With spring finally arriving, the long-expected avalanche of EPA activity on air issues has also arrived. In this second year of the Biden administration, following the pattern of prior administrations, we are starting to see what EPA has been thinking about in its first year.
Topping the list of new actions is EPA’s proposed expansion of the Cross-State Air Pollution Rule (CSAPR). This program is EPA’s approach to ensuring upwind states don’t impact downwind states’ air quality in a way that would impede compliance with ambient air quality standards. While some expansion to CSAPR was necessary to account for the more stringent ozone standard EPA adopted in 2015, most probably did not expect the significant changes EPA has proposed, including many constraints on the trading of allowances and inclusion of several new industries in the program. Check out our article below for more details on what is sure to be a signature rule for the Biden administration.
EPA has also recently made strides in addressing other long-running air issues. On “startup, shutdown, and malfunction” emissions (SSM), EPA has started rolling out more actions in response to state rules that it views as inconsistent with its latest SSM policy statement. EPA is also in the process of negotiating mandatory deadlines for taking action on all remaining state responses to its 2015 SSM SIP call to resolve a deadline suit filed in California. On regional haze, EPA has told all states that are late with their second-round plans (which include most of them) that they will be held to account in August. As with SSM, however, EPA is facing a California deadline suit that may force it to negotiate mandatory deadlines that could require action even sooner. EPA has also released a white paper seeking comment on how it should regulate greenhouse gases from natural gas fired combustion turbine electric generating units, and that action will likely lead to new rule proposals in the near future.
The courts have been busy on air issues as well. Most notably, the Supreme Court heard arguments on whether EPA can impose a rule like the Clean Power Plan adopted by the Obama administration without a clear statement of authority for that approach in the statutory provisions underlying it. A decision on this critically important case is expected in June. Also, the D.C. Circuit finally heard oral argument on EPA’s SSM policy and whether states can have rules that avoid penalties for those unavoidable emissions or whether continuous compliance is clearly mandated by the Clean Air Act in all state-based rules. The long-awaited answers to those questions are likely to arrive late summer or early fall.
The list could go on but suffice it to say, air issues will continue to make headlines as summer approaches. Stay tuned.
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