Climate Regulation Tracker
Last Updated: August 23, 2013
Regulatory Tracker Guide
EPA Rules, Findings, and Interpretation
EPA's Endangerment Finding was finalized on December 7, 2009 and published on December 15. The effective date was January 14, 2010. In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court found that greenhouse gases are air pollutants covered by the Clean Air Act. The Court held that the EPA Administrator must determine under section 202(a) of the Clean Air Act whether or not emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare. On April 17, 2009, the Administrator signed a proposal with two distinct findings. First, an “endangerment finding” for six greenhouse gases—carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6). Second, a “cause or contribute” finding for the combined emissions of CO2, CH4, N2O, and HFCs from new motor vehicles and motor vehicle engines.
Regulation Under PSD and Title V Thresholds
PSD and Title V Permitting For GHGs (“BACT Guidance”)
On September 30, 2009, EPA announced a proposed rule (the "tailoring rule") focused on large facilities emitting over 25,000 tons of greenhouse gases annually. The final rule moved the threshold to 75,000 or 100,000 tons. These facilities would be required to obtain permits that would demonstrate usage of best practices and technologies to minimize emissions. The rule proposes new GHG emission thresholds that define when Clean Air Act permits under the New Source Review (NSR) and title V operating permits programs would be required for new or existing facilities. The proposed thresholds would cover approximately 70% of national GHG emissions from stationary sources. The proposal addresses six GHGs: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFC), perfluorocarbons (PFC), and sulfur hexafluoride (SF6). EPA is proposing carbon dioxide equivalent (CO2e) as the preferred metric for determining GHG emissions rates for any combination of these six GHGs, but has requested comments on alternative measures. The proposed rule was published on October 27. The comment period closed on December 28, 2009.
Timing Rule/Reconsideration Decision
EPA reconsidered a December 18, 2008 interpretive memorandum from then-Administrator Stephen L. Johnson. The memorandum discussed when the Clean Air Act's PSD program would apply to a pollutant such as carbon dioxide. The comment period closed on December 7, 2009. The reconsideration was sent to the White House for OMB review on March 5, 2010 and finalized on March 29, 2010. The Guidance clarifies that Clean Air Act regulation of GHGs under the PSD and Title V programs will not "take effect" until at least January 2, 2011, when the "Cars Rule" is expected to take effect.
Prevention of Significant Deterioration GHG Federal Implementation Plan and Finding of Inadequacy of State Implementation Plans
On September 2, 2010, EPA proposed a pair of rules related to implementation of the PSD program for GHGs. First, EPA proposed a finding of substantial inadequacy for 13 EPA-approved State Implementation Plans (SIPs) as they relate to GHGS. That rule also issued a call for new SIPs. Second, EPA proposed a Federal Implementation Plan to "backstop" those areas of the country without SIPs or with SIPs that are now inadequate.
EPA Issues Final Rule on State Authority to Issue PSD Permit
On December 1, 2010, EPA issued a Final Rule that the EPA approved state implementation plans (SIP) of 13 states were substantially inadequate to meet Clean Air Act (CAA) requirements because they did not apply Prevention of Significant Deterioration (PSD) requirements to greenhouse gas (GHG)-emitting sources. In August of 2010, EPA had preliminarily determined that 13 jurisdictions lacked adequate legal authority to carry out the Tailoring Rule beginning January 2, 2011. The December 1, 2010 Rule makes this determination final for permitting authorities in Arizona, Arkansas, California, Connecticut, Florida, Idaho, Kansas, Kentucky, Nebraska, Nevada, Oregon, Texas, and Wyoming. In addition, EPA issued a ‘‘SIP call’’ for each of these states, which requires the state to revise its SIP as necessary to correct the inadequacies. Seven of the above-listed states requested that EPA establish a December 22, 2010 deadline for revising their PSD regulations, thus allowing EPA to implement a Federal permitting program in those states by January 2, 2011 if the deadline is missed. Five other states indicated that they will be able to submit revisions to their PSD regulations soon after January 2, 2011 (before any sources applying for permits are adversely affected). The state of Texas did not select a deadline and was given a default deadline of December 1, 2011 by the Final Rule to amend its PSD regulations.
Issuance of Permits to Large New and Modified Sources
On December 23, 2010 the Environmental Protection Agency passed a series of rules to ensure that every state has the authority to issue permits to large new and modified sources for greenhouse gas emissions beginning Jan. 2, 2011. The final rule will imposes a federal implementation plan (FIP) as early as December 23, on states that do not allow them to begin issuing GHG permits or that have not modified their state implementation plans (SIPs) and the laws and regulations underlying them such to allow permitting. EPA also acted to narrow SIP-approved Prevention of Significant Deterioration (PSD) programs to the GHG thresholds promulgated in the Tailoring Rule, ensuring that smaller sources do not need to obtain federal permits. Lastly, EPA issued Final Title V Permitting Programs Under the Greenhouse Gas Tailoring Rule, narrowing SIP approvals to the Tailoring Rule thresholds for Title V programs in 33 states.
Rules Ensuring Authority to Permit GHGs Under the PSD Program
Rules Focusing GHG Permitting Initially on the Largest Sources
Final Action to Ensure Authority to Issue Permits under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Federal Implementation Plan for Jefferson County, Kentucky
On January 10, 2011, EPA found that the Louisville Metro Air Pollution Control District (LMAPCD) failed to submit a revised state implementation plan to cover GHG permitting for Jefferson County by their selected deadline (January 1, 2011) and issued a federal implementation plan (FIP) to giving EPA the authority to issue PSD permits for sources of GHG emissions in Jefferson County, KY until the LMAPCD submits a revised plan that is approved by EPA.
EPA Rulemaking Deferring GHG Permitting Requirements for CO2 Emissions from Biomass and Other Biogenic Sources Vacated
On January 12, 2011, EPA announced its plan to defer, for three years, GHG permitting requirements for carbon dioxide (CO2) emissions from biomass-fired and other biogenic sources. (Deferral Rule) In July 2011, EPA completed a rulemaking stating the same. This deferral was intended to allow the agency further time to investigate whether biomass burning is carbon neutral if the biomass is taken from sustainably managed forests. This decision was then to inform the EPA's decision whether or not to require a permit under the PSD program.
However, a challenge to EPA’s authority to exempt biomass burning and landfill sources filed by the Center for Biological Diversity ended with the D.C. Circuit Court's vacating the Deferral Rule. Center for Biological Diversity v. EPA (D.C. Cir. No. 11-1101). The D.C. Circuit Court held that once the EPA made the endangerment finding for carbon dioxide the agency did not have the authority under the CAA to exempt major stationary sources from permitting requirements. The Court also acknoweldged that the EPA commissioned study may find that biomass fuels are carbon neutral in which case the EPA's decision to exempt biomass would be legitimate.
EPA Issues Revised BACT Guidance
In March 2011 EPA issued a revised version of its November 2010 guidance for the application of PSD and Title V permitting requirements to GHG emissions from stationary sources. The revised guidance makes technical corrections but does not substantively change policy.
Treatment of Fugitive Emissions in the New Source Review Permitting Program - Interim Replacement Stay
On March 8, 2011 EPA issued an interrim final rule to stay a December 2008 Bush Administration Rule known as the “Fugitive Emissions Rule.” The Fugitive Emissions Rule allowed fugitive emissions (involving emissions that do not pass through a stack, chimney, vent or other similar opening) to be excluded when determining the applicability of PSD permitting requirements for major modifications of certain sources. This stay replaces the stay EPA issued on March 31, 2010, that was to be effective through October 3, 2011. EPA intends to finalize its reconsideration of the Fugitive Emissions Rule by October 2012.
EPA Releases Proposed Determination to Defer GHG Permitting Requirements for Industries that Use Biomass and Bioenergy, Releases Interim BACT Guidance on Bioenergy
On March 11, 2011, EPA released a proposed determination that GHG emissions from biomass combustion will not be counted towards emission thresholds for Prevention of Significant Deterioration (PSD) and Title V permitting under EPA’s June 2010 “Tailoring Rule” for a period of three years. The rule will take effect July 1, 2011. During the three year period EPA will seek scientific and industry advice in order to determine how emissions from biomass should be treated under EPA’s air permitting program. EPA will accept comments on the proposal for a period of 45 days following its publication in the Federal Register. For the interim period before this determination is finalized and becomes legally effective, EPA released a companion document that provides guidance for the determination of “best available control technology” (BACT) in PSD proceedings involving biogenic CO2 emissions from bioenergy facilities. This guidance provides data and reasoning that PSD permitting authorities may voluntarily utilize to determine that the combustion of biomass is itself BACT for biogenic CO2 emissions. Sources covered by this proposal would include facilities that emit CO2 from burning forest or agricultural products for energy, wastewater treatment, waste management (landfills), and fermentation processes for ethanol production. Facilities meeting the requirements under the agency’s GHG reporting program will still need to report their CO2 emissions.
A Public Hearing on this Proposed Rule will be held in Washington, DC.
Final Rule Covering GHG Permitting in Texas
On April 22, 2011 EPA issued a final Federal Implementation Plan (FIP) for the state of Texas under Section 110 of the CAA. The FIP allows EPA to assume responsibility for administering PSD permitting requirements for GHG emissions and replaces the interim FIP issued in December 2010. Under the final FIP, EPA will continue to manage the GHG-related aspects of PSD permit applications in Texas until the state revises its SIP to come into compliance with the Tailoring Rule. The FIP does not interfere with Texas’ authority to issue PSD permits for conventional pollutants. In response to the issuance of the FIP, Texas files a petition for review in the U.S. Court of Appeals for the D.C. Circuit.
Final Rule to Repeal Grandfather Provision
On May 10, 2011 EPA issued a final rule to repeal the “grandfather” provision for particulate matter less than 2.5 micrometers (PM2.5) under the federal PSD permit program. The grandfather provision allowed certain facilities to satisfy the
PSD permit program requirements for PM2.5 under certain circumstances by meeting the
requirements for controlling particulate matter less than 10 micrometers (PM10) and analyzing impacts on PM10 air quality as a surrogate approach based on an EPA policy known as the “1997 PM10 Surrogate Policy.” This final rule will become effective 60 days after publication in the federal register.
Proposed Step 3 for GHG Tailoring Rule Continues to Focus Permitting on the Largest Emitters
On February 24, 2012, EPA proposed a new rule addressing the levels of GHG emissions from new and modified stationary sources that will trigger PSD permitting after July 1, 2013. The proposed rule also addresses GHG emission thresholds for Title V permitting of new and existing sources. The proposed rule did not recommend any changes to the thresholds in EPA’s April 2010 Tailoring Rule. While EPA had originally indicated that it might eventually apply PSD and Title V permitting requirements to smaller sources, the preamble to the proposed rule argues that state permitting authorities are not yet ready to handle the larger volume of permit applications that would result from a lower emission threshold. The proposed rule also includes two amendments to the Tailoring Rule that are intended to streamline PSD permitting procedures. One amendment would allow facilities to make modifications without obtaining a PSD permit provided that the source’s GHG emissions do not exceed a “plantwide applicability limit;” the other would allow EPA to issue simplified “synthetic minor” permits to sources that maintain their GHG emissions below PSD permitting thresholds by adopting operating restrictions or other measures.
