May 17, 2021

New Resources to Track the Biden-Harris Federal Regulatory Efforts
 
Over the past few years, we've sent these emails to keep you updated on our work tracking the Trump administration’s deregulatory efforts. After the 2020 election, we began shifting focus to the new administration’s policies. Subsequently, we updated our Regulatory Rollback Tracker pages with President Biden’s efforts to address the rollbacks and began analyzing the directives outlined in his early executive orders.

We will continue to share significant updates and analysis in these emails and on the Tracking the Biden-Harris Climate & Environmental Agenda page.
 
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Section 401 Water Quality Certification - May 11 Six states and the California State Water Resources Control Board write to the Army Corps of Engineers expressing concerns about the Corps’ reauthorization of nationwide permits based on the Trump administration’s revised regulations limiting state certification under Section 401 of the CWA. Read more here.

Greater Sage-Grouse Protection - May 10 Interior files a status report with the District Court for the District of Idaho in which the agency states that it “intends to initiate a new planning process soon” regarding greater sage-grouse conservation. That planning process will “likely address inclusion of any new information,” including the USGS report released on March 17. Western Watersheds Project v. Dep’t of the Interior, No. 1:16-cv-00083 (D. Idaho). Read more here.

Migratory Bird Treaty Act 

• May 7 USFWS publishes a proposal to revoke the Jan. 7, 2021 revisions to the MBTA regulations in order to restore the prohibition of incidental take of migratory birds
• March 8 DOI’s Principal Deputy Solicitor Robert Anderson permanently withdraws the Trump-era Solicitor’s Opinion M-37050 “The Migratory Bird Treaty Act Does Not Prohibit Incidental Take.” This withdraws the legal predicate for the Fish and Wildlife Service's rule. 
• Read more here.

BSEE & BOEM’S Exploratory Arctic Drilling Rule - May 7 The Department of the Interior announces it will withdraw the rule proposed under the Trump administration. Read more here.

National Petroleum Reserve Oil & Gas Development - May 6 The District Court for Alaska rules that the State of Alaska can intervene to defend the approval of the Willow Project. The state argued that Alaska has a “unique sovereign interest” in promoting the development of the state’s natural resources. Sovereign Iñupiat for a Living Arctic, et al., v. BLM, No. 3:20-cv-00290 (D. Alaska); Center for Biological Diversity v. BLM, No. 3:20-cv-00308 (D. Alaska). Read more here.

Consolidated Federal Oil and Gas and Federal and Indian Coal Valuation Reform Rule - May 5 ONRR sent a proposed rule to OMB that will amend regulations for valuing oil, gas, coal, and Indian coal produced from federally-administered leases for royalty purposes and for issuing notices of non-compliance and assessing civil penalties for mineral leases. Read more here.

Hydrofluorocarbons and Kigali

• May 3 EPA issues a new proposed rule to phase down the production and use of HFCs by 85% over the next 15 years.
• April 13 Environmental and industry groups submit five petitions to EPA to reinstate parts of its 2015 and 2016 HFC regulations under the American Innovation and Manufacturing (AIM) Act.
• March 26 The State Department sends a transmittal package for the Kigali Amendment to the White House. Under President Biden’s Executive Order on the Climate Crisis, the Secretary of State had to prepare the package by March 28, 2021.
• March 25 EPA submits a proposed rule regarding the phasedown of HFCs under the American Innovation and Manufacturing Act to the Office of Information and Regulatory Affairs (OIRA).
• Read more here.

Corporate Average Fuel Economy Standards / Greenhouse Gas Standards

• April 28 EPA publishes a Notice of Opportunity for Public Hearing and Comment, seeking comment on its proposal to reconsider the Trump administration’s withdrawal of California’s waiver. In the notice, EPA points to “significant issues regarding whether SAFE 1 was a valid and appropriate exercise of agency authority.” Comments must be received by July 6.
• April 20 The Office of Information and Regulatory Affairs (OIRA) completes its review of NHTSA’s proposed rule revoking the Trump administration’s interpretation that national fuel economy standards set under EPCA preempt California’s Clean Air Act waiver.
• April 20 EPA’s Office of Inspector General releases a new report finding that in developing Part I of the SAFE Vehicles Rule, Administrator Pruitt sidelined EPA’s air emissions experts, failed to comply with EPA’s own rulemaking processes, and ignored environmental justice concerns, all of which “undercut[] the joint character of the rulemaking.”
• Read more here.

