March 18-24, 2023
In this week's issue:
- EPA Invites Comments on Nominees for State Air Agency Seat on Clean Air Scientific Advisory Committee (March 23, 2023)
- EPA Issues Detailed Congressional Justification for Proposed Budget (March 20, 2023)
- EPA Administrator Testifies in Support of Proposed FY 2024 EPA Budget (March 22, 2023)
- EPA Publishes Draft Contingency Measures Guidance, Sets April 24 Comment Deadline (March 23, 2023)
- Respondent Intervenors File Briefs Supporting EPA in Litigation Challenging Light-Duty Vehicle GHG Emission Standards (March 21, 2023)
- Democrats Reintroduce Environmental Justice Bill (March 22, 2023)
- Congress fails to Override Biden Veto of ESG Rule Disapproval (March 23, 2023)
- UN Report Anticipates Exceeding 1.5°C Global Warming (March 20, 2023)
This Week in Review
EPA’s Science Advisory Board (SAB) Staff Office is soliciting public comments on eight candidates nominated for the state air pollution control agency seat on the Clean Air Act Scientific Advisory Committee (CASAC). CASAC – a charted Federal Advisory Committee – is an independent scientific review panel appointed by the EPA Administrator to, among other things, review air quality criteria and National Ambient Air Quality Standards (NAAQS) and recommend to the Administrator, as appropriate, any new NAAQS and revisions to existing criteria and NAAQS. The Clean Air Act stipulates that among the seven members of CASAC there must be at least one person representing state air pollution control agencies. In response to a request for nominations published in late January, the SAB Staff Office received nominations for eight candidates based on their expertise and willingness to serve. They are: 1) Angela Dickens (Lake Michigan Air Directors Consortium); 2) Henry (“Dirk”) Felton (New York State Department of Environmental Conservation, and member of NACAA’s Monitoring Steering Committee); 3) Brian Hughes (Michigan Department of Environment, Great Lakes and Energy; 4) Sabine Lange (Texas Commission on Environmental Quality); 5) Ali Mirzakhalili (Oregon Department of Environmental Quality, and Co-Chair of NACAA’s Permitting and New Source Review Committee); 6) Michelle Oakes (Tennessee Department of Environment and Conservation); 7) Matthew Pace (Arizona Department of Environmental Quality); and 8) Lily Wu (California Environmental Protection Agency). Biographical information on each of the nominees is available on the SAB website (below). Comments on the candidates should be sent to Aaron Yeow, Designated Federal Officer in the SAB Staff Office, by April 13, 2023.
For further information:
https://casac.epa.gov/ords/sab/f?p=113:18:34177507607818:::RP,18:P18_ID:2634
EPA has released its Congressional Justification document, providing additional details about the proposed budget for FY 2024 announced on March 9 and March 16. The 1,386-page document highlights how the proposed budget aligns with EPA’s Strategic Plan. With respect to the recommended increase of $151.2 million for state and local air quality grants (for a total of $400.2 million), the Congressional Justification states: This program change is an increase in grant resources that will help expand the efforts of air pollution control agencies to implement their programs and accelerate immediate on-the-ground efforts to reduce greenhouse gases. The increase also will enhance the resiliency, capacity, and capability of air monitoring systems for NAAQS and local-scale monitoring and will support additional air quality monitoring in disadvantaged communities suffering from disproportionate exposure to traffic emissions. Within the document, EPA also announces that the Administration is requesting $7 million under Section 103 of the Clean Air Act for Wildfire Smoke Preparedness Grants, which were first funded in FY 2022 (this is in addition to the $400-million state/local air grant program). This is a competitive grant program open to states, Tribes, public pre-schools, local educational agencies and non-profit organizations for such activities as research, experiments and studies related to the assessment, prevention, control or abatement of wildfire smoke hazards in community buildings (including schools). Descriptions of and details about relevant programs are found on the following pages: State and Tribal Assistance Grants – p. 799 and 845; retention of fine particulate monitoring grants under Section 103 – p. 799; Multipurpose Grants – p. 820; Targeted Airshed Grants – p. 888; Diesel Emission Reduction Act (DERA) grant – p. 864; and Wildfire Smoke Preparedness Grants – p. 801 and 949.