EPA Issues Step 3 of the GHG Tailoring Rule and Continues to Focus Permitting on the Largest Emitters
On July 3, 2012 EPA issued a final rule that is the third step in EPA’s implementation of prevention of significant deterioration (PSD) permitting for greenhouse gases. The final rule retains the greenhouse gas (GHG) permitting thresholds that were established in Steps 1 and 2 of the GHG Tailoring Rule. These emission thresholds determine when Clean Air Act permits under the New Source Review Prevention of Significant Deterioration (PSD) and Title V Operating Permit programs are required for new and existing industrial facilities. Under Steps 2 & 3, new facilities with GHG emissions of at least 100,000 tons per year (tpy) carbon dioxide equivalent (CO2e) and existing facilities with at least 100,000 tpy CO2e making changes that would increase GHG emissions by at least 75,000 tpy CO2e are required to obtain PSD permits. Facilities that must obtain a PSD permit anyway, to cover other regulated pollutants, must also address GHG emissions increases of 75,000 tpy CO2e or more. New and existing sources with GHG emissions above 100,000 tpy CO2e must also obtain operating permits. EPA stated that it was retaining current permitting thresholds to allow state permitting authorities more time to develop necessary permitting infrastructure and to increase their GHG permitting expertise and capacity as well as to allow EPA additional time to developed streamlined permitting approaches. The final rule also EPA revised EPA regulations to allow a source that emits or has the potential to emit GHGs at levels above 100,000 tpy CO2e but that have emissions of other regulated pollutants at minor source levels to apply for a source-wide emissions limit (PAL) while still maintaining its minor source status.
Other Key Standards for Fossil Fuel Fired Power Plants and Petroleum Refineries
EPA Revises and Weakens Utility MATS
In March 2013 the EPA issued a final rule imposing less stringent emissions limits on mercury and air toxics emitted by new coal and oil-fired power plants. The revised rule came after the EPA's previous rule was successfully challenged in White Stallion Energy Center v. EPA (D.C. Cir 2012). Parties challenging the EPA in White Stallion argued that they were caught in a bind between the standards set by the EPA, which challengers argued were so low so as to bar them from constructing new power plants, and being forced to meet the EPA’s greenhouse gas NSPS standards due to construction delays from the 2012 MAT rule. The DC Circuit Court required the EPA to reconsider the rule but had declined to set a date on the revised rule. The revised rule is available here.
EPA Issues MACT and NSPS Standards for all Coal and Oil Fired Power Plants
On March 16, 2011 EPA set its first national standard to reduce mercury and other air toxics from power plants when it signed proposed rules to regulate hazardous air pollutants from coal-fired and oil-fired electric utility steam units. The proposed rule package entitled “National Emission Standards for Hazardous Air pollutants from Coal- and Oil-Fired Electric Utility Steam generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units” sets strict emissions limits for all coal-fired and oil-fired electric steam generating units (EGUs). EPA issued the two rules together in a single package as both the Maximum Achievable Control Technology (MACT) standards and New Source Performance Standards (NSPS). Comments on the proposed rules are due 60 days after publication in the Federal Register. EPA plans to hold public hearings on the proposal.
EPA Issues Supplemental Rulemaking Amending CSAPR to Include Additional States (December 2011)
On December 15, 2011, EPA finalized a supplemental rulemaking entitled “Federal Implementation Plans for Iowa, Michigan, Missouri, Oklahoma, and Wisconsin and Determination for Kansas Regarding Interstate Transport of Ozone.” The rule brings five additional states under the ozone season NOx program of the Cross‐State Air Pollution Rule (CSAPR), also known as The Transport Rule (finalized on July 6, 2011). This rule requires Iowa, Michigan, Missouri, Oklahoma, and Wisconsin to reduce summertime (May through September) NOx emissions as part of the Cross‐State Air Pollution Rule (CSAPR) ozone season control program. Although EPA had proposed to impose similar ozone-season NOx limitations on Kansas, EPA decided not to include those limitations in the final rule because Kansas has submitted a state implementation plan (SIP) that is expected to address interstate ozone transport. Additionally, four of these states – Iowa, Michigan, Missouri, and Wisconsin – in addition to Kansas, are also included in the fine particle control program of the CSAPR, requiring year‐round (as opposed to summertime) NOX reductions. The CSAPR, together with this supplemental action, will protect the health of millions of Americans by helping states reduce air pollution and attain clean air standards. The supplemental ruling brings the CSAPR coverage to 28 states which are required to significantly improve air quality by reducing power plant emissions that contribute to ozone and/or fine particle pollution in other states. Along with the rest of CSAPR, these requirements will take effect beginning in spring 2012 for the states affected by the new amendments.
Court of Appeals for the D.C. Circuit Overturns CSAPR, Third Circuit Court of Appeals upholds EPA's authority to provide direct ruling against cross-boundary pollutors (August 2012- present)
In EME Homer City Generation, L.P. v EPA the D.C. Circuit Court of Appeals overturned the EPA’s Cross-State Air Pollution Rule (also known as the transport rule) stating that the agency had exceeded its statutory authority. The Court ordered EPA to instead enforce the previous applicable regulation, the 2005 Clean Air Interstate Rule (CAIR), which dealt with interstate pollution until it established a lawful replacement to the transport rule. In January 2013 the Court of Appeals denied the EPA’s petition for an en banc hearing of the decision to vacate the CSAPR. A petition for review filed by the U.S. Solicitor General is currently pending before the Supreme Court.
In GenOn REMA LLC v. EPA the Third Circuit Court of Appeals ruled that EPA had the authority to issue a direct ruling against a power generator for cross boundary pollution. (No.12-1022). The case was brought by the New Jersey Department of Environmental Protection against GenOn in an effort to stem upwind emissions from their Pennsylvania plant. EPA issued a direct ruling against GenOn requiring them to decrease sulfur dioxide emissions by 81% in three years. The Third Circuit upheld the action and an interpreted 126(b) to provide downwind states recourse against upwind states.
Background on Cross-State Air Pollution Rule (July 2011)
On July 6, 2011 EPA finalized the Cross-State Air Pollution Rule (originally proposed as the “Clean Air Transport Rule”). The rule establishes a regulatory framework for reducing interstate sulfur dioxide (SO2) and nitrogen oxide (NOx) emissions from 1,081 power plants in 27 “upwind” states in the eastern United States. According to EPA, SO2 and NOx emissions from power plants in these upwind states significantly contribute to nonattainment with, or impaired maintenance of, certain National Ambient Air Quality Standards (NAAQS) for ozone and fine particulate matter (PM2.5) in “downwind” states. This rule replaces EPA's 2005 Clean Air Interstate Rule (CAIR). A December 2008 court decision kept the requirements of CAIR in place temporarily but directed EPA to issue a new rule to implement Clean Air Act requirements concerning the transport of air pollution across state boundaries. This action will substantially reduce adverse air quality impacts in downwind states from emissions transported across state lines. Under the rule, some plants face compliance obligations starting in 2012. The final version adds emission limits for the state of Texas, and establishes provisions under which states may set aside allowances to reward energy efficiency. EPA also issued a Supplemental Notice of Proposed Rulemaking that would subject an additional six states to seasonal ozone reduction requirements under the rule.
New Source Performance Standards & CAA Section 111
EPA Issues Proposed NSPS for Greenhouse Gas Emissions from New Electric Utilities
In September 2013 the EPA proposed new source performance standards for greenhouse gas emissions from new electric utility generating units. The rule covers both coal fired and natural gas fired power plants. Emissions from coal fired plants are capped at 1,100 pounds per megawatt hour and emissions from gas fired power plants are capped at 1,000 pounds per megawatt hour. The draft regulation is the source of great controversy as technology allowing coal fired power plants to operate with emissions meeting the proposed standard does not exist.
EPA misses deadline for final NSPS regulations for power plants
In April 2013 the EPA missed a deadline to issue final NSPS standards limiting greenhouse gas emissions from new power plants. Despite the threat of litigation from number of environmental groups, states, and cities the EPA has declined to set a deadline for releasing final regulations on the power plants. EPA has cited the 2.7 million comments received on the rule proposed in March 2012 as a reason for the continuing delays on a rule heavily sought by environmental groups. In addition to issuing final rules for new plants, the EPA has committed to issuing limits for existing plants although standards for existing plants cannot be set until after new source performance standards have been issued.
GHG New Source Performance Standard for Electric Generating Plans & GHG Emission Guidelines for Existing Sources
On March 27, 2012 the EPA announced the proposed New Source Performance Standard for CO2 emissions from Electric Generating Units over 25MWe. Proposed regulations were published in the Federal Register on April 13, 2012 and recieved a record three million comments.
Settlement Agreements to Address Standards of Performance for Petroleum Refineries
On December 16, 2010, the EPA entered into a settlement agreement to issue rules that will address greenhouse gas emissions from petroleum refineries. Under the terms of the agreement EPA would commit to issuing proposed regulations for new sources and emissions guidelines for existing sources by December 10, 2011 and final regulations by November 10, 2012.
Settlement Agreements to Address GHG Emissions from Electric Generating Units and Refineries
On December 21, 2010, the EPA entered into a settlement agreement to issue rules that will address greenhouse gas emissions from fossil fuel-fired power plants. Along with refineries, these two industrial sectors make up nearly 40 percent of the nation’s greenhouse gas emissions. Under the terms of the agreement EPA would commit to issuing proposed regulations for new sources and emissions guidelines for existing sources by July 26, 2011 and final regulations by May 26, 2012. The settlement agreement became final March 2, 2011.
EPA Reaches Agreement to Defer GHG Performance Standards for Power Plants
On June 13, 2011, EPA announced that it has re-negotiated a December 2010 settlement agreement with states and environmental organizations that originally required the Agency to propose New Source Performance Standards (NSPS) for GHG emissions from new and modified power plants by July 26, 2011. Under the new agreement, the NSPS are not required to be proposed until September 30, 2011. The extension will not affect the deadline to issue a final rule, which was due May 26, 2012 but was not issued, nor does it alter the deadlines in a separate settlement agreement requiring EPA to propose NSPS for petroleum refineries by December 2011 and finalize them by November 2012.
