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October 28-November 3, 2023
In this week's issue:
- NACAA Letter to EPA Recommends State/Local Agency Funding Increases for FY 2025 (November 1, 2023)
- EPA Seeks Nominees for CASAC NOx Panel; Nominations Due by Nov. 24 (November 3, 2023)
- EPA Announces Final Rule Addressing Preemption of State and Local Regulation of Locomotives (November 1, 2023)
- Industry Groups Urge Administration to Ensure PM NAAQS Remain Unchanged (October 31, 2023)
- EPA Responds in Opposition to Emergency Applications to SCOTUS for Stay of Federal Good Neighbor Plan in All 23 Affected States (October 30, 2023)
- American Thoracic Society Releases “Health of the Air” Report (November 2, 2023)
- EPA Files Brief Defending EtO Estimates in MON Air Toxics Rule (October 30, 2023)
- EPA Publishes Proposed Trichloroethylene Ban in Federal Register; Accepting Public Comment (October 31, 2023)
- States, Advocates, and Tribe Intend to Sue EPA To Force GHG NAAQS (October 30, 2023)
- State Supreme Court Rules that Oil Companies Must Face Honolulu in Climate Fraud Case (October 31, 2023)
- Washington State to Pursue Linking Cap and Trade System with California, Quebec (November 2, 2023)
- Climate Researchers: GHGs May Cause More Warming Than Forecast; Climate Damage Accelerating (November 2, 2023)
This Week in Review
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NACAA has written to EPA articulating the association’s recommendations for the agency’s FY 2025 budget, calling for significant increases in funding for state and local air quality agencies. While Congress has not yet adopted FY 2024 appropriations, EPA is in the process of developing a proposed budget for FY 2025, which will be announced in February or March 2024. NACAA’s recommendations, which the NACAA Board of Directors adopted at its October 13, 2023 meeting, call for the following:
- Provide $500 million in federal grants to state and local air agencies under Sections 103 and 105 of the Clean Air Act (CAA) to carry out current programs and new challenges expected in the near future. (The amount appropriated in FY 2023 was $249 million).
- Allow flexibility for state and local air agencies to use federal grants for the highest-priority needs in their areas.
- Retain fine particulate matter (PM5) monitoring funds under Section 103 authority, so agencies are not required to provide matching funds in order to obtain the grants.
- Provide grant increases under authorities of the CAA that do not require matching funds (e.g., Section 103) as much as possible. This will allow agencies that do not have sufficient matching funds to still obtain the grants.
NACAA noted that the Inflation Reduction Act (IRA) includes significant funding to address climate change, environmental justice and other critical issues. However, the IRA funds are not a substitute for NACAA’s suggested increases, which are intended to make up for historical deficits in state and local grant funding and bring the appropriations to the level they should be for these agencies to undertake their existing and ongoing responsibilities. Additionally, the IRA funding is for a fixed number of years, rather than a permanent increase, and its successful implementation will likely increase the responsibilities typically borne by state and local air agencies’ core programs. Finally, NACAA pointed out that these increases are not necessarily the full amount needed and, as inflation continues to raise the costs of every element of air programs, even greater funding will likely be required in the future.
