June 22-28, 2022
In this week's issue:
- Air Chief Bill Wehrum Leaving EPA (June 26, 2019)
- House Adopts Appropriations Bill with EPA Funding for FY 2020 (June 25, 2019)
- EPA Proposes Rule to Implement Rescission of Once-In-Always-In Policy (June 25, 2019)
- California, Canada Sign MOU to Cooperate on Cleaner Cars and Fuels (June 26, 2019)
- Four House Energy and Commerce Committee Members Ask EPA, DOT and CARB to Work Together to Find Common Ground on LDV Fuel Economy and GHG Standards (June 25, 2019)
- California to Require Airport Shuttles to Transition to Zero-Emission Vehicles (June 26, 2019)
- Durbin, Grassley Lead Letter Urging EPA to Update Environmental Analysis of Ethanol (June 25, 2019)
- National Renewable Energy Standard Legislation Introduced in Senate (June 26, 2019)
- EPA Files Initial Brief in Litigation Challenging Agency’s Denial of Maryland’s and Delaware’s Section 126 Petitions (June 26, 2019)
- Analysis Evaluates Economic Impacts of Timely Compliance with International Maritime Fuel Standards Set to Take Effect in 2020 (June 26, 2019)
- EPA Publishes Proposed RTR for Solvent Extraction for Vegetable Oil Production (June 27, 2019)
- Supreme Court Upholds Authority for Federal Agencies to Interpret Their Own Regulations (June 26, 2019)
This Week in Review
EPA Administrator Andrew Wheeler issued a statement in which he announced that Assistant Administrator for Air and Radiation Bill Wehrum will be leaving EPA as of June 30. “I would like to thank Assistant Administrator Bill Wehrum for his service, his dedication to his job, the leadership he provided to his staff and the agency, and for his friendship,” the statement read. “While I have known of Bill’s desire to leave at the end of this month for quite some time, the date has still come too soon. I applaud Bill and his team for finalizing the Affordable Clean Energy (ACE) regulation last week and for the tremendous progress he has made in so many other regulatory initiatives.” Wehrum was confirmed as Assistant Administrator by the U.S. Senate in November 2017 and since that time has overseen a number of regulatory reform actions. In addition to finalization of the ACE rule his record also includes the repeal of the Clean Power Plan, as well as proposed revisions to emissions rules affecting New Source Review, light-duty vehicles, the Mercury and Air Toxics Standards and residential wood heaters, among others. He was a frequent participant in NACAA membership meetings representing EPA’s Office of Air and Radiation (OAR). He previously served as EPA’s Acting Assistant Administrator for Air and Radiation from 2005 to 2007, during which time EPA sought to reform New Source Review and other regulations. Between his periods of service at EPA, Wehrum represented energy sector clients on air quality issues as a partner at the Hunton & Williams law firm (now Hunton Andrews Kurth). Administrator Wheeler has named Anne Idsal to serve as Acting Assistant Administrator following Wehrum’s departure. Idsal began working in the Trump Administration as the EPA Region 6 Administrator and recently moved to Washington. D.C. to become Principal Deputy Assistant Administrator for the Office of Air and Radiation. Idsal previously served in various roles at the Texas Council on Environmental Quality, including General Counsel, and represented EPA OAR at the most recent NACAA membership meeting in Kansas City, Missouri in May. NACAA thanks Bill for his public service and engagement with our association, and we look forward to working with Acting Assistant Administrator Idsal.
For further information: https://www.epa.gov/newsreleases/statement-administrator-andrew-wheeler-regarding-departure-assistant-administrator-bill
By a vote of 227 to 194, the U.S. House of Representatives adopted H.R. 3055 – legislation appropriating funds to EPA and several other federal departments and agencies for FY 2020. The bill calls for, among other things, $238.2 million for state and local air quality grants under sections 103 and 105 of the Clean Air Act (an increase of $10 million over FY 2019) and $9.52 billion for EPA’s total budget (an increase of $670 million above FY 2019). During the floor debate, numerous amendments were adopted, including provisions to do the following:
- prohibit the use of funds to undermine the EPA Mercury and Air Toxics Standards (MATS);
- shift funding to the Science Advisory Board to review EPA’s proposed Strengthening Transparency in Regulatory Science rule; and
- prohibit the use of funds to eliminate the requirement that newly built coal-fired power plants capture carbon dioxide emissions.
Among the amendments that were defeated were ones to prohibit the use of funds for the following:
- enforcing two Obama Administration climate rules to reduce greenhouse gas emissions from power plants: the Clean Power Plan (CPP) and the related New Source Performance Standards;
- carrying out EPA’s Endangerment Finding with respect to greenhouse gas emissions;
- enforcing the Obama-era methane rule;
- using the analysis of the social cost of carbon published by the Interagency Working Group on Social Cost of Carbon; and
- supporting the Integrated Risk Information System.
On June 18, 2019, the White House issued a “Statement of Administration Policy” in opposition to H.R. 3055, stating that if Congress approves the bill the President’s advisors would recommend that he veto it.
For further information: https://docs.house.gov/meetings/AP/AP00/20190522/109552/BILLS-116–AP–AP00-FY2020_Interior_Approps.pdf, https://appropriations.house.gov/amendments-to-hr-3055 (a complete listing of amendments considered – click on “Interior-Environment”), https://docs.house.gov/meetings/AP/AP00/20190522/109552/HMKP-116-AP00-20190522-SD003.pdf (House Draft Report Language for FY 2020 Appropriations Bill – EPA section begins on page 75, EPA charts begin on page 196) and https://www.whitehouse.gov/wp-content/uploads/2019/06/SAP_HR-3055.pdf
EPA announced the proposal of a rule that would allow a major source of hazardous air pollutants (HAP) to reclassify itself as an area source after it has limited its emissions to below major-source levels. The proposal would put into regulation the rescission of EPA’s 1995 “Once-In-Always-In” (OIAI) policy, as discussed by 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. With respect to the proposal EPA has announced, the agency states: “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.” There will be a 60-day public comment period beginning with publication of the proposal in the Federal Register. EPA will seek 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.
For further information: https://www.epa.gov/stationary-sources-air-pollution/reclassification-major-sources-area-sources-under-section-112-clean
Leaders of the California Air Resources Board (CARB) and Environment and Climate Change Canada (ECCC) signed a memorandum of understanding (MOU) to advance cleaner vehicles and fuels. In the MOU, the governments of California and Canada agree to collaborate, effective immediately, on “cooperative activities on policy and regulatory measures that reduce emissions of greenhouse gases and air pollutants including from: vehicles, engines, and fuels and according to Environment and Climate Change Canada and the California Air Resources Board’s respective competencies and based on principles of equality, reciprocity, information exchange and mutual benefits.” Among the areas in which California and Canada will cooperate are accelerating the adoption of zero-emission vehicles, sharing information and best practices on regulating cleaner fuels and optimizing emissions testing and the enforcement of vehicle regulations. Of the MOU, CARB Chair Mary Nichols said, “With California and Canada solidifying our partnership, which represents half of the North American auto market, both recognize that cleaner vehicles and fuels will be critical to combatting climate change, cleaning up air across our communities, and saving Canadians and Californians money at the pump.” Likewise, ECCC Minister Catherine McKenna stated, “Working together means a bigger market for clean cars in North America, giving Canadians more choices to save on fuel costs and cut pollution. We need to advance clean technology and make it affordable to everyone.”
