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July 13-19, 2019
In this week's issue:
- Sierra Club Seeks En Banc Rehearing of D.C. Circuit Panel Decision in Ambient Monitoring Rules Case (July 15, 2019)
- Administration Reduces Penalties for Failure to Meet Fuel Economy Standards (July 12, 2019)
- EPA Releases Annual Air Quality Trends Report (July 17, 2019)
- EPA Announces July 31, 2019 Public Hearing on Proposed 2020 Renewable Fuel Volume Requirements (July 17, 2019)
- Petitioners File Motion to Dismiss Clean Power Plan Challenge, EPA Files Response in Support (July 15 & 17, 2019)
- Researchers Argue EPA Underestimated Rebound Emissions from Affordable Clean Energy Rule (July 18, 2019)
- Department of Energy Projects U.S. Energy-Related Carbon Dioxide Emissions Will Shrink in 2019 (July 15, 2019)
- Researchers Predict Number of U.S. Extreme Heat Days Could More Than Double by Mid-Century Due to Climate Change (July 16, 2019)
- Senator Introduces Bipartisan Energy Efficiency Legislation (July 17, 2019)
- House Bill Would Require MPOs to Consider GHG Emissions in Transportation Plans and Programs (July 18, 2019)
- Senate Democrats’ Special Committee on the Climate Crisis Holds Hearing on Local Climate Action (July 17, 2019)
- House Select Committee Examines Role of Cleaning Up Heavy-Duty Vehicles in Solving Climate Crisis (July 16, 2019)
- House Science Committee Examines EPA’s Use of Science Amid Release of GAO Report Questioning Recent Advisory Committee Appointments (July 16, 2019)
- EPA Announces in Federal Register Final Policy for Coordinating with States on Enforcement and Compliance Assurance (July 19, 2019)
- New York Governor Signs Aggressive State Climate Legislation (July 18, 2019)
This Week in Review
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Sierra Club filed a petition in the U.S. Court of Appeals for the District of Columbia Circuit for en banc rehearing of the court’s recent panel decision to reject, on jurisdictional grounds, its challenge to public participation provisions of EPA’s 2016 revisions to the ambient air monitoring regulations. Sierra Club’s primary claim in the litigation was that the 2016 monitoring rule’s provisions governing public input on states’ annual monitoring network plans were unlawful because they were less stringent than procedures applicable to State Implementation Plans (SIPs), and in Sierra Club’s view, monitoring network plans are part of SIPs. In its May 31 decision, a three-judge panel of the D.C. Circuit found that this aspect of the 2016 rule “did no more than echo” the provisions of a rule promulgated in 2006 in which EPA adopted a non-SIP approach to reviewing annual network plans. Therefore, the court reasoned, the claim was an untimely challenge to the 2006 rule because it was not filed within 60 days of that rule’s publication, as required by Section 307(b)(1) of the Clean Air Act. Even though EPA had never raised a timelines argument in the litigation, and the issue was never briefed or argued, the court held sua sponte that the claim must be dismissed because the Section 307(b)(1) 60-day filing deadline is jurisdictional (if the court determines that it lacks jurisdiction to hear a claim, it must dismiss that claim regardless of whether the jurisdictional argument was raised by a party). In its en banc rehearing petition, Sierra Club asks the full court to reverse this holding, arguing that it conflicts with binding precedents under which the 60-day filing deadline is presumptively a non-jurisdictional, claim-processing rule unless the court finds a clear congressional statement to the contrary. Here, the group argues, rather than seeking a clear statement in the Clean Air Act to overcome this presumption, the court relied entirely on outdated dicta to hold the 60-day filing deadline is jurisdictional. If the en banc court does not correct the panel’s holding, Sierra Club argues, “the error threatens future litigants” in other Clean Air Act petitions for review.
For further information: http://4cleanair.org/sites/default/files/Documents/SierraClubvEPA-RehearingPetition-7-15-19.pdf and http://www.4cleanair.org/sites/default/files/Documents/Sierra_Club_v_EPA-DC_Cir_Opinion_5-31-19.pdf
National Highway Traffic Safety Administration (NHTSA) Deputy Administrator Heidi King signed a final rule reducing the level of penalties to be paid beginning in 2019 by automakers that fail to meet applicable Corporate Average Fuel Economy (CAFE) Standards. On November 2, 2015, the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Improvements Act of 2015) was signed into law. This statute required each federal agency to issue an interim final rule making an initial “catch-up” adjustment to “civil monetary penalties” the agency administers and then to issue a final rule making subsequent annual adjustments for inflation. After issuing its interim final rule on July 15, 2016, NHTSA promulgated its final rule on December 28, 2016. Among the penalties adjusted was that for failure to comply with CAFE standards, which NHTSA raised from $5.50 per 0.1 mile per gallon over the standard per vehicle to $14 per 0.1 mile per gallon over the standard per vehicle, to take effect in 2019. (The $5.50 CAFE penalty was set in 1997 and was a $0.50 increase over the $5.00 penalty that had been in effect since 1975.) On July 12, 2017, under a new Administration, NHTSA took action to suspend the effective of date of the December 2016 final rule; petitions for judicial review were filed in September 2017 by five states and three citizen groups. On June 29, 2018, the U.S, Court of Appeals for the Second Circuit granted the petitions for review, vacated NHTSA’s July 12, 2017 suspension rule and declared the December 2016 rule increasing the civil penalties “no longer suspended” and “now in force.” However, in its final rule issued this week, NHTSA confirms its determination, as proposed on March 27, 2018, that the CAFE civil penalty rate is not a “civil monetary penalty” and therefore not subject to the Improvements Act of 2015. Accordingly, the CAFE civil penalty rate will remain $5.50 per 0.1 mile per gallon over the standard and not increase to $14 in 2019. NHTSA also confirms its determination that even if the Improvements Act of 2015 did apply, increasing the CAFE civil penalty rate would have a negative economic impact and, therefore, “in accordance with the Energy Policy and Conservation Act of 1975 (EPCA) and the Energy Independence and Security Act of 2007 (EISA), the current CAFE civil penalty rate of $5.50 should be retained, instead of increasing to $14 in model year 2019.”
For further information: https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/cafe_civil_penalties_final_rule_07122019.pdf
EPA released its annual report summarizing the status and trends of U.S. air quality. In Our Nation’s Air, which is based on data through 2018, EPA focuses on long-term trends noting that “[n]ationally, concentrations of air pollutants have dropped significantly since 1990” and “[u]nhealthy air days show long-term improvements.” The online report offers background information and sections specific to National Ambient Air Quality Standards, visibility and air toxics, providing data in “layers,” including subpages with charts and maps offering year-by-year details. A “look back” at ozone and particulate matter (PM) in 35 major cities shows that the total number of days in 2018 when at least one of the two pollutants reached unhealthy levels was 799 in 2018, up from 721 in 2017 and the highest number since 2012, when there were 1,296 days with unhealthy levels. For ozone alone, the number of days with unhealthy levels was 671 in 2018, up from 591 in 2017 and the highest since 2012, which had 1,187 days with unhealthy levels. With respect to PM alone, 2018 saw 160 days with unhealthy levels, down from 167 in 2017 and the second highest since 2012, which had 168 days with unhealthy levels. EPA also puts a “spotlight” on wildfires and their potential impact on air quality, particularly PM, noting that wildfire pollution affects not only local areas but national concentration averages as well.
For further information: https://gispub.epa.gov/air/trendsreport/2019/#home
EPA announced in the Federal Register (84 Fed. Reg. 34106) that it will hold a public hearing on the proposed 2020 renewable fuel volume requirements under the Renewable Fuel Standard (RFS) program on July 31, 2019 in Ypsilanti, Michigan beginning at 9:00 AM. The proposed standards were announced on July 5, 2019 (see related article in the July 6-12, 2019 Washington Update) and have not yet been published in the Federal Register, however, when the standards were announced EPA indicated the public comment period on the proposal would remain open for thirty days following the public hearing. EPA is required to finalize the renewable fuel volume requirements by November 30.
For further information: https://www.govinfo.gov/content/pkg/FR-2019-07-17/pdf/2019-15223.pdf
Citing EPA’s final Affordable Clean Energy (ACE) rule, a group of state, industry and power sector petitioners and petitioner-intervenors who challenged the 2015 Clean Power Plan (CPP) rule are asking the U.S. Court of Appeals for the District of Columbia Circuit to dismiss their legal challenges. According to the group’s motion to dismiss, filed on July 15, the case became “classically moot for lack of a live controversy” when EPA repealed the CPP as part of the final ACE rule. Two days later, on July 17, EPA filed a response in support of the dismissal motion. “On July 8, 2019, EPA published in the Federal Register a final rule repealing the challenged Clean Power Plan. Petitioners have thus secured the relief they sought in this lawsuit,” EPA wrote. The case is captioned West Virginia v. EPA (No. 15-1363). Though the D.C. Circuit heard oral argument en banc in the case in September 2016, the court stayed the proceeding at the Trump Administration’s request as EPA worked to repeal and replace the CPP.
For further information: http://4cleanair.org/sites/default/files/Documents/2019-07-15PetitionersMotiontoDismiss.pdf and http://www.4cleanair.org/sites/default/files/Documents/2019-07-17-EPA_Resp_in_Support_of_Dismissal.pdf
Researchers at Resources for the Future as well as Harvard, Syracuse and Boston Universities released a paper in which they find that in its Regulatory Impact Analysis (RIA) for the Affordable Clean Energy (ACE) rule EPA underestimates the state-level CO2, SO2 and NOx emissions increases that will be caused by the rule. Compared to a no-policy reference scenario in 2030 EPA estimates in its RIA that the ACE rule will increase CO2 emissions in 15 states plus the District of Columbia, increase SO2 emissions in 14 states and increase NOx emissions in 13 states and the District of Columbia. The researchers argue that EPA fails in the ACE RIA to account for additional policies that have been adopted or announced by the agency, include the full range of heat rate improvement technologies identified by the agency and consider the ACE rule’s impacts under less favorable market conditions. “Our analysis shows that the final ACE rule would do little to address climate change and would likely have even greater adverse air quality and health effects in some states than EPA has projected,” the researchers conclude in their paper, titled Carbon Standards Re-Examined: An Analysis of Potential Emissions Outcomes for the Affordable Clean Energy Rule and the Clean Power Plan.
For further information: http://www.4cleanair.org/sites/default/files/Documents/Carbon-Standards-Re-Examined_Final.pdf
The U.S. Department of Energy’s Energy Information Administration (EIA) estimates that U.S. energy-related CO2 emissions will decline by 116 million metric tons in 2019, a 2.2-percent decrease from last year. U.S. energy-related CO2 emissions increased 2.7 percent in 2018, posting the first such annual increase since 2014. EIA attributes nearly the entire projected 2019 decline to a decrease in coal use. EIA also notes that total power demand through the end of 2019 is expected to be less than 2018 due to lower anticipated temperatures. Natural gas use is forecast to increase in 2019 but not by a large enough margin to fully offset the emission reductions from declining coal use and reduced energy demand.
For further information: https://www.eia.gov/todayinenergy/detail.php?id=40094&src=email
Authors of a study published in the journal Environmental Research Communications predict that climate change could more than double the number of extreme heat index days experienced in the U.S. by mid-century. The result is based on modeling of future weather patterns under two different greenhouse gas (GHG) emissions scenarios: a low-emissions scenario where GHG emissions are assumed to peak and begin to decline by 2100 and a high-emissions scenario where they continue to grow. At mid-century, defined in the study as 2036-2065, both the high- and low-emissions scenarios show a comparable increase in extreme heat events. The authors predict that the number of days in the U.S. with heat indices exceeding 100 °F will double while the number of days with indices exceeding 105 °F will triple compared to a 1971-2000 baseline. The mean average duration of the longest heat event is also projected to double by mid-century. By late-century under the high-emissions scenario, defined as 2070-2099, the number of 100-degree days will increase by a factor of four and the number of days above 105 will be eight times higher. The authors also project that by late-century, the duration of events with a heat index higher than 100 °F will almost triple. The paper is entitled Increased frequency of and population exposure to extreme heat index days in the United States during the 21st Century.
For further information: https://www.ucsusa.org/sites/default/files/attach/2019/07/killer-heat-environmental-research-communications-article.pdf
Senator Rob Portman (R-OH), joined by a bipartisan group of nine of his colleagues, introduced S. 2137, the Energy Savings and Industrial Competitiveness Act, which targets the building and industrial sectors as well the federal government for energy efficiency improvements. Among its numerous provisions, the legislation would enhance model national building codes, incentivize the use by manufacturers of more energy-efficient motors and transformers and require the federal government to adopt energy-saving techniques for computers. The following Senators have signed on as original co-sponsors: Jeanne Shaheen (D-NH), Susan Collins (R-ME), Chris Coons (D-DE), Margaret Hassan Wood (D-NH), Joe Manchin (D-WV), Roger Wicker (R-MS), Michael Bennet (D-CO) and Mark Warner (D-VA). This bill was also introduced in the last Congress and approved by the Senate Energy and Natural Resources Committee.
For further information: https://www.congress.gov/bill/116th-congress/senate-bill/2137/cosponsors and https://www.portman.senate.gov/newsroom/portman-shaheen-introduce-energy-efficiency-legislation
Rep. Lloyd Doggett (D-TX) introduced the Green Transportation Act to reduce greenhouse gas (GHG) emissions from the transportation sector. Under the bill, Metropolitan Planning Organizations (MPOs) would be required to consider direct and indirect GHG emissions when developing their long-range transportation plans and transportation improvement programs (TIPs) and provide for reductions in such emissions in the plans and TIPs. States and MPOs would be authorized to use funds made available under the Fixing America’s Surface Transportation Act to develop standardized models and methodologies for measuring and monitoring transportation-related GHG emissions. In addition, MPOs would be called upon to submit their standardized models and methodologies to the U.S. Department of Transportation (DOT) every two years, to be organized and made available by DOT in a publicly available clearinghouse.
For further information: http://www.4cleanair.org/sites/default/files/Documents/Legislation-GreenTransportationAct-RepDoggett-071819.pdf
The Senate Democrats’ Special Committee on the Climate Crisis held its first hearing, which featured mayors from five U.S. cities discussing their efforts to reduce greenhouse gas emissions and improve their communities’ resilience. “By bringing together our country’s mayors, we can understand how our cities are taking action against climate change and how the federal government can help,” said Committee Chairman Brian Schatz (D-HI). Witnesses included Atlanta, GA Mayor Keisha Lance Bottoms; Honolulu, HI Mayor Kirk Caldwell; Saint Paul, MN Mayor Melvin Carter; Pittsburgh, PA Mayor William Peduto; and Portland, OR Mayor Ted Wheeler.
For further information: https://www.democrats.senate.gov/newsroom/press-releases/watch-live-the-first-hearing-of-the-senate-democrats-special-committee-on-the-climate-crisis-where-mayors-from-across-the-country-discuss-climate-action-at-the-local-level and https://www.democrats.senate.gov/climate
The House Select Committee on the Climate Crisis convened a hearing on “Solving the Climate Crisis: Cleaning Up Heavy Duty Vehicles, Protecting Communities.” In her opening statement, Committee Chair Kathy Castor (D-FL) noted that after examining ways to reduce carbon pollution from the electric power sector for the past few weeks the Committee was now focusing on heavy-duty trucks and buses. Castor identified two key reasons for this focus: 1) the substantial adverse impacts of emissions from heavy-duty vehicles on low-income communities of color and 2) the great potential for Congress to play a role in deploying cleaner trucks and buses. The Committee heard from, and engaged in Q&A with, four witnesses. In his testimony, Angelo Logan, Campaign Director of the Moving Forward Network, urged Congress to do the following: 1) protect the Clean Air Act and the National Environmental Policy Act throughout all legislative actions, 2) develop and adopt policy principles for climate that advance climate justice, environmental justice, communities’ self-determination and local solutions, 3) provide EPA with the tools and resources necessary to meet the agency’s mission and allow it to play a role in solving the climate crisis and 4) hold EPA accountable for achieving its mission and meeting the legal requirements of the Clean Air Act – “EPA must adopt regulations to reduce and eliminate emissions from the freight sector,” including heavy-duty trucks, ocean-going vessels and locomotive engines. Michelle Romero, National Director of Green for All, highlighted in her testimony that heavy-duty vehicle emissions are both a climate problem and a public health problem and although all populations are affected, low-income communities and people of color are at higher risk of suffering adverse health impacts. She went on to speak, in particular, about the need for and benefits of zero-emission electric school buses, encouraging the House of Representatives to introduce legislation similar to S. 1750, the Clean School Bus Act, introduced by Senator Kamala Harris (D-CA), with “an even larger funding commitment.” Also testifying was Ryan Popple, CEO of Proterra, a manufacturer of zero-emission heavy-duty electric transit buses as well as technology to power other heavy-duty electric vehicles, including school buses and coach buses. In his statement, Mr. Popple discussed “the urgency of reducing greenhouse gas emissions caused by heavy-duty transportation” and recommended, among other things, that Congress reauthorize the Fixing America’s Surface Transportation (FAST) Act, which will expire at the end of FY 2020, and, in doing so, increase funding for the Federal Transit Administration’s Low or No Emissions Vehicle (LowNo) Program. Finally, Tony Satterthwaite, President of Distribution Business for Cummins, Inc., spoke about the “journey” that enabled Cummins to meet heavy-duty standards that “reduced particulate emissions in the diesel engine by 90 percent, and NOx by 95 percent while improving fuel-efficiency” as well as what Cummins believes may be possible in the future. Mr. Satterthwaite said Cummins “is committed to investing in an energy diverse future where our customers have a broad portfolio of power options – including clean diesel, natural gas, electrified power and even fuel cell technology – so they can choose what works best for them.”
For further information: https://climatecrisis.house.gov/committee-activity/hearings/solving-climate-crisis-cleaning-heavy-duty-vehicles-protecting
The House Science, Space, and Technology Subcommittees on Investigations and Oversight and Environment held a joint hearing to review EPA’s use of science advisory committees. The hearing was critical of some recent EPA decisions and prominently featured a Government Accountability Office (GAO) review – released publically to coincide with the hearing – of EPA advisory committee appointments. In her opening statement, Subcommittee Chairwoman Mikie Sherrill (D-NJ) accused the Trump Administration of a “multi-pronged” attack on federal advisory committees. “In 2017, former Administrator Pruitt barred EPA grant holders – some of the most prominent researchers in their fields – from serving on advisory committees. Administrator Pruitt claimed this was to prevent conflicts of interest, but he did not prohibit people who are paid by the industries that EPA regulates – an arguably greater conflict of interest – from serving on advisory committees,” said Rep. Sherrill, who went on to recap EPA decisions to not renew a number of advisory committee appointments and to disband the Clean Air Scientific Advisory Committee’s (CASAC) Particulate Matter Review Panel. Investigations and Oversight Subcommittee Ranking Member Ralph Norman (R-SC) praised the importance of scientific integrity but complained about the hearing’s organization. “Unfortunately, it seems that my Democratic colleagues are intent on politicizing scientific integrity, and the way this hearing was orchestrated is a perfect example,” he said. Mr. J. Alfredo Gomez, Director of Natural Resources and Environment at GAO, was the first witness. In his testimony, he summarized GAO’s review of EPA appointments to 17 advisory committees between fiscal year 2017 and the second quarter of fiscal year 2018 for consistency with the applicable law, agency regulation and agency policy. While GAO found that EPA generally followed its procedures, it also concluded that the agency did not perform a key candidate evaluation step for 20 appointments to the EPA Science Advisory Board and CASAC. According to GAO, EPA failed to consider routine written EPA staff appointment recommendations that were reviewed for other appointments. EPA disputed GAO’s finding, arguing that it was within the agency’s discretion to substitute an alternative evaluation process that instead relied on oral input from senior agency staff. In addition, GAO separately concluded that EPA has not “consistently ensured” that committee appointees meet all federal ethics requirements, noting that 23 percent of the financial disclosure forms received from board appointees have not been certified as compliant with federal ethics rules, and that EPA has not conducted mandatory periodic reviews of its ethics program to ensure that the financial disclosures are being properly verified. The remaining hearing witnesses included Dr. Thomas Burke, Professor and Chair in Health Risk and Society at Johns Hopkins University’s Bloomberg School of Public Health; Dr. Deborah Swackhamer, Professor Emerita at the University of Minnesota’s Humphrey School of Public Affairs; and Dr. Jonathan Samet, Dean of the Colorado School of Public Health. All three largely echoed Subcommittee Chairwoman Sherrill’s opening comments criticizing some of EPA’s recent advisory panel-related actions.
For further information: https://science.house.gov/hearings/epa-advisory-committees-how-science-should-inform-decisions and https://republicans-science.house.gov/news/opening-statements/opening-statement-io-ranking-member-ralph-norman-joint-subcommittee-hearing
EPA published in the Federal Register (84 Fed. Reg. 34887) an announcement of its July 11, 2019 final policy (see related article in the July 6-12, 2019 Washington Update) establishing procedures for how the agency will coordinate with states in civil enforcement and compliance assurance work. In January 2019, EPA’s Office of Enforcement and Compliance Assurance (OECA) issued a memorandum with interim guidance and in May 2019 published a memorandum for public comment in the Federal Register. This July 2019 policy – which is the product of that effort and replaces the January 2018 guidance – is divided into three sections that describe planning and implementation procedures, the respective roles of state and federal offices and the procedures for elevating any issues. Foundational to the planning section is the “no surprises principle,” whereby EPA will inform the state agency prior to informing a violator of any action or performing an inspection, and share information requests and inspection notices concurrently. EPA states that it “expects the states to respond in kind.” OECA also notes in the policy that “EPA regions and the states should avoid duplicative or overlapping inspections that would lead them to inspect the same facility for the same regulatory requirements within the same twelve month period.” Although the document does not reference local agencies, OECA has said that it will follow these practices when working with local governments, territories and tribes that have received approval to implement federal programs.
For further information: https://www.govinfo.gov/content/pkg/FR-2019-07-19/pdf/2019-15309.pdf and https://www.epa.gov/compliance/enhancing-effective-partnerships-between-epa-and-states-civil-enforcement-and-compliance
New York Governor Andrew Cuomo signed legislation enacting an ambitious climate program which requires the state to reduce its total greenhouse gas (GHG) emissions to 40 percent below 1990 levels by 2030 and to 85 percent below 1990 levels by 2050. The state will further seek to offset any remaining emissions through a combination of technologies to achieve carbon neutrality. The bill also includes separate mandates for clean energy and requires that at least 70 percent of the state’s power generation be carbon free by 2030 and that it be completely carbon free by 2040. Toward that end, Governor Cuomo also announced two agreements to procure nearly 1,700 megawatts of new renewable energy generation, including the largest offshore wind project agreement in U.S. history. The bill also requires that state agencies direct at least 35 percent of their future clean energy and energy efficiency to benefit environmental justice communities. “Even in today’s chaos of political pandering and hyperbole there are still facts, data and evidence – and climate change is an undeniable scientific fact. But cries for a new green movement are hollow political rhetoric if not combined with aggressive goals and a realistic plan on how to achieve them. With this agreement, New York will lead the way in developing the largest source of offshore wind power in the nation, and today I will sign the most aggressive climate law in the United States of America,” said Cuomo in a press release.
For further information: https://www.governor.ny.gov/news/governor-cuomo-executes-nations-largest-offshore-wind-agreement-and-signs-historic-climate and https://www.nysenate.gov/legislation/bills/2019/s6599