For further information: https://www.epa.gov/system/files/documents/2023-03/fy-2024-congressional-justification-all-tabs.pdf
and
https://www.4cleanair.org/wp-content/uploads/FY-2024-chart.pdf
EPA Administrator Michael S. Regan testified before the Senate Environment and Public Works Committee, defending the Administration’s proposed FY 2024 budget for EPA and focusing on the agency’s priorities. The recommended budget calls for $12 billion for EPA, which is an increase of $1.87 billion above the amount appropriated for FY 2023, and proposes to increase staffing levels by 2,400 to a total of over 17,000. The budget proposal also calls for $400.2 million in grants to state and local air agencies under Sections 103 and 105 of the Clean Air Act, which is an increase of $151.2 million (approximately 60 percent) over the amount appropriated in FY 2023 ($249 million). During questioning, several senators argued that the Inflation Reduction Act and other legislation have provided EPA with significant new funds, yet the Administration is requesting even more, and they doubted the agency’s ability to spend it responsibly. Senator Shelley Moore Capito (R-WV), in particular, expressed displeasure several times with the fact that funds will be used for administrative purposes and for subgrantees. In defending the proposed increases, Regan noted that the request is intended to help the agency catch up, since the budget has been in decline “for decades.” Senator Kevin Cramer (R-ND) stated that EPA is presuming it has authority related to greenhouse gases (GHGs) that he believes the agency does not have. Regan noted EPA is obligated to regulate GHG emissions. With respect to mobile sources, Senator Alex Padilla (D-CA) urged EPA to act expeditiously, since states are unable to regulate such sources as freight trucks, ships and locomotives. Several senators, including Senator Markwayne Mullin (R-OK), expressed concern about electric trucks, including issues with safety, congestion and interstate commerce. Regan responded that the agency has taken those considerations into account, which will be evident in the proposed rule. Other topics touched on during the hearing included enforcement, methane, natural gas, ethanol (E-15) and EPA’s hybrid work-from-home policies. During the hearing, Regan noted that 85 percent of EPA’s budget goes to states, local governments and tribes and stated, “our states and communities know better than the federal government and they have the solutions.” He also reported that several significant rules are due out in the near future, including the Section 111 rule related to GHG emissions from the power sector in late April, regulations for heavy- and light-duty vehicles in the coming weeks and the Mercury and Air Toxics Standards “soon.” Regan is expected to testify in support of the budget request before other congressional committees, including the House and Senate Appropriations Committees.
For further information: https://www.epw.senate.gov/public/index.cfm/2023/3/the-u-s-environmental-protection-agency-s-proposed-fiscal-year-2024-budget
EPA published in the Federal Register (88 Fed. Reg. 17,571) a notice of availability and public comment for its “Guidance on the Preparation of State Implementation Plan Provisions that Address the Nonattainment Area Contingency Measure Requirements for Ozone and Particulate Matter,” which was announced on March 17, 2023. EPA intends for this guidance to assist state and local air agencies required to prepare nonattainment State Implementation Plans for the ozone or particulate matter (PM) National Ambient Air Quality Standards (NAAQS) under Part D of Clean Air Act Title I, particularly with respect to the inclusion of control measures that would take effect if an area fails to attain an ozone or PM NAAQS by the prescribed attainment date or meet reasonable further progress requirements. In the draft guidance, EPA focuses on three aspects of the agency’s current approach to contingency measures (CM): 1) the method by which state and local air agencies calculate the EPA-recommended level of emission reductions CMs should provide; 2) recommendations for an air agency’s “reasoned justification” for why it cannot identify feasible CMs sufficient to result in the recommended level of CM emission reductions; and 3) the recommended time period within which emission reductions from CMs should occur. EPA also includes in the draft guidance extensive background information on contingency measures, relevant court cases addressing the CM requirement and EPA’s existing approach to CMs. EPA will now accept public comment on the draft guidance for 30 days, through April 24, 2023.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-03-23/pdf/2023-06010.pdf
and
https://www.epa.gov/system/files/documents/2023-03/CMTF%202022%20guidance%203-17-23.pdf
Intervenors supporting respondent EPA in litigation challenging the agency’s 2021 revised greenhouse gas (GHG) emission standards rule for light-duty vehicles filed briefs in the U.S. Court of Appeals for the District of Columbia Circuit. The rule has been challenged by a group of 16 state petitioners and a group of industry petitioners. In the first brief, filed by a group of 22 states, the District of Columbia, four cities/counties and 11 public interest groups, the intervenors argue that the court should not reach the petitioners’ arguments on statutory authority; the rule fits squarely within EPA’s authority under Clean Air Act (CAA) section 202(a); and increasing application of zero-emission technologies does not implicate the Major Questions Doctrine. In the second brief, the Alliance for Automotive Innovation argues that CAA section 202(a) authorizes EPA to establish fleetwide standards that provide for credit averaging, banking and trading that includes electric vehicles and that EPA properly declined proposals to change its treatment of “upstream” GHG emissions. In the third brief, six industry groups, including five representing the power industry, argue that “the petitioners’ fact-based arguments cannot form a cognizable challenge under the Major-Questions Doctrine”; concerns related to grid reliability do not implicate the Major-Questions Doctrine; and the electric vehicle supply chain does not implicate the Major-Questions Doctrine.