EPA Delays Indefinitely Proposal to Regulate GHG Emissions from Power Plants
In late September, EPA confirmed that it would not meet a Sept. 30, 2011, deadline for issuing proposed New Source Performance Standards (NSPS) to limit greenhouse gas emissions from new, modified, and existing power plants. The agency did not specify a new deadline for proposing the rule, nor did it clarify whether the Agency intends to meet a separate November 2011 deadline for issuing GHG NSPS for petroleum refineries. This is the second time the standards have been delayed. EPA originally committed to release the standards by July 26th, 2011 according to the terms of a December 2010 settlement agreement between the Agency and various environmental organizations that litigated to compel the issuance of the NSPS. The proposal was postponed to the end of September, with the regulations to be finalized by the end of May 2012. EPA will likely re-negotiate the date.
EPA Postpones Indefinitely Issuing Proposed GHG Performance Standards for Refineries
In late November 2011, EPA announced that it has indefinitely deferred the release of proposed greenhouse gas emission standards for new and existing petroleum refineries. Under a December 2010 settlement agreement with states and environmental organizations, EPA had agreed to issue the proposal in November 2011 and promulgate final standards in July 2012. Although EPA did not specify a new deadline for issuing the standards, it is expected that these standards will not be issued until after EPA completes proposed GHG performance standards for the power sector.
EPA Issues Proposed GHG Standards for New Power Plants
On March 27, 2012, the EPA issued a proposed rule setting a nationwide greenhouse gas emission standard from new fossil fuel electric generating units (EGUs). Under this proposed New Source Performance Standard (NSPS), new fossil fuel EGUs would be subject to a maximum CO2 emissions rate of 1,000 pounds per megawatt-hour (lb/MWh). A new coal-fired EGU could not meet this standard without installing carbon dioxide capture technology (CCS equipment). The proposal includes an “alternative compliance option,” allowing new EGUs to be constructed without CCS technology if they do not exceed a CO2 emissions rate of 1,800 lb/MWh, and if, beginning in their eleventh year of operation, they commit to reducing emissions to 600 lb/MWh. Again this would require the installation of CCS equipment to capture and sequester CO2. The proposed standards would not apply to existing EGUs, or to the modification or reconstruction of existing EGUs. The standards would also not apply to new coal-fired EGUs that have already received preconstruction permits and that commence construction within 12 months from the date the proposal is published in the Federal Register.
EPA Finalizes Emission Standards for Oil and Gas Sector
On April 17, EPA finalized New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants limiting emissions of volatile organic compounds (VOCs), sulfur dioxide, and hazardous air pollutants from a variety of sources in the oil and gas sector. The final rules are expected to yield a nearly 95 percent reduction in VOC emissions from more than 11,000 new hydraulically fractured gas wells each year. This significant reduction would be accomplished primarily through capturing natural gas that currently escapes into the air, and making that gas available for sale. The new standards require certain hydraulically fractured gas wells and refractured existing wells constructed or modified after August 23, 2011 to use “green completion” technologies starting in January 1, 2015. These technologies separate and recover methane and VOCs from flowback fluid. The rules also will reduce air toxics, which are known or suspected of causing cancer and other serious health effects, and emissions of methane, a potent greenhouse gas by establishing emission control requirements for compressors, pneumatic controllers, storage vessels, glycol dehydrators, and equipment leaks at natural gas processing plants.
Greenhouse Gas Reporting Rule
Proposed revisions to Global Warming Potentials under GHG Reporting Rule (April 2013)
EPA has proposed revisions to global warming potential values utilized by parties in complying with EPA’s greenhouse gas emissions reporting rule. The proposal seeks to align the global warming potential values with current international standards by utilizing values provided in the IPCC’s most recent assessment. Some notable revisions include: increased global warming potential for methane, inclusion of 26 fluorinated greenhouse gases not previously included in the rule, and decreased values for some gases such as nitrous oxide and sulfur hexafluoride. The proposal will be open for comments until May 17th 2013.
Greenhouse Gas Reporting Rule
Finalized by EPA on September 22, 2009, this rule requires reporting of GHG emissions from large sources in the United States, and is intended to collect data to inform future policy decisions. The rule requires suppliers and large sources across 30 source categories to begin reporting in 2010. Parties subject to the rule include: suppliers of fossil fuels or industrial greenhouse gases, manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more per year of GHG to submit annual reports to EPA. The gases covered are carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFC), perfluorocarbons (PFC), sulfur hexafluoride (SF6), and other fluorinated gases including nitrogen trifluoride (NF3) and hydrofluorinated ethers (HFE). Reporters began monitoring on January 1, 2010, and the first reports are due March 31, 2011.
Greenhouse Gas Reporting Rule Amendments and Source Amendments Generally
In administering the Greenhouse Gas Reporting Rule (see above) the EPA is engaged in an ongoing rulemaking process which continues to expand the scope of sources required to report by adding emissions source categories and activities. The most recent final and proposed rulemakings under the Greenhouse Gas Reporting Rule can be found here.
Greenhouse Gas Reporting Rule Confidentiality Determination
On June 28, 2010, Administrator Jackson signed the Proposed Confidentiality Determination. This action proposes to determine which data elements to be reported would be publicly available and which would be kept confidential. The public comment period for this proposed rulemaking will be open for 60 days after publication in the Federal Register.
Greenhouse Gas Reporting Rule Additional Source Categories Added for Reporting Year 2011
On June 2010, Administrator Jackson signed the final rule for Mandatory Reporting of Greenhouse Gases from Magnesium Production, Underground Coal Mines, Industrial Wastewater Treatment, and Industrial Waste Landfills.
In November 2010, Administrator Jackson signed the final rule for Mandatory Reporting of Greenhouse Gases from Petroleum and Natural Gas Systems. The rule includes sources "that contain petroleum and natural gas systems and emit 25,000 metric tons or more of GHGs per year" with emissions measured in terms of carbon dioxide equivalents.
In December 2010, Administrator Jackson signed the final rule for Mandatory Reporting of Greenhouse Gases: Additional Sources of Fluorinated GHGs. This rule includes electronics manufacturing, fluorinated gas production, electrical equipment use, electrical equipment manufacture or refurbishment, as well as importers and exporters of pre-charged equipment and closed-cell foams.
In December 2010, Administrator Jackson signed the final rule for Mandatory Reporting of Greenhouse Gases: Injection and Geological Sequestration of Greenhouse Gases. This rule includes all facilities that are involved in geological sequestration or underground injection of carbon dioxide.
Greenhouse Gas Reporting Rule Corporate Parent/NAICS Code Amendment
On September 16, 2010, Administrator Jackson signed a final amendment to the Mandatory GHG Reporting Rule that requires reporting companies “to also report their corporate parent companies, the North American Industry Classification System (NAICS) codes that apply to the facility/supplier and whether or not reported emissions reported include those from a cogeneration unit.”
Greenhouse Gas Reporting Final Rule Technical Corrections, Clarifying and Other Amendments
On October 28, 2010, EPA amended specific provisions in the 2009 Final Mandatory Greenhouse Gas Reporting rule to correct certain technical and editorial errors that were identified after promulgation. The Amendments served, among other things, to clarify compliance obligations and correct certain data reporting elements so that they would more closely conform to the information used to perform emission calculations. The final rule amendments became effective on November 29, 2010.
EPA Updates to GHG Reporting Program in 2011
EPA announced the following concurrent actions relating to data elements reported under EPA’s GHG Reporting Program (GHGRP).
- On March 17, 2011 EPA issued a final rule that extended the deadline for reporting data under the GHG Reporting Rule until September 30, 2011. The original deadline was March 31, 2011. EPA had previously announced its intention to extend the deadline on March 1, 2011. The new deadline for GHG Reporting Program entities to register with the electronic GHG reporting tool is August 1, 2011.
- EPA postponed the deadline for facilities to submit data used for calculating their 2010 GHG emissions from March 31, 2011 to August 31, 2011. This interrim final rule affects only data used to calculate the emissions and facilities will still be required to report their total emissions by March 31 for release to the public. Interim Final Rule.
- EPA issued a final rule extending the deadlines related to using Best Available Monitoring Methods from June 30, 2011 to September 30, 2011. Final Rule.
- EPA requests information and comment to assist in evaluating issues related to reporting and public availability of inputs to emission equations. The public has 60 days from the date of publication in the Federal Register to submit comments and requested information. Call for Information.
EPA Sends OMB Final Rule Amending Economy-Wide GHG Emissions Reporting Rule
On Jan. 21, 2011 the EPA sent the White House Office of Management and Budget a final rule amending the economy-wide GHG emissions reporting rule. The rule is intended to prevent the disclosure of trade secrets and other confidential business information on GHG emissions from reporting facilities while making public other information. Review by OMB is usually the last step before a final rule is approved.
EPA Gives Oil, Gas Companies More Time to Apply for Alternate Emissions Reporting under Subpart W
On April 25, 2011 EPA published a final rule amending the GHG monitoring and reporting requirements for petroleum and natural gas facilities (“Subpart W” of the agency’s GHG reporting regulations). The amendment gives regulated facilities an additional three months to request authorization to use “best available monitoring methods” (BAMM) to measure and quantify certain categories of GHG emissions in place of the more restrictive methods ordinarily required under Subpart W. Companies originally had to submit an application by April 30, 2011 to use BAMM. The current rule extends that application period to July 31. The rule also extended the period during which well owners and operators with certain emissions sources can use the alternate methods without prior approval. The original rule set that period from Jan. 1 - June 30. The final rule extends that period through Sept. 30, 2011.
EPA Finalizes Rule on Confidentiality of GHG Data
On May 26, 2011 EPA promulgated a final rule granting confidential treatment to certain categories of GHG related data that are required to be submitted to the EPA under the mandatory GHG reporting rule. The rule applies to 34 industry sectors covered by the reporting program. For the 34 sectors EPA extended confidential status to nine categories of data that must be reported by direct emitters of GHGs and eight categories that must be reported by fossil fuel and industrial gas suppliers. These categories of data will not be disclosed to the public after the first GHG reports are filed with EPA in September of 2011. In the rule, EPA deferred a decision on whether to finalize a proposal to consider inputs to emission equations as public information. The rule will become effective on July 25, 2011.
Petroleum and Natural Gas Systems: Revisions to Best Available Monitoring Method Provisions
On June 20, 2011, EPA Administrator Lisa P. Jackson signed a proposed rule that, if finalized, would extend the time period during which owners and operators of covered facilities would be permitted to use best available monitoring method (BAMM) during 2011 without submitting a request for approval to EPA under the final provisions outlined in Subpart W: Petroleum and Natural Gas Systems of the Greenhouse Gas Reporting Rule. In addition, the proposed rule, if finalized, would expand the list of types of emissions sources which may use BAMM during 2011 without submitting a request and also extend the deadline for requesting BAMM beyond 2011. This proposal was published in the Federal Register on June 27, 2011.
EPA Issues Technical Corrections and Proposes Extension to Report Certain GHG Emissions
On August 4, 2011, the EPA issued technical corrections, clarifying and other amendments to seven subparts under the Greenhouse Gas Reporting Rule. In general, the amendments do not change the overall requirements of the rule but improve clarity and ensure consistency across the calculation, monitoring and data reporting requirements. In addition, EPA is also proposing a one time six-month extension of the 2012 reporting deadline for reporting GHG information for subparts required to start collecting data in 2011. This includes, among others, electronics manufacturers, petroleum and natural gas facilities. The deadline would be extended from March 31, 2012, to September 28, 2012. This extension would allow sufficient time for stakeholder testing of the online reporting tool for these new source categories.
