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WASHINGTON UPDATE
March 6-12, 2021 www.4cleanair.org
In this week’s Washington Update:
1. Michael Regan Sworn In As EPA Administrator
2. $1.9 Trillion American Rescue Plan Act Passes; Includes Funding For Clean
Air Agencies
3. Researchers Conclude PM2.5 from Wildfire Smoke May Be More Harmful
than PM2.5 from Other Sources
4. EPA Withdraws Trump Administration’s Denial of 2009 Petition Seeking
Regulation of GHGs under CAA NAAQS Program
5. EPA Completes Review of and Re-Signs Fourth Round of SO2 Area
Designations
6. Respondents EPA and NHTSA File Reply in Support of Their Motion to Hold
Clean Car Standards Cases in Abeyance
7. Twelve States Sue Biden Administration Over Greenhouse Gas “Social Cost”
Calculation
8. Durbin Bill Includes Carbon Price
9. Casten Tradable Performance Standard Targets Industrial & Power GHG
Emissions
This Week in Review
(1) Michael Regan Sworn In As EPA Administrator (March 11, 2021) – Following a
66-34 confirmation vote, Michael S. Regan has been sworn in as the 16th Administrator
of the Environmental Protection Agency. Administrator Regan has been the Secretary
of the North Carolina Department of Environmental Quality since January 2017. As the
Secretary, Regan led the Department’s efforts to establish a “net-neutral by 2050” goal
for decarbonization for North Carolina; worked to address emerging contaminants,
including per- and polyfluorinated alkyls (PFAS); and, in 2018, established an
Environmental Justice and Equity Advisory Board. He previously worked at the
Environmental Defense Fund and in EPA’s Office of Air and Radiation, and managed
an environmental consultancy. Administrator Regan earned his bachelor’s degree from
North Carolina Agricultural and Technical State University and his master’s degree from
The George Washington University. Following a swearing in ceremony administered by
then-Acting EPA Administrator Jane Nishida, Regan spoke to EPA staff by webcast,
saying “You have done your jobs and you’ve done them well, and now we all have more
work to do.” For further information: https://www.epa.gov/aboutepa/epa-administrator
(2) $1.9 Trillion American Rescue Plan Act Passes; Includes Funding For Clean
Air Agencies (March 10, 2021) – Congress has passed the American Rescue Plan Act
of 2021 (H.R. 1319) which was signed into law by President Joseph Biden. The $1.9
trillion appropriates Fiscal Year 2021 funding to address both the pandemic and its
economic ramifications. Among other areas of the Act that provide funding to state and
local governments and to special districts, Section 6002 of the Act includes provisions
that directly affect the funding of state and local clean air agencies in the current federal2 fiscal year, including appropriating $100 million to EPA “to address health outcome disparities from pollution and the COVID–19 pandemic”. This appropriation includes $50 million to be used “for grants and activities authorized under subsections (a) through (c) of section 103 of the Clean Air Act… and grants and activities authorized under section 105 of such Act”. No more than 5% of that funding can be used for administrative purposes by EPA. It also includes an additional $50 million “that shall be for grants, contracts, and other agency activities that identify and address disproportionate environmental or public health harms and risks in minority populations or low-income populations” under several authorities including CERCLA, the Safe Drinking Water Act, and “section 103(b) of the Clean Air Act”. No more than 2% of that funding can be used for administrative purposes. For further information: https://www.congress.gov/bill/117th-congress/house-bill/1319 (3) Researchers Conclude PM2.5 from Wildfire Smoke May Be More Harmful than PM2.5 from Other Sources (March 5, 2021) – Nature Communications published a study in which researchers at the University of California San Diego found that wildfire particulate matter may be more toxic than equal doses of ambient PM 2.5 and noted that air quality standards do not assume any difference in the toxicity of PM2.5 across different emission sources. Using 14 years of hospital admissions data (focused on Southern