The White House revealed plans for energy and environmental regulations Tuesday, with rules primed to meet a crucial deadline to avoid being overturned by Republican lawmakers if President Joe Biden loses his reelection bid.
The spring Unified Agenda offers a window into the Biden administration’s intent to shore up regulatory actions on air, water and climate in the months ahead.
“The Administration is using every available tool to improve Americans’ lives, including Federal regulations that my office — the Office of Information and Regulatory [Affairs] (OIRA) — reviews,” Richard Revesz, Biden’s rules chief, wrote in a blog post released with the agenda.
Finalizing federal rules by the first half of next year is paramount for the White House. Otherwise, they may be open to being killed by a GOP-led government after the 2024 election, which could prevent a future administration from enacting similar rules to cut greenhouse gas emissions.
The administration has already begun to push up its deadlines on regulations, which is a notable departure from past practice.
“The past agendas were essentially just a catalog of six-month delays,” said James Goodwin, a senior policy analyst at the Center for Progressive Reform. “If you said June, the next would say December. In other words, nothing got done.”
He added: “That’s not really the case here.”
This latest regulatory agenda has EPA finalizing its climate rule for coal and natural gas plants by April 2024. That is two months earlier than previously planned and potentially blocks a congressional threat to bury it.
This is also the first regulatory agenda released under Revesz, who was confirmed by the Senate in December. As OIRA’s administrator, he has led a revamp of the rulemaking process to emphasize benefits from environmental protections.
Progressive advocates like Goodwin were skeptical that Revesz would actually strengthen rules because of his long-held support for cost-benefit analysis, which has traditionally been used to weaken them.
But so far, Goodwin said, he has proved them wrong.
“This is what Revesz said he was going to do, and he’s doing it,” he said. “Good for him.”
The White House has pushed for tougher rules when it comes to the environment, such as the power plant climate regulation that went stronger and faster than what EPA initially had planned.
GOP lawmakers, however, are not pleased.
Wednesday morning, House Oversight and Accountability Chair James Comer (R-Ky.) opened a hearing vowing to shine a light on Biden’s “regulatory blitz.” He argued that climate actions at a range of federal agencies are burdening small business owners.
“It didn’t have to be this way,” he declared. “And it wasn’t long ago that we were on the right track to limit federal regulatory excess that holds back economic prosperity.”
In the first in a series of hearings on the topic, the panel will hear from OIRA and federal agencies in the coming weeks and months, a committee aide said.
Air and climate
EPA’s timetables for completing weighty reviews of ambient air standards for two common pollutants continue to slip, the agenda indicates.
An assessment of the standards for the fine particles known as soot is now set to end with issuance of a final rule in October, two months later than previously projected.
And while a recent EPA draft report predicted that a review of the existing limits on ground-level ozone would wrap up by the end of 2024, the agency is no longer standing by the schedule. Instead, the new agenda lists the completion date as to be determined.
Both reviews are technically deemed reconsiderations of Trump administration decisions to leave the standards for the two pollutants unchanged; the scope of the agency’s final decisions could have significant ramifications for public health and regulatory requirements on industry.
The reviews are among dozens of Clean Air Act rulemakings listed in the agenda, including a finding that leaded aviation gas endangers public health, which is on track for finalization this October.
As EPA simultaneously pursues a review of its ambient air quality standards for lead, the finding would set the stage for action to limit the biggest remaining emissions source of the neurotoxin.
Notably absent in the agenda is any mention of plans to flunk all or part of the Permian Basin for compliance with the 70-parts-per-billion (ppb) ozone standard.
The region, which sprawls across 75,000 square miles in West Texas and southeastern New Mexico, is a top oil and gas production hub.
In the version of the agenda released last June, EPA had signaled plans to reclassify at least some of the basin to nonattainment to that standard.
After elected leaders and industry groups in Texas reacted angrily with predictions that any such move could lead to higher gasoline prices and reduce royalty revenue, EPA stripped all mention of that plan from the public version of the agenda posted in January.
EPA staffers have declined to clarify whether the agency is still pursuing the reclassification.
The agenda doesn’t appear to make any changes to EPA’s plans for vehicle emissions.
EPA proposed separate rules in April to control greenhouse gases from heavy-duty trucks and light-duty vehicles such as passenger cars and pickup trucks.
