Affordable Clean Energy Rule
One of the Trump administration’s most significant anti-environment initiatives is the so-called “Affordable Clean Energy” rule, a regulatory effort that protects the fossil fuel industry at the expense of our climate, the environment, and public health. The rule replaced the Clean Power Plan, finalized by the Obama administration in 2015, which would have established the first nationwide and state-based limits on greenhouse gas emissions from fossil fuel-fired power plants. Reductions in harmful air pollutants under the Clean Power Plan would have avoided at least 2,700 to 6,600 premature deaths and 140,000 to 150,000 asthma attacks in children annually by 2030.98
The Trump administration, however, ignored the health and climate benefits of reduced reliance on fossil fuels, finalizing a significantly watered-down replacement rule in June 2019. The replacement rule is based on an unlawfully restrictive application of the Clean Air Act which violates the agency’s obligation to reduce carbon emissions. Consequently, as a 23-state coalition of state attorneys general pointed out in comments objecting to the rule, the rollback will result in an increase of 100 million tons of carbon dioxide emissions and lead to an additional 1,630 premature deaths, 120,000 asthma attacks, 140,000 missed school days, and 48,000 lost work days in 2030 relative to the Clean Power Plan.99 Given the enormous stakes for public health and the environment, state attorneys general are challenging the final rule in court.
Clean Car Standards
The 2012 Clean Car Standards were a joint effort between the EPA, the National Highway Traffic Safety Administration, the California Air Resources Board and car manufacturers to limit greenhouse gas emissions by gradually raising fuel efficiency standards for new passenger vehicles and light trucks. Despite the clear health and economic benefits of these standards, the Trump administration replaced them with significantly weakened standards and revoked California’s Clean Air Act waiver to set its own, more stringent standards. As a coalition of state attorneys general emphasized in comments on the rollback, the watered-down standards will not make Americans safer, as the flawed analysis presented by the administration argued.101 In fact, the additional air pollution that will result from the rule is expected to cause 18,500 premature deaths, 250,000 more asthma attacks, and 350,000 additional respiratory ailments due to air pollution by 2050. The Trump administration’s so-called “SAFE Vehicles” rule, which 25 state attorneys general are challenging in court, will result in increased health care costs for Americans, lost days of work and school, and a net cost to society of $13.1 billion.102
Regulating Methane Emissions
The Trump administration’s efforts to roll back regulations that reduce methane emissions from the oil and gas industry will have serious public health consequences due to both the significant impacts that methane has on the climate and the harmful pollutants released alongside methane by oil and gas operations. Scientists have concluded that immediate and substantial reductions in methane emissions are necessary to limit warming by 1.5°C by 2050.103
New and Existing Sources of Methane Emissions
Despite the overwhelming evidence of methane’s impact on the warming climate, the Trump administration has loosened or eliminated regulations for both new and existing sources of methane emissions from oil and gas operations. After unlawfully delaying implementation of elements of an Obama administration rule setting New Source Performance Standards (NSPS) for new and modified sources of methane emissions, the Trump administration finalized its own replacement rule essentially removing all methane controls on the oil and gas industry. The EPA acknowledged that its rule will increase methane emissions by 400,000 tons, volatile organic compounds emissions by 11,000 tons, and hazardous air pollutants by about 330 tons between 2021 and 2030 as compared to the 2016 standards.104 As noted by a coalition of attorneys general in a comment letter opposing the rollback, these changes will interfere with states’ ability to meet the 2015 National Ambient Air Quality Standards (NAAQS) for ozone, jeopardizing the health of millions of Americans.105
The Trump administration has also refused to regulate existing sources of methane emissions from oil and gas operations, a Clean Air Act requirement triggered by the promulgation of regulations for new sources — a refusal that state attorneys general are challenging in court.106
Methane Waste Prevention
The Trump administration’s attempts to nullify the Bureau of Land Management’s (BLM) 2016 methane Waste Prevention Rule are another example of its failure to reduce methane emissions from the oil and gas industry. The rule was intended to reduce wasteful emissions of natural gas from venting, flaring and equipment leaks during oil and gas production activities on federal and tribal lands. However, the Trump administration has launched multiple attempts to repeal the rule and abandon emissions reductions totaling 175,000-180,000 tons of methane, 250,000-267,000 tons of volatile organic compounds, and 1,860-2,030 tons of other toxic air pollutants each year.
After the court sided with the state attorneys general and blocked BLM’s delay of the rule in 2018, the agency released a rescission rule repealing key requirements that prevent waste of natural gas on public lands. State attorneys general again sued BLM, pointing out its failure to consider the environmental impacts of the rule before promulgating it and to account for the global costs of increased methane emissions.107 In July 2020, the court ruled in favor of the attorneys general, vacating the 2018 rescission rule and reimplementing the 2016 Waste Prevention Rule.108
Landfill Methane Emissions
State attorneys general are also challenging the EPA’s plan to delay implementation of Obama-era standards on methane emissions from solid waste landfills, the third-largest source of human-related methane emissions in the United States.109 The EPA estimated that these regulations would yield methane emission reductions of approximately 330,000 metric tons per year by 2025, yet the Trump administration has delayed implementation until 2021.110 Landfills also release hazardous air pollutants and VOCs, and any delay in mitigating these emissions has an immediate, adverse impact on the health of communities located near landfills.111
Particulate Matter NAAQS
PM pollution is regulated under the Clean Air Act’s NAAQS program as a criteria air pollutant, and review of NAAQS is required every five years. Since the last review was completed in 2012, a wealth of new evidence supports more stringent standards for PM pollution in order to better protect human health and welfare. Despite the overwhelming consensus in the scientific community about the reliability of this evidence, the Trump administration in April 2020 proposed not to strengthen NAAQS.112 In comments criticizing the proposed decision, state attorneys general highlighted the inadequacy of the EPA’s decision, particularly its conclusion that leaving the PM NAAQS unchanged will have no disproportionate impact on minority or other at-risk groups.113 Scientific evidence wholly contradicts this conclusion, and the EPA’s willingness to so egregiously disregard this and all the other evidence pointing to the need for more stringent NAAQS for PM is a threat to the health of millions of Americans.
Mercury and Air Toxics Standards
The Mercury and Air Toxics Standards (MATS) rule regulates emissions of mercury, acid gases and other toxic pollutants from power plants under the Clean Air Act. The coal-fired power plants that are subject to the MATS rule are responsible for more hazardous air pollution than any other industrial pollution source, according to the American Lung Association.114 Since their implementation beginning in 2012, the standards have also been successful in reducing other power plant pollutants, including particulate matter. In total, the MATS rule has resulted in 4,200 to 11,000 avoided premature deaths, 2,800 fewer cases of chronic bronchitis, 830 fewer hospital admissions for respiratory symptoms, and 1,800 fewer hospital admissions for cardiovascular symptoms.115
However, the Trump administration recently reversed the Obama administration’s determination that the MATS rule is “appropriate and necessary” under the Clean Air Act, based on a flawed cost-benefit analysis that discounted the public health benefits of reducing mercury pollution and disregarded billions of dollars of co-benefits.The rollback irrationally requires the Environmental Protection Agency (EPA) to no longer take into account the entirety of health benefits that flow from controlling mercury emissions when setting pollution standards, setting a dangerous precedent that could cripple the agency’s air pollution program. A coalition of state attorneys general are challenging the reversal in court, and have also stepped in to protect the MATS rule from an industry-led lawsuit, warning that the current EPA cannot be expected to faithfully defend it.
Regulation of the disposal of coal ash, the toxic remains of coal burned in power plants, is essential for protecting the drinking water of millions of Americans. The Trump administration, however, has issued several rulemakings weakening these regulations, including a proposal to extend deadlines for closing coal ash impoundments as far out as 2028, a proposal that would allow increased discharges of pollutants such as arsenic, lead, mercury, and selenium into waterways, and a proposal that would allow many impoundments, including those with a history of leaking, to potentially remain open indefinitely.116
As pointed out in several comment letters by state attorneys general objecting to these proposals, the EPA has consistently ignored the overwhelming evidence of the dangers to the environment and public health posed by unlined or leaking coal ash impoundments.117 For instance, the Resource Conservation and Recovery Act (RCRA) requires that dumps pose “no reasonable probability of adverse effects on health or the environment from disposal of solid waste,”118 yet unlined impoundments have a 9.1 percent chance of contaminating drinking water wells within one mile.119 The EPA also admitted that recent data suggests a greater number of impoundments are leaking than the agency originally estimated during the previous rulemaking in 2015, yet proposed no new risk assessment to evaluate the impacts of the proposed changes. Rather than ensure public health is protected, the Trump administration once again chose to weaken regulations in order to benefit industry.
98Fact Sheet: Clean Power Plan Benefits, U.S. Eɴᴠᴛʟ. Pʀᴏᴛ. Aɢᴇɴᴄʏ, https://archive.epa.gov/epa/cleanpowerplan/fact-sheet-clean-power-plan-benefits.html#print (last visited Sept. 14, 2020).
99New York et al., Comment Letter on Proposed Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission Guideline Implementing Regulations; Revisions to New Source Review Program (Oct. 31, 2018) (state comments in opposition to the EPA’s 2018 so-called Affordable Clean Energy rule).
100California et al. Comment Letter on Proposed Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks (Oct. 26, 2018) (state comments in opposition to the EPA’s 2018 proposed Clean Cars Standards rollback).
101Methane Pollution, supra note 72.
102Maxine Joselow, Trump's car rule would cause more pollution deaths, E&E Nᴇᴡs (Apr. 2, 2020), https://www.eenews.net/stories/1062763069.