Dakota Access Pipeline - April 23 The DC Circuit rejects a request from Energy Transfer LP to rehear the company’s appeal of a decision finding the oil pipeline’s federal easement violated the National Environmental Policy Act. Pipeline developers can now petition the Supreme Court for review. Read more here.

The Social Cost of Carbon

• April 22 Ten state attorneys general, led by Louisiana, file another lawsuit challenging EO 13990’s directives regarding the social costs of GHGs and the administration’s release of the interim numbers. Louisiana v. Biden, No. 21-cv-01074 (W.D. La. filed Apr. 22, 2021).
• March 8 Twelve state attorneys general, led by the state of Missouri, file a lawsuit challenging Biden’s EO 13990 for its instructions regarding the social costs of GHGs. Missouri v. Biden, No. 21-cv-00287 (E.D. Mo. filed Mar. 8, 2021).
• Feb. 26 The administration announces an inflation-adjusted version of the Obama-era Social Costs of GHGs as the interim Social Costs of GHGs.
• Read more here.

National Environmental Policy Act

• April 21 In a hearing before the US District Court for the Western District of Virginia, EPA asked the court to remand the regulations back to CEQ for review but leave the Trump-revised versions in place while the agency reconsiders them, rather than vacating the rule. 
• April 16 Interior Sec. Haaland issues Secretarial Order 3399. The order instructs DOI’s bureaus and offices not to apply the 2020 CEQ rule revising NEPA’s implementing regulations “in a manner that would change the application or level of NEPA that would have been applied to a proposed action before the 2020 Rule went into effect.” The Secretary instructs them to continue to apply existing DOI NEPA regulations that were in place before CEQ revised its regulations and to elevate any conflicts to the relevant Assistant Secretary and CEQ. The order goes on to instruct Interior bureaus and offices to consider GHG emissions in their NEPA analyses and highlights the social cost of GHGs as an important tool. The order also emphasizes the importance of tribal consultation and environmental justice engagement in NEPA analysis.
• Read more here.

National Monuments - April 12 Dozens of House and Senate Democratic lawmakers send a letter to President Biden and Interior Secretary Haaland supporting a proposal by Native American Tribes to expand Bears Ears National Monument to 1.9 million acres, and restore more than 2 million acres of public lands to both Bears Ears and Grand Staircase-Escalante. Read more here.

Corporate Average Fuel Economy Penalties

• April 12 Seventeen Democratic lawmakers send a letter to NHTSA Deputy Administrator Steven Cliff urging the agency to rescind the Trump-era interim final rule delaying higher penalties for automakers.
• March 15 NHTSA submits a proposed rule addressing CAFE Civil Penalties to the Office of Information and Regulatory Affairs (OIRA).
• Read more here.

Energy Conservation Standards for Consumer Products

• April 12 DOE publishes a notice of proposed rulemaking to reverse President Trump’s changes to the Process Rule. Comments are due on May 27.
• Feb. 19 DOE releases a list of 13 Trump-era regulatory actions that the agency will review under Biden’s Executive Order on the Climate Crisis. The list includes the interim test waiver final rule and other rules affecting energy conservation standards for several consumer products and building energy efficiency standards, among others.
• Read more here.

Cross-State Air Pollution Rule - April 8 WildEarth Guardians sue EPA for not making a determination that Colorado failed to submit a plan to address air pollution in the Denver Metro/North Front Range area by an August 2020 deadline. The area is in “serious” nonattainment with the 2008 ozone NAAQS. WildEarth Guardians v. Regan, No. 21-994 (D. Colo.) Read more here.

Bristol Bay Pebble Mine - April 7 A group of investors representing $105 billion in assets send a letter asking EPA and Congress to permanently block large-scale mining in the Bristol Bay watershed. The groups ask EPA to use its authority under Section 404 of the Clean Water Act, and Congress to establish a national Fisheries Area to provide “permanent federal protection” to the watershed. Read more here.

Marine National Monuments & Marine Sanctuaries - April 6 The Director of NOAA’s Office of National Marine Sanctuaries confirms the agency is no longer reviewing monument designations as required under former President Trump’s executive order 13795. President Biden rescinded the Trump order on January 20, 2021 when he issued Executive Order 13990. Read more here.

Municipal Solid Waste Landfill New Source Performance Standards / Emissions Guidelines - April 5 The DC Circuit grants EPA’s request to vacate the 2019 rule delaying implementation of the landfill methane emissions limits and remands the rule to the agency. Read more here.

Defining Waters of the United States/Clean Water Rule - March 31 EPA’s Office of Inspector General releases a report finding that under President Trump, EPA failed to comply with important process “milestones” when crafting the Navigable Waters Protection Rule. Read more here.

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