Washington Insider-- Monday
Renewed Fights Over Clean Air and Carbon Issues
Here's a quick monitor of Washington farm and trade policy issues from DTN's well-placed observer.
Farm Bureau Urges More Transparency, Adoption Of New Technology To Boost Confidence In NASS Data
More transparency of the data released by the National Ag Statistics Service (NASS) and adoption of new and innovative technology would help improve confidence in the agency's estimates, according to a report from the American Farm Bureau Federation (AFBF).
The group also said that the agency needs to deploy even faster computers and needs more resources to boost its development of more-innovative ways of data gathering and analysis.
The group also pledged to work with NASS to help the effort to bolster their data, including what the group said was a key: “Finally, and most importantly, Farm Bureaus across the U.S. should actively work to encourage farmers' accurate and timely participation in NASS data collection efforts.”
AFBF put the working group together after its members voted to have the group study the NASS data collection and reporting methodologies in the wake of surprise data releases from NASS in 2019 in the wake of flooding and weather-related planting delays.
New Acting Chief at CFTC Selected
The Commodity Futures Trading Commission (CFTC) unanimously elected Commissioner Rostin Behnam as acting chairman. Behnam succeeds Heath Tarbert, who has served as chairman since July 15, 2019, and announced his departure from the role on Thursday.
Tarbert remains a commissioner, serving a term expiring on April 13, 2024. He is on a list of those that may be in the role permanently.
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Bloomberg is reporting this week that President Joe Biden has teed up a “slew” of clean air and carbon issues and made them “top environmental priorities” for his administration in a new executive order signed this week. The directive affected dozens of Trump-era rules, including carbon emissions, clean air rollbacks, and Clean Air Act rules on science and costs.
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However, Bloomberg also argued that “any bold standards Biden has in mind to stem emissions from industry through the Clean Air Act will almost certainly get challenged in court.”
The unending cycle of rulemakings followed by years-long lawsuits is a signal that the Clean Air Act needs to be amended to give the executive more direct authority, Schiff Hardin LLP environmental partner Jane Montgomery said. “Hopefully, with Biden's experience in Congress, he can recognize that lawsuits are a result of bad law,” she said.
Biden may have to choose between innovative actions or traditional “nuts and bolts” regulation under the statute in order to avoid defeat in a 6-3 conservative Supreme Court skeptical of broad agency powers, Loyola University New Orleans Law Professor Robert Verchick said. “It's going to be a lot harder to do more flexible, ambitious, and innovative programs under these older laws because the court, I don't think, is going to have the appetite for it,” he said.
The report focused on what it called the most “closely watched air issues” on President Biden's to-do list.
In addition, it noted that the U.S. Court of Appeals for the District of Columbia Circuit handed the new administration a huge win Jan. 19 when it struck down President Donald Trump's carbon rule for coal-fired power plants. The new White House now has a fresh start to craft greenhouse gas standards for existing sources.
The DC Circuit opinion affirmed Obama-era justifications for regulating power plant carbon under the Clean Air Act, but Hana Vizcarra, a staff attorney at Harvard Law School's Environmental and Energy Program, says she is not expecting what was called “Clean Power Plan 2.0.”
“Even the ambitions of the Clean Power Plan were limited compared to what the ambitions of this administration are,” she said.
Companion performance standards for new plants were released by the outgoing administration earlier this month. Though the standards were left unchanged from 2015 levels, the Trump administration added a new threshold that sources must meet in order to be regulated under the rule.
States and groups quickly launched legal challenges against the most recent rulemaking, claiming the new threshold was added illegally without proper public input. And Biden asked the EPA to swiftly reexamine Trump rules on scientific considerations and cost-benefit analyses under the Clean Air Act.
Both rules put limits on how scientific research and cost and benefits are weighed under the statute, which critics worry could further hem Biden's ability to craft new air regulations. The new cost-benefit rule finalized late last year would require agencies to analyze a rule's primary targeted benefits separately from co-benefits like reducing greenhouse gas emissions. The newly finalized science rule puts a limit on how much weight agencies can give nonpublic scientific data in rulemaking analysis.
Also on the “chopping block” is a rule that scraps enforcement of a decades-old policy locking in toxic air pollution controls for large facilities. The Clean Air Act requires large refineries and other facilities to always be regulated under the maximum toxic air standards if they qualify as a major source. Trump's EPA crafted a rule that would let those sources off the hook if they managed to lower their emissions — a policy that is expected to be reviewed early in the new administration.
Bloomberg also notes that environmentalists are calling on the Biden administration to boost national ambient air quality standards, also called NAAQS, after the previous administration's refusal to beef up protections against dangerous levels of soot and smog pollution.
Groups say that stronger NAAQS and the “once in always in” rule are particularly important in stemming the disproportionate air pollution burden carried by communities “on the fence line” of industrial facilities — often comprised predominately people of color.
Although it was still enmeshed in lengthy legal battles, Trump administration softened rules on tailpipe greenhouse gas emissions and these are also likely on the Biden administration's radar.
The two-part Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule scrapped California's historic waiver to set its own vehicle emission standards and pared back fuel efficiency standards for car manufacturers from 5% to 1.5%. The new administration's order says agencies “should consider the views of representatives from labor unions, States, and industry” when evaluating the rule.
Finally, Bloomberg says the new EPA is set to examine emissions regulations for the oil and gas sector on methane, a highly potent greenhouse gas. The Trump administration last year scrapped 2016 methane leak monitoring requirements. The move was celebrated by smaller producers, though some large oil and gas companies in compliance with the Obama-era requirements criticized the rollback.
Judges refused to put the rule on ice after environmentalists sued to freeze implementation. Legal challenges currently pending on Trump's methane, tailpipe, and other emissions rules could be declared moot when the new Biden administration starts new rulemaking.
So, we will see. Clearly, the new administration is pressing for additional environmental rules, in part to replace those recently abandoned but also to impose tighter regulations in support of increasing environmental quality. These will be generally controversial and should be watched closely as they are proposed and litigated, Washington Insider believes.
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