California), and a sequence of statistical approaches and exposure definitions, the researchers isolated PM2.5 specific to wildfires finding “increases in respiratory hospitalizations ranging from 1.3 to up to 10% with a 10 µg m-3 increase in wildfire-specific PM2.5, compared 0.67 to 1.3% associated with non- wildfire PM2.5.” The researchers state, “Our conclusions point to the need for air quality policies to consider the variability in PM2.5 impacts on human health according to the sources of emissions.” For further information: https://www.nature.com/articles/s41467-021-21708-0 (4) EPA Withdraws Trump Administration’s Denial of 2009 Petition Seeking Regulation of GHGs under CAA NAAQS Program (March 4, 2021) – Last week, then-Acting EPA Administrator Jane Nishida sent a letter to the Center for Biological Diversity (CBD) advising that she was withdrawing the January 19, 2021 denial, by former EPA Administrator Andrew Wheeler, of CBD’s December 2, 2009, “Petition to Establish National Pollution Limits for Greenhouse Gases Pursuant to the Clean Air Act.” In her letter, Nishida stated the basis for the withdrawal of the denial was that “the agency did not fully and fairly assess the issues raised by the petition. The EPA intends to further consider the important issues raised by your petition before responding.” In the 2009 petition, submitted to the Obama-era EPA, the petitioners recommended a series of steps to be taken under Clean Air Act Sections 108, 109 and 110 to establish and implement National Ambient Air Quality Standards for greenhouse gases, stating the following: “In short, the Clean Air Act already contains the comprehensive, science-based, flexible, and immediately available tools necessary to address the climate crisis. For four decades, the Clean Air Act has vastly improved air quality and reduced pollution levels, saved lives and provided health and economic benefits worth many times the cost of the pollution reductions. The Clean Air Act is one of the most efficient and successful environmental laws ever devised, and its science and technology-based mechanisms are time-tested and well
3 understood by both industry and state and federal agencies throughout the nation. This comprehensive, yet flexible and cooperative, pollution reduction system is well- suited to combat the greatest environmental crisis the modern world has faced – global warming caused by greenhouse gas emissions. The Obama administration can and must begin using its authority under the Clean Air Act towards this end.” For further information: http://www.4cleanair.org/sites/default/files/Documents/Admin_Petition- EPA_Withdrawal_of_Denial_of_CBD_Petition_to_Regulate_GHGs_under_NAAQS- 030421.pdf, https://www.biologicaldiversity.org/programs/climate_law_institute/pdfs/Petition-for- national-GHG-pollution-cap-12-2- 2009.pdf?_gl=1*6cvr4a*_gcl_aw*R0NMLjE2MTQ4MDM1NTkuQ2owS0NRaUFoUDJ CQmhEZEFSSXNBSkV6WGxGM2ViODlOaVFlOWpkRDYwRVdBdTZvS1FoQk9LWX RDMU1TRWcyd1ZCanlTWEVhLW4ya09oc2FBalhuRUFMd193Y0I and http://www.4cleanair.org/sites/default/files/Documents/Admin_Petition- EPA_Denial_of_CBD_Petition_to_Regulate_GHGs_under_NAAQS-011921.pdf (5) EPA Completes Review of and Re-Signs Fourth Round of SO2 Area Designations (March 10, 2021) – Then-Acting EPA Administrator Jane Nishida re- signed the action making the fourth and final round of designations under the 2010 one-hour primary sulfur dioxide (SO2) NAAQS. This action was initially signed by former EPA Administrator Andrew Wheeler on December 21, 2020, but was not published in the Federal Register. The action has now undergone review by the Biden Administration, according to the January 20, 2021, Regulatory Freeze Pending Review memorandum. With Nishida’s signature, the package, the substance of which is unchanged from the December 21, 2020 version, will now move forward to publication. Under this action, all remaining portions of the U.S. are designated as follows: 1) Nine areas in seven states are designated nonattainment (not meeting the standard); 2) two areas in one state are designated unclassifiable (not enough information to make a determination); and 3) 33 areas in 19 states are designated attainment/unclassifiable (meeting