel regulations to facilitate smooth implementation of the 2020 global marine fuel standard by allowing distribution in the U.S. of distillate diesel fuel that complies with the 5,000 parts-per-million global sulfur standard. By making this change, global marine fuel up to the 5,000-ppm sulfur limit would be exempt from the prohibition against distributing distillate diesel fuel that exceeds the Ultra-Low Sulfur Diesel and Emission Control Area marine fuel sulfur standards. EPA will hold a public hearing on this proposal on Friday, September 20, 2019 in Bath, ME. The deadline for written public comments is October 21, 2019.
For further information: https://www.govinfo.gov/content/pkg/FR-2019-09-06/pdf/2019-19092.pdf and https://www.epa.gov/regulations-emissions-vehicles-and-engines/amendments-related-marine-diesel-engine-emission
EPA published in the Federal Register (84 Fed. Reg. 47944) a notice announcing the availability of the agency’s Policy Assessment for the Review of the National Ambient Air Quality Standards for Particulate Matter: External Review Draft. Once final, this document will provide policy-relevant information to inform EPA’s ongoing review of the particulate matter NAAQS, which the agency is working to complete by December 2020. EPA released the draft on its website on September 5, 2019 (see the related article in the August 30-September 6, 2019 Washington Update). EPA will accept public comments on the draft Policy Assessment until November 12, 2019. The agency is soliciting advice and recommendations on the draft from the Clean Air Scientific Advisory Committee (CASAC) and will announce the date and location of a CASAC public meeting in a forthcoming Federal Register notice.
For further information: https://www.govinfo.gov/content/pkg/FR-2019-09-11/pdf/2019-19627.pdf and https://www.epa.gov/naaqs/particulate-matter-pm-standards-policy-assessments-current-review-0
The House Committee on Small Business and the House Select Committee on the Climate Crisis held separate hearings to explore economic and job opportunities related to climate action. Beginning in the morning, the Small Business Subcommittee on Rural Development, Agriculture, Trade and Entrepreneurship held a hearing on job and business opportunities in the clean energy industry. Among other things, the hearing explored economic opportunities related to growth in renewable energy generation, expanded natural gas utilization, new energy efficiency technologies and a host of federal policies and programs designed to support renewable energy and energy efficiency. Four witnesses testified at the hearing: Lynn Abramson, President of the Clean Energy Business Network; Thomas Brooks, General Manager of Western Dubuque Biodiesel LLC; Michael Williams, Deputy Director of the BlueGreen Alliance; and David Spigelmyer, President of the Marcellus Shale Coalition. Later in the afternoon, the House Select Committee on the Climate Crisis convened a hearing on how clean energy technologies can create manufacturing jobs. “We need millions of workers to design, build, and manufacture wind turbines, solar panels, electric cars, new mass transit, energy efficient products, and state-of-the-art industrial facilities,” said Committee Chairwoman Kathy Castor (D-FL) at the hearing’s outset. The meeting featured the following four witnesses: Zoe Lipman, Director of the Vehicles and Advanced Transportation Program at the BlueGreen Alliance; Tarak Shah, former Chief of Staff to the Undersecretary for Science and Energy at the Department of Energy; Josh Nassar, Legislative Director for the United Auto Workers; and Edward Stones, Global Business Director for Energy and Climate Change at Dow Chemical Company.
For further information: https://smallbusiness.house.gov/calendar/eventsingle.aspx?EventID=2801 and https://climatecrisis.house.gov/committee-activity/hearings/manufacturing-jobs
EPA published in the Federal Register (84 Fed. Reg. 47346) a proposed Risk and Technology Review standard for the Cellulose Manufacturing source category and is soliciting public comment by October 24, 2019. EPA is proposing that the risks remaining after MACT are acceptable and that there are no new developments in control technologies or practices that would warrant additional requirements. The agency is proposing minor amendments, however, including to clarify that the standards are applicable during periods of startup, shutdown and malfunction and to require electronic reporting of data submissions.
For further information: https://www.govinfo.gov/content/pkg/FR-2019-09-09/pdf/2019-18330.pdf and https://www.epa.gov/stationary-sources-air-pollution/cellulose-products-manufacturing-national-emission-standards
EPA updated its FY 2018-2022 Strategic Plan, revising the language of some of the agency’s strategic goals in order to “better reflect EPA’s environmental and policy goals.” The three revised goal statements in the updated plan are 1) “A Cleaner, Healthier Environment – Deliver a cleaner, safer, and healthier environment for all Americans and future generations by carrying out the Agency’s core mission.” 2) “More Effective Partnerships – Provide certainty to states, localities, tribal nations, and the regulated community in carrying out shared responsibilities and communicating results to all Americans.” Notably, this goal no longer includes the term “cooperative federalism.” The previous wording was, “Cooperative Federalism – Rebalance the power between Washington and the states to create tangible environmental results for the American people.” 3) “Greater Certainty, Compliance, and Effectiveness – Increase certainty, compliance, and effectiveness by applying the rule of law to achieve more efficient and effective agency operations, service delivery, and regulatory relief.”
For further information: https://www.epa.gov/newsreleases/epa-updates-strategic-plan-emphasize-current-environmental-and-policy-goals