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July 20-26, 2019
In this week's issue:
- California and Four Major Automakers Reach Agreement on Light-Duty Vehicle GHG Emission Standards (July 25, 2019)
- Against CASAC’s Recommendation EPA Declines to Develop Second Draft Science Assessment for PM NAAQS Review (July 25, 2019)
- Senators Carper and Murkowski Introduce Bill to Fund State Wood Heater Change-Out Programs (July 25, 2019)
- Legislators Introduce Two Carbon Tax Proposals (July 25, 2019)
- Senators Introduce Bills to Encourage Carbon Capture Technology (July 25, 2019)
- REINS Act Introduced in House (July 25, 2019)
- Proposed Rule to Implement Rescission of Once-In-Always-In Policy Published in Federal Register (July 25, 2019)
- State AGs Ask EPA and NHTSA to Withdraw Light-Duty Vehicle GHG and Fuel Economy Standards Rollback Rule and Comply with Requirements to Consult with States (July 23, 2019)
- Energy and Commerce Committee Democrats Announce Legislative Effort to Achieve Net Zero GHG Emissions by 2050 (July 23 & 25, 2019)
- Two House Committees Hold Hearings to Examine Economic Impacts of Climate Change (July 24-25, 2019)
- Petitioners’ File Opening Brief in Litigation Challenging Aspects of EPA’s Ozone Implementation Rules (July 22, 2019)
- States, Local Governments and Public Health and Environmental Groups Oppose Request to Dismiss Clean Power Plan Challenge (July 25, 2019)
- Democratic Senators Urge EPA’s Office of Inspector General to Investigate Potential Ethics Violations by Former EPA Air Chief (July 21, 2019)
This Week in Review
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California and four major automobile manufacturers announced they have reached agreement on a voluntary framework for light-duty vehicle (LDV) greenhouse gas (GHG) emission standards. The agreement, which comes as the Trump Administration continues work to finalize a rule to rollback GHG standards already on the books, lays out an “alternative path forward for clean vehicle standards nationwide,” reads a statement issued by California. The agreement – signed by Ford Motor Company, American Honda Motor Company, Volkswagen Group of America and BMW of North America – lays out terms for a national program that revises GHG standards in a way that supports continued annual emission reductions through model year 2026, provides appropriate flexibilities to spur zero-emission technology, removes the requirement to account for upstream emissions of fuels (since these emissions can be addressed through other programs), incentivizes innovation, includes streamlining and process improvements (related to the off-cycle credit program) and recognizes California’s authority by stating, “Participating companies are choosing to pursue a voluntary agreement in which California accepts these terms as compliance with its program, given its authority, rather than challenge California’s GHG and ZEV programs.” A joint statement issued by the four automakers reads, “Ensuring that America’s vehicles are efficient, safe and affordable is a priority for us all. A 50-state solution has always been our preferred path forward and we understand that any deal involves compromise. These terms will provide our companies much-needed regulatory certainty by allowing us to meet both federal and state requirements with a single national fleet, avoiding a patchwork of regulations while continuing to ensure meaningful greenhouse gas emissions reductions.” In California’s written statement, Mary D. Nichols, Chair of the state’s Air Resources Board, is quoted as saying, “This agreement represents a feasible and acceptable path to accomplishing the goals of California and the automobile industry. If the White House does not agree, we will move forward with our current standards but work with individual carmakers to implement these principles. At the same time, if the current federal standards proposal is finalized, we will continue to enforce our regulations and pursue legal challenges to the federal rule.” California Governor Gavin Newsom has called not only on the rest of the auto industry to sign onto the agreement but also on “the Trump administration to adopt this pragmatic compromise instead of pursuing its regressive rule change,” calling the agreement “the right thing for our economy, our people and our planet.”