For further information: https://www.climatechange.ca.gov/climate_action_team/intergovernmental/ECCC-CARB-MOU-June-26.pdf and https://ww2.arb.ca.gov/news/canada-and-california-sign-agreement-work-together-cleaner-transportation
Following last week’s hearing jointly convened by two Subcommittees of the House Energy and Commerce Committee (see related article in the June 15-21, 2019 Washington Update) a bipartisan group of four Committee members sent letters to EPA, the U.S Department of Transportation (DOT) and the California Air Resources Board (CARB) asking them to reconvene discussions to find a “common sense solution” regarding light-duty vehicle fuel economy and greenhouse gas emission standards. In their letters – one to EPA Administrator Andrew Wheeler and DOT Secretary Elaine Chao and the other to CARB Chair Mary Nichols – the four Representatives urge that the three agencies “return to the negotiating table.” They say that “what came out of the hearing, for many of us, was the idea that the end goal is one we all share, and one we know you support as well – and that is to make sure that manufacturing remains strong, that cars are affordable to Americans and that we do everything we can to make travel safe and clean.” They go on to state, “We think folks of good faith can get together, even in this complicated time in D.C., and find a solution that is good for this country. We hope you agree, and that you would support an effort to find common ground.” The four Representatives making this appeal are Debbie Dingell (D-MI), Fred Upton (R-MI), Paul Tonko (D-NY) and John Shimkus (R-IL).
For further information: http://4cleanair.org/sites/default/files/Documents/LDVs-Four_House_E+C_Members_Letter_to_Wheeler+Chao-062519.pdf and http://4cleanair.org/sites/default/files/Documents/LDVs-Four_House_E+C_Members_Letter_to_MNichols-062519.pdf
The California Air Resources Board (CARB) approved a rule to reduce greenhouse gas (GHG) emissions from airport shuttles. The Zero-Emission Airport Shuttle Regulation requires fixed-route airport shuttles at the state’s 13 largest airports (applicable to public and private fleets and including parking facilities, rental car agencies and hotels), beginning in 2022, to transition to 100-percent zero-emission vehicles by 2035. CARB estimates that the rule will reduce GHG emissions by at least 500,000 metric tons and save shuttle fleet owners approximately $30 million in reduced fuel and maintenance costs. When this Board action was announced, CARB Executive Officer Richard Corey stated, “California continues its forward march toward a zero-emission future with airport shuttles presenting a great opportunity for showcasing this process. Shuttles are a vital part of airport activity. The transition to zero emission shuttles not only provides consumers with clean, quiet transport but will help further expand the reach of this ultra-clean technology into the heavy duty transportation sector.” CARB has indicated that it is also developing a proposal to further decrease emissions by requiring zero-emission airport ground equipment.
For further information: https://ww2.arb.ca.gov/our-work/programs/zero-emission-airport-shuttle/about
Senators Richard Durbin (D-IL) and Charles Grassley (R-IA) led a bipartisan group including nine other Senators in writing to EPA Administrator Andrew Wheeler urging that the agency “update an outdated environmental analysis on ethanol in order to improve foreign sales opportunities.” In their letter, the Senators note that the U.S. Department of Agriculture’s (USDA) Chief Economist issued peer-reviewed findings that the greenhouse gas (GHG) emissions associated with corn ethanol are 39 percent lower than those associated with vehicle gasoline and potentially up to 43 percent lower, depending on the technology used for refining. They say the information released by USDA “raises the question as to why the U.S. Environmental Protection Agency has still not revised its assessment for corn ethanol since 2010,” which found a GHG reduction of approximately 20 percent for conventional, starch-based ethanol. Accordingly, the Senators ask Wheeler to publicly announce, “without further delay,” EPA’s intent to review and incorporate the most recent data from the Greenhouse Gas and Regulated Emissions and Energy Use in Transportation model, which they report is used by over 30,000 federal agencies, companies and professional organizations around the world, while “EPA stands alone, its decade-old monitoring having major implications for opening up new global markets for American ethanol.” The lawmakers conclude by asserting, “there is little justification for EPA to maintain such an outdated calculation that otherwise could be easily corrected with existing, available analysis – and straightforwardly address an unnecessary obstacle to international trade.” Those joining Durbin and Grassley on the letter are Senators Joni Ernst (R-IA), Tina Smith (D-MN), John Thune (R-SD), Tammy Baldwin (D-WI), Roy Blunt (R-MO), Amy Klobuchar (D-MN), Tammy Duckworth (D-IL), Deb Fischer (R-NE) and Josh Hawley (R-MO).
