With Michael Regan poised to win confirmation as the Biden EPA chief, agency officials are already exploring options for climate change rules for power plants, the transportation sector and the broader economy, even though Republican lawmakers and state officials are pushing back on the idea of tough standards.
While Biden officials have sent early signals about how EPA might use its regulatory authority to curb greenhouse gases from major sectors, the agency is keeping its options open while top political leaders are being put in place.
That leadership could come soon, with the Senate slated on March 10 to confirm Regan, who is currently North Carolina’s environment secretary, to be EPA’s next permanent administrator. Regan’s nomination was advanced out of the Senate environment committee last month on a 14-6 vote, picking up four Republicans and all of the panel’s Democrats.
The committee is also considering former Obama EPA acting air chief Janet McCabe’s nomination to be deputy administrator, though some Republicans are expressing resistance to that pick due to McCabe’s role in developing several high-profile Obama-era climate rules.
Even before the agency’s top leaders are confirmed, however, officials are laying the groundwork for potentially novel climate policies, including the oft-discussed option of crafting an ambient air standard for carbon dioxide:
The Biden EPA has withdrawn the Trump administration’s 11th-hour denial of a Clean Air Act petition asking the agency to set a first-time national ambient air quality standard (NAAQS) for carbon dioxide, opening the door reconsidering the request and potentially setting a landmark air standard for the greenhouse gas.
“By undoing Trump’s denial, the Biden administration has created a chance to enact the most consequential protection we’ve ever had for our climate,” said Maya Golden-Krasner, deputy director of the Climate Law Institute at the Center for Biological Diversity (CBD), which together with 350.org filed the petition in 2009.
Acting EPA chief Jane Nishida sent a March 4 letter to CBD Climate Law Institute Director Kassie Siegel saying the agency is “withdrawing the denial of your petition” by the Trump administration, “as 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.”
The notion of setting a CO2 NAAQS has long faced significant skepticism -- though after the Biden administration successfully urged the U.S. Court of Appeals for the District of Columbia Circuit to not to reinstate the Obama-era Clean Power Plan (CPP) power plant GHG rule, which relied on section 111(d) of the air act, administration officials have been considering their options for regulating GHGs.
In one of his last acts in office, then-Administrator Andrew Wheeler denied CBD’s petition and other similar requests for GHG rulemakings under various sections of the air law. In a Jan. 19 letter to several groups that filed such petitions, accompanied by an 18-page explanation, Wheeler said he had decided to reject the CBD and 350.org petition for a GHG NAAQS, which sought a standard of 350 parts per million.
While a CO2 NAAQS would apply across the economy, EPA is also weighing “multipollutant” rules for the heavy truck sector that some environmental groups hope would spur a major shift to non-emitting models:
As EPA weighs “multipollutant” rules limiting greenhouse gases and conventional pollution from medium- and heavy-duty trucks, environmentalists are ramping up calls for the agency to adopt such measures in an effort aimed at ensuring that 100 percent of new truck sales are zero emissions vehicles (ZEVs) by 2040.
A March 4 report from the Environmental Defense Fund (EDF) touts the environmental, health and economic benefits of moving quickly to such heavy-duty ZEVs. “Adopting national multi-pollutant standards would save Americans up to $27 billion annually by 2040 in pollution benefits and $485 billion cumulatively by 2050, says the report, “Clean Trucks, Clean Air, American Jobs.”
“Getting clean freight trucks on our roads is one of the most important things we can do to protect our health, climate and economy,” EDF senior transportation director Peter Zalzal said in a March 4 statement.
In the power sector, Regan has said EPA has a “clean slate” to work from on GHG rules after the Trump administration’s narrow replacement for the CPP was vacated by an appellate court earlier this year. But some legal experts say the Biden EPA might not craft an expansive new rule in an effort to ensure the measure withstands scrutiny by the Supreme Court:
EPA could choose to pursue a narrow replacement for the Obama-era Clean Power Plan (CPP) greenhouse gas rule for existing power plants because of concerns that a sweeping regulatory plan might not pass muster with a skeptical conservative Supreme Court, says former Obama EPA Deputy General Counsel Ethan Shenkman.
“It is not clear” whether the Biden administration wants to revive the broad approach of the CPP, which premised its section 111(d) “best system of emission reduction” targets on several steps taken from the production side of the power sector, including generation shifting to lower-emitting sources.
Many experts say this “beyond-the-fenceline” strategy was a key reason the Supreme Court stayed implementation of the CPP in 2016.