Water
EPA is closing in on several major water rules, including one of its most anticipated of the year. The proposed lead and copper revisions are set to be released September, with a final version set by October 2024.
Advocates are hopeful that the proposal will seek far stricter limitations for lead than what the agency has on the books. EPA’s policy currently imposes a cutoff of 15 ppb in water systems, with facilities required to take action after 10 percent of water samples exceed that total.
But public health experts widely agree that there is no safe level of lead exposure, prompting pressure on the Biden administration to set strict new standards.
Also under immense public scrutiny are the agency’s drinking water standards for six PFAS, or per- and polyfluoroalkyl substances.
EPA proposed its rule targeting those compounds this spring and intends to finalize the measure next year. Industry members have railed against that pace, arguing that regulators are moving too quickly for the public to offer thorough feedback.
Additional drinking water-focused plans include moves toward proposing a rule revising requirements for Consumer Confidence Reports (CCRs), which involve routine water quality assessments from local providers. EPA plans to propose a CCR update this summer.
Regulators are similarly eyeing adjustments to key permitting provisions within the Clean Water Act, namely Section 401, which gives states and tribes sign-off on federal certification concerning water quality. That section has drawn routine criticism from industry members and GOP lawmakers who believe some states have weaponized it to kill projects like mines and pipelines.
Under the Trump administration, regulators scaled back review timelines and imposed various limitations on state power. But the Biden EPA has moved forward with reversing that contentious policy and is on track to finalize its efforts in coming months.
EPA’s crackdown on coal plants also continues apace, with a final rule targeting steam electric effluent limitations guidelines and standards, or ELGs, set to be released by April of next year. That rule, proposed at the end of March, would establish more stringent ELGs for waste streams stemming from coal plants — part of a broader crackdown on those facilities.
Other water policy action from the agency targets various geographic areas, including the Delaware River, as well as regulations aimed at tribal water quality.
Chemicals
EPA has delayed the deadline for its final rule on whether or not it will designate two of the most notorious “forever chemicals” as hazardous substances under Superfund law — a move that could hold industry liable for PFAS contamination.
EPA will also consider designations for two additional per- and polyfluoroalkyl substances — GenX and PFBS, in addition to PFOA and PFOS — in a separate proposed rule slated for October.
The agency pushed back its internal deadline for its long-awaited final rule on asbestos to January 2024, a three-month delay from its October 2023 deadline set in fall. That rule would ban the most common type of the notorious cancer-causing substance.
Also listed were updated deadlines on the other “high priority” chemicals awaiting proposed or final rules under the 2016 amendments to the Toxic Substances Control Act.
Proposed rules for seven of the 10 high-priority chemicals are expected through May 2024, with the September deadline for carbon tetrachloride being the soonest.
EPA is also considering adding more PFAS to the list of substance emissions that industries are required to report each year. The agency required reporting emissions for 180 PFAS out of the thousands in production for 2022. The final rule is expected in November.
BLM
The Bureau of Land Management is targeting finalization of a sweeping proposed rule that would “incorporate climate resiliency and restoration through conservation” into managing the 245 million acres the bureau oversees, according to the agenda.
The draft rule, which BLM unveiled in March and was not expected to finalize until next year, is designed to protect and restore rangelands so that they are able to be used in the future for multiple purposes in the face of a warming climate that has sparked drought conditions and extreme wildfires across the West.
But the proposed rule has stirred concern among people, particularly congressional Republicans, who argue that it is a veiled attempt by the Biden administration to remove millions of acres from public use in the name of conservation.
The draft rule is currently out for public comment through June 20.
BLM also plans by September to release a draft rule that would update for the first time since 1995 regulations governing livestock grazing across 150 million acres of BLM-managed lands.
FWS
The Fish and Wildlife Service’s agenda calls for several highly anticipated regulatory moves this month.
A long-awaited proposed rule, for instance, could be about to pop, clarifying that the Migratory Bird Treaty Act’s prohibition on killing migratory birds includes accidental killing; equally important, the proposed rule will spell out a permit system that could help industry secure approvals.
This month, as well, FWS is scheduled to make public proposals for putting the Endangered Species Act into practice. These proposals cover several aspects of the ESA and are expected to reverse moves taken during the Trump administration.
Some individual species actions, too, are supposed to wrap up this month, such as the listing of the cactus ferruginous pygmy-owl as a threatened species under the ESA.
NOAA, NPS
NOAA set a deadline of December 2023 to finalize a rule that would impose speed limits on more boaters along the Atlantic coast to prevent collisions with endangered North Atlantic right whales.
The proposed rule would expand on existing requirements by reducing the maximum speed limit for commercial and recreational boats of 35 feet or larger to 10 knots — or roughly 11 1/2 mph — in designated zones along the Atlantic coast from Massachusetts to Florida.
The restrictions, which currently apply to boats larger than 65 feet, would not be in effect in most places during the summer months, when most of the whales are in Canada. The rule is an attempt to protect the whales when they migrate to waters off the coast of Southeastern states in the fall and winter.
With only an estimated 340 of the whales currently remaining, NOAA and green groups fear the whales will go extinct if more boaters aren’t forced to slow down.
But the proposed rule has drawn criticism from many Republicans and other opponents who say it would hurt the marine industry and businesses that rely on it.
NOAA also said it would revise regulations for its seafood inspection program, which have not been significantly updated since the 1970s.
In addition, the agency said it would revise its regulations to protect the confidentiality of information submitted by fishermen to show they’re in compliance with federal fishing laws.
The National Park Service set a May 2024 deadline to act on a final rule that would amend regulations for sport hunting and trapping in national preserves in Alaska. The rule would prohibit the controversial use of bear baiting.
NPS said it would also act by December of this year to revise its regulations dealing with the repatriation of Native American human remains. The park service said it wanted to make the changes to “eliminate ambiguities, correct inaccuracies” and simplify its current requirements.
FERC
Nearly all of the Federal Energy Regulatory Commission’s proposed rules and inquiries are now marked as “next action undetermined” in May of 2024 on the Unified Agenda.
That unclear status applies to several of the most high-profile proposals at the commission, including two rules proposed last year that would change the planning process for large transmission lines and address grid connection bottlenecks for new energy projects, respectively.
FERC’s proposed plan for siting electric transmission lines that are deemed to be in the nation’s interest was also listed as “next action undetermined” for next May.
The proposed grid connection and transmission planning rules were previously listed in the fall Unified Agenda as “next action undetermined” for November of 2023.
The timelines in the agenda come one day after FERC acting Chair Willie Phillips discussed his priorities for the rest of the year during a House committee hearing Wednesday. During the hearing, he said that FERC plans to finalize all of its transmission rules within the next 12 to 24 months, and that the grid connection rule is his top priority.
SEC
The Securities and Exchange Commission signaled plans to finalize its controversial climate disclosure rule in October, nearly 15 months after the measure was first proposed.
The rule would require publicly listed companies to disclose to investors and the public granular information about their risks from — and contributions to — climate change.
That would include their exposure to physical climate impacts, such as drought and hurricanes, as well as their preparedness for the clean energy transition.
Particularly contentious is a provision that would require many large companies to report not only the planet-warming emissions of their operations and purchased electricity, but also of their suppliers and customers.
The October goal pushes back the rule’s potential timeline, which has shifted several times before. The agency previously extended and reopened the rule’s public comment period, which drew thousands of comment letters from critics and proponents. And at the beginning of this year, the agency said it aimed to finalize the rule by April.
Agriculture
At the Department of Agriculture, the administration said it would pursue a rule clarifying how livestock farms are regulated by the National Environmental Policy Act. An advance notice of proposed rulemaking would come in August, the agency said.
Large concentrated animal feeding operations — defined as 1,000 or more cattle or cow-calf pairs, for instance — are regulated under NEPA, but smaller and medium-size CAFOs were implied in earlier regulations to have a categorical exclusion, meaning a less restrictive approach. The proposed regulation would clarify the exclusion and lay out a NEPA process for reviewing those farms.
The Forest Service noted its ongoing process to collect public input on ways to make forests more climate resilient. That effort, in response to an executive order from Biden, has a public comment deadline of June 20.
Also, USDA said it will publish a proposal in August to tweak labeling disclosure rules for bioengineered foods. The proposal will replace a text-message option that was included in the original USDA regulations but was invalidated by a federal court in 2022.
Reporters Ellie Borst, E.A. Crunden, Michael Doyle, Avery Ellfeldt, Marc Heller, Rob Hotakainen, Mike Lee, Sean Reilly, Scott Streater and Miranda Willson contributed.
