At the request of the Biden administration, a federal appeals court sent back to the Environmental Protection Agency (EPA) a Trump administration decision to apply new standards for greenhouse gases to one industry, the electric power industry.
The rule, published Jan. 13, would have freed the oil and gas industry from EPA new source performance standards (NSPS) for greenhouse gases.
Lawsuits challenged the rule in the US Court of Appeals for the District of Columbia Circuit, after which several states and localities led by Xavier Becerra, then attorney general of California, petitioned the EPA Mar. 15 to reconsider the rule.
The EPA asked the court to vacate and remand the rule, and the court did so in an order issued Apr. 5. The court noted that that the requested remand was unopposed.
A question of significance
The sequence of events started with the Obama administration in 2015 issuing an NSPS rule for greenhouse gases from electric power generating units. At that time, the EPA did not choose to issue similar rules for other industries.
In 2017, President Trump issued an executive order requiring review of that and other rules, his purpose being to modify or eliminate rules if they unduly burden US energy production. One week before the end of the Trump presidency, the Federal Register published EPA’s final rule concluding that no industry other than electric power generation should be burdened with a greenhouse gas NSPS.
The basis for the final rule was Clean Air Act Section 111(b)(1)(A), which says the EPA administrator’s list of industries to be regulated for an air pollutant “shall include a category of sources in such list if in his judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.”
The EPA decided to set a threshold for significance. It concluded that only industries contributing more than 3% of US greenhouse gas emissions should be said to contribute “significantly” to air pollution.
The oil and gas industry has been estimated to contribute no more than 3% of US greenhouse gas emissions, which meant, by the new standard, no NSPS on greenhouse gases was needed for the oil and gas sector.
Some states went to court to challenge the rule. In addition, 19 states and several localities petitioned Michael Regan, the new EPA administrator, to reconsider the January rule.
“EPA failed to provide the public with notice and an opportunity to comment on its new concept of employing a ‘natural breakpoint’ to justify setting a threshold of significance under section 111 and its new determination that three percent of total US emissions is an appropriate threshold,” said the petition.