March 18, 2024

Ann Mesnikoff

Federal Rule-R-Coaster

Get ready for the rush of final rules from the Biden administration covering everything from pollution from cars to heavy duty trucks, to power plants and implementation of the bedrock National Environmental Policy Act (NEPA).

Whether it’s the Clean Air Act or the Clean Water Act or NEPA, how that law gets applied is determined through the rules the relevant agency sets. Rulemakings take time – sometimes a really long time: a rule is proposed, there is usually a public hearing and comment period, then the agency has to process all of that input, work through a White House led review process and then issue a final rule (which has to be published in the Federal Register to be effective). But this process is important – to ensure the agency shows its work and the public has time to engage.

And, even once a rule is final, that is in many senses the start of litigation and the ability of Congress to swoop in and try to nullify the final rule through the once very infrequently used Congressional Review Act (CRA).

As of today, we are waiting for the US Environmental Protection Agency to issue several major climate and clean air rules – let’s walk through them:

• Cracking down on air and climate pollution from light and medium duty vehicles: EPA is set to issue new standards for a range of vehicles from cars, minivans and SUVs to super-duty pickups and delivery vans sold in MY 2027-2032. These standards will ratchet down tail-pipe pollution of smog forming and particulate pollution and greenhouse gases. As with most proposals, EPA proposed a range of possible final standards with a preference for what EPA identify as Alternative 3. ELPC and our environmental and public health partners all called for EPA to go with a stronger version of Alternative 1 that would accelerate the path to zero-tailpipe pollution. You can check out our testimony As you can imagine the oil and auto industries have been pleading their case for weaker standards.  We expect this final rule to be announced on Wednesday, March 20th.
• Cutting Greenhouse Gas Pollution from Heavy Duty Vehicles: EPA is working to finalize greenhouse gas pollution standards for Heavy Duty vehicles – think the vehicles that pull freight on our highways to school buses and garbage trucks. Heavy duty vehicles are a small percentage of vehicles on the road they emit 25 percent of the transportation sector climate pollution along with a significant percentage of harmful soot and other air pollutants. You can check out ELPC’s testimony calling for strong standards We are hoping for a final rule before the end of March.
• Cleaning up Power Plants: While the transportation sector tops the chart for US greenhouse gas pollution, the power sector is right behind it. EPA is working to set new standards for coal and methane gas power plants – for existing plants as well as new ones that might be built. You can check out ELPC’s take on EPA’s proposed powerplant standards here. The road to a final power plant rule took a turn a few weeks ago, when EPA announced that it would tackle new pollution standards for existing methane gas powered plants in a separate rule. But even with that hiccup, a new rule for powerplants is also expected by the end of March (or maybe April).
• Putting NEPA back on the right track: NEPA is the bedrock environmental law that requires federal projects (or those with federal funding) to consider environmental impacts of projects and alternatives to the proposed project. The Trump administration turned long standing guidelines for NEPA implementation upside down and the Biden Administration has taken a 2 step approach to righting them. A final Phase 2 NEPA rule is also expected by the end of March.  ELPC’s take on the proposed Phase 2 NEPA rule is here.
• Ratcheting down on toxic mercury and hazardous air pollution from existing coal and oil fueled power plants: EPA is also working on finalizing a rule to continue cutting mercury and other hazardous air pollutants from existing power plants. EPA’s standards for these pollutants have already significantly reduced mercury pollution from power plants. Part of the basis for this rule is that technologies exist to continue to cut pollution. Check out more information on regulating mercury from power plants here.

One common theme in the descriptions of upcoming final rules is that we are expecting all of them by the end of March (maybe April). There is a good reason why the pressure is on to get these rules done ASAP: it’s the CRA and the amount of time members of Congress have to introduce a resolution to nullify a rule. The CRA “clock” is complicated and depends on the number of days congress is in session. With an election coming up in November, that “clock” could actually run into the next Congress. We know the dynamics of this Congress – the 118^th – and we know the House might pass something, but it’s hard to get a CRA through the Senate and President Biden can veto a CRA attack on a rule. Getting rules done in March (maybe April) is one way of trying to ensure the CRA countdown runs out in this Congress.

And, as noted above, having EPA issue a final rule (like it is expected to do for cars on March 20^th) is a key step but not the last one. Rules need to be published in the Federal Register – and that can take time! For example, EPA issued a final rule to slash methane pollution from the oil and gas industry in December – that rule was published on March 8^th kicking off litigation (ELPC has joined health, environmental and community groups to defend the rule) and the clock for a CRA attack.

So – we have a lot of rules and not a lot of time so get ready for the Rule-r-Coaster!