the standard and not contributing to a violation of the standard). These designations take effect April 30, 2021. For further information: https://www.epa.gov/sites/production/files/2020-12/documents/frl-10018-96-oar_12- 18_20_admin_002.pdf and https://www.epa.gov/sulfur-dioxide-designations/epa- completes-fourth-round-sulfur-dioxide-designations (6) Respondents EPA and NHTSA File Reply in Support of Their Motion to Hold Clean Car Standards Cases in Abeyance (March 8, 2021) – The U.S. Department of Justice, on behalf of EPA and the National Highway Traffic Safety Administration (NHTSA), filed a reply in the U.S. Court of Appeals for the District of Columbia Circuit, supporting the respondents’ motion requesting that the court hold in abeyance litigation challenging the rolled-back clean car standards (i.e., the “SAFE II Rule”) put in place by the Trump Administration (Case No. 20-1145, Competitive Enterprise Institute v. NHTSA). Following that motion, state and local government petitioners and public interest petitioners that challenged the rolled-back standards, in separate filings, opposed the motion to hold the cases in abeyance indefinitely (see related article in the February 27-March 5, 2021 Washington Update). These petitioners did,
4 however, say they would not oppose a six-month extension to the April 14, 2021 deadline for the federal government to file its response brief. In this week’s reply, EPA and NHTSA refute the “Opposing Petitioners’” arguments against an indefinite abeyance. Among other things, respondents contend that the suggestion of a six- month extension of the federal government’s briefing deadline is not an appropriate replacement for abeyance: “Simply delaying the Agencies’ merits brief for six months would neither avoid unnecessary litigation nor safeguard the integrity of the administrative process. Petitioners do not dispute that there is no realistic prospect that a rulemaking to revise or rescind the SAFE II Rule will be concluded within that six-month period.” Respondents further assert that the Opposing Petitioners “offer no compelling basis for departing from the Court’s traditional abeyance practice” and, therefore, request that the “Court hold these cases in abeyance while the Federal Agencies conduct their review of the SAFE II Rule, and that the abeyance remain in place until 30 days after the conclusion of the review and any resulting rulemaking, with motions to govern further proceedings due upon expiration of the abeyance period.” For further information: http://www.4cleanair.org/sites/default/files/Documents/Litigation-Clean_Car_Stds- EPA_Reply_in_Support_of_Motion_to_Hold_Cases_in_Abeyance-030821.pdf (7) Twelve States Sue Biden Administration Over Greenhouse Gas “Social Cost” Calculation (March 8, 2021) – A coalition of twelve states led by Missouri filed a lawsuit in federal court seeking to bar the Biden Administration from calculating a “social cost” of greenhouse gases for use in regulatory decision-making. “Assigning such values is a quintessentially legislative action that falls within Congress’s exclusive authority,” the states assert. They argue in their complaint that Section 5 of President Biden’s Executive Order 13990, which establishes a working group charged with publishing estimates of the monetized damages associated with incremental increases in greenhouse gas emissions, is unconstitutional because it violates separation of powers principles. The plaintiffs ask the court to declare that the executive order violates Article I, Section 1 of the Constitution as well as the Administrative Procedure Act, and to declare any values determined by the working group to be “arbitrary, capricious, unreasonable, and contrary to law.” They also ask for injunctive relief barring the Biden Administration and the working group from implementing the executive order. “Setting the ‘social cost’ of greenhouse gases is an inherently speculative, policy-laden, and indeterminate task, which involves attempting to predict such unknowable contingencies as future human migrations, international conflicts, and global catastrophes for hundreds of years into the future,” the plaintiffs assert. “In practice,” they claim, federal