103Joeri Rogelj, Mitigation Pathways Compatible with 1.5°C in the Context of Sustainable Development, in Gʟᴏʙᴀʟ Wᴀʀᴍɪɴɢ ᴏꜰ 1.5°C. ᴀɴ IPCC Sᴘᴇᴄɪᴀʟ Rᴇᴘᴏʀᴛ ᴏɴ ᴛʜᴇ Iᴍᴘᴀᴄᴛs ᴏꜰ Gʟᴏʙᴀʟ Wᴀʀᴍɪɴɢ ᴏꜰ 1.5°C Aʙᴏᴠᴇ Pʀᴇ-Iɴᴅᴜsᴛʀɪᴀʟ Lᴇᴠᴇʟs ᴀɴᴅ Rᴇʟᴀᴛᴇᴅ Gʟᴏʙᴀʟ Gʀᴇᴇɴʜᴏᴜsᴇ Gᴀs Eᴍɪssɪᴏɴ Pᴀᴛʜᴡᴀʏs, ɪɴ ᴛʜᴇ Cᴏɴᴛᴇxᴛ ᴏꜰ Sᴛʀᴇɴɢᴛʜᴇɴɪɴɢ ᴛʜᴇ Gʟᴏʙᴀʟ Rᴇsᴘᴏɴsᴇ ᴛᴏ ᴛʜᴇ Tʜʀᴇᴀᴛ ᴏꜰ Cʟɪᴍᴀᴛᴇ Cʜᴀɴɢᴇ, Sᴜsᴛᴀɪɴᴀʙʟᴇ Dᴇᴠᴇʟᴏᴘᴍᴇɴᴛ, ᴀɴᴅ Eꜰꜰᴏʀᴛs ᴛᴏ Eʀᴀᴅɪᴄᴀᴛᴇ Pᴏᴠᴇʀᴛʏ 2 (2018), https://www.ipcc.ch/site/assets/uploads/sites/2/2019/05/SR15_Chapter2_Low_Res.pdf.
104Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review, 85 Fed. Reg. 57,018 (Sept. 14, 2020) (to be codified at 40 C.F.R. pt. 60).
105California et al., Comment Letter on Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review (Sept. 24, 2019) (state comments in opposition to EPA’s 2019 rollback of methane emissions regulations on the oil and gas industry).
106Complaint, New York v. Pruitt No. 1:18-cv-00773 (D.D.C. Apr. 5, 2018).
107Complaint for Declaratory and Injunctive Relief, California v. Zinke No. 3:18-cv-05712 (N.D. Cal. Sept. 18, 2018).
108California v. Bernhardt No. 4:18-cv-05712-YGR (N.D. Cal. July 15, 2020) (order striking down BLM’s rollback of the 2016 Methane Waste Prevention rule).
109Complaint for Declaratory and Injunctive Relief, California v. EPA No. 4:18-cv-03237 (N.D. Cal. May 31, 2018).
111Petitioners’ Proof Brief, Envtl. Defense Fund v. Envtl. Protection Agency No. 19-1227 (D.C. Cir. Aug. 12, 2020).
112Independent Particulate Matter Review Panel, The Need for a Tighter Particulate-Matter Air-Quality Standard, 383 N. Eɴɢʟ. J. Mᴇᴅ. 680 (2020), https://www.nejm.org/doi/pdf/10.1056/NEJMsb2011009?casa_token=uNUeKrIVuvwAAAAA:_1xMUhZk-heC2Cdv6wELyAC1ITf6sgzuueVjRD_SgRsvOoqIq3DVQRvwbJ8DooxBnxecxUekhX8I1-7A.
113New York et al., Comment Letter on The EPA Administrator’s Review of the National Ambient Air Quality Standards for Particulate Matter (June 29, 2020).
114Massachusetts et al., Comment Letter on the EPA’s Proposed National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units—Reconsideration of Supplemental Finding and Residual Risk and Technology Review (Apr. 17, 2020) (state comments in opposition to EPA’s rollback of the Mercury and Air Toxics Standards).
116Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category, 84 Fed. Reg. 64,620 (Nov. 22, 2019) (to be codified at 40 C.F.R. pt. 423); Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; A Holistic Approach to Closure Part A: Deadline To Initiate Closure, 84 Fed. Reg. 65,941 (Dec. 2, 2019) (to be codified at 40 C.F.R. pt. 257); Hazardous and Solid Waste Management System: Disposal of CCR; A Holistic Approach to Closure Part B: Alternate Demonstration for Unlined Surface Impoundments; Implementation of Closure, 85 Fed. Reg. 12,456 (Mar. 3, 2020) (to be codified at 40 C.F.R. pt. 257).
117Maryland et al., Comment Letter on Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals from Electric Utilities; A Holistic Approach to Closure Part A: Deadline to Initiate Closure; Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (Jan. 21, 2020); Maryland et al., Comment Letter on Hazardous and Solid Waste Management System: Disposal of CCR; A Holistic Approach to Closure Part B: Alternate Demonstration for Unlined Surface Impoundments; Implementation of Closure (Apr. 17, 2020).
11842 U.S.C. § 6944.
119Utility Solid Waste Activities Group v. Envtl. Protection Agency No. 15-1219 (D.C. Cir. Aug. 21, 2018).