President Joe Biden teed up a slew of clean air and carbon issues as top environmental priorities for his administration in a new executive order signed this week.
Biden on Jan. 21 directed agencies to examine dozens of Trump-era rules, including carbon emissions, clean air rollbacks, and Clean Air Act rules on science and costs.
Any bold standards Biden has in mind to stem emissions from industry through the Clean Air Act will almost certainly get challenged in court.
The unending cycle of rulemakings followed by years-long lawsuits is a signal that the Clean Air Act needs to be amended to give the executive more direct authority, Schiff Hardin LLP environmental partner Jane Montgomery said.
“Hopefully, with Biden’s experience in Congress, he can recognize that lawsuits are a result of bad law,” she said.
But Biden may have to choose between innovative actions or traditional “nuts and bolts” regulation under the statute in order to avoid defeat in a 6-3 conservative Supreme Court skeptical of broad agency powers, Loyola University New Orleans Law Professor Robert Verchick said.
“It’s going to be a lot harder to do more flexible, ambitious, and innovative programs under these older laws because the court, I don’t think, is going to have the appetite for it,” he said.
Here are the most closely watched air issues on Biden’s to-do list:
Power Plant Carbon Rules
The U.S Court of Appeals for the District of Columbia Circuit handed Biden a huge win Jan. 19 when it struck down President Donald Trump’s carbon rule for coal-fired power plants. The new White House now has a fresh start to craft greenhouse gas standards for existing sources.
The D.C. Circuit opinion affirmed Obama-era justifications for regulating power plant carbon under the Clean Air Act, but Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Program, isn’t expecting a Clean Power Plan 2.0.
“Even the ambitions of the Clean Power Plan were limited compared to what the ambitions of this administration are,” she said.
Companion performance standards for new plants were released by the outgoing administration earlier this month. Though the standards were left unchanged from 2015 levels, the Trump administration added a new threshold that sources must meet in order to be regulated under the rule.
States and groups launched legal challenges against the rulemaking last week, claiming the new threshold was added illegally without proper public input.
Clean Air Act Analysis
Both rules put limits on how scientific research and cost and benefits are weighed under the statute, which critics worry could further hem Biden’s ability to craft new air regulations.
The new cost-benefit rule finalized late last year would require agencies to analyze a rule’s primary targeted benefits separately from co-benefits like reducing greenhouse gas emissions. The newly finalized science rule puts a limit on how much weight agencies can give nonpublic scientific data in rulemaking analysis.
‘Once In, Always In’
Also on the chopping block is a rule that scraps enforcement of a decades-old policy locking in toxic air pollution controls for large facilities.
The Clean Air Act requires large refineries and other facilities to always be regulated under the maximum toxic air standards if they qualify as a major source. Trump’s EPA crafted a rule that would let those sources off the hook if they managed to lower their emissions.
National Ambient Air Quality Standards
Environmentalists are calling on Biden to boost national ambient air quality standards, also called NAAQS, after the previous administration’s refusal to beef up protections against dangerous levels of soot and smog pollution.
Groups say that stronger NAAQS and the “once in always in” rule are particularly important in stemming the disproportionate air pollution burden carried by communities on the fence line of industrial facilities—often comprised predominately people of color.
Still enmeshed in lengthy legal battles, Trump administration softened rules on tailpipe greenhouse gas emissions are also on Biden’s radar.
The two-part Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule scrapped California’s historic waiver to set its own vehicle emission standards, and pared back fuel efficiency standards for car manufacturers from 5% to 1.5%.
Biden’s order says agencies “should consider the views of representatives from labor unions, States, and industry” when evaluating the rule.
Finally, the new EPA is set to examine emissions regulations for the oil and gas sector on methane, a highly potent greenhouse gas.
The Trump administration last year scrapped 2016 methane leak monitoring requirements. The move was celebrated by smaller producers, though some large oil and gas companies in compliance with the Obama-era requirements criticized the rollback.
Judges refused to put the rule on ice after environmentalists sued to freeze implementation of the rule. Legal challenges currently pending on Trump’s methane, tailpipe, and other emissions rules could be declared moot when Biden starts new rulemaking.