As an airborne disease with significant respiratory effects, COVID-19 has been particularly dangerous for individuals with chronic respiratory conditions such as asthma, emphysema, and chronic bronchitis. Certain air pollutants regulated under the Clean Air Act (CAA) exacerbate these conditions, a fact not lost on the Biden campaign, which directly connected exposure to outdoor air pollution with COVID vulnerability. Additionally, the COVID-19 public health data have illuminated—perhaps in starker relief than at time since enactment of the CAA—that chronic respiratory conditions are disproportionately present in low-income and minority communities, where the risk of exposure to outdoor air pollutants is often the highest.
Accordingly, the Biden administration will likely attempt to undo many of the Trump Administration policies seen as relaxing CAA requirements, and also to affirmatively reduce emissions of traditional air pollutants using all tools available under the CAA:
- Greenhouse Gas (GHG) Emission Standards for Power Plants. One of the toughest decisions the Biden EPA will face is whether to issue a Clean Power Plan-like rule for GHG emissions from the U.S. power sector. The Trump Administration replaced the Obama-era Clean Power Plan with the scaled back Affordable Clean Energy (ACE) Rule. While the Clean Power Plan set a goal of reducing GHG emissions by 32% below 2005 levels by 2030, EPA projects the ACE rule will reduce GHG emissions by only 1.5% by 2030. The Biden EPA will likely ask the D.C. Circuit to stay litigation challenging the ACE Rule. But attempting to replace the ACE Rule with a rule that mirrors the Clean Power Plan is risky considering the Supreme Court’s unprecedented stay of the Clean Power Plan in 2016 prior to review by a lower court. Since then, the Court’s conservative majority has grown to 6-3 with the addition of Justice Amy Coney Barrett.
- Mobile sources. The Biden administration is very likely to attempt to reverse the Trump Administration’s rollback of fuel economy and greenhouse gas standards for light-duty vehicle, as well as the revocation of California’s waiver to implement more stringent greenhouse gas standards and a zero-emission vehicle program. The Biden EPA will also likely work to tighten emission standards for heavy-duty vehicles, which account for a significant fraction of the NOx emissions that create ground-level ozone (i.e., smog). Since 2018, the Trump EPA has promised to unveil a proposal to strengthen NOx emission standards from heavy-duty trucks—a “Cleaner Trucks Initiative.” The Trump EPA released an advance notice of proposed rulemaking in early 2020, but has not yet proposed an actual rule and will thus be unable to finalize a rule before the end of the Trump Administration. The Biden EPA will likely pick up the baton on this effort as one of the key mobile source regulations not directly concerning greenhouse gas emissions.
- New Source Review (NSR) permitting. The CAA’s NSR program requires facilities to obtain potentially costly permits in advance of constructing new major stationary sources or undertaking “major modifications” to existing major sources. The Trump EPA has taken significant action to reform the NSR program, including issuance of (i) a final rule allowing facilities to include emissions decreases as well as increases when assessing NSR applicability for a particular project, (ii) guidance clarifying that projects are “adjacent” such that they must be aggregated for NSR purposes only if physical proximate, and (iii) a series of guidance memoranda that raise the bar for when sources are considered so related as to be under “common control” and therefore treated as a single source. It is unclear whether the Biden administration will make reversal of the Trump Administration’s NSR actions a priority.
- Once In, Always In. In mid-November 2020, the Trump Administration published its final rule codifying its withdrawal of the “Once In, Always In” policy. Under CAA section 112, a facility is a “major source” of hazardous air pollutants (HAPs)—and thus subject to stringent technology-based standards—if it emits either 10 tons per year of any single HAPs, or 25 tons per year of all HAPs combined. Under the Once In, Always In policy, sources that subsequently reduced their HAP emissions below these major-source thresholds were nevertheless required to continue adhering to those major-source requirements. The Trump EPA withdrew that policy in 2018, and codified it as a rule in November 2020. Environmental NGOs and others have raised concerns that the new rule would allow for significant increases in toxic air pollution, and have vowed to fight it in court. The Biden EPA could grant reconsideration of the rule and ask the courts to stay any litigation while it determines whether to reverse the rule, in whole or in part.
- National Ambient Air Quality Standards. The EPA must review National Ambient Air Quality Standards (NAAQS) every five years, with an eye toward the latest science on public health and environmental protections. Among other things, the Biden EPA Administrator will be required to review whether the NAAQS for ground-level ozone is “requisite to protect the public health” with “an adequate margin of safety.” 42 U.S.C. § 7409(b). Although setting the NAAQS is an overwhelmingly science-driven process, the EPA Administrator has significant discretion when evaluating that science, determine the class of individuals encompassed with the “public health,” and in risk-assessment to determine the “adequate” margin of safety. The new EPA Administrator—and the statutory Clean Air Scientific Advisory Committee advising them—will at minimum have the opportunity to review the NAAQS for ground-level ozone, and may attempt to reconsider the Trump EPA’s imminent decision to not revise the PM2.5 NAAQS. In doing so, they will likely face significant pressure to err on the side of caution when reviewing the latest science, to remember the respiratory consequences of COVID-19, and ultimately to tighten these NAAQS.
