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January 20-26, 2024
In this week's issue:
- Federal Court Enjoins EPA and DOJ from Imposing Disparate-Impacts-Based Requirements Against State Agencies Under Title VI of the Civil Rights Act (January 23, 2024)
- EPA Publishes Proposed Large Municipal Waste Combustors Regulations and Sets Comment Deadline (January 23, 2024)
- EPA Announces Proposal to Implement Federal Good Neighbor Plan in Five Additional States (January 23, 2024)
- NACAA Requests 30-Day Extension of Comment Period on EPA’s Draft New Exceptional Events Implementation Tools (November 25, 2024)
- Republican Governors Urge President Biden to “Change Course” on EVs; EPA Sends Final Multi-Pollutant LMDV Rule to OMB (January 22 & 18, 2024)
- Auto Dealers Ask President Biden to Pause “EV Mandate” (January 25, 2024)
- EPA Announces CASAC Panel of Experts for Review of NOx NAAQS (January 25, 2024)
- Democratic Lawmakers Press FERC Not To Override EPA On Power Plant Rule (January 25, 2024)
- EPA Posts Responses to Comments on National Program Guidance (January 24, 2024)
- DOE Awards $254 Million For Industrial Decarbonization Projects (January 25, 2024)
- EPA Solicits Public Comment on Draft Updates to Scientific Integrity Policy (January 23, 2024)
This Week in Review
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The U.S. District Court for the Western District of Louisiana issued a preliminary injunction that bars EPA and the U.S. Department of Justice (DOJ) from enforcing disparate-impacts-based mandates against any state agency under Title VI of the Civil Rights Act. The ruling came in response to a motion by the State of Louisiana in its ongoing lawsuit challenging EPA rules that bar state actions that impose “disparate impacts” under Title VI. Louisiana argues that the federal civil rights law only prohibits intentional discrimination and that EPA has no authority to impose disparate-impacts-based mandates as a condition for receiving grants or issuing permits. It brought the lawsuit in response to several EPA civil rights investigations into the state’s air permitting practices and their alleged discriminatory effects on Black communities. The ruling by Judge James Cain clears the way for the case to proceed on the merits and signals that he supports most of Louisiana’s arguments. Louisiana claims EPA’s rules and environmental justice policies violate the constitution and the “major questions” doctrine because they prohibit “disparate impacts” even though the statute’s plain text does not explicitly do so. The court rejected arguments by EPA and DOJ that the state lacked standing and the case was moot, in part based on EPA’s decision to drop its pending investigations. That decision was “nothing more than political posturing to avoid answering on an expedited bases and receiving a bad ruling from this Court,” the judge found. Concluding that Louisiana has met its burden as to irreparable harm, Judge Cain wrote, “the State is entitled to unambiguous clarity concerning Defendants’ power to regulate beyond the plain text of Title VI. This is its sovereign right. The State must be able to issue permits and accept and maintain grants with advance knowledge and understanding of the scope of its compliance with Title VI. It is abundantly clear, that Defendants’ actions iterated herein have created great cause for concern, not only for the State of Louisiana, but also for our sister states who have also found themselves at the whim of the EPA and its overreaching mandates.” The ruling is widely expected to be appealed to the U.S. Court of Appeals for the Fifth Circuit and the U.S. Supreme Court.
For further information:
https://www.4cleanair.org/wp-content/uploads/Louisiana-v.-EPA-W.D.-La.-1-23-24.pdf
EPA has published in the Federal Register proposed amendments to the New Source Performance Standards and Emission Guidelines for Large Municipal Waste Combustors (LMWC). The public comment period for the proposal will be open until March 25, 2024. EPA plans to hold an informational webinar on the proposal, the details of which have not yet been announced. EPA estimates that the standards, proposed under Section 129 of the Clean Air Act, will reduce emissions by 14,000 tons per year of nine pollutants: particulate matter, sulfur dioxide, hydrogen chloride, nitrogen oxides, carbon monoxide, lead, cadmium, mercury and dioxins/furans. EPA is required to reevaluate the standards every five years to account for developments in pollution controls, although the regulations for LMWC, which were first established in 1995, have not been amended since 2006. The proposal would revise all emission limits for new and existing sources, except for carbon monoxide limits for two subcategories of existing sources. Additionally, EPA is proposing to remove exemptions for startup, shutdown and malfunction; clarify Title V requirements for certain air curtain incinerators; call for electronic reporting for certain notifications and reports; revise recordkeeping requirements; close out a 2007 reconsideration request; and make other technical edits and clarifications. The proposed standards will affect 57 facilities with 152 units (in 13 states) that have the capacity to combust over 250 tons per day of municipal solid waste. Twenty-two of the facilities are municipally owned/operated sources. EPA is required to issue the final rule by November 30, 2024, according to a consent decree.
For further information:
https://www.govinfo.gov/content/pkg/FR-2024-01-23/pdf/2024-00747.pdf
and
and
https://www.4cleanair.org/wp-content/uploads/LMSWC-facilities_1-11-24.pdf
EPA announced a proposed action regarding the interstate transport provisions of the Clean Air Act as they relate to the 2015 ozone National Ambient Air Quality Standards (NAAQS). In this action, which applies to five states – Arizona, Iowa, Kansas, New Mexico and Tennessee – EPA proposes to 1) partially approve and partially disapprove the 2015 ozone transport State Implementation Plans for the five states, 2) implement, beginning in 2025, Federal Implementation Plans for the five states, making them part of the March 2023 federal ”Good Neighbor Plan,” with coal-fired power plants subject to an allowance-based ozone-season NOx emissions trading program; and 3) establish nitrogen oxide emission limits for a number of industrial sources in Arizona, to take effect in 2027. Once this action is published in the Federal Register EPA will accept public comments for 45 days. The agency will hold a virtual public hearing (at https://www.epa.gov/csapr/csapr-2015- ozone-naaqs) 15 days after Federal Register publication.
For further information:
and
https://www.epa.gov/Cross-State-Air-Pollution/good-neighbor-plan-2015-ozone-naaqs#Jan24
NACAA sent a letter to Joseph Goffman, EPA Principal Deputy Assistant Administrator for the Office of Air and Radiation, asking that the agency provide a 30-day extension – to March 4, 2024 – to the comment period on recently released draft new exceptional events (EE) implementation tools. The tools are 1) a series of data visualization tools to help agencies identify event-influenced PM2.5 data most likely to have regulatory significance and 2) a “tiering” document geared toward EE demonstrations for events that involve wildland fires and PM2.5. Wayne Nastri (Los Angeles, CA) and Gail Good (WI), Co-Chairs of the NACAA Criteria Pollutants Committee, wrote in the letter that the additional time is necessary to allow state and local air agencies to thoroughly review the draft tools and develop informed comments. The letter was also submitted to EPA’s non-regulatory docket for this initiative (EPA-HQ-OAR-2023-0586).
For further information:
and
Sixteen Republican Governors sent a letter to President Biden urging him to “change course on [his] current mandate that two out of every three vehicles be battery electrics by 2032.” Referring to a December 15, 2023, White House Fact Sheet titled, Biden-Harris Administration Takes Action to Accelerate America’s Clean Transportation Future, the Governors wrote, “While we are not opposed to the electric vehicle marketplace, we do have concerns with federal government mandates that penalize retailers and do not reflect the will of the consumer. Even with deep price cuts, manufacturers’ incentives, and generous government funding, federal mandates on electric vehicles are unrealistic. The American customer should be able to decide what technology makes most sense for them, not the federal government.” The Governors also expressed concerns related to vehicle charging infrastructure and vehicle cost and concluded by requesting that the President remove his “mandate” and, instead, “provide a more realistic approach by allowing the free market to determine the direction and timing for the industry’s growth rather than the federal government.” The Governors of Arkansas, Idaho, Iowa, Louisiana, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Dakota, Oklahoma, South Dakota, Texas, Utah, Virginia and Wyoming signed the letter. In a related action, on January 18, 2024, EPA sent the final Multi-Pollutant Emissions Standards for Model Years 2027 and Later Light-Duty and Medium-Duty Vehicles to the Office of Management and Budget for interagency review. The proposed rule on which the final rule is based included progressively more effective performance-based carbon dioxide emission standards for MY 2027 through 2032 light- and medium-duty vehicles, The proposed standards did not mandate the use of any specific technology, nor did they mandate that any percentage of vehicle production be zero-emission vehicles. Instead, each manufacturer may choose what mix of emission control technologies is best suited for its fleet to meet the standards. EPA has indicated that it will release the final light- and medium-duty vehicle rule and final Phase 3 heavy-duty truck greenhouse gas rule in early March 2024 (see related article in the October 14-20, 2023 Washington Update).
For further information:
https://www.rga.org/ev-joint-governors-letter/
and
A group of over 4,700 car dealers from across the country sent a letter to President Biden in follow up to a similar letter they sent on November 28, 2023 (see related article in the November 25-December 1, 2023, Washington Update), to which, they say, “[t]here has been no response.” In their November letter, the auto dealers called on the President to “tap the brakes” on what they call an “electric vehicle mandate” in the forthcoming final multi-pollutant light- and medium-duty vehicle rule (see related article about the Republican Governors’ letter to President Biden in this Washington Update). This week, the auto dealers ask the President to “hit the brakes,” writing, “It is uncontestable that the combination of fewer tax incentives, a woefully inadequate charging infrastructure, and insufficient consumer demand makes the proposed electric vehicle mandate completely unrealistic.”
For further information:
EPA announced the 19 individuals selected to serve as the NOx Panel that will provide advice, through EPA’s Clean Air Scientific Advisory Committee (CASAC), on the scientific and technical bases for the agency’s next review of the primary National Ambient Air Quality Standards (NAAQS) for nitrogen oxides (NOx). Members of the panel were selected from among numerous experts nominated in response to a November 3, 2023, EPA Federal Register notice soliciting nominations and include Dirk Felton of the New York State Department of Environmental Conservation and George Allen of the Northeast States for Coordinated Air Use Management. The previous review of the primary NOx NAAQS concluded in April 2018 with a decision by the EPA Administrator to retain, without revision, the existing annual standard of 53 parts per billion (ppb) and 1-hour threshold of 100 ppb.
For further information:
and
https://www.govinfo.gov/content/pkg/FR-2023-11-03/pdf/2023-24368.pdf
Led by Committee Chair Tom Carper (D-DE), nine Democrats from the U.S. Senate Committee on the Environment and Public Works have written a letter to the Commissioners of the Federal Energy Regulatory Commission (FERC) encouraging action to assure electric grid reliability but warning that it must not undermine or override actions being taken by EPA under its May 23, 2023 proposed rule regulating greenhouse gases (GHGs) from new and existing fossil-fueled electric generating units (EPA Docket EPA-HQ-OAR-2023-0072; 88 Fed. Reg. 33,240). “We urge FERC to use its ample authorities to ensure a reliable electric power system now and in the future”, the lawmakers wrote, “In doing so, FERC must support, not slow, the transition to a clean energy economy, and FERC must not undermine strong greenhouse gas emission reduction requirements.” The letter references the November 9, 2023 FERC Technical Conference, at which the Commissioners questioned EPA’s lead Air official, Joe Goffman, to determine the extent to which changes in the power system would be driven by EPA’s rulemaking, instead of a broader transition caused by inexpensive renewables and more expensive fossil fuels. (NACAA also testified at the Technical Conference, see related story in the November 4-10, 2023 edition of NACAA’s Washington Update.) A December letter from Republicans on the Committee, led by Sen. Shelly Moore Capito (R-WV) urged FERC to intervene on reliability grounds. EPA is expected to finalize the proposal before June 2024.
For further information:
https://www.energy.senate.gov/services/files/6888DF77-730B-4289-969B-9261AEA7F515
and
https://www.4cleanair.org/wp-content/uploads/senate-democrats-letter-ferc-ghg-1_24.pdf
In August and September 2023, EPA’s Office of Air and Radiation (OAR) and its Office of Enforcement and Compliance Assurance (OECA) offered the opportunity for national, state, local, and tribal air, public health, and radiation associations to provide early input to inform the development of their National Program Guidance (NPG) for fiscal year (FY) 2025-2026. EPA shared input that it received in response with its national program offices. NACAA provided comments to OAR on October 5, 2023 focused on assuring adequate and effective agency funding, and strengthening the coregulatory collaboration between state, local, and federal agencies in rulemaking, implementation, and enforcement. NACAA also offered comments to OECA on September 9, 2023, emphasizing the importance of early and continued engagement with our agencies when working on new initiatives and policies, prioritizing enforcement activities, inspection targeting, and case referrals. EPA noted that its offices and “the U.S. EPA regions will consider the early input received from state, territory, and tribal partners in developing the FY 2025-2026 National Program Guidance.”
For further information:
https://www.epa.gov/system/files/documents/2024-01/fy25-26-oar-npg-early-engagement-summary.pdf
and
https://www.4cleanair.org/wp-content/uploads/FY-25-26-NPG-Early-Input-NACAA.pdf
and
https://www.epa.gov/system/files/documents/2024-01/fy25-26-oeca-npg-early-engagement-summary.pdf
and
https://www.4cleanair.org/wp-content/uploads/NACAA-Early-Input-FY-24_25-OECA-NPG-9_29_23.pdf
Using funds from the Inflation Reduction Act of 2022 (IRA), the U.S. Department of Energy (DOE) announced will award $254 million for new projects to decarbonize the industrial sector. DOE announced that $171 million is being awarded to forty nine industrial decarbonization projects in twenty one states. Award recipients include companies, twenty-two universities, three non-profit organizations, and eight DOE National Laboratories. An additional $83 million will be designated for forthcoming applications to “decrease emissions from hard-to-decarbonize industrial sectors.” These current and future projects focus on decarbonizing sectors such as industrial heat; hydrogen production; materials research and development; chemicals; iron and steel; food and beverage manufacturing; cement and concrete; and forest projects.
For further information:
EPA announced in the Federal Register (89 Fed. Reg. 4606) that it is accepting public comments on draft updates to its Scientific Integrity Policy. The draft updates were made in accordance with requirements set forth in President Biden’s 2021 Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-based Policymaking. EPA’s first Scientific Integrity Policy was issued in 2012 The draft updates include a new federal definition of “scientific integrity,” which reads: “Scientific integrity is the adherence to professional practices, ethical behavior, and the principles of honesty and objectivity when conducting, managing, using the results of, and communicating about science and scientific activities. Inclusivity, transparency, and protection from inappropriate influence are hallmarks of scientific integrity.” The draft updated policy also introduces and clarifies the roles and responsibilities of specific individuals, including the new role of EPA Chief Scientist. Other proposed updates, EPA says, “will significantly strengthen several policy elements (e.g., protecting scientific processes, reviewing science, ensuring the free flow of scientific information, supporting decision making processes, ensuring accountability, etc.) that will help ensure a culture of scientific integrity at the Agency.” EPA will accept public comments on the draft policy updates through February 23, 2024.
For further information:
https://www.govinfo.gov/content/pkg/FR-2024-01-24/pdf/2024-01313.pdf
and
https://www.regulations.gov/document/EPA-HQ-ORD-2023-0240-0002