For further information: http://www.4cleanair.org/sites/default/files/Documents/LDV_GHGCAFE-California-AutoMakers_Agreement-072519.pdf and https://ww2.arb.ca.gov/news/california-and-major-automakers-reach-groundbreaking-framework-agreement-clean-emission
In a letter to Louis Anthony Cox, Chair of EPA’s Clean Air Scientific Advisory Committee (CASAC), Administrator Andrew Wheeler advised that the agency will not prepare a second draft of the Integrated Science Assessment (ISA) for the PM NAAQS review. In an April 11, 2019 letter to Wheeler, CASAC provided the results of its peer review of the agency’s Integrated Science Assessment for Particulate Matter (External Review Draft) – October 18, 2018 (Draft ISA), including the recommendation that EPA prepare a Second Draft ISA. In that April 11 letter, CASAC wrote, “Overall, the CASAC finds that the Draft ISA does not provide a sufficiently comprehensive, systematic assessment of the available science relevant to understanding the health impacts of exposure to particulate matter (PM).” The Committee went on to recommend that three “fundamental limitations” be remedied in a Second Draft ISA for CASAC’s review: 1) lack of comprehensive, systematic review, 2) inadequate evidence for altered causal determinations and 3) unclear discussion of causality and causal biological mechanism and pathways. In addition to recommending preparation of a Second Draft ISA, CASAC recommended that EPA, by the time of the review of the Second Draft ISA, reappoint the previous CASAC PM panel (or appoint a panel with similar expertise) and add expertise in specific disciplines. In his response this week, Administrator Wheeler noted that “CASAC has raised a number of important issues with the draft PM ISA” and that “[s]ome of these comments and adjustments can be addressed in the near term, while others will require additional time to complete.” The Administrator then explains that “the process outlined in the EPA’s May 9, 2018, ‘Back-to-Basics’ memo directs the agency to ensure that NAAQS reviews are completed in a timely, efficient and transparent manner consistent with the [Clean Air Act]….With this in mind,” Wheeler writes, he has directed his staff to complete the PM NAAQS review by the end of 2020. Notwithstanding the concerns CASAC has raised with the ISA, Wheeler has “asked that staff maintain their focus on meeting our statutory deadlines while reflecting the latest scientific information in a final PM ISA.” Wheeler also discusses the agency’s review of the ozone NAAQS, writing that he has directed his staff to produce the draft ozone ISA and accelerate development of the ozone policy assessment so that both documents are available for simultaneous CASAC and public review by October 2019 with the reviews to conclude by the end of this year. In response to CASAC’s recommendation that Wheeler reappoint the disbanded CASAC PM panel, Wheeler writes that he has directed his staff to “[c]reate a pool of subject matter expert consultants that the seven-person chartered CASAC, through the chair, will draw from as needed to support its PM and ozone reviews.” EPA intends to solicit public nominations for this pool of consultants so that the individuals will be available to CASAC by August 31, 2019.
For further information: http://www.4cleanair.org/sites/default/files/Documents/PM_NAAQS_Review-Wheeler_Letter_to_CASAC_on_ISA-062519.pdf
Senators Tom Carper (D-DE) and Lisa Murkowski (R-AK) introduced bipartisan legislation to advance the deployment of cleaner-burning residential wood heaters. The Wood Heaters Emissions Reduction Act (WHERA) authorizes $75 million per year, from FY 2020 through FY 2025, for an EPA grant program to incentivize the removal of old, inefficient residential wood heaters and the replacement of those units with clean-burning, efficient devices (fuel switching is allowed); the program applies to residential wood heaters, hydronic heaters and forced-air furnaces. States, regional agencies and Indian tribes will propose voluntary programs to EPA through a process similar to that for Diesel Emissions Reduction Act (DERA) funds, and will manage the programs as well. In allocating grant funds, EPA will give priority to states, regional agencies and Indian tribes that will use the funds to support projects that, among other things, maximize public health benefits; are the most cost effective; include certified clean heaters and other heaters that achieve emission reductions and efficiency improvements that are more stringent than the Step 2 emission reduction standards included in EPA’s 2015 residential wood heater New Source Performance Standards final rule; target low-income households; encourage the recycling of old wood heaters when they are replaced; and serve areas that receive a disproportionate amount of air pollution from wood heaters, have a high percentage of residents that use wood as their primary source of heat or are poor air quality areas. The bill includes language stating that funds made available under WHERA “shall be used to supplement, not supplant, funds made available for existing State clean air programs.”
For further information: http://www.4cleanair.org/sites/default/files/Documents/RWH-WHERA-Wood_Heater_Emissions_Reduction_Act_of_2019-072419.pdf
A group of Senate and House Democrats and a bipartisan pair of House members introduced separate carbon tax proposals to address climate change. Senators Chris Coons (D-DE) and Dianne Feinstein (D-CA) and Rep. Jimmy Panetta (D-CA) are sponsoring legislation that would tax carbon and return most of the revenue to the public as a dividend. Called the Climate Action Rebate Act and assigned bill number S. 2284 in the Senate, the legislation would impose a fee of $15 per ton of CO2 equivalent on fossil fuels and fluorinated gases in 2020, increasing the per-ton fee by at least $15 annually until emissions decline to 10 percent of 2017 levels. The bill would also apply a border adjustment fee to carbon-intensive imports. Seventy percent of the net revenues generated by the measure would be directed to a dividend program, 20 percent would be used to support infrastructure programs, 5 percent would be directed to research and development and the remaining 5 percent would fund an assistance program to help workers transition into a clean energy economy. The bill’s sponsors estimate that S. 2284 would reduce U.S. carbon emissions to 55 percent below 2017 levels by 2030 and eliminate them entirely by 2050. Meanwhile, Reps. Dan Lipinski (D-IL) and Francis Rooney (R-FL) offered their own carbon tax proposal, H.R. 3966, the Raise Wages, Cut Carbon Act. The bipartisan measure would impose a $40-per-ton carbon fee starting in 2020 and increase by 2.5 percent plus inflation annually. Eighty-four percent of the revenue collected would be returned to taxpayers as an offset to payroll taxes with the remainder divided between the Low Income Home Energy Assistance Program, the Weatherization Assistance Program and Social Security recipients.
For further information: https://www.coons.senate.gov/news/press-releases/sens-coons-and-feinstein-rep-panetta-introduce-bill-to-price-carbon-pollution-invest-in-infrastructure-randd-and-working-families, https://www.congress.gov/bill/116th-congress/senate-bill/2284; and https://www.congress.gov/bill/116th-congress/house-bill/3966
Two new Senate bills seek to enhance opportunities to deploy carbon capture technologies. The bipartisan Clean Industrial Technology Act, introduced by Senators Sheldon Whitehouse (D-RI), Shelly Moore Capito (R-WV), Mike Braun (R-IN), Joe Manchin (D-WV) and Cory Booker (D-NJ), would create a federal advisory committee to coordinate research funding for carbon capture technology applied to industrial sources. The Department of Energy would also be required to establish a technical assistance program to help state, local and tribal governments implement the low-carbon industrial technologies. The proposal has been assigned bill number S. 2300. Senators John Hoeven (R-ND), Steve Daines (R-MT) and Kevin Cramer (R-ND) introduced a second carbon capture proposal. Their bill, S. 2263, would adjust an existing tax credit for carbon capture and storage to distinguish between the captured CO2 used for geological storage and captured CO2 used for enhanced oil recovery.
For further information: https://www.congress.gov/bill/116th-congress/senate-bill/2300 and https://www.congress.gov/bill/116th-congress/senate-bill/2263
Rep. James Sensenbrenner (R-WI) introduced the Regulations from the Executive in Need of Scrutiny Act (REINS Act). The bill – a companion to S. 92, introduced by Senator Rand Paul (R-KY) on January 10, 2019 – requires Congress to approve any proposed or interim final “major” regulation before it becomes effective and provides that votes on affected rules must occur within 70 legislative days; if both chambers fail to act within this timeframe, however, any rule in question would be tabled. A “major” regulation is defined as one that the Office of Management and Budget finds has resulted in, or is likely to result in, an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies or geographic regions; or significant adverse impacts on competition, employment, investment, productivity, innovation or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. The REINS Act was also introduced in 2015 and 2017 and passed the House each time but stalled in the Senate.
For further information: https://sensenbrenner.house.gov/_cache/files/2/f/2f564832-dc1c-4e7b-bf35-7b5d2472fec7/46B12E42B317CEE054C76E3F0A178755.sensen-029-xml.pdf
EPA published in the Federal Register (84 Fed. Reg. 36304) a proposed rule that would allow a major source of hazardous air pollutants (HAPs) to reclassify itself as an area source after it has limited its HAP emissions to below major-source thresholds. The proposal would put into regulation the rescission of EPA’s 1995 “Once-In-Always-In” (OIAI) policy, as discussed by then-EPA Assistant Administrator for Air and Radiation Bill Wehrum in a January 25, 2018 memorandum, entitled “Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act.” The OIAI policy provided that once a HAP source is considered a major source under Section 112 of the Clean Air Act, it remains major even if its emissions drop below major-source levels. The intent of the policy, as described in a May 16, 1995 EPA memorandum, was to prevent backsliding. In the proposed rule, which EPA refers to as the “Major MACT to Area” (MM2A) rule, the agency states the following: “Of the estimated 7,920 sources subject to national emissions standards as a major source, EPA estimates nearly half could become area sources, saving $168.9 million in the first year and $163 million to $183 million annually (in 2014 dollars) in the following years.” EPA seeks comment on all aspects of the proposal, including the agency’s position that the proposed approach is the proper reading of Section 112(a) and is consistent with the Clean Air Act’s clear language and structure; the requirements for establishing effective HAP emissions limits; provisions to allow limitations issued by state/local/tribal air pollution control agencies to be recognized as effective provided they are legally and practically enforceable; and safeguards that may be appropriate to protect against emissions increases. Comments are due by September 24, 2019. EPA plans to hold at least one public hearing on this proposal and will publish a second Federal Register notice announcing the date, location and other details.