- EPA review of state implementation plans (SIPs). Although the CAA gives states the primary authority to implement the NAAQS, through SIPs, the Act reserves to EPA significant authority to review the adequacy of those SIPs and to impose federal regulations on sources where the SIP does not meet minimum federal requirements. The Biden campaign’s environmental justice platform states that President-Elect Biden will “recommend” that states develop SIPs that “prioritize emissions reductions within disadvantaged communities,” using a data-driven tool created by a new White House Environmental Justice Advisory Council.
- Interstate air pollution transport. The President-elect’s home state, Delaware, is one of the states most affected by upwind air pollution from other states. Although the CAA gives upwind states the first opportunity to control their interstate pollution, EPA has historically rejected those plans in favor of a holistic, federal approach—largely focused on the power sector, where emission reductions have been cheapest. A losing string of court decisions will require EPA to strengthen existing interstate transport limits and, with power plant emissions on the decline, a Biden EPA may look at source categories beyond the power sector for additional reductions.
President-Elect Biden has named climate change one of his top four priorities, and climate change will feature prominently in his administration. Biden has announced that the U.S. will re-join the Paris Climate Agreement on “day one” of his administration, and on November 23, Biden announced that he would appoint John Kerry to lead the administration’s climate change efforts. Those efforts likely will entail coordinating a series of international, executive, and legislative actions.
During the campaign, Biden announced an aggressive climate agenda led by the federal government. He has developed a $2 billion plan that seeks to eliminate carbon emissions from the electric sector by 2023, impose stricter gas mileage standards, fund investment to weatherize millions of homes and commercial buildings, upgrade the nation’s transportation system, including the electrification of railroads, and support for sustainable agriculture. A number of the Biden platform initiatives are connected to his climate agenda. They include:
- Achieving “net zero” GHG emissions by 2050
- Promoting advanced biofuels
- Creating new appliance and building efficiency standards
- Requiring federal permitting to consider GHG emissions
- Requiring public companies to disclose GHG emissions
- Setting new methane limits
- Assuring refrigerants have lower global warming potential
- Doubling offshore wind by 2050
- Accelerating development of carbon capture and storage technology
- Creating new fuel economy standards
- Buying zero-emission vehicles (ZEVs) for federal government use
- Supporting development of 500,000 new charging stations for ZEVs
Even without the support of Congress, a Biden administration could take steps to implement many of the above policies. For example, the administration could:
- Re-enter the Paris Agreement and set more aggressive emissions reduction targets for the U.S.
- Adopt regulations implementing the Kigali amendments to the Montreal Protocol by limiting HFC use and production
- Engage internationally on agreements governing GHG emissions from shipping, aircraft, and other sources
- Use the Clean Air Act to develop or tighten GHG emissions for key sectors, including power generation, oil & gas, and transportation
- Adopt additional Clean Air Act regulations to restrict the use and production of other gasses with high global warming potentials
- Reinstate, and perhaps tighten, Obama-era methane requirements on the oil and gas industry
- Tighten energy efficiency requirements
- Lean on FERC and DOE to take further action on carbon pricing within energy markets
- Mandate more stringent climate risk disclosures through the SEC
- Support state efforts to encourage clean energy and price carbon emissions
- Streamline federal permitting processes for renewable energy projects and federal lands leasing for offshore wind and other renewable energy development
- Develop programs to encourage GHG sequestration and emissions reductions from land-based sectors such as forestry and agriculture
A Biden administration could also work to develop broader legislation to regulate GHG emissions, such as a national price on carbon. Perhaps more realistically in a divided Congress scenario, Biden could push for a significant, bipartisan infrastructure bill that could include a range of investments aimed at improving climate change resiliency and fostering low-emitting technologies. Watch also for some government restructuring to put climate issues front and center. These include a new Research and Development Agency to oversee significantly increased investments in R&D for clean energy, as well as a Climate Conservation Corps.
Read about other topics in Beveridge & Diamond's Outlook for Environmental Issues in the Biden Administration.
Beveridge & Diamond’s Air and Climate Change practice group helps private and municipal clients navigate all aspects of compliance with Clean Air Act regulations for criteria pollutants, hazardous air pollutants, greenhouse gases, and permitting processes. For more information, please contact the authors.