Technical Revisions to the Electronics Manufacturing and the Petroleum and Natural Gas Systems Categories
On August 19, 2011 EPA issued a proposed rule suggesting technical revisions to to three subparts under the Greenhouse Gas Reporting Rule, Part 98: Subparts A, I (electronics manufacturing), and W (the petroleum and natural gas systems source categories). Proposed changes include providing clarification on existing requirements, increasing flexibility for certain calculation methods, amending data reporting requirements clarifying terms and definitions, and technical corrections. Comments will be open for sixty days after publication in the federal register.
EPA Launches Electronic Reporting Tool
On August 22, 2011, EPA opened a web-based application for electronic reporting of GHG emissions data, known as the Electronic Greenhouse Gas Reporting Tool (e-GGRT). Entities subject to the reporting rule will be able to use e-GGRT to submit their first GHG reports. Registered reporters can prepare and submit annual GHG reports at ghgreporting.epa.gov. The deadline to submit 2010 reports is September 30, 2011.
Final Rule Deferring Reporting of Commercially Sensitive Data Under Mandatory Greenhouse Gas Reporting Rule
On August 25, 2011 EPA issued a final rule deferring the reporting deadline for data elements that are used by direct emitter reporters as inputs to emission equations under the GHG reporting rule. The final rule defers reporting certain inputs to emission equations until March 31, 2013 or March 31, 2015. The rule applies to data regarded as commercially sensitive because it could reveal trade secrets or other confidential information. According to EPA, the deferred reporting deadline will allow the agency to evaluate which data elements should be designated as confidential business information on a more permanent basis. The final rule became effective September 9, 2011.
Changes to Provisions for Electronics Manufacturing to Provide Flexibility
On September 27, 2011, EPA published a final rule to amend the calculation and monitoring provisions in the Electronics Manufacturing portion of the Greenhouse Gas Reporting Rule for the ‘‘largest’’ semiconductor manufacturing facilities. These amendments allow large semiconductor manufacturers to use standard emission factors to estimate their fluorinated GHG emissions in calendar years 2011, 2012, and 2013, rather than determine facility-specific emission rates based on production materials and techniques. In addition, the final rule extends two of the dates in the Subpart I provisions related to the use of best available monitoring methods (BAMM). The extension provides all electronics manufacturing facilities additional time to use BAMM in 2011 without submitting a request to the Administrator, and additional time to submit a request to use BAMM to estimate emissions beyond 2011. This final rule became effective on September 30, 2011.
Petroleum and Natural Gas Systems: Revisions to Best Available Monitoring Method Provisions
On September 27, 2011, EPA issued a rule that finalized amendments to the best available monitoring methods (BAMM) provisions in subpart W of the GHG Reporting Rule relating to petroleum and natural gas systems. With these amendments, owners and operators of facilities covered by subpart W are now permitted to use BAMM for calendar year 2011 without being required to submit a request for approval from the Administrator. In addition, EPA has expanded the types of emission sources that are permitted to use BAMM in 2011 without being required to submit a request for approval from the Administrator. Lastly, these amendments give owners and operators additional time to request to use BAMM beyond 2011. This final rule became effective on September 30, 2011.
EPA Issues Technical Correction to GHG Reporting Rule, Extends 2012 Compliance Deadline for Certain Sectors
On November 9, 2011, the EPA finalized technical corrections and other clarifying amendments to seven subparts under the Greenhouse Gas Reporting Rule. In this action, EPA amended 40 CFR part 98 to correct technical and editorial errors and to address certain issues identified as a result of working with entities required to report during rule implementation and outreach. In general, these amendments do not change the overall requirements of the rule but improve clarity and ensure consistency across the calculation, monitoring and data reporting requirements. In addition, the new rule extends the 2012 reporting deadline from March 31, 2012 to September 28, 2012 for twelve affected industry sectors, including petroleum and natural gas systems and entities injecting carbon dioxide underground. Facilities that previously reported in 2011, and plan to take advantage of the extended reporting deadline in 2012, must notify EPA by March 31, 2012 of their decision to use the extended deadline. The Final Rule became effective December 29, 2011.
Technical Revisions to the Petroleum and Natural Gas Systems Category of the Greenhouse Gas Reporting Rule
On December 23, 2011, EPA issued a final rule that amends specific provisions in subparts A and W, the Petroleum and Natural Gas Systems Category of the Greenhouse Gas Reporting Rule. These revisions provide clarification on existing requirements, increase flexibility for certain calculation methods, amend data reporting requirements, clarify terms and definitions, and provide technical corrections. These amendments do not change the overall requirements, but improve clarity and consistency across the calculation, monitoring and data reporting requirements. This rule became effective on December 28, 2011.
EPA Issues Proposed Confidentiality Determinations for Six Industries Under the Mandatory Reporting of Greenhouse Gases Rule
On January 10, 2012 EPA issued a proposed rule to determine whether the Greenhouse Gas Reporting Program data elements in six industry sectors would be entitled to confidential treatment under the Clean Air Act (CAA). The rule would apply to fluorinated gas production; electric transmission and distribution equipment; importers and exporters of fluorinated GHGs; geologic sequestration of carbon dioxide; electric equipment manufacturing; and carbon dioxide injection. These data elements will be reported to EPA for the first time in 2012. This proposed rule also contains proposed confidentiality determinations for seven new data elements recently added to subparts II (Industrial Wastewater Treatment) and TT (Industrial Waste Landfills). EPA finalized confidentiality determinations for 34 other sectors covered by the Mandatory Reporting Rule in May 2011.
2010 Greenhouse Gas Emissions Data Released through EPA’s GHG Reporting Program
On January 11, 2012, EPA released an online data publication tool that allows users to view and sort GHG data for calendar year 2010 from over 6,700 facilities. The database allows users to sort information in a variety of ways—including by facility, location, industrial sector, and the type of GHG emitted. This information can be used by communities to identify nearby sources of GHGs, help businesses compare and track emissions, and provide information to state and local governments. The 2010 GHG data includes public information from facilities in 9 industry groups, including 29 source categories, which directly emit large quantities of GHGs, as well as suppliers of certain fossil fuels and industrial gases. The database currently presents emissions data from calendar year 2010 − the first year for which data was submitted to EPA under its regulations requiring annual reporting of GHG emissions under the Mandatory Reporting Rule. Transportation, agriculture, and land use emissions are not covered by the Mandatory Reporting Rule, and are therefore not reflected in the database.
EPA Issues Final Action to Amend Electronics Manufacturing Source Category of GHG Reporting Rule
On February 22, 2012, EPA issued a final action to amend the Electronics Manufacturing source category of the Greenhouse Gas Reporting Rule, part 98. Specifically, EPA finalized amendments to the definition of fluorinated heat transfer fluids (HTFs) and to the provisions to estimate and report emissions from HTFs. EPA is finalizing these changes to reflect the Agency's intent to cover all fluorocarbons (except for ozone depleting substances regulated under EPA’s Stratospheric Protection Regulations at 40 CFR Part 82) that can enter the atmosphere under the conditions in which HTFs are used in the electronics manufacturing industry.
EPA Issues Proposed Rule on Confidentiality Determinations and Best Available Monitoring Methods under GHG Reporting Rule
On February 22, 2012, EPA issued a proposal to determine which data elements reported under subpart I of Part 98 would or would not be entitled to confidential treatment under the Clean Air Act (CAA). These data elements will be reported to EPA for the first time in September 2012. In addition, this action proposes to amend subpart I to remove the requirement that facilities that use best available monitoring methods (BAMM) recalculate the previous reporting years’ emissions and resubmit them to EPA.
EPA Updates GHG Reporting Program Data Publication Tool
On February 22, 2012, EPA updated the Greenhouse Gas Reporting Program (GHGRP) data publication tool to reflect revised data submitted by facilities in the December 17th – February 10th time frame. EPA also made other improvements to the data publication tool, including adding features to perform new queries of the data. In addition, two new GHGRP data sets are being released and may be found on EPA's GHGRP data downloads page. A description of the changes made to the publication tool since its original launch in January is available on EPA's Release Notes page.
Proposed Confidentiality Determinations for Petroleum and Natural Gas Systems
On February 24, 2012 EPA issued a proposed rule that would extend confidential treatment to certain information contained in the annual GHG emission reports submitted by oil and natural gas facilities under Subpart W of the Agency’s Mandatory Reporting Rule. Oil and natural gas facilities will be required to report fugitive, vented, and flared GHG emissions for the first time in September of 2012; combustion-related emissions from large oil and natural gas facilities have been subject to reporting since 2010. Under the proposed rule, EPA would refrain from publicly disclosing certain information that is not directly used in emission equations, including: production and throughput data; raw materials data; or detailed process information included in requests to use “best available monitoring methods” in place of prescribed emission monitoring methodologies. Certain facility design and operating characteristics would also be withheld from public release, provided they are not inputs to emission equations. The EPA also proposed to assign 10 recently added reporting elements as “Inputs to Emission Equations” and to defer their reporting deadline to March 31, 2015.
EPA Issues Technical Corrections and Clarifying Amendments to the GHG Reporting Rule
On May 11, 2012, U.S. EPA issued a proposed rule issuing revisions and clarifications to the GHG Reporting Rule in order to facilitate implementation of the Greenhouse Gas Reporting Program (GHGRP). EPA amended and clarified certain terms and provisions within Subpart A (General Provisions); Subpart L (Fluorinated Gas Producers); Subpart W (Petroleum and Natural Gas Systems); and Subpart TT (Industrial Waste Landfills) to clarify rule provisions, modify specific provisions in order to address concerns raised by reporters, and correct errors. The minor amendment to subpart A aligns the definition of heat transfer fluids found in subpart I (Electronics Manufacturing) with the annual emissions reporting requirements in subpart A. The proposed amendments are not anticipated to place additional requirements on reporters and do not significantly change the monitoring and calculation methodologies. Corrections and clarifications made in this action are expected to be helpful to owners and operators of facilities subject to the September 28, 2012 reporting deadline.
Industrial Boilers and Incinerators
New Timetable for Reducing Pollution from Boilers and Incinerators
On December 7, 2010, EPA filed a motion in the federal District Court for the District of Columbia, seeking to extend the current court-ordered schedule for issuing rules imposing MACT standards on small boilers and solid waste and sewage sludge incinerators until April 2012.
Industrial Boilers and Incinerators
On April 29, 2010, EPA proposed a set of regulatory proposals under the CAA significantly cutting emissions from boilers, process heaters, and certain waste incinerators through the imposition of stringent Maximum Achievable Control Technology (MACT) standards.
EPA Stays Boiler MACT Rule
On May 16, 2011, EPA stayed the effectiveness of stringent new MACT standards for toxic air pollutants from industrial boilers issued three months earlier. The stay is for an indefinite period of time and will allow the agency time to gather more information and obtain public input on possible reconsideration and amendment of the standards.
EPA Proposes Reconsideration of Toxic Air Pollutant Standards for Industrial Boilers
On December 2, 2011, EPA proposed a reconsideration of the toxic air pollutant standards that it finalized in February of this year which would reduce emissions of air pollutants from existing and new boilers and commercial and industrial solid waste incinerators (CISWI). This proposed reconsideration would maintain public health protections through significant reductions in toxic air emissions, including mercury and soot, while increasing the flexibility, consistency and achievability of these standards. The proposed reconsideration would constitute a new “Boiler MACT Rule” (requiring maximum achievable control technology for toxic air pollutants) (the current rule is suspended while the EPA completes this reconsideration) and would include differentiated standards that are tailored to new subcategories of sources; modified emission limits for certain pollutants; and additional flexibility with respect to compliance monitoring. EPA will take public comments on the proposed standards for a sixty day period following their publication in the Federal Register; the Agency stated that it expects to finalize the rule in spring 2012.
California Advanced Clean Cars Program receives CAA waiver
In January 2013 EPA granted California a Clean Air Act waiver to implement the state’s Advanced Clean Cars Program. The California Clean Air Act program includes regulations to phase in stricter fleet average standards for 2015-2025 model year cars and light-duty trucks. California seeks to phase in the stricter standards to further reduce nitrogen oxide and hydrocarbon emissions, increase engine durability requirements, and impose new particulate emissions standards on gasoline-powered cars. The regulations also set new greenhouse gas emissions limits for 2017-2025 model year cars and light duty trucks. The waiver reaffirms California’s key role under the Clean Air Act as a laboratory for setting new motor vehicle emissions standards.
California Emissions Standards for Non-Road Vehicles recieves CAA Waiver
In May 2013 the EPA granted a CAA waiver for California to impose more stringent air emissions standards on some types of non-road diesel vehicles. Vehicels included in the proposed rule are generally used at facilities such as ports. Under California's rules, owners of non-road vehicles will be required to phase out older diesel engines in favor of lower- emissions models.
Petition to reconsider Tailpipe Rule rejected by EPA
The EPA rejected Pacific Legal Foundation’s (PLF) April 2011 petition to reconsider the light-duty vehicle emissions rule, also known as the Tailpipe Rule, on substantive and procedural grounds. PLF’s argument that failure to send the regulation to the Science Advisory Board required reconsideration was rejected by EPA as section 202(a) of the Clean Air Act does not require SAB review. EPA also cited PLF’s failure to raise objections during the allotted public comment period in their denial. However, EPA also stated that PLF’s petition was legal in nature and that the foundation could raise their objections in court. At the time of this update, PLF has not stated whether they will appeal EPA’s decision to reject the petition before the D.C. Circuit Court.
Tier III Gasoline Emissions Rule; Proposed Lower Sulfur Content
The EPA has proposed a sulfur content of only 10 ppm as part of Tier III Emissions Standards in lieu of the previous Tier II 30 ppm standard. Tier III gasoline emissions regulations, scheduled to enter into force in 2017, regulates emissions standards for VOCs, nitrogen oxides, and particulate matter from new light and heavy-duty vehicles. The lower 10 ppm standard will bring the sulfur standard in line with California regulations. EPA has estimated that the Tier III emissions regulations, taken as a whole, will cost petroleum refiners 3.4 billion in 2030 but will provide estimated health benefits between 7.4 and 23 billion per year. The Tier III rules are expected to reduce VOCs and Nitrogen oxide emissions by 80 percent and reduce emissions of other toxic air pollutants by up to 40 percent.
EPA Extends Deadline for Comments on Tier III Vehicle Fuel and Emissions Rule
EPA announced on May 29th 2013 that the deadline for comments on proposed Tier III Emissions Standards would be extended until July 1, 2013.
Canada Announces Adoption of Tier III Vehicle Emissions Rules: On June 7th Canada announced it would adopt proposed Tier III emissions rules for new vehicles. More information can be found here.
Finalized Accelerated CAFE Rules
The EPA finalized CAFE standards for cars and light trucks in August 2012 thereby regulating corporate average fuel economy to meet a 54.5 mpg standard by 2025. The Obama Administration originally proposed the rules in May of 2009.
Motor Vehicle Standards for Tier III Light-Duty Vehicles
In May 2010 President Obama issued a Memorandum Regarding Fuel Efficiency which requested that the EPA review non-greenhouse gas emissions standards for light-duty vehicles. The proposed suite of rules would regulate criteria and toxic pollutants from new motor vehicles, new motor vehicle engines, and motor vehicle fuels. Although the rule is still in the pre-proposal phase and has not been published in the Federal Register, Administrator Jackson announced the contemplated Tier III rules in June 2012.
California Motor Vehicle Greenhouse Gas Waiver Request
The Clean Air Act allows California to enact air pollution standards for motor vehicles stricter than those of federal government. EPA must approve a waiver before California’s rules may go into effect. The California Air Resources Board requested a waiver in December 2005. The request was denied by EPA on March 6, 2008. The California Air Resources Board requested that EPA reconsider its waiver denial in January 2009, and on January 26, 2009, President Obama directed EPA to determine whether denial of the waiver was appropriate. In a notice dated February 6 and published in the Federal Register on February 12, EPA announced it would reconsider the waiver application. After public hearing and comment, EPA granted a waiver on June 30, 2009.
Joint Sec. 202 GHG Regulation of Cars and Light Duty Trucks- Tailpipe Rule and CAFE Standards
Proposed jointly by EPA and the National Highway Traffic Safety Administration (NHTSA) on September 15, 2010, the proposed rule would create a National Program of GHG emission standards and Corporate Average Fuel Economy (CAFE) standards. EPA is proposing greenhouse gas emissions standards under the Clean Air Act, and NHTSA is proposing CAFE standards under the Energy Policy and Conservation Act. The standards apply to passenger cars, light-duty trucks, and medium-duty passenger vehicles, covering model years 2012 through 2016. The comment period closed on November 27, 2009. The final rule was signed on April 1, 2010.
Medium and Heavy-Duty Truck GHG Emissions and Fuel Efficiency Standards
Responding to the President’s directive on May 21, 2010, to take coordinated steps to produce a new generation of clean vehicles, On October 25, 2010, EPA and NHTSA, on behalf of the Department of Transportation, each proposed rules to establish a comprehensive Heavy-Duty National Program to reduce greenhouse gas emissions and increase fuel efficiency for on-road heavy-duty vehicles. NHTSA’s proposed fuel consumption standards and EPA’s proposed carbon dioxide (CO2) emissions standards would be tailored to each of three regulatory categories of heavy-duty vehicles: Combination Tractors; Heavy-Duty Pickup Trucks and Vans; and Vocational Vehicles, as well as gasoline and diesel heavy-duty engines. EPA’s proposed hydrofluorocarbon emissions standards would apply to air conditioning systems in tractors, pickup trucks, and vans, and EPA’s proposed nitrous oxide (N2O) and methane (CH4) emissions standards would apply to all heavy-duty engines, pickup trucks, and vans.
EPA and NHTSA Release New Fuel Economy and GHG Labels
On May 25, 2011 EPA and the National Highway Traffic Safety Administration (NHTSA) released redesigned fuel economy labels for passenger cars, light-duty trucks, and medium duty passenger vehicles such as larger sport-utility vehicles and vans. The redesigned label provides expanded information to American consumers about new vehicle fuel economy and fuel consumption, greenhouse gas and smog-forming emissions, and projected fuel costs and savings, and also includes a smartphone interactive code that permits direct access to additional web resources. Specific label designs are provided for gasoline, diesel, ethanol flexible fuel, compressed natural gas, electric, plug-in hybrid electric, and hydrogen fuel cell vehicles. The new labels will be mandatory beginning in model year 2013 with a voluntary manufacturer option for model year 2012. The rulemaking is in response to provisions in the Energy Independence and Security Act of 2007 that imposed several new labeling requirements and new advanced-technology vehicles entering the market.
OMB Reviewing Final GHG Rule and Fuel Economy Standards for Heavy-Duty Trucks
On June 6, EPA sent a final rule to the White House for review that would, for the first time, set GHG emissions limits for medium and heavy-duty trucks. The rule is being reviewed by the Office of Management and Budget (OMB). EPA proposed the first-ever GHG emissions standards for medium and heavy-duty trucks on November 30, 2010, as part of a joint rulemaking with the NHTSA. The rule would also set fuel economy standards for those vehicles. According to EPA and NHTSA, the standards would cut fuel use and GHG emissions from new trucks by as much as 20 percent by 2018. The standards would also result in unspecified reductions in emissions of nitrous oxides, particulate matter and other pollutants. The standards would apply to model year vehicles 2014-2018.
Revisions to California Vehicle Standards Fall within Scope of Clean Air Act Waiver
On June 14, 2011, EPA published a notice stating that revisions made by the California Air Resources Board (CARB) to align its vehicle-related GHG regulations with the nationwide vehicle standards falls within the scope of the CAA preemption waiver granted to California in 2009. CARB approved changes in September 2009 that cleared the way for automakers to meet the state’s annual fleet average GHG requirements for 2010-2011 model year passenger cars and light duty trucks by combining instate sales with those in other states that have adopted California’s regulations. At the same time, CARB modified its standards to allow manufacturers to use federal corporate average fuel economy data to demonstrate compliance with state standards. Then on February 25, 2010, CARB further modified the regulations to permit automakers to demonstrate compliance with its 2012-2016 model year requirements by simply complying with federal standards. EPA concluded that rather than undermining the original regulations, the revisions afford greater flexibility to manufacturers and decrease the cost of compliance.
- Final Notice (Published in Federal Register June 14, 2011) (Petitions for review must be filed by August 15, 2011)
EPA Finalizes E15 Pump Labeling Requirements
On June 28, 2011 EPA issued fuel pump labeling and other requirements for gasoline blends containing more than 10 and up to 15 percent ethanol, known as E15. These requirements will help ensure that E15 is properly labeled and used once it enters the market. The new orange and black label must appear on fuel pumps that dispense E15. This label will help inform consumers about which vehicles can use E15 and will warn consumers against using E15 in vehicles older than model year 2001, motorcycles, watercraft, and gasoline-powered equipment such as lawnmowers and chainsaws. EPA does not mandate the use of E15. It has not yet registered the fuel, which is required before E15 can be legally sold for use in conventional vehicles. The E15 pump label requirements were developed in coordination with the FTC and adopt elements of FTC’s existing labels for alternative fuels to promote consistent labeling.
