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The Insider

The Biden EPA is facing a series of early policy and legal challenges to its air and climate agenda, as the agency grapples with whether to scrap Trump-era reviews of federal air quality standards, how to mediate thorny disputes over interstate air pollution, and how to balance its ambitious climate agenda with a new focus on environmental justice.

Environmentalists are now suing the agency not only to challenge the adequacy of its December national ambient air quality standards (NAAQS) for ozone and particulate matter (PM) under the Clean Air Act, but also to advance novel arguments seeking to force the agency to consult on NAAQS with other federal agencies under the Endangered Species Act. The latest suit targets the ozone NAAQS, following a similar suit brought against the agency over the PM NAAQS.

Ozone Suit Adds To Pressure On EPA For NAAQS Species Assessments
The Center for Biological Diversity (CBD) has filed a lawsuit claiming the Trump EPA’s decision to retain the existing ozone ambient air limits is unlawful because the agency did not conduct an Endangered Species Act (ESA) review of the policy, echoing a similar recent CBD species challenge to EPA’s retention of particulate matter (PM) limits.

Both lawsuits are pending in the U.S. Court of Appeals for the District of Columbia Circuit, and if either case succeeds it could establish a new mandate for EPA to conduct ESA Section 7 assessments with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service on the adverse impacts of ozone, PM and the four other criteria pollutants that EPA regulates with its NAAQS.

Meanwhile, a conservative group is alleging that broader litigation brought by 15 states and a coalition of environmental groups against the ozone NAAQS, seeking tougher standards, is merely a “Trojan Horse” for greenhouse gas regulation by the “back door.” The group alleges that EPA is colluding with states and environmental groups to unlawfully force sweeping new GHG limits via tougher “secondary” ozone NAAQS.

Secondary standards are required under the Clean Air Act to protect the environment, while primary limits exist to protect public health. To date, EPA has spurned creating a NAAQS for GHGs, despite pressure from some environmental groups to do so.

Conservative Group Says States’ Ozone Suit ‘Trojan Horse’ For GHG Limits
Energy Policy Advocates, a conservative-leaning group focused on transparency in federal energy policy, claims that a lawsuit filed by 15 states and 14 environmental organizations over the Trump EPA’s rule retaining Obama-era ozone air standards is a “Trojan Horse” that ultimately aims for tighter regulation of greenhouse gases.

The Biden EPA also faces a looming March 15 deadline to complete its revision to the Cross-State Air Pollution Rule (CSAPR) emissions trading program for power plants, required under a 2019 appeals court remand. The remand by the U.S. Court of Appeals for the District of Columbia Circuit found that the rule, as updated in 2016 by the Obama EPA, does not adequately help states meet their air law attainment deadlines for ozone NAAQS.

In response, the Trump EPA last year proposed tougher limits on ozone-forming emissions for states, but some East Coast states and environmental groups want the agency to cut emissions further, while major industry groups are resisting the tighter emissions caps. Industry groups also reject environmentalists’ and states’ push for inclusion of non-power plant sources. The agency has now sent its final version of the rule for White House review.

CSAPR Remand Marks First Biden EPA Air Policy Sent For OMB Review
EPA has sent for White House Office of Management & Budget (OMB) pre-publication review its final rule that responds to an appellate court ruling forcing it to strengthen the Cross-State Air Pollution Rule (CSAPR) emissions trading program, a move required by a legal deadline but that also represents the first Biden EPA air rule to seek OMB approval.

The Biden administration is emphasizing the importance of environmental justice in its decision making, and this will extend to EPA climate rules, former agency officials say, pointing to the new administration’s staffing decisions as evidence of the importance of these twin priorities.

Early Biden Actions Highlight Effort To Bolster Focus On Climate, Equity
Former EPA officials say several early actions by the Biden administration illustrate a renewed focus on climate change and environmental justice (EJ) at EPA and all other parts of the government, including selecting personnel who have extensive experience in these areas and taking a multi-pronged approach to implementing policies.

But environmental justice advocates and others warn that some possible climate policies, such as emissions trading, are at odds with the needs of equity communities. Obtaining guaranteed reductions in both GHGs and conventional air pollution from power plants and vehicles in such communities must be the priority, advocates say.

Environmental Equity Focus Could Constrain Biden EPA’s Climate Policy
President Joe Biden’s commitment to focus on environmental justice (EJ) in all federal government actions will be a significant factor shaping his administration’s policies to fight climate change that could limit EPA and other agencies’ regulatory options for tackling greenhouse gas emissions, according to environmental lawyers.