D.C. Circuit Strikes Down ACE Rule
On January 19, 2021, the U.S. Court of Appeals for the District of Columbia Circuit struck down the Affordable Clean Energy Rule (ACE), which the Environmental Protection Agency (EPA) promulgated in 2019 to replace the Obama-era Clean Power Plan (CPP). The CPP had sought to reduce greenhouse gas (GHG) emissions from existing power plants, in part, by authorizing states to increase renewable generation. As explained in a previous post, EPA had reasoned that it had the discretion to define the best system of emission reduction (BSER) at a plant under Section 111 of the Clean Air Act (Act) to include measures employed outside the facility (such as new renewable resources) that were located “beyond the fenceline.” Stayed by the Supreme Court in 2016, the CPP never went into effect. Instead, the Trump administration repealed the CPP and replaced it with ACE. In ACE, EPA reasoned that Section 111 of the Act required EPA to only find BSER to be a technology that could be applied “inside the fenceline” on the facility.
Biden Administration to Review Environmental Regulations, Policies; Revokes Some Trump Executive Orders on Energy Infrastructure
On January 20, 2021, President Joe Biden issued an executive order, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The order directs executive agency heads to review hundreds of agency actions implemented during the Trump administration, including more than 120 related to energy and the environment. In addition, the order suspends or revokes, in whole or in part, nearly one dozen executive orders issued by the prior president directly tied to energy infrastructure.
EPA Issues Clean Air Act Cost-Benefit Rule
On December 9, the U.S. Environmental Protection Agency (EPA) finalized its Clean Air Act (CAA) cost-benefit rule. The procedural rule sets requirements for evaluating the benefits and costs of regulatory decisions, which EPA believes is necessary to ensure transparency and consistency in the rulemaking process. The main requirements are as follows: 1) EPA must prepare a benefit-cost analysis (BCA) for all significant proposed and final regulations under the CAA; 2) BCAs are developed in accordance with best practices from the economic, engineering, physical, and biological sciences; and 3) EPA must increase transparency in the presentation of the benefits and costs resulting from significant CAA regulations. (more…)
EPA Proposes Amendments to Polyvinyl Chloride and Copolymers Production Emission Standards
On November 9, 2020, the U.S. Environmental Protection Agency (EPA) published proposed amendments to the 2012 National Emission Standards for Hazardous Air Pollutants (NESHAP) for Polyvinyl Chloride and Copolymers Production (PVC MACT). The proposed amendments, which are the result of industry and environmental group requests for reconsideration of the rule, propose to tighten certain maximum achievable control technology (MACT) limits, provide additional clarification about certain aspects of the rule, and eliminate waivers for excess emissions during a malfunction.
D.C. Circuit Dissolves Administrative Stay of EPA’s Methane Rule
On October 27, 2020, the U.S. Court of Appeals for the District of Columbia dissolved its September 17 administrative stay of the U.S. Environmental Protection Agency’s (the “Agency”) Methane Rule.
EPA Finalizes Project Emissions Accounting Rule for New Source Review Permitting Determinations
On October 22, 2020, the U.S. Environmental Protection Agency (EPA) published a prepublication version of a final rule clarifying the process for existing air pollution sources to determine whether the New Source Review (NSR) permitting program applies to proposed projects. The new rule clarifies and confirms that project emissions accounting can be considered during Step 1 of the two-step NSR applicability test, meaning that both emissions increases and decreases from the proposed modification will be considered. The two steps of the NSR applicability test consist of a first step to determine whether a proposed project will cause a significant emission increase of a regulated NSR pollutant and, if it would, the second step determines if there will be a significant net emission increase of the same regulated NSR pollutant considering all other contemporaneous emissions increases and decreases.
EPA Proposes Tightening Cross-State Air Pollution Rule to Meet 2008 Ozone National Standard
On October 15, the U.S. Environmental Protection Agency (EPA) proposed to update its Cross-State Air Pollution Rule (CSAPR) for the 2008 ozone national ambient air quality standard (NAAQS) requiring further reduction in emissions of nitrogen oxides (NOx) from power plants in 12 states. (more…)
California Air Resources Board Releases 2020 Mobile Source Strategy
On October 2, 2020, the California Air Resources Board (CARB) unveiled a discussion draft of its 2020 Mobile Source Strategy. The strategy incorporates the zero-emission vehicle (ZEV) goals set forth in the recent Executive Order issued by California Governor Gavin Newsom and sets out steps for achieving those goals, such as requiring manufacturers to support and promote advanced technologies and in-use requirements for advanced technologies. (more…)
EPA Revises National Emission Standards for Hazardous Air Pollutants General Provisions to Allow Major Sources to Reclassify as Area Sources
On October 1, 2020, the U.S. Environmental Protection Agency (EPA) issued a prepublication version of a final rule under the Clean Air Act that will allow major sources of hazardous air pollutants (HAP) to reclassify as area sources if the source reduces its potential to emit HAPs below the major source threshold (10 tons per year of any single HAP or 25 tons per year of any combination of HAPs). EPA had previously applied a “once in, always in” interpretation through a May 1995 policy memorandum issued by John Seitz, then-Director of EPA’s Office of Air Quality Planning and Standards. Under that policy, a facility designated as a major source on the first substantive compliance date of an applicable major source National Emission Standards for Hazardous Air Pollutants rule had to retain its major source status regardless of whether the source subsequently reduced its potential to emit below major source thresholds. But on January 25, 2018, EPA withdrew the May 1995 policy, laying the groundwork for EPA’s action here.