For further information: https://www.govinfo.gov/content/pkg/FR-2019-07-26/pdf/2019-14252.pdf and https://www.epa.gov/stationary-sources-air-pollution/reclassification-major-sources-area-sources-under-section-112-clean
The Attorneys General (AG) of 12 states sent a letter to EPA Administrator Andrew Wheeler and National Highway Traffic Safety Administration (NHTSA) Deputy Administrator Heidi King to provide supplemental comment on and request a correction to EPA and NHTSA’s August 2018 joint proposed rulemaking to rollback greenhouse gas emission and fuel economy standards for light-duty vehicles. In that proposal, EPA and NHTSA state that they complied with the requirements of Executive Order 13,132 (issued August 4, 1999) mandating that federal agencies proposing a rule that will preempt state law consult with state officials “early in the process of developing the proposed regulation.” The state AGs, however, argue that “neither EPA nor NHTSA consulted with our states ‘early in the process of developing their preemption proposals,’ nor have they consulted with our states about the preemption proposals at any subsequent time.” Accordingly, the state AGs request that EPA and NHTSA withdraw the proposed LDV rollback rule and fully comply with the Executive Order regarding state consultation, arguing that “[t]he devastating impacts these preemption proposals would have on the health and safety of our residents, and their severe incursions into our states’ authority and our ability to exercise that authority to protect our residents, demand nothing less.” The state AGs further request that the inaccurate information in the proposed rulemaking, stating that EPA and NHTSA complied with Executive Order 13,132, be corrected to clearly reflect that the agencies did not comply. “This correction,” the state AGs say, “is necessary for the benefit of all stakeholders, including, but not limited to, reviewers at the Office of Information and Regulatory Affairs, states affected by the preemption proposal, and members of the public, as well as to create an accurate record for any reviewing court.” The AGs who signed the letter are from New York, Colorado, Connecticut, Delaware, Maine, Maryland, Massachusetts, New Jersey, Oregon, Pennsylvania, Vermont and Washington. All 12 of these states have adopted California’s Advanced Clean Cars standards for model years 2021 through 2025, which are threatened by EPA and NHTSA’s preemption proposals.
For further information: http://www.4cleanair.org/sites/default/files/Documents/LDV-AGs_Lettter_to_EPANHTSA_EO13132-Consultation-072319.pdf
House Energy and Commerce Committee Chairman Frank Pallone (D-NJ), Energy Subcommittee Chairman Bobby Rush (D-IL) and Environment and Climate Change Subcommittee Chairman Paul Tonko D-NY announced that the Committee will host a series of hearings and stakeholder meetings to develop a national strategy to reduce U.S. greenhouse gas (GHG) emissions to net zero by 2050. The 2050 goal is consistent with the United Nations Intergovernmental Panel on Climate Change’s estimated emission reduction requirements to avoid 1.5 degrees Celsius of warming. The Committee Democrats anticipate that they will introduce the forthcoming strategy as legislation in the coming months. On July 25, two days after the announcement, the Committee’s Environment and Climate Change Subcommittee partnered with the Energy Subcommittee to hold the first hearing in the series, entitled Building America’s Clean Future: Pathways to Decarbonize the Economy. Karl Hausker, a Senior Fellow in the U.S. Climate Program at the World Resources Institute was one of four witnesses. In his prepared remarks he argued that a combination of four strategies is essential to meet the 2050 net zero GHG goal: 1) aggressive energy efficiency across all sectors; 2) greater electrification across end-uses in all sectors; 3) achieving zero-carbon or near zero-carbon power generation; and 4) carbon capture and storage technology. Rachel Cletus, Policy Director for the Union of Concerned Scientists’ Climate and Energy Program, Armond Cohen, Executive Director of the Clean Air Task Force and Shannon Angielski, Executive Director of the Carbon Utilization Research Council, also testified.
For further information: https://energycommerce.house.gov/newsroom/press-releases/ec-leaders-announce-bold-new-plan-to-achieve-a-100-percent-clean-economy-by and https://energycommerce.house.gov/committee-activity/hearings/hearing-on-building-americas-clean-future-pathways-to-decarbonize-the
The House Budget Committee and the House Select Committee on the Climate Crisis held separate hearings examining the economic implications of climate change. The Budget Committee hearing took place on July 24 and included a broad review of projected climate change costs to coastal communities, the agriculture sector, public health, national security and the federal budget. The Committee heard from five witnesses, including two former U.S. Navy officials, the Executive Director of the American Public Health Association, a sustainability official from Unilever and the Executive Director of ClearPath. The House Select Committee narrowed the focus of its hearing, held the following day, to perspectives from the business community. Witnesses included representatives of CDP (formerly the Carbon Disclosure Project), the Zurich Sustainability Group’s sustainability office, Green Alpha Advisors and a commercial lending bank in Louisiana.