EPA “may “want to go back to the drawing board and think very carefully” about what it wants to replace the rules with, Shenkman said. He added that while there has been “a lot of speculation in the trade press that the Biden administration [intends] to do something even bolder and more ambitious, it is also possible they will come back with something less ambitious” that is “more confined and easier to defend."
The agency could also review other powers under the Clean Air Act and other laws to address these issues -- an approach Shenkman described as “balancing [its] level of ambition with [its] desire to have these rules defended.”
The same argument has been made by industry attorney Jeff Holmstead, who served as air chief during the George W. Bush administration and told Inside EPA in November that EPA will be constrained from issuing sweeping power sector GHG rules because the Supreme Court would be expected to strike down any claim of broad regulatory authority.
“I don’t see how anything like the [CPP] passes muster,” Holmstead said. “And that’s a big issue for the Biden administration” because it takes a lot of resources to do a major rulemaking. “Are they going to do that knowing that there is a very good chance it won’t stand up in court?”
Even though the CPP remains off the books -- with the Biden administration successfully urging an appellate court not to reinstate the rule -- and utilities have met its GHG targets a decade ahead of schedule, the rule remains a major point of contention among Republicans on Capitol Hill:
A federal appellate court may have refused to reinstate the Obama-era Clean Power Plan (CPP), but Republican officials are increasingly reprising their criticisms of the power sector greenhouse gas rule in an effort to push back on the Biden administration’s early efforts to reduce carbon emissions from the sector and other industries.
During last week’s Senate environment committee nomination hearing for McCabe, multiple GOP senators attacked her role in developing the Obama EPA’s landmark GHG rule. “I’m all about second and third and fourth chances, but you have a steeper hill to climb than most,” Sen. Kevin Cramer (R-ND) told McCabe, referring to his support for her confirmation as the Biden EPA’s No. 2 official.
Citing her prior Hill testimony from when she served as EPA’s acting air chief, Cramer said McCabe pledged to support federalism and consider the views of states when crafting and implementing major policies.
“Yet, the Clean Power Plan proved to be one of the most overbearing big government impositions on states ever,” he charged. “You have a lot to answer for, frankly.”
Underscoring Republicans’ continued fervent opposition to the CPP, West Virginia Attorney General (AG) Patrick Morrisey (R) on March 5 urged the committee to oppose McCabe’s nomination in large part due to her role in crafting the power sector rule. Morrisey led a state coalition that challenged the rule in court.
Noting that McCabe was twice unable to win confirmation as EPA air chief during the Obama administration, Morrisey said those “were the correct decisions” because she was a “key architect” of the CPP.
“For that same reason and many more, I am urging the Senate to once again not confirm Ms. McCabe,” Morrisey writes, calling the CPP “fundamentally wrong on policy, wrong on process and wrong on the law.”
His letter might also be an attempt to boost pressure on potential swing vote Sen. Joe Manchin (D-WV), who Morrisey unsuccessfully challenged in the 2018 election. Although Manchin is not a member of the environment panel, his vote on McCabe could be decisive if her nomination reaches the Senate floor and all 50 Republicans oppose confirming her as deputy EPA chief.
Meanwhile, a dozen GOP state AGs are floating an early legal challenge to the Biden administration’s updated social cost of carbon (SCC) estimates that could justify stronger climate rules at EPA and multiple other agencies:
The Republican attorneys general (AGs) from 12 states are challenging the constitutionality and legality of the Biden administration’s interim social cost of carbon (SCC) metrics that will be used to calculate the benefits of climate change rules, signaling that the AGs plan to challenge much of the administration’s climate change agenda.
“Setting the ‘social cost’ of greenhouse gases is an inherently speculative, policy-laden, and indeterminate task,” says a March 8 suit in the U.S. District Court for the Eastern District of Missouri, which argues the action exceeds the administration’s constitutional authority by acting on matters reserved for Congress.
“Assigning such values is a quintessentially legislative action that falls within Congress’s exclusive authority,” the complaint says, while also charging that the administration’s actions violate various statutes, including the Administrative Procedure Act.
The interim values, issued Feb. 26, restored the Obama-era approach, which focused on global rather than domestic-only emissions, along with the same economic discount rates used prior to the Trump administration, along with an upward adjustment for inflation.
The interim values detail estimates for per-ton climate damages from carbon dioxide, methane and nitrous oxide between now and 2050. Development of the new metric gives the Biden team leeway to pursue regulations now while conducting the more comprehensive update to the metric.