Election-year rules could span coal dust to California owls

By Michael Doyle, Sean Reilly, Scott Streater | 12/07/2023 01:46 PM EST

As the Biden administration heads into a heated election year, a number of complicated — and potentially controversial — regulations could be enacted. Public lands management, endangered species policies and Clean Air Act changes are all on the table.

President Joe Biden delivers remarks.

President Joe Biden delivers remarks on funding for Ukraine at the White House on Wednesday. Evan Vucci/AP

The Biden administration aims to complete an ambitious set of energy and environment-related rules as it navigates the tumult of a presidential election year.

With the House in Republican hands and the Senate closely divided, the myriad regulatory proposals identified in the administration’s latest Unified Agenda published Wednesday afternoon could be President Joe Biden’s best chance at putting some points on the board before the next election.

The Clean Air Act alone is targeted for some 50 rulemakings.


Elsewhere throughout federal agencies, coal miners could get better protection from the dust that causes black lung disease, species like the California spotted owl could secure their own federal protections and the Bureau of Land Management could elevate conservation as a priority on public lands. NOAA Fisheries could also make a decision on a controversial measure meant to protect endangered Atlantic right whales.

“Improving regulations helps keep our air and water clean, make transportation more reliable, protects consumers and workers and leads to a stronger and more equitable economy,” Sam Berger, associate administrator of the Office of Information and Regulatory Affairs, said in a blog post.

The administration will make clear its end-of-term priorities in the policy changes that move forward in the coming months. Some of these regulations will also ignite debate and, inevitably, litigation. Quite a few could also end up as political campaign fodder.

Public lands management

BLM, for instance, plans to finalize a controversial public lands rule in January.

The proposed rule unveiled in March would put conservation on par with oil and gas, mining, livestock grazing and other uses of the 245 million acres overseen by BLM.

The bureau contends this is designed to keep working lands usable in the face of unprecedented threats from climate warming, including drought conditions gripping much of the West.

But Republican lawmakers have branded it as little more than a thinly veiled attempt by the Biden administration to remove livestock grazing, recreation, energy development and other authorized uses of BLM lands in the name of conservation.

More than 215,000 public comments swamped BLM following publication of the proposal.

“These proposed changes would, if adopted, cause significant uncertainty about how BLM’s land management program should apply to future requests for land-use authorizations on BLM lands, such as for oil and gas, mining, transmission, renewable energy production, and transportation projects,” the American Petroleum Institute and allied groups wrote.

The House Appropriations Committee in July approved an Interior-Environment spending bill that includes an amendment that would forbid BLM from implementing the proposed rule.

BLM also aims to finalize by April a proposed rule that would streamline renewable energy project permitting, and cut by as much as 80 percent the acreage rental and capacity fees for wind and solar power projects proposed in specific areas the bureau has deemed suitable for commercial-scale development.

Revised Trump air policies

Almost three years into Biden’s term, EPA’s Office of Air and Radiation continues to grapple with Trump administration rollbacks, the agenda shows.

It now won’t be until next May, for example, that air office staffers expect to complete a final rule addressing the 2020 repeal of the “once in, always in” policy. That approach, which dated back decades, required factories and other industrial plants to stick with the “maximum achievable” controls for air toxics even when their emissions fell below the thresholds that triggered that requirement in the first place.

Under the draft rule released in September, the air office stopped short of an exact restoration of the “once in” policy. The proposal has since drawn criticism from both environmental and industry groups.

Later this month, EPA plans to release a proposal to tackle another Trump-era change that affected industrial permitting rules for plants that undertake expansions or other upgrades.

Immediately after Biden took office in early 2021, environmental groups had petitioned EPA to review the “project emissions accounting” change. Administrator Michael Regan subsequently declined to freeze its implementation but agreed to launch the rulemaking that is now underway. The new agenda does not give a date for its completion.

Among some 50 other Clean Air Act rulemakings on the roster, EPA is also pressing ahead with plans to strengthen air toxics standards for coal-fired power plants after the Trump administration opted to stick with the 2012 status quo. After issuing its proposal last spring, EPA intends to sign off on the final version next April.