For further information: https://budget.house.gov/legislation/hearings/costs-climate-change-coasts-heartland-health-security and https://climatecrisis.house.gov/committee-activity/hearings/creating-climate-resilient-america-business-views-costs-climate-crisis
Petitioners challenging aspects of EPA’s 2015 and 2018 ozone implementation rules filed their opening brief in the U.S. Court of Appeals for the District of Columbia Circuit (Case Nos. 15-1465 and 19-1024). Petitioners Sierra Club, Conservation Law Foundation, Downwinders at Risk, Physicians for Social Responsibility – Los Angeles and National Parks Conservation Association take issue with provisions of the rules related to interprecursor trading, nonattainment New Source Review, Reasonable Further Progress (RFP) and contingency measures arguing that interprecursor trading is illegal and arbitrary; EPA’s rule unlawfully and arbitrarily allows areas to avoid emission reductions required by the Clean Air Act’s RFP provisions; and EPA unlawfully allows states to rely on already-implemented controls as contingency measures.
For further information: http://www.4cleanair.org/sites/default/files/Documents/Litigation-Petitioners_Opening_Brief-Case_Challenging_EPA_Ozone_NAAQS_Impl_Rule_for_20082015_Stds-072219.pdf
States, local governments and public health and environmental organizations filed a response in the U.S. Court of Appeals for the District of Columbia Circuit opposing efforts to dismiss the legal challenge to the Clean Power Plan (CPP). Last week, separate groups of states and industry representatives filed motions asking the D.C. Circuit to dismiss the case, captioned West Virginia v. EPA (No. 15-1363). They argued that the finalization of the Affordable Clean Energy (ACE) rule, which also repeals the CPP, rendered the challenge moot. Shortly thereafter, EPA filed a response in support of the dismissal request. A group of states, local governments and public health and environmental organizations wrote in their opposing response filed this week that “the rule repealing and replacing the Clean Power Plan does not become legally effective until September 6. Therefore, the current motions are premature.” The group asks the court to deny the dismissal requests and hold them in abeyance until the ACE rule’s early-September effective date.
For further information: http://www.4cleanair.org/sites/default/files/Documents/2019-07-25_State-Env_Opp_to_Motion_to_Dismiss.pdf
Senators Tom Carper (D-DE) and Sheldon Whitehouse (D-RI), Ranking Members of the Senate Environment and Public Works Committee and the Clean Air and Nuclear Safety Subcommittee, respectively, sent a letter to EPA Acting Inspector General Charles Sheehan urging his office not to abandon its review of ethics complaints against Bill Wehrum, former Assistant Administrator in EPA’s Office of Air and Radiation (OAR), and David Harlow, who continues to serve as General Counsel in that office. Before joining EPA, both Wehrum and Harlow represented utilities and other industry groups as partners at the law firm now known as Hunton Andrews Kurth (Hunton). Wehrum resigned from EPA at the end of June. Accompanying the letter is a 65-page report that examines Wehrum’s and Harlow’s work at Hunton on behalf of utility and other industry clients, particularly their work on behalf of industry coalitions advocating what the authors characterize as “everything from major efforts to roll back landmark climate and toxic air pollution regulations, to more technical changes that allow for more air pollution.” These industry groups include the Utility Air Regulatory Group (UARG) (which is currently in the process of dissolving), the Air Permitting Forum, the Auto Industry Forum, the CCS Alliance and the NAAQS Implementation Coalition. In the report, the authors argue that Wehrum and Harlow appear to have violated ethical requirements in an attempt to serve these former clients while working at EPA. The report also details numerous examples where EPA has adopted policies advocated by Hunton clients, in some cases using language similar or identical to language written by Hunton on behalf of its clients.
For further information: https://www.epw.senate.gov/public/_cache/files/8/e/8e72609a-f79c-4d95-9fe3-9dacc42544ac/1760EB42B1DBE031BEDA704F8771202E.07.21.19-tc-sw-to-cs-hunton-report-letter.pdf and https://www.epw.senate.gov/public/_cache/files/2/d/2d7a4d97-5260-4be1-92bf-152ac5d7cd21/020F44F63FF7BAC62FBDC77C0C55D82F.epw-report-carper-whitehouse-redefining-air-wehrum-7-2019.pdf