White House Announces New GHG and Fuel Economy Standards for MY 2017-2025 Light-Duty Vehicles
On July 29, 2011 the White House announced that the EPA and the NHTSA will undertake a second round of coordinated GHG and fuel economy standards for light duty vehicles in model years (MY) 2017-2025. The White House has tentative backing from major automakers and the state of California. The standards will be designed to ensure that the vehicle fleet achieves an average fuel economy of 54.5 miles per gallon by 2025. Over the life of the program, the standards are expected to save $1.7 trillion in total fuel costs and cut oil dependence, reducing oil consumption by an estimated 2.2 million barrels a day in 2025 (eventually reaching more than 4 million barrels a day as the fleet turns over), and saving 12 billion barrels in total over the lifetime of the program. The standards are also expected to cut greenhouse gas emissions by more than 6 billion metric tons over the life of the program while also reducing pollutants such as air toxics, cause soot, and smog.
EPA and NHTSA Issue Final Efficiency and GHG Standards for Heavy Duty Trucks
In response to the President’s May 21, 2010 directive, on August 9, 2011 EPA and the NHTSA finalized the first ever coordinated GHG and fuel efficiency standards applicable to new heavy-duty trucks and engines. The standards, cover model years 2014 through 2018 and will apply to combination tractors, heavy-duty pickup trucks, delivery trucks, garbage trucks, buses, and work vans. The agencies estimate that the combined standards will reduce CO2 emissions by approximately 270 metric tons and save 530 million barrels of oil over the life of the vehicles. Additionally, they expect the standards will save approximately $49 billion in fuel costs over the lifetime of the vehicles.
EPA and NHTSA Propose Joint GHG and Fuel Economy Standards for Light Duty Vehicles through MY 2025
On November 16, 2011, the Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHTSA) released a proposed rule setting greenhouse gas (GHG) emission and Corporate Average Fuel Economy (CAFE) standards for light duty cars and trucks in model years (MY) 2017 through 2025. These standards apply to passenger cars, light-duty trucks, and medium-duty passenger vehicles. Under the proposed rule, the new vehicle fleet is projected to require an average fuel economy of 54.5 miles per gallon by 2025. The rulemaking builds on an initial round of coordinated GHG and fuel economy standards that the agencies promulgated in April 2010 for vehicles in MY 2012 through 2016. This second phase of the National Program is projected to save approximately 4 billion barrels of oil and 2 billion metric tons of GHG emissions over the lifetimes of those vehicles sold and the net benefits to society of the MYs 2017-2025 National Program will be in the range of $311 billion to $421 billion (7 and 3 percent discount rates, respectively) over the lifetimes of those vehicles. Comments on the rulemaking must be received on or before February 13, 2012 (Comment Period Extension Notice).
Revisions and Additions to Motor Vehicle Fuel Economy Label
The Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHTSA) conducted a joint rulemaking to redesign and add information to the current fuel economy label that is posted on the window sticker of all new cars and light-duty trucks sold in the U.S. The redesigned label will provide new information to American consumers about the fuel economy and consumption, fuel costs, and environmental impacts associated with purchasing new vehicles beginning with model year 2012 cars and trucks. This action will also develop new labels for certain advanced technology vehicles, which are poised to enter the U.S. market, in particular plug-in hybrid electric vehicles and electric vehicles.
Next-Generation Clean Cars
On January 24, 2011 the U.S. Department of Transportation (DOT) along with the EPA and the state of California announced a single timeframe for proposing fuel economy and GHG standards for model year 2017-2025 cars and light-duty trucks. The goal would be the announcement of new standards by Sept. 1, 2011. This collaboration shows commitment to establishing standards that will provide manufacturers with regulatory certainty needed to invest in new technologies that will provide consumers with efficient clean vehicle choices. In April, 2010, DOT and EPA established GHG emission and fuel economy standards for model year 2012-2016 light-duty cars and trucks. In the fall of 2010, CA accepted compliance with these federal GHG standards resulted in the first coordinated national program.
Joint EPA/DOT Notice of Intent for Future (2017 and Beyond) Light-Duty Vehicle GHG Emissions and CAFE Standards:
Renewable Fuel Standard Program
The current national Renewable Fuel Standard program (RFS1) was established under the Energy Policy Act of 2005. The finalized Renewable Fuel Standards Rule on February 3, 2010 makes changes to the Renewable Fuel Standard program as required by the Energy Independence and Security Act of 2007. The revised statutory requirements establish new specific volume standards for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel that must be used in transportation fuel each year. The revised statutory requirements also include new definitions and criteria for both renewable fuels and the feedstocks used to produce them, including new greenhouse gas emission thresholds for renewable fuels. The regulatory requirements for RFS will apply to domestic and foreign producers and importers of renewable fuel. The revised annual standard is known as RFS2.
EPA Proposes Crediting Fuels Produced from Landfill Biogas under Renewable Fuel Standard Regulations
In May 2013 the EPA proposed new regulations under which certain types of fuels produced from landfill biogas could earn credits when used as transportation fuels. The types of fuels for which new "pathways" are proposed include: renewable diesel, renewable naptha, and renewable electricity produced from landfill biogas. The proposal is available here.
Ethanol Content of Gasoline
EPA Grants E15 Fuel Waver for Model Years 2001-2006 Cars and Light Duty Trucks
On Jan. 21, 2011, EPA waived the CAA prohibition against the sale of significantly altered fuel by allowing the use of fuel that contains up to 15 percent ethanol – known as E15- for model year (MY) 2001 to 2006 cars. Ethanol is an alcohol that can be mixed with gasoline to result in cleaner-burning fuel. E15 is a blend of 15 percent ethanol and 85 percent gasoline. The primary source of ethanol is corn. No waiver is being granted this year for E15 use in any motorcycles, heavy-duty vehicles, or non-road engines because current testing data does not support such a waiver. On Oct. 13, 2010, EPA had approved a waiver allowing the use of E15 for MY 2007 and newer cars and light trucks. EPA is developing requirements to ensure that E15 is properly labeled at the gas pump so as to prevent refueling into vehicles, engines, and equipment not currently approved for the higher ethanol blend.
FTC Delays Changes to Ethanol Labeling
On March 16, 2011 the FTC released a final rule on octane fuel ratings but determined that more time was needed to address ethanol labeling. The rule became effective March 31, 2001. The agency had proposed new rating, certification, and labeling provisions for blends of gasoline with more than 10 percent ethanol. However, in light of EPA’s issuance of its E-15 fuel waiver after the comment period on the proposed FTC rule closed, as well as in consideration of comments criticizing the proposed labels and suggesting additional disclosures to prevent misfueling, the Commission decided to address this issue at a later date.
EPA Maintains Definition of Renewable Fuels Set Out In 2010 Rule
On March 22, 2011 EPA announced that it rejected petitions by four environmental groups to reconsider the definition of fuels that meet the renewable fuel standard set forth in the Agency’s 2010 Final Rule. The Clean Air Task Force, Friends of the Earth, World Wildlife Fund and the National Wildlife Federation filed petitions for reconsideration of EPA’s Final Rule of March 2010. The Final Rule states that for fuel to qualify as renewable it must reduce lifetime GHG emissions by at least 20 percent as compared to emissions from gasoline. It also stated that feedstocks for the fuel cannot be produced on cropland that was created by cutting down forests or destroying other natural lands. In their May 25, 2010 petition the four groups argued that EPA should have required verification that the crops and crop residues used to produce renewable fuel complied with applicable land use restrictions. They also argued that the agency should have considered whether the increased use of biofuels in the U.S. could reduce the global price of oil and thereby increase the use of petroleum-based fuels elsewhere.
Regulation of Fuels and Fuel Additives: 2012 Renewable Fuel Standards
On June 21, 2011 EPA released a proposed rule increasing the amount of renewable fuel required in the nation’s motor fuel supply in 2012. For 2012, EPA proposed 15.2 billion gallons of renewable fuel up from 13.95 billion gallons in 2011 and equal to 9.2 percent of all fuel used in the United States. The proposed standards would ensure that transportation fuel sold in the United State contains a minimum volume of renewable fuel as required by the Energy Independence and Security Act of 2007. Under the proposed Renewable Fuel Standards (RFS), the 2012 blending requirement would include 2 billion gallons of “advanced biofuel” (a category of fuels that achieves lifecycle greenhouse gas (GHG) emissions that are 50% less than the 2005 baseline lifecycle GHGs associated with gasoline); 1 billion gallons of biomass-based diesel; and between 3.45 and 12.9 million gallons of cellulosic biofuel. The proposal, however, sets a lower target for cellulosic biofuel than required by the Energy independence and Security Act of 2007. EPA is required to finalize these standards by November 30, 2011. Commnets are open until August 11, 2011.
EPA Issues Guidance for Underground Tanks Storing Ethanol or Biodiesel Blended Fuels
On July 5, 2011 EPA published in the Federal Register a final guidance to owners and operators of underground storage tanks. The guidance advises owners and operators of tanks containing ethanol and biodiesel blends on how to comply with the Solid Waste Disposal Act. Compliance for tanks containing blends of more than 10 percent ethanol or 20 percent biodiesel can be demonstrated by using equipment that has been certified by a nationally recognized, independent testing laboratory. The guidance is not legally binding on EPA, the states, or tank owners and operators.
EPA Finalizes Renewable Fuel Mandates for 2012
On January 9, 2012, the EPA issued a final rule determining the volume of renewable fuel that must be blended into the nation’s fuel supply in 2012 as required by the Renewable Fuel Standard (RFS) provisions of Clean Air Act Section 211(o) (as amended by the Energy Independence and Security Act of 2007). This direct final rule describes EPA’s evaluation of biofuels produced from camelina oil, energy cane, giant reed, and napiergrass; it also includes an evaluation of renewable gasoline and renewable gasoline blendstocks, as well as biodiesel from esterification, and clarifies the definition of renewable diesel. In addition, the rule establishes the percentage of output that each refiner and importer covered by the RFS must demonstrate derives from each of these fuels. Approximately 15.2 billion gallons of renewable fuels will be utilized in 2012 as a result of the new standards – equivalent to about 9% of anticipated fuel demand.
EPA Withdraws Direct Final Rule Approving Four Additional Biofuel Feedstocks for RFS
On March 5, 2012, EPA published a notice withdrawing a direct final rule allowing biofuels made from camelina, energy cane, napiergrass, and giant reed to qualify for the Renewable Fuel Standard (RFS). EPA approved the four fuels on January 5, 2012, expecting that the rule would be uncontroversial. However, environmental organizations filed comments expressing concern that the approval of the new fuels would lead to significant increases in land use change-related GHG emissions and encourage the spread of invasive or non-native species. EPA stated that it intends to address all comments in a subsequent final action, which will be based on the parallel proposed rule also published on January 5, 2012.
Underground Injection Control Program for Geologic Sequestration of CO2
In July 2008, EPA published the Federal Requirements Under the Underground Injection Control (UIC) Program for Carbon Dioxide Geologic Sequestration Wells Proposed Rule for public review and comment. The comment period for this rule closed on December 24, 2008. However, EPA published a Notice of Data Availability and Request for Comment on August 31, 2009. The comment period for this Notice closed on October 15, 2009.
Final Rule for Mandatory Reporting of GHGs Relating to Injection and Geological Sequestration of CO2
On December 1, 2010 EPA issued a final Rule regarding the Mandatory Reporting of Greenhouse Gases: Injection and Geological Sequestration of CO2. This regulation is a supplement to EPA’s rule for mandatory reporting of greenhouse gases (GHGs). Known as “Subpart RR,” this rule requires that sequestration and injection site owners develop monitoring, reporting, and verification plans, and annually report quantities of carbon dioxide injected or sequestered. The rule does not require control of GHGs, only monitoring and reporting.
Final Rule for Federal Requirements under the Underground Injection Control (UIC) Program for Carbon Dioxide (CO2) Geologic Sequestration (GS) Wells
On December 10, 2010, EPA published the Federal Requirements under the Underground Injection Control (UIC) Program for Carbon Dioxide (CO2) Geologic Sequestration (GS) Wells Final Rule. This action finalizes minimum Federal requirements under the Safe Drinking Water Act (SDWA) for underground injection of CO2 for the purpose of geologic sequestration (GS). This final rule applies to owners or operators of wells that will be used to inject CO2 into the subsurface for the purpose of long-term storage. It establishes a new class of well, Class VI, and sets minimum technical criteria for the permitting, geologic site characterization, area of review (AoR) and corrective action, financial responsibility, well construction, operation, mechanical integrity testing (MIT), monitoring, well plugging, post-injection site care (PISC), and site closure of Class VI wells for the purposes of protecting underground sources of drinking water (USDWs). The rule is designed to ensure consistency in permitting underground injection of CO2 at GS operations across the United States and is intended to ensure that sequestered gas does not contaminate groundwater supplies. The Class VI well standards require, among other things, that site owners provide financial assurances to cover liability from potential contamination for as long as fifty years after closure of the site (with flexibility to shorten the requirement on a case-by-case basis). The elements of this rulemaking are based on the existing Underground Injection Control (UIC) regulatory framework, with modifications to address the unique nature of CO2 injection for GS.
Final Rule Supporting Documents
Class VI Guidance Documents
EPA Assumes Responsibility for Permitting Class VI CO2 Injection Wells
On September 6th 2011, EPA announced that it will assume responsibility for issuing Safe Drinking Water Act (SDWA) permits for injection wells used in carbon dioxide (CO2) sequestration, pursuant to the “Class VI” permitting program finalized by the Agency in November 2010. EPA will directly implement the Class VI Program nationally as of September 7, 2011. States and potential owners or operators of CO2 GS wells must submit all permit applications to the appropriate EPA Region in order for a
Class VI permit to be issued pursuant to the Federal Requirements under the Class VI rule finalized on December 10, 2010. The announcement came on the heels of the expiration of a 270-day period, mandated by the SDWA, during which states were invited to apply to EPA for authorization to process and issue these permits at the state level. EPA said that it did not receive any such applications during the 270-day period, and was assuming the Class VI permitting functions in order to ensure that the permitting program can commence as expeditiously as possible. Direct Federal implementation of the final Class VI requirements will remain in effect until such time as EPA approves a state-submitted plan to take over Class VI permitting responsibilities from EPA.
Federal Leadership in Environmental, Energy, and Economic Performance
On October 5, 2009, President Obama issued Executive Order 13514, which instructs federal agencies to set or achieve various emissions reduction and energy and environmental benchmarks by 2015, 2020, and 2030. The order requires agencies to set GHG emissions reduction targets for 2020 within 90 days, and requires OMB to set a federal government target for 2020 within 120 days. The order also sets out required reductions in vehicle fleet petroleum use and requires increases in water and energy efficiency and in recycling and waste diversion rates. The order also mandates adoption of certain contract and procurement practices designed to promote energy and water efficiency and environmentally-preferable products.
Presidential Memorandum Requiring Federal Government to Switch to Alternative Fuel Vehicles by 2015
A Presidential memorandum on federal fleet performance issued May 24th, 2011 will require all new light-duty vehicles purchased by the Federal government to be powered by alternative fuels as of December 31, 2015. Alternative-fuel vehicles include hybrid or electric vehicles, or those that run on compressed natural gas or biofuels. The memorandum also requires that the General Services Administration (GSA) assist Federal agencies in determining the “optimum fleet size” and eliminating unnecessary or non-essential vehicles. The memorandum states that “[t]he federal government operates the largest fleet of light-duty vehicles in America” and that consequently it “owe[s] a responsibility to American citizens to lead by example.”
President Issues Executive Order Promoting Interagency Coordination of Regulation of Unconventional Natural Gas Production
On April 13, 2012 the president issued and executive order establishing a new "Interagency Working Group to Support Safe and Responsible Development of Unconventional Domestic Natural Gas Resources." Led by the Domestic Policy Council, the Working Group is designed to support the safe and responsible production of domestic unconventional natural gas. The goals of the group include (1) coordinating agency policy activities and ensuring their efficient and effective operation; (2) coordinating among agencies for the sharing of scientific, environmental, and related technical and economic information; (3) engaging in long-term planning and ensuring coordination among the appropriate Federal entities with respect to such issues as research, natural resource assessment, and the development of infrastructure; (4) promoting interagency communication with stakeholders; and (5) consulting with other agencies and offices. Other agencies and White House Offices participating in the working group include the Department of Defense (DOD); the Environmental Protection Agency (EPA); the Department of Interior; the Department of Agriculture; the Department of Commerce; the Department of Health and Human Services; the Department of Energy; the Department of Transportation; the Department of Homeland Security; the Council on Environmental Quality; the Office of Management and Budget; and the Office of Science and Technology Policy.
Council on Environmental Quality
CEQ Guidance on Mitigation and Monitoring
On January 14, 2011, the White House Council on Environmental Quality (“CEQ”) finalized guidance entitled “Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact.” The guidance seeks to hold federal agencies more accountable for mitigation measures that they identify in conducting National Environmental Policy Act (“NEPA”) reviews of proposed actions. CEQ issued draft guidance on this topic in February 2010 as part of its modernization of NEPA practices in conjunction with NEPA’s 40th anniversary.
CEQ Issues Guidance for Federal Climate Change Adaptation Planning
On March 4, 2011, CEQ issued formal guidance to Federal agencies on the development of climate change adaptation plans, intended to assist those agencies in fulfilling the requirements of Executive Order 13514. The guidance requires Federal agencies to draft adaptation policy statements by June 3, 2011 and to complete their adaptation plans by June 4, 2012. Under the guidance, adaptation plans will be available for public review and comment.
CEQ Releases Data on Agency GHG Emissions
For the first time, the White House Council on Environmental Quality (CEQ) released an inventory of the federal government’s GHG emissions. The inventory is intended to track the government’s progress towards meeting the mandatory reductions in federal GHG emissions required in Executive Order 13514. According to the data released by CEQ, the federal government’s direct emissions, indirect emissions from energy purchases, and emissions attributable to employee travel and waste disposal totaled 66.4 million metric tons CO2e in FY2010. Of this amount, more than 50 percent was derived from the Department of Defense. Other military, law enforcement, and security activities generated an additional 54.9 million metric tons CO2e—emissions which are not subject to the reduction requirement of Executive Order 13514.
CEQ Issues Guidance on Improving the Process for Preparing Efficient and Timely Environmental Reviews under NEPA
On December 13, 2011 the White House Council on Environmental Quality (CEQ) issued draft guidance on Improving the Process for Preparing Efficient and Timely Environmental Reviews under the National Environmental Policy Act (NEPA). The guidance is intended to promote more efficient and timely preparation of environmental impact assessments required under NEPA. The draft guidance encourages Federal agencies to prepare environmental impact statements that are, among other things, concise, integrated, coordinated and well planned. CEQ must receive comments on or before January 27, 2012.
CEQ Issues Revised Draft GHG Reporting and Accounting Guidance for Federal Agencies
On March 12, 2012, the White House Council on Environmental Quality (CEQ) released a second draft of guidance specifying how Federal agencies should quantify and report GHG emissions to comply with Executive Order 13514. The Guidance is accompanied by a separate Technical Support Document for Federal GHG Accounting and Reporting (TSD), which provides detailed information on inventory reporting requirements and calculation methodologies.
Department of Energy
Department of Energy Rule Requiring Reductions in Federal Building Consumption of Fossil Fuel-Generated Energy
The U.S. Department of Energy (DOE) published in the October 15, 2010 Federal Register a notice of proposed rulemaking to implement provisions of the Energy Conservation and Production Act (ECPA), as amended by the Energy Independence and Security Act of 2007 (EISA), that require the DOE to establish revised performance standards for the construction of all new federal buildings, including commercial buildings, multi-family high-rise residential buildings, and low-rise residential buildings and federal buildings undergoing major renovations. This proposed rule would amend certain portions of 10 CFR parts 433 and 435, the regulations governing energy efficiency in federal buildings. The proposed rule establishes a methodology for compliance including the calculation of the maximum allowable fossil fuel-generated energy consumption based on building type and how fossil fuel consumption resulting from electricity usage should be considered.
DOE Shale Gas Production Subcommittee Releases Draft Final Recommendations on Regulating Shale Gas Development
On November 18, 2011 the Shale Gas Subcommittee of the Secretary of Energy Advisory Board released a draft final report identifying twenty implementation measures that can be taken to reduce the environmental impact and to help assure the safety of shale gas production. Among other measures, the report recommends that EPA expand proposed emission standards for oil and gas sector to include regulation of methane emissions from existing shale gas production facilities, and take action to address water quality concerns relating to shale gas production before completing its planned three-year study of shale gas wastewater discharges. The report also urged EPA, DOE, and the Department of Interior to coordinate support for research and development efforts on shale gas.
DOE Issues Proposed Rule Requiring Federal Agencies to Reduce Petroleum Consumption
On March 12, 2012 the Department of Energy issued a proposed rule requiring Federal agencies to reduce the quantity of petroleum used by their vehicle fleets by 20 percent below 2005 levels by the year 2015 and increase their use of alternative fuels by 10 percent over 2005 levels by 2015. The rule implements requirements in Section 142 of the Energy Independence and Security Act of 2007. The rule would apply to all Federal agencies, including major energy consumers such as the Department of Defense and the U.S. Postal Service.
Federal Trade Commission
Federal Trade Commission Revisions to "Green Guides" for Environmental Marketing Claims
The FTC "Green Guides" are intended to clarify what types of environmental marketing claims marketers can make without being unfair or deceptive.