Absent from EPA’s game plan, however, is a timetable for pursuing a fresh review of ground-level ozone standards. In August, Regan halted a reconsideration of still another Trump-era decision to leave the current 70-parts-per-billion limit unchanged. Regan attributed the halt to issues raised by an EPA advisory panel, saying he had told agency staffers to complete the new review “as expeditiously as possible.”

Nonetheless, the new agenda lists it among “long-term actions” and gives no date for any potential changes to the 70 ppb standard to be proposed.

In a brief interview Thursday, acting EPA air chief Joe Goffman said that air office staffers are working with counterparts in the agency’s research office on assessments of some “significant new science” on ozone’s effects.

“We’re working as fast as we can,” Goffman said.

Endangered species protections

The Fish and Wildlife Service identifies imminent actions such as reclassifying the red-cockaded woodpecker from endangered to threatened and designating 209,520 acres in Texas and Louisiana as critical habitat for the threatened Louisiana pine snake.

Coming next are some decisions like finalizing in February a proposal to list two California spotted owl populations under the Endangered Species Act. In April, broad new ESA regulations are expected.

But in some other cases, items listed in the Unified Agenda may have been overtaken by events.

The agenda, for instance, still lists an estimated date of November 2023 as the time a new Migratory Bird Treaty Act permit system was to be proposed, with a final rule expected by April 2024.

On Dec. 1, though, the Fish and Wildlife Service withdrew the proposed rule from its final Office of Information and Regulatory Affairs review. The agency attributed the surprise move to a need to assess additional “technical comments,” but it has not disclosed more details about either those comments or a new timeline.

“With the escalating loss of biodiversity we are experiencing both nationwide and globally, it’s tough to watch the agencies charged with saving wildlife sit on the sidelines while migratory bird populations continue their downward spiral,” said Jamie Rappaport Clark, president and CEO of Defenders of Wildlife.

NOAA said it would take final action on a rule imposing new speed limits on boaters along the Atlantic coast in an attempt to save endangered North Atlantic right whales.

The agency said the rule is “of particular importance” and will be done in fiscal 2024.

Earlier, NOAA had promised action by the end of 2023, but NOAA Fisheries Chief Janet Coit said last month that the timetable “will probably be optimistic.”

If approved, the long-awaited rule would expand on existing requirements by reducing the maximum speed for commercial and recreational boats of 35 feet or larger to 10 knots — or roughly 11½ mph — in designated zones along the Atlantic coast from Massachusetts to Florida.

The restrictions, which currently apply to boats larger than 65 feet, would be in effect for up to seven months per year in some places.

‘Forever chemicals,’ plastics and asbestos

EPA again pushed back its internal deadline to March on a final rule that would designate two of the most notorious “forever chemicals” as hazardous under Superfund law, which gives the agency authority to require select PFAS polluters to pay for cleanup.

A few highly anticipated proposed rules are slated to be published this month, including one setting draft restrictions on a toxic chemical widely used to make plastics, and another addressing whether four dangerous per- and polyfluoroalkyl substances could soon be subject to federal waste management regulations as hazardous constituents.

A long-awaited final rule on asbestos, which would ban the most common type of the carcinogenic substance, is still scheduled to be published in January.

Coal dust and faster mine permitting

The Mine Safety and Health Administration’s long-awaited rule that could impose stricter standards on silica dust, a carcinogen and leading cause of black lung disease plaguing miners, is now scheduled to be finalized in April.

Democrats have been pushing the agency to complete the rule, which has been under review since January, while the National Mining Association, the industry’s biggest trade group, has pushed back on part of the proposed language.

But the administration stopped short of saying when it will finalize a controversial proposal to fast-track permitting of some critical minerals projects.

The administration in September proposed a rule that would narrow the kinds of mines that are eligible for the so-called FAST-41 streamlined regulatory review process. Under the proposal, projects deemed critical by the Interior Department could apply, as well as recycling and processing facilities tied to those minerals.

A bipartisan band of senators in November called on the administration to scrap the proposal, arguing that limiting project eligibility would chill investment and create confusion given agencies have different definitions for which minerals and materials are critical.

Reporters Hannah Northey, Jean Chemnick and Rob Hotakainen contributed.