July 8-14, 2023
In this week's issue:
- House Subcommittee Approves FY 2024 EPA Budget with Steep Decreases (July 13, 2023)
- EPA Finalizes HFC Allowance Allocation Rule for 2024-2028 (July 11, 2023)
- Senate Ends Debate on Nomination of David Uhlmann as EPA Assistant Administrator for Enforcement, Final Confirmation Vote Could Come Next Week (July 13, 2023)
- Groups Ask D.C. Circuit to Reconsider Its Dismissal of Their Challenge to EPA’s 2009 GHG Endangerment Finding (July 10, 2023)
- EPA Publishes Final Rescission of 2020 Clean Air Act Benefit-Cost Rule (July 13, 2023)
- House Subcommittee Approves Three Bills Targeting Electric Vehicle Rules and CAA Provisions for Setting Vehicle Standards and Granting Waivers (July 12, 2023)
- International Maritime Organization Adopts 2023 Strategy to Reduce GHG Emissions from Ships (July 7, 2023)
- Utah Files Motion to Stay EPA’s Final Good Neighbor Plan in the State Pending Outcome of Litigation Challenging Plan (July 7, 2023)
- OECA Seeks Comment on Draft SRF Guidance (July 12, 2023)
- EPA Proposes Amendments to Integrated Iron and Steel Manufacturing Air Toxics Standards (July 12, 2023)
- Environmental, Health Groups Notify EPA of Intent to Sue for Failing to Timely Complete Review of Primary NOx NAAQS (July 11, 2023)
- EPA Publishes Final Renewable Fuel Volume Standards Rule, Group Files Petition for Review (July 12-13, 2023)
This Week in Review
The House Appropriations Subcommittee on Interior, Environment, and Related Agencies marked up and approved legislation containing FY 2024 appropriations for EPA, calling for significant decreases to the agency’s budget. The House bill includes $6.173 billion for EPA, which is $3.96 billion (39 percent) less than FY 2023 appropriations and $5.91 billion (49 percent) below the Administration’s budget request. It also calls for $105 million for Diesel Emissions Reduction Act (DERA) funding (compared to $100 million in FY 2023 and $150 million in the Administration’s budget) and $69.9 million for Targeted Airshed Grants (equal to FY 2023 and the Administration’s proposal). The information released by the Subcommittee does not include certain funding details, including grants to state and local air agencies under Sections 103 and 105 of the Clean Air Act (CAA), which are likely to be announced when the full Appropriations Committee marks up the measure. However, the bill calls for a cut to the overall State and Tribal Assistance Grant program (of which Sections 103 and 105 are a part) of 42 percent from FY 2023 levels. The House bill includes multiple specific provisions affecting EPA’s activities, including rescission of $7.8 billion from the Inflation Reduction Act’s (IRA’s) Greenhouse Gas Reduction Fund and $1.4 billion from IRA’s Environmental and Climate Justice funding and prohibitions on the following:
- EPA approval of a waiver of preemption for California regulations that include a requirement that new small off-road engines be zero-emission;
- funding for EPA to implement or enforce the federal “Good Neighbor Plan” related to the 2015 ozone NAAQS;
- EPA’s incorporation of the “Social Cost of Carbon” into cost-benefit analyses;
- mandatory reporting of greenhouse gas emissions from manure management systems; and
- implementation of CAA permitting requirements for livestock emissions.
During the markup, members of the Minority, including Committee Ranking Member Rosa DeLauro (D-CT), lambasted the bill for, among other things, zeroing out funds for EPA’s environmental justice program and cutting EPA’s clean air program by at least $200 million. The bill now goes to the full House Appropriations Committee for markup, expected to take place in the near future.
For further information:
https://docs.house.gov/meetings/AP/AP06/20230713/116239/BILLS-1181–AP–Interior.pdf (bill language related to EPA begins on p. 67)
and
EPA announced the issuance of a final rule (signed on June 30, 2023) establishing a methodology for the allocation of hydrofluorocarbon (HFC) production and consumption allowances for years 2024 to 2028. The rule constitutes EPA’s “next step” in implementing the American Innovation and Manufacturing (AIM) Act of 2020, which directs the agency to phase down production and consumption of HFCs by 85 percent by 2026 through an allowance allocation and trading program. EPA’s HFC Allocation Framework Rule published in October 2021 established the production and consumption baseline levels from which reductions are made using a formula set by the AIM Act, along with an initial methodology for allocating allowances in calendar years 2022 and 2023. The newly finalized rule establishes a similar allocation methodology for years 2024 through 2028. It also incorporates former new market entrants under a previous set-aside pool into the general rule, amends the HFC consumption baseline to reflect corrected data submitted to EPA and makes other adjustments to the HFC phasedown implementation, compliance, and enforcement provisions, including revised recordkeeping and reporting requirements. EPA will undertake two additional regulatory actions on HFCs later this year: a final rule placing restrictions on the use of HFCs in certain sectors to facilitate transitions to alternative chemicals, and a proposed rule establishing requirements for the management of HFCs and HFC substitutes in equipment such as air conditioners.
For further information:
https://www.epa.gov/climate-hfcs-reduction/regulatory-actions-allowance-allocation-and-reporting
By a vote of 51 to 44, the Senate invoked cloture on the nomination of David Uhlmann to serve as the EPA Assistant Administrator (AA) for the Office of Enforcement and Compliance Assurance (OECA), thereby ending debate on the nomination and clearing the way for a final confirmation vote as soon as next week. President Biden first nominated Mr. Uhlmann for the OECA AA position in June 2021 but has had to renominate him twice since then due to Senate inaction. The Environment and Public Works Committee ultimately advanced the nomination by voice vote in April 2023.
For further information:
Groups representing “consumers of electricity” petitioned the U.S. Court of Appeals for the District of Columbia Circuit for en banc rehearing of the court’s May 25,, 2023, judgment dismissing their challenge to EPA’s refusal to reconsider its 2009 finding that greenhouse gas (GHG) emissions from motor vehicles contribute to climate change and endanger public health and welfare (the “Endangerment Finding”). The petitioners, the Concerned Household Electricity Consumers Council and the FAIR Energy Foundation, filed petitions for administrative reconsideration of the Endangerment Finding with EPA in 2017 and 2019, respectively, arguing that scientific research since the adoption of the Endangerment Finding has invalidated EPA’s earlier conclusions regarding the link between GHG emissions and climate change. EPA denied their petitions, and the groups subsequently petitioned for judicial review of that decision in the D.C. Circuit. The court dismissed their case on jurisdictional grounds without reaching the merits of their claims, finding that the groups had failed to establish standing because they provided no evidence that they or any of their members have been injured by the Endangerment Finding. In their rehearing petition, the groups assert that this case “involves a question of exceptional importance, namely: Does the law of standing in this Circuit really preclude judicial review of the claimed scientific basis of the single largest regulatory transformation of the American economy ever attempted by the administrative state?” They claim that the court resorted to “doctrinal indifference and pettifoggery” in its application of standing rules, arguing that the Endangerment Finding is the predicate for all subsequent EPA GHG rules, and that the economic impact of such rules on consumers of electricity are obvious from publicly available data. They further argue that the court’s articulation of the law of standing as applied to consumers is “shockingly inconsistent” with case law applied to “more favored categories of plaintiffs,” particularly environmental groups. “When an environmental plaintiff claims a ‘threat’ to coastal property from a regulatory change that through a long and speculative causal chain is said to cause a rise in sea level that would be orders of magnitude below the threshold of detection, that is sufficient to confer standing. But when a consumer group makes a definitive showing based on admissible government data of substantial economic harm, that is not sufficient. Such a glaring double standard is the mortal enemy of equal justice,” the petitioners assert. If the court’s panel decision is allowed to stand, they argue, “it is a blot and stain upon the law.”
For further information:
EPA published a final rule in the Federal Register (88 Fed. Reg. 44,710) that finalizes its rescission of the agency’s 2020 rule, “Increasing Consistency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process” (the “Benefit-Cost Rule”). EPA published an interim final rule rescinding the Benefit-Cost Rule on May 14, 2021; this final rule responds to public comments received on the interim final rule and makes no material changes to it. Published on December 23, 2020, the Benefit-Cost Rule required EPA to prepare a benefit-cost analysis (BCA) for Clean Air Act (CAA) rules with economic impacts over $100 million or that disproportionately affect an industry, group, or area, or those that are novel or relevant for other policy reasons. It also established content and presentational requirements for BCAs. To prevent co-mingling of “benefits” and “co-benefits” to justify a regulation, the rule required that BCAs, in addition to presenting a proposed rule’s total costs and benefits, separately report the public health and welfare benefits attributable to the specific pollution-reduction or other objectives targeted by the CAA provisions under which the rule is promulgated. After reviewing the Benefit-Cost Rule pursuant to President Biden’s Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” EPA determined in its interim final rule – and again in the final rule – that the changes advanced by the Benefit-Cost Rule were inadvisable, untethered to the CAA, and not necessary to effectuate the purposes of the Act. In some cases, the agency concluded, “the new procedures established by the Benefit Cost Rule could have hindered the EPA’s compliance with the CAA and may not have even furthered the Rule’s stated purposes of consistency and transparency.”
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-07-13/pdf/2023-14707.pdf
The House Energy and Commerce Subcommittee on Environment, Manufacturing, and Critical Materials marked up and approved three bills that, as described by Committee and Subcommittee leaders, are intended “to preserve transportation choice, ensure affordability for the American people, and to prevent the Biden Administration from ceding America’s automotive industry to China.” All three bills passed along party lines by votes of 12 to 7. H.R. 1435, the Preserving Choice in Vehicle Purchases Act, introduced by Rep, John Joyce (R-PA), would amend Section 209(b) of the Clean Air Act (CAA) by adding a fourth criteria to be met in order for EPA to grant a waiver of preemption for California motor vehicle standards: The standards may not “directly or indirectly limit the sale or use of new motor vehicles with internal combustion engines, as such term is defined in section 63.9375 of title 40, Code of Federal Regulations, as in effect January 1, 2023.” The bill also stipulates that the EPA Administrator “may not determine that any State standards amended after the date of enactment of this paragraph are within the scope of a waiver granted under paragraph (1) before the date of enactment of this paragraph” and, further, that the Administrator shall revoke a waiver granted under CAA Section 209(b) from January 1, 2022, through the date of enactment of this Act if the Administrator finds that the waiver does not comply with subparagraph (D) of CAA Section 209(b)(1), as added by this Act. H.R. 4468, the Choice in Automobile Retail Sales Act, introduced by Rep. Tim Walberg (R-MI), would prohibit EPA from finalizing, implementing or enforcing the May 5, 2023, proposed rule, titled Multi-Pollutant Emissions Standards for Model Year 2027 and Later Light-Duty and Medium-Duty Vehicles. Further, the bill would amend CAA Section 202(a)(2) to bar any rule or rule revision issued under this section, as well as any rule or revision prescribed before the date of enactment of this bill, from 1) mandating the use of any specific technology or 2) resulting “in limited availability of new motor vehicles based on the type of new motor vehicle engine in such new motor vehicles.’’ H.R. 4469, the No Fuels Credits for Batteries Act, introduced by Rep. Greg Pence (R-IN), would “clarify that eRINs are not authorized for purposes of satisfying the volume of renewable fuel that needs to be contained in transportation fuel for purposes of the Renewable Fuel Program.”
For further information:
https://www.congress.gov/bill/118th-congress/house-bill/1435,
https://www.congress.gov/bill/118th-congress/house-bill/4468,
https://walberg.house.gov/sites/evo-subsites/walberg.house.gov/files/evo-media-document/cars-act.pdf,
https://www.congress.gov/bill/118th-congress/house-bill/4469,
https://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=116226
and
The International Maritime Organization (IMO) adopted the 2023 IMO Strategy on Reduction of GHG Emissions from Ships. Under the revised IMO GHG Strategy common ambitions of the parties are enhanced to include 1) reviewing, with the goal of strengthening, the energy-efficiency design requirements for ships; 2) reducing CO2 emissions per transport work, as an average across international shipping, by at least 40 percent by 2030 as compared to 2008; 3) ensuring an “uptake of zero or near-zero GHG emission technologies, fuels and/or energy sources to represent at least 5%, striving for 10%, of the energy used by international shipping by 2030”; and 4) peaking GHG emissions from international shipping as soon as possible and reaching net-zero GHG “by or around 2050.”
For further information:
The State of Utah filed a motion in the U.S. Court of Appeals for the District of Columbia Circuit seeking to stay EPA’s June 5, 2023, final Good Neighbor Plan for the 2015 8-hour ozone standard (a Federal Implementation Plan, applicable to 23 states, to address the interstate transport requirements of Section 110(a)(2)(D)(i)(I) of the Clean Air Act) in Utah pending the outcome of the state’s June 20, 2023, petition in the D.C. Circuit for review of the Good Neighbor Plan. In its stay motion, Utah argues that it is likely to prevail in its challenge of the Plan based on the merits of its case; that it will “suffer irreparable injury absent a stay”; and that “the balance of harms and the public interest favor a stay.”
For further information:
https://www.4cleanair.org/wp-content/uploads/Litigation-Utah_v_EPA-GN_Plan_Stay-Motion-070723.pdf
and
EPA’s Office of Enforcement and Compliance Assurance (OECA) released for comment a draft of updated guidance to prepare for State Review Framework (SRF) Round 5. First developed in 2004, the SRF is a program that assesses enforcement of the Clean Air Act and other environmental laws by states. Under the SRF, states prepare reports that EPA uses to make recommendations to ensure fair and consistent enforcement and compliance programs across the country. OECA’s Office of Compliance is authoring an update of a document, titled “Clean Air Act State Review Framework (SRF) Plain Language Guide,” and seeking state and local air agencies’ review and comment on the guidance by August 8, 2023.
For further information:
https://www.4cleanair.org/wp-content/uploads/CAA-Round-5-SRF-Plain-Language-Guide-DRAFT-7-5-2023.doc
and
https://www.epa.gov/compliance/state-review-framework-srf-guidance-documents
EPA proposed amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for the Integrated Iron and Steel Manufacturing source category. The measure is the result of a technology review that revises the Risk and Technology Review standard issued on July 23, 2020. The proposal, which EPA estimates will reduce emissions of toxic metals by nearly 80 tons per year and fine particulate matter by over 500 tons per year, would require fenceline monitoring for chromium (a surrogate for other hazardous air pollution metals) to address fugitive emissions. It also calls for emission limits for several hazardous air pollutants from certain types of emission points or operations that the existing rule does not cover, including mercury, carbonyl sulfide, carbon disulfide, hydrochloric acid, hydrogen fluoride, total hydrocarbons, dioxins/furans and polycyclic aromatic hydrocarbons. The proposal includes new and revised opacity limits and new work practice standards as well. There will be a 45-day public comment period following publication in the Federal Register.
For further information:
https://www.epa.gov/system/files/documents/2023-07/IronSteel_NPRM.pdf
and
https://www.epa.gov/system/files/documents/2023-07/Fact_sheet_IIS_Proposal.pdf
The Center for Biological Diversity, Sierra Club and Center for Environmental Health sent a letter advising EPA of their intent to sue the agency for its failure to fulfill its statutory obligation to timely review and, as necessary, revise the primary National Ambient Air Quality Standards (NAAQS) for nitrogen oxides (NOx). Section 109 of the Clean Air Act requires EPA to complete a thorough review of NAAQS “at five-year intervals.” EPA completed its last review of the primary NOx NAAQS, which concluded with a decision not to revise the standards, on April 18, 2018; that final action took effect on May 18, 2018. In their notice, the three groups state their preference “to resolve this matter without the need for litigation” if the EPA contacts them within 60 days “to discuss a path to resolution”; otherwise, they will file their legal complaint.
For further information:
EPA published in the Federal Register (88 Fed. Reg. 44,468) it final RFG “Set” Rule, in which it sets Renewable Volume Obligations and percentage standards for 2023 through 2025 for cellulosic biofuel, biomass-based diesel, advanced biofuel and total renewable fuel. EPA announced the final rule on June 21, 2023 (see related article in the June 17-23, 2023, Washington Update). The day after publication, the Center for Biological Diversity (CBD) filed a petition for review of the final rule in the U.S. Court of Appeals for the District of Columbia. In a press statement, CBD says its lawsuit challenges the EPA’s failure to fully comply with the Endangered Species Act.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-07-12/pdf/2023-13462.pdf,