For further information:
https://www.4cleanair.org/wp-content/uploads/EPA-Letter-NACAA-FY-2025-Recommendations.pdf
EPA’s Science Advisory Board (SAB) Staff Office published a Federal Register notice (88 Fed. Reg. 75,588) requesting public nominations of scientific experts to serve on the Clean Air Scientific Advisory Committee’s (CASAC) NOx Panel, which will provide advice, through CASAC, on the scientific and technical bases for EPA’s review of the primary National Ambient Air Quality Standards for NOx. Nominees should be nationally and internationally recognized scientists with demonstrated expertise and research in the field of air pollution related to criteria pollutants. In particular, experts are sought in the following fields with respect to NOx: atmospheric science, human exposure, dosimetry, toxicology, epidemiology, medicine, public health, biostatistics and risk assessment. Nominations must be submitted, according to the instructions provided in the notice, by November 24, 2023. Self-nominations are welcome.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-11-03/pdf/2023-24368.pdf
EPA announced a final rule in which the agency revises federal locomotive regulations as they pertain to the preemption of state and local regulation of locomotives and locomotive engines. According to EPA, the final rule “implements a policy change to no longer categorically preempt certain state regulations of non-new locomotives and engines, aligning with the plain text of the Clean Air Act (CAA), and better achieving the legislative intent of providing for exclusive Federal regulation of new locomotives and new locomotive engines while preserving the ability of California and other states to adopt and enforce certain state standards regulating non-new locomotives and engines.” In particular, EPA has deleted in its entirety 40 CFR 1074.12, titled “Scope of preemption-specific provisions for locomotives and locomotive engines.” The now-deleted text, in 40 CFR 1074.12(b), preempted state control of non-new locomotives for certain categories of state control measures for a period of 133 percent of useful life of a new locomotive or engine. This final rule takes effect 30 days after its publication in the Federal Register. EPA proposed to revise its current locomotive regulations in this way in April 2027 as part of the Phase 3 heavy-duty vehicle greenhouse gas emissions proposal, which the agency had intended to finalize by the end of 2023. Last month, EPA announced it would separate the locomotive rule revisions from the rest of the Phase 3 rule and take final action on that piece by the end of 2023. The agency further announced it had revised its schedule for final action on the remainder of the Phase 3 rule, to allow more time to work on that package, and would accelerate its work on the final multipollutant emission standards for light- and medium-duty vehicles (proposed in May 2023 and originally planned for release in spring 2024), so that both final rules will be released in early March 2024 (see related article in the October 14-20, 2023 Washington Update).
For further information:
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A coalition of 72 associations representing industry interests sent a letter to the White House urging the Administration to retain the existing National Ambient Air Quality Standards for fine particulate matter (PM2.5). In their letter, addressed to Jeffrey Zients, President Biden’s Chief of Staff, the signatories write, citing a statistic from a report published by the National Association of Manufacturers, “A proposed discretionary revision to this standard, which is under review by the Office of Information and Regulatory Affairs, could put nearly 40% of the U.S. population in areas of nonattainment. Doing so would risk jobs and livelihoods by making it even more difficult to obtain permits for new factories, facilities and infrastructure to power economic growth. This proposal would also threaten successful implementation of the Infrastructure Investment and Jobs Act, the CHIPS and Science Act and the important clean energy provisions of the Inflation Reduction Act.” Also this week, the National Association of Manufacturers, which led the letter to the White House, launched an ad campaign urging viewers to “tell the White House and Congress to stand with manufacturers; don’t make it harder for us to compete.” In January 2023, EPA Administrator Michael S. Regan proposed to make the existing PM2.5 standard of 12 micrograms per cubic meter (µ/m3) more protective by lowering it to within a range of 9 and 10 µ/m3; the agency also sought comment on revising the current standard downward to as low as 8 µ/m3 and as high as 11 µ/m3 (see related article in the December 31, 2022-January 6, 2023 Washington Update).
For further information:
https://www.4cleanair.org/wp-content/uploads/PM_NAAQS-Industry_Letter_to_White_House-103123.pdf
and
https://ascentmedia.gosimian.com/sp/a/hJ8tUaTGJnuDph3y3HpicQ/
EPA filed, in the U.S. Supreme Court, a response in opposition to several recent emergency applications – including one from the Attorneys General of Ohio, Indiana and West Virginia (see related article in the October 14-20, 2023 Washington Update) – for a stay of the March 2023 federal Good Neighbor Plan in all 23 affected states. Among the arguments for a full stay are that “due to a combination of litigation and interim rulemaking, a dozen of those States and over three quarters of the emissions that the plan sought to regulate, are already exempt from the plan”; those challenging the Good Neighbor plan in the U.S. Court of Appeals for the District of Columbia Circuit are likely to succeed on their claims under the Administrative Procedure Act; and that state, industry and citizens will be irreparably harmed without a stay and that staying the plan will promote the public interest and not substantially harm others. EPA, however, disagrees with these arguments and writes, “On the other side of the balance, staying the Rule’s implementation would significantly harm the public interest. It would delay efforts to control pollution that contributes to unhealthy air in downwind States, which is contrary to Congress’s express directive that sources in upwind States must assume responsibility for their contributions to emissions levels in downwind States. By leaving air pollution caused by upwind States unabated, applicants’ requested extraordinary relief would impose negative health consequences and additional regulatory burdens on downwind States and their citizens – thus violating the central aim of the Good Neighbor Provision [of the Clean Air Act]. The applications should be denied.” In separate filings, a group of 10 downwind states, a city and a country and a coalition of public interest groups also registered their objections to the emergency applications for a stay.
For further information:
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The American Thoracic Society (ATS) published its annual “Health of the Air” report, this one covering 2018-2020, in which it estimates the health impacts in the U.S. of exposure to outdoor air pollution, primarily ozone and particulate matter. New this year, are estimates of the burden on health of smoke from wildland fires (including smoke from wildfires, prescribed burning and agricultural burning). Among the estimates reported by ATS regarding the health impacts of exposure to air pollution at levels greater than those recommended by the organization are the following: 1) 21,300 avoidable deaths, 2) 3,000 new cases of lung cancer, 3) 10,660 preterm births and/or low birth weights, 4) nearly 750,000 occurrences of cardiovascular or respiratory morbidities and 5) 4 million adversely impacted days. With respect to annual mortality impacts in the U.S. attributable to air pollution from wildland fires, ATS provides a “low” estimate of 4,080 additional deaths each year and a “middle” estimate of 28,000 additional deaths each year, with the difference based on uncertainty over the mortality risk of wildland fire smoke and how, specifically, it differs from pollution from other combustion sources. ATS also reports that the health impacts of smoke from wildland fires occur in every region of the country.
For further information:
https://www.thoracic.org/about/newsroom/press-releases/journal/2023/health-of-air-report-2023.php
and
https://www.atsjournals.org/doi/abs/10.1513/AnnalsATS.202305-455OC
EPA has filed a brief defending its Miscellaneous Organic Chemical Manufacturing National Emissions Standards for Hazardous Air Pollutants (MON) Residual Risk and Technology Review rule, issued on December 21, 2022 and, in particular, the cancer-risk estimate for ethylene oxide (EtO) that the rule relied on. The plaintiffs in Huntsman Petrochemical LLC v. EPA sued the agency on March 28, 2023 in the U.S. Court of Appeals for the D.C. Circuit, claiming that EPA’s cancer-risk estimate for EtO, which was based on the agency’s Integrated Risk and Information System (IRIS), is too high. EPA defended its estimate as “scientifically and analytically sound” and stated that the petitioners have misunderstood statistical methods and EPA’s analysis by “overreading unvalidated and poorly executed studies, by ignoring the data itself.” EPA also noted that its calculation and use of the cancer-risk estimate were subject to external peer review and public comment multiple times. In its brief, EPA provided a detailed history and explanation of the review and update of the EtO risk estimate, which spanned from 1998 to 2016. It also discussed EPA’s determination that an alternative risk estimate, provided by Texas, was “unsuitable for use” in the regulation.
For further information:
https://www.4cleanair.org/wp-content/uploads/Huntsman-Petrochemical-v.-EPA-EPA-brief-10-30-23.pdf
EPA has published in the Federal Register a proposed ban on all uses of trichloroethylene (TCE), which is a volatile organic compound listed as a hazardous air pollutant under the Clean Air Act. The public comment period on the proposal will remain open until December 15, 2023. The proposal, announced on October 23, 2023 under the Toxic Substances Control Act (TSCA), would prohibit the manufacture, processing and distribution of TCE for all uses. It would take effect in one year for consumer products and most commercial uses and would call for worker protections on other uses as they are phased down over a longer period. According to EPA, safer alternatives to TCE are readily available in many cases.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-10-31/pdf/2023-23010.pdf
and
Two states, an American Indian tribe, and two advocacy groups have sent a letter to EPA Administrator Michael Regan indicating their intent to sue the Agency for failing to set limits under the National Ambient Air Quality Standards (NAAQS) for greenhouse gases (GHGs) in the fourteen years since the Agency issued an endangerment finding from these pollutants. The suit was filed by the Center for Biological Diversity, 350.org, the states of Oregon and Minnesota, and the San Carlos Apache Tribe. In their letter the groups each give cause for the suit and indicate specific injury, with Oregon and Minnesota citing harms to their sovereign interests as states. The letter gives the agency 180 days to respond before the petitioners file their lawsuit, citing “EPA’s unreasonable delay in responding to the December 2, 2009 ‘Petition to Establish National Pollution Limits for Greenhouse Gases Pursuant to the Clean Air Act,’ requesting that EPA regulate long-lived greenhouse gases pursuant to Sections 108-110 of the Clean Air Act”.
For further information:
Sunoco, Chevron, Exxon, BP, ConocoPhillips, and other oil majors must face Honolulu’s lawsuit that alleges these companies misled the public about fossil fuels’ dangers and environmental impacts. In a ruling from the Hawaii Supreme Court, the court found the lawsuit (City and County of Honolulu et al. v. Sunoco LP et al., HSC Case No. SCAP-22-0000429), first brought in state court in 2020, focuses on a deceptive promotion campaign, rather than seeking resolution to interstate pollution harms which could be subject to pre-emption under the Federal Clean Air Act. Since 2020, the Respondent companies had removed the case to federal court where a federal district court judge remanded it, the Ninth Circuit affirmed that ruling, and the U.S. Supreme Court declined to take up the matter. The First, Third, Fourth, Eighth, Ninth and the Tenth Circuits have all affirmed federal court remands to state court of lawsuits by state and local governments accusing energy companies of misleading the public about the climate damage done by fossil fuels in violation of state laws including nuisance and consumer fraud.
For further information:
https://www.4cleanair.org/wp-content/uploads/hawaiisupremecourt1123.pdf
Laura Watson, the Director of the Washington Department of Ecology, has directed the agency’s staff to pursue a linking agreement that would integrate that state’s GHG cap and trade system with those of California and Quebec. Watson’s decision was based on a report by the Department evaluating the benefits of linkage and the requirements of the state’s 2022 Climate Commitment Act. “The report found that a linked market would be larger and more liquid, reducing compliance costs for businesses while also increasing price stability, which will allow those businesses to make long-term plans to reduce their emissions,” Washington’s announcement said. While the preliminary decision does not guarantee that Washington’s carbon market will link with California and Quebec, the decision clears the way for agencies in each jurisdiction to explore and make statutory or regulatory changes to work together. If all three jurisdictions agree to link their programs, trading could occur as soon as 2025. Washington’s cap and trade system has been in place since January 2023 under the law, and California and Quebec have operated linked GHG cap and trade markets since January 1, 2014.
https://ecology.wa.gov/about-us/who-we-are/news/2023/nov-2-ecology-to-pursue-carbon-market-linkage
A new peer reviewed paper by a team including pioneering climate change researcher James Hansen of Columbia University argues that scientific forecasts of climate change that inform policymaking significantly underestimate the amount of planetary warming caused by GHGs. Emphasizing geological records over modeling, the new paper, titled “Global warming in the pipeline”, was published in the research journal Oxford Open Climate Change, and argues that equilibrium climate sensitivity is about 33 percent higher than forecasts that depend more heavily on modeling predict, and that climate damage is accelerating. The paper finds that global warming has been accelerating since 2010 and that a warming rate of 0.18°C (0.32°F) per decade, recorded between 1970-2010, will spike to 0.27°C (0.48°F) per decade after 2010. It argues that total warming of 4.8°C (8.6°F) would result from a doubling of atmospheric CO2, above the United Nations Intergovernmental Panel on Climate Change (IPCC) estimate of 3°C (5.4°F). It also argues that the effects of air pollution have been stronger than models have been able to analyze, and that as these levels decrease with coupled GHG reductions, that global average surface temperatures will increase in a rebound effect. “Equilibrium warming is not ‘committed’ warming; rapid phaseout of GHG emissions would prevent most equilibrium warming from occurring”, the paper states, but “under the present geopolitical approach to GHG emissions, global warming will exceed 1.5°C in the 2020s and 2°C before 2050.”
For further information: