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Climate Law Gives Clean Air Act a Legal Boost After Court Rebuke

Aug. 22, 2022, 9:35 PM

The Inflation Reduction Act will bolster the EPA’s defenses against future legal challenges, advocates say, reinforcing the agency’s authority to regulate greenhouse gases under the Clean Air Act following a setback from the Supreme Court this summer.

Signed by President Joe Biden on Aug. 16, Democrats’ massive clean energy spending package “modernizes” bedrock clean air statute in “far-reaching” ways that haven’t been seen since the law was last amended, according to a white paper issued by the Environmental Defense Fund.

“These are the most extensive amendments to the Clean Air Act since 1990,” according to Environmental Defense Fund president Fred Krupp. Pending regulations, “where the clock was ticking—the story now is very different than it would have been had this not passed.”

Major new authority wasn’t included in the amendments, but the climate law does add sections to the Clean Air Act to better define existing authority, create new programs, and provide unprecedented funding to clean energy and environmental justice issues.

The law amends the Clean Air Act under Title VI, which lays out air pollution provisions, to include new sections on clean vehicles, greenhouse gas emissions, and port pollution.

“There’s a tapestry that is woven throughout the fabric of the Clean Air Act under this legislation that makes it abundantly clear it is EPA’s responsibility to address climate pollution, meaning greenhouse gases or air pollutants,” Environmental Defense Fund general counsel Vickie Patton said.

That includes defining the term “greenhouse gas” as carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride.

Reaffirming Authority

Experts like University of California Berkeley professor Dan Farber are especially interested in how the congressional mandates could help court-proof certain regulations forthcoming from the Environmental Protection Agency.

A few of these provisions defining EPA authority “are going to be pretty helpful to EPA lawyers, and in general are going to show that EPA isn’t acting like some kind of rogue woke agency in pursuing some of these climate change measures,” Farber told Bloomberg Law.

That kind of legal boost is useful after June’s ruling in West Virginia v. EPA, the Supreme Court climate battle that curtailed the agency’s ability to broadly regulate power plant carbon emissions.

Justices based their ruling on the major questions doctrine, which requires that Congress must explicitly grant agencies authority to act on far-reaching economic and political issues. By opening up the Clean Air Act and reinforcing that legislative language, the climate law helps insulate the agency from similar legal battles in the future.

The law reaffirms the agency’s mandate to regulate greenhouse gases in an added section 135 of the Clean Air Act, which carves out $87 million “to ensure that reductions in greenhouse gas emissions are achieved through use of existing authorities.”

This could quell future challengers targeting the carbon authority granted in Massachusetts v. EPA, the ruling in a 2007 climate case that allowed the EPA to establish authority to regulate greenhouse gases as air pollutants under the Clean Air Act.

“It becomes just a little harder in general to argue that climate change regulation triggers the major question doctrine when Congress has shown—not necessarily with respect to any particular agency action, but that in general—it’s supportive,” Farber added.

The law also includes a series of robust mandates to address methane leaks, which are being tackled globally as a major source of planet-warming emissions.

More Funds, Stronger Policy

The law largely provides incentives for companies looking to stem their excess methane, but its language clearly signals from Congress that methane prevention should be a regulatory priority, which helps insulate future methane regulation from major questions challenges.

The agency is currently in the process of releasing methane rules for the oil and gas sector, under the authority of Section 111 of the Clean Air Act, which covers emission regulation for stationary facility sources.

“This provision does say clearly from Congress that they expect a good, strong 111 rule on oil and gas from the EPA,” according to Earthjustice attorney Hana Vizcarra. “It’s definitely a directive, it’s an expectation that they’re going to finalize that rule and that it’s going to be meaningful.”

The authority affirmations and grant programs are significant changes to the Clean Air Act, but former Environmental Protection Agency air enforcement director Bruce Buckheit cautions against far-reaching claims about how much the new law actually amends the clean air statute.

“The fact is, that almost nothing happened between 1990 and now” to amend the Clean Air Act, Buckheit told Bloomberg Law. “This is a change, but it was in reconciliation. It’s almost all about money, about grants.”

The measure was passed in the House and Senate with Democratic-only support using the budget reconciliation process, under which the scope of any legislation is limited to effects on spending and revenues. That process restricted the breadth of policy or regulatory authority that could be included in the measure.

Still, increased funding for methane mitigation is the “big deal,” according to Buckheit. Since the agency has historically undercounted methane emissions, using more accurate data is “going to force them to up their estimates, and that will drive policy,” he said.

—With assistance from Jennifer A Dlouhy.

To contact the reporter on this story: Jennifer Hijazi in Washington at jhijazi@bloombergindustry.com

To contact the editors responsible for this story: Zachary Sherwood at zsherwood@bloombergindustry.com; Renee Schoof at rschoof@bloombergindustry.com