Midnight Watch: Climate Change

Carbon Emissions Standards for New Power Plants

In December 2018, the Environmental Protection Agency (EPA) proposed to weaken New Source Performance Standards for carbon emissions from new and modified power plants. The agency’s proposed changes would allow new coal-fired power plants to release up to 35 percent more carbon emissions than allowed under existing regulations. As state attorneys general noted in comments filed in March 2019, the proposal violates the Clean Air Act’s mandate that New Source Performance standards reflect the “best” system for reducing emissions, as the proposal would in fact allow emissions to increase. The EPA could finalize the rollback during the transition period.

🔴NEW DEVELOPMENTS: The EPA published the final rule on January 13. The rule does not alter New Source Performance Standards for new and modified coal-fired power plants as originally proposed, and instead establishes a new scheme for determining whether emissions of greenhouse gases (GHG) from a particular sector are significant enough — a threshold set at 3% of overall U.S. GHG emissions — to be regulated under the Clean Air Act. The Clean Air Act provides no justification for the EPA's arbitrary 3% significance threshold, and the agency's failure to accept public comment on the threshold scheme before finalizing it likely runs afoul of the Administrative Procedure Act. 

Greenhouse Gas Emissions Standards for Airplanes

In August 2020, the EPA proposed the country’s first-ever greenhouse gas emissions standards for airplanes. The standards reflect existing industry practice and would have essentially no effect on the aviation sector’s actual emissions, as state attorneys general emphasized in comments filed in October 2020. The standards could be finalized during the transition period.

🔴NEW DEVELOPMENTS: The EPA published the final rule on January 11. A coalition of 13 state attorneys general challenged the final rule on January 15.

Delaying Fine Adjustment for Non-Complying Automakers

🔴NEW DEVELOPMENT: On January 14, the National Highway Traffic Safety Administration (NHTSA) promulgated an interim final rule delaying the effectiveness of its 2016 penalty adjustment for violations of Corporate Average Fuel Economy (CAFE) standards until model year 2022. The rule was a response to a petition from the Alliance for Automotive Innovation and comes after state attorneys general twice successfully sued NHTSA for previously delaying and rescinding the adjustment. The rule became effective upon publication in the Federal Register and comments were due on January 25, 2021.

Guidance on Treatment of Greenhouse Gases Under NEPA

In June 2019, the White House Council on Environmental Quality (CEQ) published draft guidance on the treatment of greenhouse gases under the National Environmental Policy Act (NEPA). The draft guidance provided little clarity to federal agencies on how to weigh greenhouse gas emissions and climate impacts in NEPA reviews, and instead appeared to encourage agencies to avoid such considerations altogether, as state attorneys general noted in comments filed in August 2019. The administration has since moved ahead with a broad overhaul of NEPA implementing regulations, but the guidance remains unfinalized and its fate is unclear.