The Biden EPA just did something unexpected — it decided to keep a Trump EPA rule, at least for the time being. The rule, known as “project emissions accounting” under the “New Source Review” (NSR) air permitting program, allows sources of air emissions to avoid permitting by using emission decreases to offset an increase that would otherwise need a permit. While largely procedural in nature, EPA’s decision to keep the rule is notable for a few reasons.

Today, the U.S. Environmental Protection Agency (EPA) announced a new “Strategic Roadmap (Roadmap),” describing a suite of ongoing and future agency actions to address per- and polyfluoroalkyl substances (PFAS). While many of these actions were previously presented in EPA’s 2019 PFAS Action Plan, or in more recent announcements, the Roadmap provides additional updates and clarity into the expected timing of some regulatory actions. The new projected dates for some key regulatory initiatives include the following:

At the end of September, the Environmental Protection Agency (EPA) issued yet another memorandum regarding emissions resulting from startup, shutdown, and malfunctions (SSM) at stationary sources of air pollutants, such as refineries, manufacturing facilities, and power plants. This newest memo announces a return to the policy EPA announced in 2015, when it asked 45 states and local jurisdictions to change their locally written and previously EPA-approved rules. EPA’s goal in 2015 was to eliminate state rules that allow relief from penalties for “SSM” emissions. In 2020, the Trump EPA issued a memo allowing such rules under certain circumstances, but the newest EPA memo puts those rules back on the chopping block. This post provides a brief recap of the long-running debate over SSM emissions and a look forward into what is to come under EPA’s latest policy shift.

In an August 3 opinion in the case of Vecinos para el Bienestar de la Comunidad Costera et al. v. FERC, Case No. 20-1093, the U.S. Court of Appeals for the District of Columbia Circuit determined that the Federal Energy Regulatory Commission (FERC or Commission) failed to adequately review the impacts of two proposed liquefied natural gas (LNG) export facilities on greenhouse gas emissions and environmental justice communities. The court remanded the proceedings to FERC for further consideration and explanation of these issues. Though the decision focused on FERC’s authorization of natural gas facilities, it signaled that the court will carefully scrutinize an agency’s obligations under the National Environmental Policy Act (NEPA), a statute that has far-reaching applicability in the hydropower context.

A recent decision by the U.S. District Court for the District of Arizona vacated and remanded the 2020 Navigable Waters Protection Rule (NWPR) issued by the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) (together, “Agencies”) that clarified the scope of federal jurisdictional “Waters of the United States” (WOTUS) under the Clean Water Act (CWA). Before the promulgation of the NWPR, there had been several rulemakings and much litigation on this complicated issue, causing nationwide confusion on the application of a uniform standard. In 2015, the Obama administration promulgated a WOTUS rule that had been the subject of significant litigation, which the Trump administration had repealed (the “Repeal Rule”). The NWPR sought to provide certainty as to which waterbodies meet the features of WOTUS by creating clear categories of jurisdictional waterbodies.

On October 4, the U.S. Fish and Wildlife Service (FWS) published a revision of its interpretation of the Migratory Bird Treaty Act (MBTA). With the final rule, FWS has effectively reinstated its position that “incidental take” — the harming or killing that results from, but is not the purpose of, carrying out an otherwise lawful activity — is prohibited by the MBTA, and persons that cause incidental take can be prosecuted criminally. FWS’s final rule represents a reversal of a Trump-era interpretation of the MBTA, which narrowly interpreted liability under the statute to apply only to those actions specifically “directed at” migratory birds that “reduce animals to human control.” See previous post covering the prior rule.

On October 7, the Council on Environmental Quality (CEQ) issued a Notice of Proposed Rulemaking (NOPR) to revise its regulations implementing the National Environmental Policy Act (NEPA), which requires federal agencies to take a “hard look” at the environmental impacts of certain proposed projects, but does not mandate any particular outcome. The NOPR is focused on revisions the July 2020 rulemaking completed by the Trump administration, which was the first significant overhaul of the NEPA regulations since their initial promulgation in 1978. The Trump rulemaking included provisions to streamline the NEPA review process, as well as substantive changes to the scope of the review. CEQ’s NOPR follows an announcement early in 2021 by the incoming Biden administration that it planned to review the July 2020 rulemaking. In the NOPR, the Biden administration outlines the aspects of the rule it plans to change: the purpose and need of a proposed agency action, agency procedures for implementing CEQ’s regulations, and the definition of “effects” of a proposed action.

The Environmental Protection Agency (EPA) has initiated two rulemaking actions, both expected to be proposed in early 2022, that could change the way the Clean Water Act (CWA) is administered across the country. Together, these actions would elevate tribal rights in water quality regulatory decision-making and could provide EPA with significantly greater authority to regulate discharges on and upstream of tribal lands.

In their article “Are We There Yet? The Challenges of Litigating Clean Air Act Rules,” Mack McGuffey and Melissa Horne discuss the difficulties of getting final answers from the courts in the increasingly polarized political environment of Clean Air Act rulemaking.