agencies will use an “enormous” social cost figure “to justify an equally enormous expansion of federal regulatory power that will intrude into every aspect of Americans’ lives—from their cars, to their refrigerators and homes, to their grocery and electric bills.” The complaint continues, “If the Executive Order stands, it will inflict hundreds of billions or trillions of dollars of damage to the U.S. economy for decades to come. It will destroy jobs, stifle energy production, strangle America’s energy independence, suppress agriculture, deter innovation, and impoverish working families. It undermines the sovereignty of the States and tears at the fabric of liberty.” The lawsuit was filed in the U.S. District Court for the Eastern District of Missouri. In addition to Missouri, the plaintiff states
5
include Arkansas, Arizona, Indiana, Kansas, Montana, Nebraska, Ohio, Oklahoma,
South Carolina, Tennessee and Utah. For further information:
http://www.4cleanair.org/sites/default/files/Documents/Missouri_v_Biden-
EDMo_Complaint_3-8-21.pdf
(8) Durbin Bill Includes Carbon Price (March 10, 2021) – Sen. Richard Durbin (D-IL)
has reintroduced the America’s Clean Future Fund Act, legislation originally introduced
on August 6, 2020 in the 116th session of Congress (as S. 4484). The bill includes
provisions creating a “Climate Change Finance Corporation”, grants to states and local
governments to support communities dependent on carbon-intensive industries, and to
agricultural, livestock, and forestry sectors for carbon-reduction practices. It also would
fund rebates for consumers, and give incentives for facilities to capture, store, and/or
utilize carbon. Finally, it would introduce a carbon fee of $25 per metric ton of CO2
equivalent, applied to upstream sources and increasing by $10 per year above the
consumer price index. For further information:
https://www.durbin.senate.gov/newsroom/press-releases/durbin-introduces-bill-to-invest-
in-a-clean-climate-future-and-spur-job-creation and https://www.congress.gov/bill/116th-
congress/senate-bill/4484
Casten Tradable Performance Standard Targets Industrial & Power GHG
Emissions (March 11, 2021) – Rep. Sean Casten (D-IL) has re-introduced the
Tradeable Performance Standard Act, which was originally proposed on October 13,
2020, in the 116th congress to target GHG emissions reduction from the electricity and
industrial sectors (See related story in the October 10-16, 2020, Washington Update).
The Tradeable Performance Standard Act would create an EPA-administered tradable
performance standard that is designed to reduce power sector and some industrial
sector greenhouse gas (GHG) emissions by 60% from 2019 levels by 2030, and by
100% by 2040. These sectors combined contribute approximately 40% of all US
emissions. Rather than purchasing allowances at auction from the government, the
concept relies on direct payments from sources that emit GHGs to zero-emitting
generators directly for their emissions allowances. For further information:
https://casten.house.gov/media/press-releases/congressman-s-tradeable-performance-
standard-act-eradicates-40-us-greenhouse and https://www.congress.gov/bill/116th-
congress/house-bill/8582/text
The Week Ahead
• Clean Air Act Advisory Committee Virtual Meeting with EPA's Office of Air and Radiation
Senior Leadership – March 15, 2021
• 2021 ECOS Spring Meeting – March 15-17, 2021
• Senate Committee on Energy and Natural Resources Hearing on Transportation
Technologies – March 16, 20216
• House Committee on Appropriations Subcommittee on Energy and Water Development
and Related Agencies, Hearing on Domestic Manufacturing for a Clean Energy Future –
March 17, 2021
• House Committee on Appropriations Defense Subcommittee Hearing on Climate
Change, National Security, and the Arctic – March 17, 2021
• House Committee on Transportation and Infrastructure Hearing on the Business Case
for Climate Solutions – March 17, 2021
• House Committee on Energy and Commerce Subcommittee on Environment and
Climate Change Hearing on "The CLEAN Future Act: Industrial Climate Policies to
Create Jobs and Support Working Communities" – March 18, 2021
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