Biden Air Rules Face Tough 2024 in Courts After Ambitious Year Regulations trudged ahead in 2023, stuck on challenges New legal landscape prevents clear path forward
To contact the reporter on this story: Jennifer Hijazi in Washington at jhijazi@bloombergindustry.com
Biden Air Rules Face Tough 2024 in Courts After Ambitious Year
Regulations trudged ahead in 2023, stuck on challenges
New legal landscape prevents clear path forward
The Biden administration pushed through a packed clean air to-do list in 2023, shoring up against a tougher legal landscape and multiple courtroom battles that threaten to delay cornerstone air and climate plans.
The Environmental Protection Agency’s regulatory agenda for last year was ambitious: emission regulations for coal-fired power plants, methane, traveling ozone, vehicles, and particulate matter, among other major Clean Air Act programs. In a press release issued Dec. 21, the EPA touted the many clean air actions it issued in 2023, insisting that the agency “moved further and faster than ever” in its public health mission.
“After a year of significant unparalleled accomplishments, I couldn’t be prouder of EPA’s driven and dedicated workforce,” EPA Administrator Michael Regan said in a statement.
The robust list of Clean Air Act actions promised a lot of movement in the efforts to mitigate climate emissions and move the dial for environmental justice, but litigious industries and the need for caution in a tighter legal environment slowed progress in some areas.
“There’s so many things going on on air right now, you can’t even write them down in less than 30 pages,” according to King & Spalding LLP partner Doug Henderson. “The question is whether or not they went to the next step of truly implementing it, or litigating and defending their actions, and I think that’s still an open question.”
Clean air advocates like the American Lung Association’s Paul Billings see 2023 as an important year with big steps forward in the air quality space, with some major programs still lagging into 2024—due in part to a “quagmire” of litigation around some of the administration’s biggest rules.
“Some important progress has been made, but not a lot got across the finish line in 2023,” Billings said.
New Legal Ground
Landmark legal developments made for shakier rulemaking grounds across agencies, but especially for the EPA as it attempts to unwind previous Trump administration rollbacks and replace them with tougher standards.
The most major US Supreme Court ruling to affect agency workflow came with West Virginia v. EPA, which drew more ironclad lines around agency authority to craft rules with far-reaching effects or programs that raise “major questions” of political and economic importance. This includes hotly contested power plant regulations, which justices said could not go so far as to transform the electrical grid.
Major questions are already permeating into a number of challenges against the EPA’s clean air programs, featured prominently in litigation against its light-duty vehicle emission rules. The Supreme Court next year is set to hear another major agency powers case focused on the Chevron doctrine—which calls for judicial deference to executive statute interpretation. Combined with the ruling in West Virginia, the outcome could put hefty curbs on rulemaking.
The Biden administration faced a variety of choices on how to regulate in 2023, either taking its finite resources and going bold, or being more incremental with its rulemaking programs, according to Shannon Broome, partner at Hunton Andrews Kurth LLP.
“Were they going to occupy themselves undoing everything that had been done in the past administration? Or were they going to think more proactively about their affirmative agenda?” Broome said. “I think that, for the most part, they have made a choice to go after an affirmative agenda.”
Ambitious Climate Regulations
That choice is encapsulated by regulations such as the newly finalized methane rule, which was announced at the COP28 climate summit in Dubai in December. The rule puts aggressive caps on methane leaks across the oil and gas sector and carves out a special task force to monitor and report such leaks to the government.
“That rule not only seemed to get a lot of positive reaction from the public health and environmental community, but also many of the regulated industry as well, which I thought was interesting and welcome,” Billings said.
Further actions governing hydrofluorocarbons were also sprinkled across 2023, fulfilling an ambitious and widely popular agenda laid out in the American Innovation and Manufacturing Act to phase down the climate super pollutant most prevalent in the air conditioning and refrigerant sectors.
The “Good Neighbor” program was arguably one of the most ambitious of the EPA’s agenda last year, which toughens up emission limits from power plants and other industries in “upwind” states that form into ozone and wander into the airspace of “downwind” areas.
It’s only been implemented in parts of the country targeted by the final action, but has already proven to be a success toward cleaner air in the hot 2023 summer months, when ozone bakes and proliferates most effectively.
Despite its success, its partial implementation is owed to a heavy stream of litigation from states and industry across regional circuit courts. They claim that the rule, which stands to put heftier requirements on new sectors and states, flies against cooperative federalism and overreaches EPA authority.
“States have proven that they’re not necessarily going to be good neighbors, but rather be aggressive litigators,” Billings said.
Left on the Table
Some states have managed to freeze the two-part rule’s implementation pending litigation, but have not convinced the US Court of Appeals for the District of Columbia Circuit to halt the second prong of the regulations.
A coalition of challengers has taken that fight to the US Supreme Court, where justices will hearoral arguments in February 2024 over whether a stay of the Good Neighbor’s federal implementation plan is warranted.
Advocates are also “bitterly disappointed,” Billings said, over the decision to drop reconsideration of ozone National Ambient Air Quality Standards, or NAAQS, despite an independent clean air panel urging the agency to move forward. The agency will begin a full review of ozone limits, announced in August last year, which takes years to complete.
Power plant carbon limits and particulate matter NAAQS will also bleed into 2024, despite particulate matter being slated for 2023 release according to the regulatory agenda. Power plant rules are expected in March 2024.
“If you look at all of the proposed [actions], let’s just take environmental justice and air quality, there’s a lot of things on the table,” Henderson said.
To contact the reporter on this story: Jennifer Hijazi in Washington at jhijazi@bloombergindustry.com
To contact the editors responsible for this story: JoVona Taylor at jtaylor@bloombergindustry.com; Maya Earls at mearls@bloomberglaw.com