For further information: https://www.durbin.senate.gov/imo/media/doc/2019%20-%20AG,%20ETHANOL,%20GREET,%20letter%20to%20EPA,%20letter,%20FINAL,%20all%20signatures,%20Jun.pdf.docx.pdf
Senators Tom Udall (D-NM), Martin Heinrich (D-NM), Sheldon Whitehouse (D-RI), Tina Smith (D-MN) and Angus King (I-ME) introduced a bill to decarbonize the power sector. S. 1974, the Renewable Electricity Standard Act, would require the U.S. to draw at least 50 percent of its power from renewable resources by 2035. According to Department of Energy data cited by Senator Udall’s office, the U.S drew 17.6 percent of is power from renewable energy resources in 2018. Starting in 2020, S.1974 would require retail electricity providers to annually grow the share of renewable energy they supply based on a percentage of their retail sales. The required increase is 1.5 percent of sales in 2020, 2.0 percent from 2021 and 2029 and 2.5 percent from 2030 through 2035. The bill does not set generation targets after 2035 but requires the Secretary of Energy to develop a plan recommending post-2035 actions to eliminate the power sector’s greenhouse gas emissions. According to press materials from Senator Udall’s office, S.1974 would put “the U.S. on a trajectory to decarbonize the power sector by 2050.”
For further information: https://www.congress.gov/bill/116th-congress/senate-bill/1974 and https://www.tomudall.senate.gov/news/press-releases/udall-senators-introduce-renewable-electricity-standard-legislation
EPA filed its initial brief in the U.S. Court of Appeals for the District of Columbia Circuit regarding litigation challenging the agency’s denial of Maryland’s and Delaware’s petitions to the agency under Clean Air Act section 126. On September 14, 2018, EPA denied four petitions submitted by Delaware and one petition submitted by Maryland in which the two states requested that EPA make findings that emissions from specific out-of-state sources contribute significantly to nonattainment of the National Ambient Air Quality Standards (NAAQS) for ozone in Maryland and Delaware. Petitioners filed their opening briefs on March 29, 2019. It its opening brief, Maryland argued that EPA’s reliance on the Cross-State Air Pollution Rule (CSAPR) Update to deny the petition was arbitrary and capricious and that EPA improperly refused to consider the petition under the 2015 ozone NAAQS. Delaware argued in its brief that the court should vacate EPA’s arbitrary decision that Delaware failed to satisfy its threshold requirements for a section 126(b) petition and that EPA’s reliance on the CSAPR Update to deny Delaware’s petition was arbitrary and capricious. In their brief, citizen petitioners in the litigation argued that the court should vacate EPA’s unlawful and arbitrary denial of Delaware’s ability to seek relief through section 126(b) under the 2015 ozone standard, that EPA’s rejection of the Maryland and Delaware petitions on the basis that no cost-effective emission reductions are available at the petition units is unlawful and arbitrary and that EPA’s denial of the section 126(b) petitions is arbitrary and unlawful in light of the larger pattern of EPA’s persistent delays and denials in implementing and enforcing the Good Neighbor provision of the Clean Air Act and regulating interstate transport of ozone pollution. Now, in its initial brief, EPA argues that it reasonably concluded that Delaware will not have trouble attaining or maintaining the ozone NAAQS in the absence of further upwind controls; that its conclusion that upwind sources will not significantly contribute to downwind nonattainment in Delaware and Maryland was reasonable and supported by record evidence; and that it reasonably considered Maryland’s petition only with respect to the ozone standard that the state identified in its petition.
For further information: http://4cleanair.org/sites/default/files/Documents/Litigation-MDvEPA-Sec126-EPA_Brief-062619.pdf
The Coalition for American Energy Security (CAES) released the results of an analysis of the impact of compliance with international fuel standards to take effect on January 1, 2020. The 2020 standards – adopted by the International Maritime Organization (IMO) and intended to reduce air pollution from shipping – decrease the maximum sulfur content of maritime fuel from 3.5 percent to 0.5 percent. In Economic Analysis of IMO 2020: The Benefits to the U.S. Economy of Full Participation and Compliance, Charles River Associates (commissioned by CAES to conduct the analysis) evaluates fuel price and macroeconomic impacts of “significantly diminished IMO 2020 compliance” and concludes that it would not benefit the U.S. economy. The authors further conclude that other global economies would likely benefit from non-compliance by the U.S. Other findings include that less compliance with IMO 2020 would result in “no discernable change” in future gasoline prices and a change in diesel prices that is less than the average monthly change in diesel prices over the past four years. In addition, the authors note, “U.S. refiners, which are well positioned to see margin benefit from IMO 2020 since they produce the fuels that will increase in demand, would be expected to see a decrease in margin from less IMO 2020 compliance.” CAES describes itself as “a diverse and broad coalition of American manufacturing workers, integrated energy companies, refiners, industry associations, shipping companies and other groups that play a crucial role in the maritime fuel supply chain.” Among its members are the American Fuel & Petrochemical Manufacturers, American Petroleum Institute and United Steelworkers.
For further information: https://americanenergysecurity.com/wp-content/uploads/2019/06/CRA-Report-on-IMO-2020-June-2019.pdf
EPA published in the Federal Register (84 Fed. Reg. 30812) the proposed Risk and Technology Review (RTR) standard for the Solvent Extraction for Vegetable Oil Production source category, which was announced on June 11, 2019. EPA proposes to determine that the risks related to emissions from this source category are acceptable and that there have been no improvements in technologies, processes or practices that would result in further emission reductions. The proposal would revise the startup, shutdown and malfunction provisions to make them consistent with recent court decisions, including work practices that would apply during startup periods. Additionally, the proposal would require sources to submit electronic copies of compliance reports, including performance tests. The public comment deadline is August 12, 2019.
For further information: https://www.govinfo.gov/content/pkg/FR-2019-06-27/pdf/2019-13110.pdf
The Supreme Court narrowly affirmed a legal principle, referred to as Auer deference, requiring courts to defer to federal agencies when agencies interpret their own regulations. The case, captioned Kisor v. Wilkie, centered on a disability benefits dispute before the Veterans Administration (VA) where the VA interpreted its administrative appeals regulations to limit the amount of time counted toward the accrual of the claimant’s retroactive benefits. Writing for a five-member majority that included Justices Ginsberg, Breyer, Sotomayor, and partial support from Chief Justice Roberts, Justice Kagan outlined the rationale behind Auer: “[W]e have thought that when granting rulemaking power to agencies, Congress usually intends to give them, too, considerable latitude to interpret the ambiguous rules they issue.” Kagan’s opinion, however, also listed requirements that can limit when federal agencies get deference for their regulatory interpretations including, among other things, that the regulation must be genuinely ambiguous, the agency interpretation must be reasonable and the interpretation must reflect agency expertise. Justice Gorsuch wrote a dissenting opinion harshly critical of the deference doctrine that was joined in full by Thomas and in part by Justices Kavanaugh and Alito. He described the majority opinion as “more a stay of execution than a pardon,” characterizing the majority’s reasoning as based more on a desire to respect precedent than to uphold a “lawful or wise” rule. “The Court’s failure to be done with Auer, and its decision to adorn Auer with so many new and ambiguous limitations, all but guarantees we will have to pass this way again. When that day comes, I hope this Court will find the nerve it lacks today and inter Auer at last,” he wrote.
For further information: https://www.supremecourt.gov/opinions/18pdf/18-15_9p6b.pdf