For further information:
and
At a bicameral press conference, House Ranking Member Raúl Grijalva (D-AZ), Rep. Barbara Lee (D-CA), Sen. Tammy Duckworth (D-IL) and Sen. Cory Booker (D-NJ) reintroduced a comprehensive environmental justice (EJ) bill, newly renamed the “A. Donald McEachin Environmental Justice for All Act.” First proposed in 2018, the bill includes many top priorities of EJ advocates, including: 1) amending the Civil Rights Act of 1964 to prohibit discrimination based on disparate impact; 2) requiring the consideration of cumulative impacts under the Clean Air Act and Clean Water Act and ensuring that permits cannot be issued if a project cannot demonstrate a reasonable certainty of no harm to human health; 3) requiring early and meaningful community involvement opportunities under the National Environmental Policy Act when proposing actions affecting EJ communities; 4) funding research grant programs to investigate chemicals in personal and childcare products linked to adverse health effects and supporting research into safer cosmetic products marketed toward women of color; 5) supporting more equitable access to parks and recreational opportunities; 6) authorizing $75 million in grants to support environmental and public health projects in EJ communities; and 7) establishing a Federal Energy Transition Economic Development Assistance Fund using revenues from fees on the oil, gas and coal industries to support communities as they transition away from greenhouse gas-dependent economies. Members introducing the bill described it as “the most comprehensive environmental justice legislation in history.” The bill has 44 additional co-sponsors in the House and Senate, but is not expected to advance in a closely divided Congress.
For further information:
https://democrats-naturalresources.house.gov/imo/media/doc/GRIJAL_005_xml.pdf
Members of Congress failed to nullify a Labor Department proposal allowing fiduciaries to consider environmental, social and governance (ESG) factors when evaluating retirement plans. The U.S. House of Representatives and Senate both voted on H.J. Res. 30 on February 28, 2023, to disapprove the Labor Department’s ESG rule via the Congressional Review Act (CRA). The House had voted largely along party lines (206-204, with one Democrat, Rep. Jared Golden, [D-ME], joining Republicans); the Senate also enacted the disapproval 50-46, with GOP lawmakers joined by Sens. Joe Manchin (D-WV) and Jon Tester (D-MT). However, after President Biden vetoed the bill, the House fell short of the 290 votes to override the veto, voting 219-200 with Rep. Jared Golden again joining with the Republicans. As a result, the Labor Department ESG rule will take effect, so that retirement fund managers covered under federal law may consider financially-relevant environmental, social, and governance factors in their investment decisions.
For further information:
https://www.congress.gov/bill/118th-congress/house-joint-resolution/30
A new report by the United Nations (UN) Intergovernmental Panel on Climate Change (IPCC) highlights the high probability that human activities will cause global average temperatures to increase beyond 1.5°C over pre-industrial levels. The new report synthesizes sic previous IPCC reports as part of a multiyear climate assessment the IPCC has been conducting since 2015, when the Paris climate agreement was adopted. The IPCC finalized the Synthesis Report for the Sixth Assessment Report (AR6) during the Panel’s 58th Session held in Interlaken, Switzerland. AR6 summarizes the latest scientific knowledge on the ways the Earth’s climate is changing and how people can minimize the worst climate damage caused by burning fossil fuels. IPCC assessment cycles typically conclude every six to seven years, with the next assessment expected around 2030. AR6 makes the case that global greenhouse gas (GHG) emissions must decline by 60 percent by 2035 — compared with 2019 levels — to avoid increasingly severe and extreme weather that will make parts of the world unlivable. That target exceeds the 43 percent reduction by 2030 that countries have been negotiating towards under the Paris Agreement, and highlights the probability that the 1.5°C target will be exceeded. The Paris Agreement aims to keep global warming well below 2°C, while striving for a more ambitious target of 1.5°C. Releasing AR6, UN Secretary-General António Guterres said that developed nations bear a larger responsibility for accumulated GHGs, and should commit to hitting net-zero emissions by 2040, while developing economies should continue to aim for net zero by 2050. “The climate time bomb is ticking,” he said. The new report, he added, can be seen as “a survival guide for humanity.”
For further information: