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MAY 20-26, 2023
In this week's issue:
- EPA Publishes Power Plant GHG Proposal in Federal Register; Sets Three Hearings, Sixty Day Comment Deadline (May 23, 2023)
- EPA Agrees to Schedule for Review of Standards for Large Solid Waste Incinerators (May 23, 2023)
- Joint Resolution Disapproving EPA’s Final Heavy-Duty Truck NOx Rule Clears House of Representatives, President Has Promised a Veto (May 23, 2023)
- Republican Senators Urge EPA Administrator to Withdraw Proposed Rules to Reduce Emissions from Passenger Cars and HD Vehicles (May 25, 2023)
- EPA Releases Annual Air Quality Trends Report (May 23, 2023)
- D.C. Circuit Dismisses Challenge to EPA’s Refusal to Reconsider 2009 GHG Endangerment Finding (May 25, 2023)
This Week in Review
![](https://www.4cleanair.org/wp-content/uploads/US-Supreme-Court-1-492x328.jpeg)
EPA’s new proposal to address power sector emissions of greenhouse gases (GHGs), titled “New Source Performance Standards for Greenhouse Gas Emissions From New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating Units; Emission Guidelines for Greenhouse Gas Emissions From Existing Fossil Fuel-Fired Electric Generating Units; and Repeal of the Affordable Clean Energy Rule” has been has been published in the Federal Register (88 Fed. Reg. 33240). EPA had originally proposed this rule in a then-unpublished proposal on May 12, 2023 (see our related story in the May 6-12 edition of NACAA’s Washington Update.) Referencing authorities in Section 111 of the Clean Air Act, the proposal (EPA docket no. EPA-HQ-OAR-2023-0072) proposes revised new source performance standards and emission guidelines for GHG emissions from new and many existing fossil fuel-fired stationary combustion turbines and steam generating units, and proposes to repeal the Affordable Clean Energy (ACE) Rule. The proposal articulates proposed State plan requirements, including submittal timelines, methodologies for determining presumptively approvable standards of performance, considerations of remaining useful life and other factors (RULOF) provisions, and how states can conduct meaningful engagement with impacted stakeholders. Finally, the proposal discusses how trading or averaging can be included in State plans if they demonstrate equivalent emissions reductions. EPA has scheduled virtual public hearings for its proposal on June 13, 14 and 15, 2023, and will accept comments from the public until July 24, 2023.
For further information:
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EPA and a group of environmental organizations have reached an agreement that calls upon EPA to propose standards for large municipal solid waste incinerators under Section 129 of the Clean Air Act by December 31, 2023 and issue final regulations by November 30, 2024. The agreement was lodged in the U.S. District Court for the District of Columbia (East Yard Communities for Environmental Justice V. EPA). It is the result of a lawsuit in which the plaintiffs alleged that EPA had failed to fulfill a non-discretionary duty to review and, if appropriate, revise performance standards for those incinerators every five years. The filing stated that EPA should have completed the review by 2011, since the original rule was set in 2006. The suit applies to large incinerators with capacity greater than 250 tons per day. The proposed consent decree will be subject to a 30-day public comment period after publication in the Federal Register and will require approval by a judge to be made final.
For further information:
https://www.4cleanair.org/wp-content/uploads/East-Yard-Consent-Decree.pdf
By a vote of 221 to 203, the House of Representatives approved Senate Joint Resolution 11, “Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Environmental Protection Agency relating to ‘Control of Air Pollution From New Motor Vehicles: Heavy-Duty Engine and Vehicle Standards.’” Four Democrats joined with all but one Republican to endorse repeal of EPA’s January 24, 2023, final rule (88 Fed. Reg. 4,296) to reduce NOx emission from heavy-duty trucks: Rep Henry Cuellar (D-TX), Rep. Jared Golden (D-ME), Rep. Vincent’s Gonzalez (D-TX) and Rep. Mary Sattler Peltola (D-AK). The sole Republican joining with the Democrats to oppose the regulatory rollback was Rep Brian Fitzpatrick (R-PA). The Joint Resolution was introduced in the Senate on February 8, 2023, by Senator Deb Fischer (R-NE). A companion, H.J. Res 53, was introduced in the House on April 6, 2023, by Rep. Troy Nehls (R-TX). The Senate approved the resolution on April 26, 2023, by a vote of 50 to 49, with Senator Joe Manchin (D-WV) voting with the Republicans to support overturning of the rule. On the same day, the White House issued a Statement of Administration Policy expressing strong opposition to the resolution and announcing that if the resolution were to clear Congress, President Biden would veto it.
For further information:
and
https://www.4cleanair.org/wp-content/uploads/HD_NOx_Ruile-WH_SAP_to_Veto_SJRes_11-042623.pdf
Twenty-seven Republican Senators, led by Senator Shelley Moore Capito (R-WV), Ranking Member of the Environment and Public Works Committee, sent a letter to EPA Administrator Michael S. Regan requesting that he withdraw the agency’s recently proposed Phase 3 heavy-duty vehicle greenhouse gas rule and multipollutant light- and medium-duty vehicle rule, which are currently the subjects of public review and comment. Among the many allegations the Senators make is that the regulatory proposals “effectively mandate a costly transition to electric cars and trucks…without explicit delegated authority from Congress” which, they contend, “violates the separate of powers, as reaffirmed by the Supreme Court’s decision in West Virginia v. Environmental Protection Agency.” They also maintain that the proposals “forc[e] this transition to electric vehicles at a time with the capacity and reliability of our nation’s electric grid to meet current demand is of increasing concern.” “In addition,” the Senators assert, “there remains a lack of support infrastructure capacity to implement the sweeping transition envisioned by these proposals.” They further opine, “Perhaps the most conspicuous flaw that will leap out to the American public is that these proposed actions were taken with complete disregard to consumer choice or affordability.” The signatories conclude their letter by writing, “Since these proposals are legally flawed, divorced from reality with regard to the associated costs and domestic capacity to implement them, and would be devastating for American consumers and workers already burdened by sustained levels of historically high inflation, we respectfully ask the EPA to rescind these two proposals immediately.” Those joining Senator Capito in signing the letter are Senators John Barrasso (R-WY), John Boozman (R-AR), Ted Budd (R-NC), Bill Cassidy (R-LA), John Cornyn (R-TX), Kevin Cramer (R-ND), Mike Crapo (R-ID), Ted Cruz (R-TX), Steve Daines (R-MT), Deb Fischer (R-NE), Lindsey Graham (R-SC), Chuck Grassley (R-IA), John Hoeven (R-ND), Cindy Hyde-Smith (R-MS), John Kennedy (R-LA), James Lankford (R-OK), Mike Lee (R-UT), Cynthia Lummis (R-WY), Markwayne Mullin (R-OK), Pete Ricketts (R-NE), Jim Risch (R-ID), Mike Rounds (R-SD), Tim Scott (R-SC), Dan Sullivan (R-AK), Thom Tillis (R-NC), and Roger Wicker (R-MS).
For further information:
EPA released its annual interactive air quality trends report, “Our Nation’s Air: Trends Through 2022.” Each annual report is an update of the last, tracking the nation’s progress in controlling air pollution and providing information on the impact of air pollution on health and the environment, data on monitored air quality for criteria and toxic air pollutants and the latest on emission estimates and visibility. Among other things, the report shows that between 1970 and 2022 combined criteria pollutant emissions decreased by 78 percent; at the same time, the U.S. economy grew by 304 percent. Upon release of the report, EPA Administrator Michael S. Regan stated, “This report highlights the crucial role EPA’s work – coupled with the unrelenting efforts of our state, tribal, community and industry partners – have played in improving air quality across the country. Even as the economy grows, we continue to see dramatic long-term reductions in air emissions. This progress is encouraging, and we will continue to collaborate with our partners to protect public health and ensure clean air for all.”
For further information:
https://gispub.epa.gov/air/trendsreport/2023/#home
and
https://www.epa.gov/newsreleases/epa-releases-annual-air-report-highlighting-trends-through-2022
The U.S. Court of Appeals for the District of Columbia Circuit dismissed for lack of jurisdiction a challenge to EPA’s decision not 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, had filed petitions for 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. After EPA denied their petitions, they petitioned for judicial review of that decision in the D.C. Circuit. In their briefing before the court, the groups relied heavily on the U.S. Supreme Court’s decision in West Virginia v. EPA, which held that the “major questions doctrine” constrains EPA’s authority to impose rules of “tremendous economic and political significance” in the absence of clear statutory authorization. Characterizing the Endangerment Finding as “the foundation for a vast expansion of regulatory authority over the full range of human activity due to the ubiquitous nature of CO2 and other GHG emissions,” the petitioners argued that there is no clear statement in the Clean Air Act that Congress intended for EPA to have regulatory authority over GHG emissions. The D.C. Circuit did not consider the merits of the groups’ arguments, instead finding that they lacked standing to sue because they provided no evidence that they or any of their members have been injured by the Endangerment Finding. Accordingly, the court held that it lacks jurisdiction to hear the case. The court also concluded in its three-page judgment that the case does not warrant a published opinion.
For further information: