The Latest Energy and Environmental Regulations
Even for experts who regularly track energy and environmental regulations, it can be difficult to stay abreast of many important regulations that have been proposed or soon will be proposed across the federal government.
This post is intended to help those interested in federal energy and environmental regulations. While by no means comprehensive, its focus is identifying many important rules that have been proposed and are still receiving comments (as of the date of this writing) or that will soon be proposed, that is, they are still under Office of Information and Regulatory Affairs (OIRA) EO 12866 review.
Environmental Protection Agency
On August 19, there will be a CASAC Ozone Review Panel public meeting regarding the 2020 Ozone Integrated Science Assessment (ISA). During this meeting, the public will have a chance to provide comments. The ozone review panel will discuss the ISA in public meetings on September 12, 14, and 16.
While on the surface this may not seem very important, these current meetings are all part of the EPA’s reconsideration of the 2020 decision to retain the 2015 primary and secondary ozone standards. For many reasons, the EPA shouldn’t even be reconsidering the past decision and this argument is further strengthened by EPA staff’s own conclusions to leave the 2020 decision alone, as explained in its draft policy assessment.
- Revisions and Confidentiality Determinations for Data Elements Under the Greenhouse Gas Reporting Rule
“The Environmental Protection Agency (EPA) is proposing to amend specific provisions in the Greenhouse Gas Reporting Rule to improve the quality and consistency of the data collected under the rule, streamline and improve implementation, and clarify or propose minor updates to certain provisions that have been the subject of questions from reporting entities.”
- National Emission Standards for Hazardous Air Pollutants: Gasoline Distribution Technology Review and Standards of Performance for Bulk Gasoline Terminals Review
Americans are feeling the pain at the pump, with regular retail gas prices still about 90 percent higher than when President Biden took office. There are numerous obstacles across the oil supply chain that are driving up costs. This proposed rule will likely only exacerbate the problem of high gas prices. The proposed rule is three rules in one according to the EPA. It covers:
- National Emissions Standards for Hazardous Air Pollutants (NESHAP) for the Gasoline Distribution source category (part 63, subpart R)
- NESHAP for the Gasoline Distribution source category (part 63, subpart BBBBBB)
- New Source Performance Standards (NSPS) for subpart XX, which are “bulk gasoline terminals that commenced construction or modification after December 17, 1980.”
The EPA is revising and replacing the 2020 Section 401 certification rule that sought to address certain abuses by states. The Clean Water Act recognizes the important role that states play in protecting water quality, and Section 401 is an example of this “cooperative federalism.” Specifically, this provision gives states a means to ensure that federally permitted activities don’t harm states’ water quality. However, some states have abused this process to address issues that have nothing to do with water quality, which in turn has delayed or blocked critical projects.
- Proposed Determination To Prohibit and Restrict the Use of Certain Waters Within Defined Areas as Disposal Sites; Pebble Deposit Area, Southwest Alaska; Extension of Comment Period
“The Environmental Protection Agency (EPA) is extending the public comment period for its 2022 Proposed Determination to Prohibit and Restrict the Use of Certain Waters Within Defined Areas as Disposal Sites; Pebble Deposit Area, Southwest Alaska issued pursuant to Section 404(c) of the Clean Water Act (CWA).”
This is an example of the agency using a preemptive veto to block issuance of a Section 404 permit.
- Draft Revisions to Toxic Substances Control Act (TSCA) Risk Determinations
- Designating PFOA and PFOS as CERCLA Hazardous Substances (currently under OIRA review)
This proposed rule could have major implications, likely far more than anticipated, and certainly greater implications than the EPA thinks, given that the agency claims the proposed rule would not be economically significant. The U.S. Chamber of Commerce has done an important report on what the CERCLA designations would mean, and explains:
This report provides new analysis on the cost of cleanup for potentially responsible parties (PRP) for Perfluorooctanesulfonic acid (PFOS) and Perfluorooctanoic acid (PFOA), which total over $17.4 billion for existing non-federal national priority sites alone.
Department of Energy
- Energy Conservation Proposed Rules
Conservation Standards. There are proposed energy conservation standards for commercial water heating equipment,consumer furnaces, walk-in coolers and freezers, commercial refrigerators, freezers, and refrigerator-freezers, packaged terminal air conditioners and packaged terminal heat pumps, dehumidifiers, dedicated-purpose pool pump motors, general service fluorescent lamps, clothes dryers (currently under OIRA review), and distribution transformers (currently under OIRA review).
Test Procedures. There are also proposed test procedures for consumer water heaters and residential-duty commercial water heaters, commercial refrigerators, freezers, and refrigerator-freezers, dehumidifiers, and faucets and showerheads.
- Notice of Availability of the 2023-2028 National Outer Continental Shelf Oil and Gas Leasing Proposed Program and Draft Programmatic Environmental Impact Statement
As explained by the Interior Department in a press release:
The proposed plan puts forward several options from no lease sales up to 11 lease sales over the next five years. Like the current program finalized in 2016, it removes from consideration the federal waters off the Atlantic and Pacific coasts while inviting public comment on 10 potential sales in the Gulf of Mexico and one in the Cook Inlet off south-central Alaska
- Endangered and Threatened Wildlife and Plants; Initiation of 5-Year Status Reviews for 167 Species in Oregon, Washington, Idaho, Montana, California, Hawaii, Guam, and the Northern Mariana Islands (while the submission deadline has passed, the Fish and Wildlife Service indicates in the notice that it will continue to accept new information on the species)
“We, the U.S. Fish and Wildlife Service, are initiating 5-year status reviews for 167 species in Oregon, Washington, Idaho, Montana, California, Hawaii, Guam, and the Northern Mariana Islands under the Endangered Species Act of 1973.”
Department of Transportation
- National Performance Management Measures; Assessing Performance of the National Highway System, Greenhouse Gas Emissions Measure
“To help address the climate crisis, FHWA proposes to amend its regulations governing national performance management measures to require State departments of transportation (State DOTs) and metropolitan planning organizations (MPOs) to establish declining carbon dioxide (CO2) targets and to establish a method for the measurement and reporting of greenhouse gas (GHG) emissions associated with transportation under the Highways title of the United States Code (U.S.C.). The proposed rule would not mandate the level of the targets.”