Albuquerque Journal

Clean air issues take a top spot in Biden’s agency priorities

Executive order calls for review of Trump-era rules

- BY JENNIFER HIJAZI

WASHINGTON — President Joe Biden teed up a slew of clean air and carbon issues as top environmen­tal priorities for his administra­tion in an executive order signed last week.

Biden on Thursday directed agencies to examine dozens of Trump-era rules, including carbon emissions, clean air rollbacks, and Clean Air Act rules on science and costs.

Any bold standards Biden has in mind to stem emissions from industry through the Clean Air Act will almost certainly get challenged in court.

The unending cycle of rule-making followed by yearslong lawsuits is a signal that the Clean Air Act needs to be amended to give the executive more direct authority, Schiff Hardin LLP environmen­tal partner Jane Montgomery said.

“Hopefully, with Biden’s experience in Congress, he can recognize that lawsuits are a result of bad law,” she said.

But Biden may have to choose between innovative actions or traditiona­l “nuts and bolts” regulation under the statute to avoid defeat in a 6-3 conservati­ve Supreme Court skeptical of broad agency powers, Loyola University New Orleans law professor Robert Verchick said.

“It’s going to be a lot harder to do more flexible, ambitious and innovative programs under these older laws because the court, I don’t think, is going to have the appetite for it,” he said.

Here are the most closely watched air issues on Biden’s to-do list:

Power plant carbon rules

The U.S. Court of Appeals for the District of Columbia Circuit handed Biden a huge win Tuesday when it struck down President Donald Trump’s carbon rule for coal-fired power plants. The new White House now has a fresh start to craft greenhouse gas standards for existing sources.

The D.C. Circuit opinion affirmed Obama-era justificat­ions for regulating power plant carbon under the Clean Air Act, but Hana Vizcarra, a staff attorney at Harvard Law School’s Environmen­tal and Energy Program, isn’t expecting a Clean Power Plan 2.0.

“Even the ambitions of the Clean Power Plan were limited compared to what the ambitions of this administra­tion are,” she said.

Clean Air Act analysis

Biden asked the EPA to swiftly reexamine Trump rules on scientific considerat­ions and cost-benefit analyses under the Clean Air Act.

Both rules put limits on how scientific research and cost and benefits are weighed under the statute, which critics worry could further hem Biden’s ability to craft new air regulation­s.

The new cost-benefit rule completed late last year would require agencies to analyze a rule’s primary targeted benefits separately from co-benefits, such as reducing greenhouse gas emissions. The newly completed science rule puts a limit on how much weight agencies can give nonpublic scientific data in rule-making analysis.

Also on the chopping block is a rule that scraps enforcemen­t of a decadesold policy locking in toxic air pollution controls for large facilities.

The Clean Air Act requires large refineries and other facilities to always be regulated under the maximum toxic air standards if they qualify as a major source. Trump’s EPA crafted a rule that would let those sources off the hook if they managed to lower their emissions.

Ambient air quality

Environmen­talists are calling on Biden to boost national ambient air quality standards, also called NAAQS, after the previous administra­tion’s refusal to beef up protection­s against dangerous levels of soot and smog pollution.

Groups say that stronger NAAQS and the “once in, always in” rule are particular­ly important in stemming the disproport­ionate air pollution burden carried by communitie­s on the fence line of industrial facilities—often comprised predominat­ely people of color.

Vehicle emissions

Still enmeshed in lengthy legal battles, the Trump administra­tion’s softened rules on tailpipe greenhouse gas emissions are also on Biden’s radar.

The two-part Safer Affordable FuelEffici­ent Vehicles Rule scrapped California’s historic waiver to set its own vehicle emission standards and pared back fuel efficiency standards for car manufactur­ers from 5% to 1.5%.

Methane

Finally, the new EPA is set to examine emissions regulation­s for the oil and gas sector on methane, a highly potent greenhouse gas.

The Trump administra­tion last year scrapped 2016 methane leak monitoring requiremen­ts.

Judges refused to put the rule on ice after environmen­talists sued to freeze implementa­tion of the rule. Legal challenges pending on Trump’s methane, tailpipe and other emissions rules could be declared moot when Biden starts new rule-making.

 ?? AL SEIB/LOS ANGELES TIMES ?? Smoke from the Bobcat Fire shrouds downtown Los Angeles on Sept. 14, as Breya Hodge walks her dog, Sophie. The Biden administra­tion has made environmen­tal policies top priorities.
AL SEIB/LOS ANGELES TIMES Smoke from the Bobcat Fire shrouds downtown Los Angeles on Sept. 14, as Breya Hodge walks her dog, Sophie. The Biden administra­tion has made environmen­tal policies top priorities.

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