Tim Rosado
There have been several important environmental policy developments since this year's Earth Day (April 22).
Here is a quick run down:
SCOTUS on WOTUS
The US Supreme Court issued a long-awaited ruling (May 25) that concerns Federal jurisdiction in the protection of waters under the Clean Water Act (CWA). In general, the ruling scales back the EPA's expansive view about the types of waters that are subject to the CWA. The case considered by the Court concerned actions on lands and waters on private property that the EPA said needed Federal oversight because of the proximity to protected waters.
The majority opinion of the court viewed the EPA's expansive view as going too far; essentially, that the EPA seeks to regulate waters that are too far from––i.e., not "adjacent" enough––to waters that more effectively meet the statutory definition of "waters of the United States (WOTUS)" (i.e., navigable rivers, streams, lakes, etc.) The Court majority did acknowledge that some wetlands on private lands should be regulated, but that these needed to be clearly linked to more navigable, adjacent waterways.
This means that the EPA must now go back to the drawing board on a final EPA rule issued in December (2022) that the agency was hoping would provide a “durable definition” of WOTUS having the effect of attaching EPA’s regulatory oversight to many ephemeral and intermittent streams, and wetlands, on private property. The WOTUS definition in the current final rule was originally put in place during the Obama Administration, but was changed to a more narrow definition by the Trump Administration.
In March (2023), Congress passed a resolution to nullify the EPA’s final rule, but President Biden vetoed the resolution. The House failed to overcome the veto (April 18).
Power Plant Global Warming Rule
The EPA issued a proposed rule (May 11) seeking to substantially reduce carbon dioxide emissions from power plants using fossil fuels. US power plants account for an estimated 25% of US carbon emissions. The EPA currently does not regulate carbon emission levels.
The rule will require coal-fueled and some natural gas-fueled power plants to gradually capture 90% of carbon emissions. EPA estimates that about a quarter of natural gas plants will be affected, with the rules applying to those that produce at least 300 megawatts and run 50 percent of the time or more. Targeted natural gas plants would have the option of converting to hydrogen power which does not produce emissions, though hydrogen fuel does require energy to produce (though hydrogen can be produced with clean energy sources).
The expectation is that for at least coal-fueled power plants, the rule will speed up their inevitable future shutdown and replacement more quickly than is likely without this rule.
The EPA estimates the rule will lead to the avoidance of 617 million metric tons of total carbon dioxide (CO2) entering the atmosphere between 2028 and 2042, equivalent to the annual emissions of 137 million passenger vehicles. It will also result in cutting “tens of thousands of tons” of particulate matter such as sulfur dioxide and nitrogen oxide.
EPA claims that the rule sets achievable targets based on available technology, along with a long-lead time for compliance. Nevertheless, the proposal faces heavy opposition both from within Congress and through conservative Federal courts. Future lawsuits will no doubt argue that the EPA does not have clear and specific authority to regulate carbon dioxide emissions, and that such authority should be explicitly provided by Congress before any EPA regulation.
Ultimately, it could take years to fully adjudicate the regulatory process, including resolving future lawsuits, before this proposed rule has the potential to be implemented. An act of Congress providing explicit authority for EPA to regulate in this area could speed up the process, but this is highly unlikely in the current Congress.
Attempts to Overturn Species Protection Rules
The Senate voted to approve three resolutions during May seeking to overturn key decisions of Federal agencies last year related to the Endangered Species Act (ESA). None of the resolutions however, secured votes sufficient to overcome promised Presidential vetoes. The House not yet acted on any of the resolutions.
One resolution (S.J.Res.23) seeks to overturn a rule of the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service that reversed a rule of the Trump Administration defining “habitat” in regulation, which had the effect of limiting what could be considered habitat for the purposes of ESA protections. The updated 2022 rule dropped the definition, which will enable the agencies to define habitat for each unique circumstance of a species. The resolution passed the Senate by a vote of 51-49, which is significantly short of a two-thirds majority to overcome an veto.
A second resolution (S.J.Res.24) seeks to overturn a rule of FWS that elevates the endangered status of the long-eared bat from “threatened” to “endangered,” and also drops its status as a unique species for purposes of ESA protections. The resolution passed the Senate by a vote of 51-49, short of a veto-proof majority.
A third resolution (S.J.Res.9) seeks to overturn a FWS rule that provides ESA protections to two species of prairie chicken, one that is considered “threatened” and the other “endangered.” The resolution passed the Senate by a vote of 50-48, also short of a veto-proof majority.
Brazil’s Amazon Protection Plan
Brazil President Luiz Inácio Lula da Silva outlined (June 5) a government-wide plan to meet his previous goal of achieving net-zero deforestation of the Amazon by 2030.
Among the plan’s key elements:
Increasing forest monitoring by law enforcement and conservation units, including through satellite imagery and remote monitoring systems.
Using financial intelligence to track cash movements for logging equipment and excavators used for illegal gold mining.
Creating a tracking system for wood, livestock, and other products to ensure these do not come from deforested lands.
Advancing green economy measures such as the certification of forest products, technical assistance for producers, infrastructure support, energy and internet connection assistance, and the encouragement of ecotourism.
Advancing bio-economy measures that could help de-emphasize cattle-raising, such as managed fishing of the Amazon’s largest fish–the pirarucu–and facilitating acai production.
Replanting as much native vegetation as is cut down.
Debt Deal Permitting Reforms
Enacted law which broke a legislative stalemate on the Federal debt limit and spending also includes limited measures to speed up Federal permitting, most significantly by limiting the time frames for environmental reviews.
While more significant and impactful permitting reform measures were excluded (including those to help expedite power grid upgrades in support of the current revolution in renewable energy capacity deployment), the law included language requiring the expedited issuance of construction and operational permits for the Mountain Valley Natural Gas Pipeline (through West Virginia) irrespective of any remaining environmental considerations.
Consolidated Nuclear Waste-Holding Facilities
The Nuclear Regulatory Commission (NRC) issued (May 9) a license to Holtec International to build and operate an interim storage facility in New Mexico. In 2022, the NRC had published a final environmental impact statement (EIS) on the then-proposed temporary holding facility in Lee County, New Mexico. At that time, NRC staff recommended licensing the facility.
However, New Mexico enacted a state-level conditional ban on the facility in March. Under the state’s law, the ban could be lifted if the state approves the facility and the federal government adopts a permanent underground storage site for nuclear waste. It is not clear that New Mexico's law can overtake the Federally-approved license tied to Federal laws.
The United States currently has no permanent disposal facility for spent nuclear fuel, or other highly radioactive waste. Yucca Mountain, in Nevada, was supposed to be such a facility, but licensing and design work for the proposed Yucca Mountain repository was halted under the Obama Administration. Nevada opposed it at the time, and continues to oppose the project now.
In 2021, the NRC approved a separate license for a different interim nuclear waste-holding facility in Andrews, Texas. The company that owns the facility -- Interim Storage Partners LLC -- said it hopes to eventually expand the facility during seven additional phases. Texas, however, challenged the initial NRC license in Federal courts arguing that the NRC lacks specific authority for the project from Congress. Depending on the outcome of that case, the matter could be elevated to higher courts, which could continue to delay the project’s start.
