Audit, Compliance and Risk Blog

The federal government has taken another step in its car wars with California. Late in September the Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHTSA) issued joint rules declaring NHTSA’s preemptive authority to set national standards covering greenhouse gas (GHG) emissions from petroleum-fueled vehicles and electric vehicles, and revoking a waiver from EPA that lets California set such standards.

On August 23, the federal Court of Appeals for the District of Columbia (DC Circuit) upheld most aspects of the National Ambient Air Quality Standards (NAAQS) for ground level ozone adopted by the Environmental Protection Agency (EPA) in 2015. The Clean Air Act (CAA) requires EPA to create a list of air pollutants based on emissions that cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare (criteria pollutants), to establish NAAQS based on these criteria, and to review the NAAQS every 5 years.

The Clean Air Act (CAA) directs the Environmental Protection Agency (EPA) to define “hazardous air pollutants (HAPs)” that may pose acute health hazards, and to impose regulations to reduce those hazards. EPA requires permits for “major sources” of HAPs based on “Maximum Achievable Control Technologies (MACT),” and lesser controls for non-major “area sources.” Since the Trump Administration took office, EPA has pursued several initiatives to make it easier for sources to reclassify from “major” to “area” in order to reduce their regulatory responsibilities. For example, in January 2018 EPA ended a decades-old policy declaring that every emission source that met major source criteria at the time a MACT became effective was “once in, always in” and could not requalify as a less-regulated area source by accepting legally binding controls that reduce its “potential to emit (PTE).” (I wrote about this change here).

Since the Trump Administration reversed the federal government’s agreement with California for joint motor vehicle greenhouse gas (GHG) standards, federal and state agencies have moved steadily to assert their respective authorities and to sue their counterparts. However, on July 25, 2019 California and 4 major vehicle manufacturers announced a voluntary agreement that eases the state requirements somewhat while making the looser federal standards irrelevant for those companies – and for any additional manufacturers that might join later.

The Environmental Protection Agency (EPA) has just issued rules that repeal and replace one of the Obama-era EPA’s signature efforts to reduce greenhouse gas (GHG) emissions. Effective September 6, EPA’s new “Affordable Clean Energy Rule” (ACE) will replace the “Clean Power Plan” adopted in 2015 but stayed by litigation (I wrote about the proposed CPP here). As anyone who has compared the Obama and Trump Administrations' approaches to climate change would expect, the new rule reduces the old rule’s requirements. It softens the mandates in the earlier rule, and offers states more flexibility to design their own efforts to control GHG emissions from existing fossil fuel-fired electricity generating units (EGUs) by eliminating CPP requirements that states consider operational changes “outside the fenceline” of the regulated EGUs.

Among its many provisions, the Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA, in this case Section 304) requires facilities to report releases of specified hazardous and extremely hazardous substances, if the release exceeds an applicable threshold reportable quantity (RQ). The Environmental Protection Agency (EPA) administers these requirements, and has just approved an exemption for emissions from animal wastes at farms (this exemption tracks one amended into the Superfund law (CERCLA) in 2018). Other types of facilities and activities are still subject to these reporting requirements, so it’s a good time to review them.

The Environmental Protection Agency (EPA) has completed a long review, and reaffirmed the primary National Ambient Air Quality Standard (NAAQS) for oxides of sulfur (SOX; usually measured as sulfur dioxide (SO₂)). This is the first review of the primary SOX NAAQs since 2010 (primary standard – EPA did not review the secondary SOX NAAQS established in 2012).

Although carbon dioxide (CO₂) is the most common and most-discussed greenhouse gas (GHG), it is by no means the only one. And on a per-unit basis, it is by no means the most potent GHG either. Air quality agencies and climate change scientists also focus attention on so-called “short-lived climate pollutant (SLCP)” means an agent that has a relatively short lifetime in the atmosphere, from a few days to a few decades, and a warming influence on the climate that is more potent than that of carbon dioxide. Individual jurisdictions have addressed individual SLCPs, but comprehensive approaches have been limited.In 2014, California legislation assigned that state’s Air Resources Board (ARB) to adopt a SCLP Reduction Strategy (I wrote about the legislation and 2016’s draft strategy here).

While domestic climate politics in the U.S. and Canada generate hot air about the reality and urgency of climate change, climate science proceeds largely on its own pathways, and climate policies to reduce greenhouse gas (GHG) emissions are being proposed and developed by a wide variety of entities. On November 23 – often referred to as “Black Friday” by retailers and shoppers in the U.S., regardless of their attitudes about global warming – the U.S. government’s U.S. Global Change Research Program (USGCRP) delivered urgent recommendations for aggressive policies. This Fourth National Climate Assessment (NCA4) builds on last year’s Climate Science Special Report (which I wrote about here).

The Trump-era Environmental Protection Agency (EPA) has proposed to repeal and replace another of the Obama-era EPA’s signature efforts to reduce greenhouse gas (GHG) emissions. EPA has now proposed an “Affordable Clean Energy Rule”, to replace the “Clean Energy Plan” adopted in 2015 but stayed by litigation. The new rule softens the mandates in the earlier rule, and offers states more flexibility to design their own efforts to control greenhouse gas (GHG) emissions from existing fossil fuel-fired electricity generating units (EGUs) by eliminating Clean Power Plan requirements that states consider operational changes “outside the fenceline” of the regulated EGUs.