Federal Energy Regulatory Commission
FERC Order 1000
FERC Order 1000 reforms electric transmission planning and cost allocation requirements for public utility providers. The Commission now requires public utility providers to participate in a regional planning process. During the regional transmission planning process the parties must ensure that public policy requirements are satisfied and that infrastructure is developed in a manner that contributes to energy efficiency. In addition to regional planning, FERC Order 1000 also introduces cost allocation measures controlling the distribution of the cost of new infrastructure that serves the region. More information can be found here.
FERC Order 745
FERC Order 745 was issued as a result of the mandates of the Energy Policy Act of 2005 related to barriers to the demand response market. The Order requires that demand-response resources organized by a regional public utility be compensated at the market price. Each RTO and ISO determines a price level at which demand response dispatch is cost-effective compared to generation. Order 745 specifies that market price is set according to the cost of making electricity available at the location in question (locational marginal price). The text of Order 745 can be found here.
Regulations for Third-Party Provision of Ancillary Services
As part of efforts to foster competition and increase transparency in ancillary service markets the Federal Energy Regulatory Commission has drafted new rules to enable third-party providers to access electric markets on a less discriminatory basis. The new rule allows third-parties to provide ancillary services that the transmission provider is only required to offer as opposed to required to provide. Ancillary services includes activities such as electricity storage The details of the new regulations can be found here.
Securities and Exchange Commission
Nuclear Regulatory Commission
NRC Approves First New Nuclear Power Plant Since 1978
For the first time since 1978, on February 9, 2012, U.S. nuclear regulators approved the construction of a new nuclear power plant. The Nuclear Regulatory Commission (NRC) voted four-to-one in favor of granting Southern Co. a license to build two additional reactors at its Plant Vogtle nuclear facility near Augusta, Georgia.
Bureau of Land Management
Hydraulic Fracturing Regulations on Native and Federal Lands
On March 26th, 2015 the Bureau of Land Management published a final rule on Hydraulic fracturing on federal and Indian lands, effective June 24th, 2015. The rule imposes stricter security measures for well construction to prevent chemical leakage into water supplies, ensures stringent management of resurfaced hydraulic fracturing fluids, and increases transparency to the public of the chemicals used in the hydraulic fracturing process. Additionally, the rule provides public availability of the location and timing of hydraulic fracturing operations. This rule was proposed May 11th, 2012, with a supplemental comment period extension on June 26thth, 2012, and aims to make the development of oil and gas more environmentally secure.
Advanced Notice of Waste Mine Methane Capture Proposal
On April 29th, 2014 the Bureau of Land Management published an advance notice of proposed rulemaking to establish a program which would “capture, use, or destroy waste mine methane that is released into the mine environment and the atmosphere as a direct consequence of underground mining operations.” In addition to improving the safety and health of miners, this proposed rule would reduce mine methane leakage into the atmosphere, reducing greenhouse gas emissions. This rule would therefore promote the Climate Action Plan’s Strategy to Reduce Methane Emissions (March 2014) as well as Secretarial Order 3289, Amendment No. 1 (“Addressing the Impacts of Climate Change on America's Water, Land, and other Natural and Cultural Resources,” dated February 22, 2010).
Proposal for New Solar and Wind Energy Leasing Conditions
On September 30th, 2014, the Bureau of Land Management proposed a rule to amend current solar and wind energy regulations by creating designated leasing areas defined as “a parcel of land with specific boundaries identified by the BLM land-use planning process as being a preferred location, conducted through a landscape-scale approach, for solar or wind energy where a competitive process must be undertaken.” This proposed rule aims to promote renewable energy development rights-of-way consistent with the Energy Policy Act’s provision to approve non-hydropower renewable energy projects on public lands with a total combined generation capacity of 10,000 MW of electricity by 2015 (Section 211, Public Law 109-58, 119 Stat. 660 (2005)).
Finalized Commercial Oil Shale Management on Federal Lands
On November 18th, 2008 the Bureau of Land Management finalized a rule to create procedures to review commercial oil shale leasing proposals on Federal lands. The regulations make land available for oil shale research in areas of Colorado, Wyoming, and Utah, and specify oil shale lease size and work requirements. This rule enforces the EP Act (42 U.S.C. 15927) section 369, which details oil shale development and the creation of a commercial leasing program. In response to comments concerned about the potential effects of oil shale development on climate change, the rule states that it solely establishes procedures for the development of oil shale and therefore “the regulations do not cause any change to the environment.” (Comments EA-12, EA-14) This rule set royalty rates at 5% for the first 5 years of commercial production, followed by a 1% increase each following year until the 13th year of production. This rule, and specifically this royalty structure, was later challenged in Federal court.
Proposed Amendment to the Commercial Oil Shale Management Ruling
On March 27th, 2013 the Bureau of Land Management proposed an amendment to the commercial oil shale regulations set in in 2008 as a settlement agreement after the original rule was challenged in Federal court. Environmental groups also raised concern over the rule’s effects on climate change, air quality, and water resources. The amendment is therefore meant to alter the existing royalty system to ensure fair returns to taxpayers, and to give more detail on environmental protection requirements (43 CFR parts 3900, 3920, and 3930). The proposed amendment outlines multiple options for replacing the original royalty rates including a sliding scale royalty based on market prices of oil and gas, establishing a minimum royalty of 12.5%, and inviting the public to comment on proposed lease terms. The settlement agreement also requires a revision that states “the BLM would not issue a commercial lease unless it determines that oil shale operations could occur without unacceptable environmental risk.”
Final Amendment to the Oil and Gas Regulations in the National Petroleum Reserve--Alaska
Finalized by the Bureau of Land Management on February 4th, 2008, this rule amends oil and gas regulations in the National Petroleum Reserve—Alaska (NPR-A), an area of 22.8 million acres on the North Slope of Alaska. The amendments were added to make the reserve’s leasing regulations more compatible with the Energy Policy Act of 2005 (Section 347). The rule amends the transfer and unitization of federal leases in the reserve, and aims to create “more favorable lease terms for oil and gas companies” by offering lease extensions, renewals, and royalty relief. The rule states that these amendments will likely result in an increase in development and exploration of the National Petroleum Reserve—Alaska.
Segregation of Land for Renewable Energy Right-of-Way
On April 26th, 2011 the Bureau of Land Management published a proposal to allow the BLM to segregate public lands intended for a current or future wind or solar energy right-of-way (ROW) application, promoting renewable energy production in accordance with the Energy Policy Act of 2005 and executive order 13212. This rule would add to 43 CFR parts 2090 and 2800, and prevent land from appropriation under the public land laws for up to two years with the possibility to extend for an additional two years. The amendment would give priority to renewable energy development by eliminating competing claims and applications for other uses of the public land (i.e. mining). On the same day, the Bureau of Land Management issued an interim temporary final rule enforcing the proposed amendment for a period of up to two years, effective immediately.
The Bureau of Land Management replaced the interim temporary rule “Segregation of Lands—Renewable Energy” with a final rule on April 30th, 2013, effective May 30th, 2013 with no substantive differences in content from the proposed and temporary rule.
Removal of Committee-Directed Energency Withdawals
On October 10th, 2008 the Bureau of Land Management proposed a rule to remove all regulations that allow for emergency withdrawals, which are withdrawals of public land by either a congressional committee (the Committee on Energy and Natural Resources of the Senate, or the Committee on Natural Resources of the House of Representatives) or the Secretary of the Interior based on the determination that an emergency exists which requires “extraordinary measures to be taken to protect natural resources which otherwise would be lost”. This amendment was proposed in response to the constitutionality of the committee-directed withdrawal option being questioned (INS v. Chadha, 51 U.S.L.W. 4907; June 23, 1983).
On December 5th, 2008 the Bureau of Land Management passed the amendment. However, due to concern shown by environmental groups and public comments that removing emergency withdrawals completely would diminish the BLM’s ability to protect natural resources, the finalized version only removes the committee-directed withdrawal option. The Secretary of the Interior still maintains the ability to declare an emergency withdrawal of public land. The amendment is effective as of January 5th, 2009.
Secretarial Order 3283: Assignment of Renewable Energy Generation Responsibilities
Secretarial Order 3283 was issued by Secretary of the Interior Dirk Kempthorne on January 16th, 2009 in order to specify the Department of the Interior’s responsibilities to accomplish the goal laid out in Section 211 of the Energy Policy Act of 2005. This section states the provision to approve non-hydropower renewable energy projects on public lands with a total combined generation capacity of at least 10,000 MW of electricity by 2015 (Section 211, Public Law 109-58, 119 Stat. 660 (2005)). The Order clarifies that the Assistant Secretary—Land and Minerals Management has the “lead responsibility” in meeting the federal renewable energy goals, with other Program Assistant Secretaries providing support (including the Assistant Secretary for Fish and Wildlife and Parks). This Secretarial Order was issued with the aim of furthering development of renewable energy in order to “enhance the energy security of the United States.”
Programmatic Environmental Impact Statement for Solar Energy Development in the Southwest
On July 27th, 2012 the Bureau of Land Management, in conjunction with the Department of Energy, published a notice of availability of the final Programmatic Environmental Impact Statement for Solar Energy Development in Six Southwestern States (Final Programmatic EIS) (BLM/DES 11-49, DOE/EIS-0403). The states included are Arizona, California, Colorado, Nevada, New Mexico, and Utah. The PEIS is evaluating the environmental, social, and economic impacts of replacing the Bureau of Land Management’s current solar energy policies with a utility-scale Solar Energy Program that would streamline the process of developing solar energy on public land. The conclusions of the PEIS state that the proposed Solar Energy Program would not have a significant negative impact on the environment.
West-Wide Energy Corridor Programmatic Environmental Imact Statement
On November 28th, 2008 the Bureau of Land Management, in conjunction with the Department of Energy, published a notice of availability of the final West-Wide Energy Corridor Programmatic Environmental Impact Statement (PEIS). The PEIS outlines the potential environmental effects of designating energy corridors on Federal land in 11 western states for oil, gas, and hydrogen pipelines and electricity transmission in accordance with section 368 of the Energy Policy Act of 2005 (Public Law 109-58). The 11 states included are Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming. The PEIS does not address any site-specific land use plans, but rather the environmental impacts of designating corridors for future land use. A total of 131 corridors were proposed, spanning 6,112 miles, with a total area of 3.311.041 acres.
Natural Resources Conservation Service
Amendment to the Healthy Forests Reserve Program
On January 14th, 2009 the Natural Resources Conservation Service proposed an amendment to the Healthy Forests Reserve Program that was enacted by Congress in 2003 under Title V of the Healthy Forest Restoration Act (Pub. L. 108-148, 16 U.S.C. 6571-6578). The program offers financial assistance to private landowners that engage in projects to help restore the forests on their land, in turn increasing biodiversity and carbon sequestration, preventing forest fragmentation, and protecting endangered species. The Food, Conservation, and Energy Act of 2008 changed the program funding by authorizing $9,750,000 for each fiscal year from 2009 to 2012. The Natural Resources Conservation Service proposed this amendment to alter their easement and enrollment plans in response. The proposed amendment would allow land enrollment through permanent easements in addition to the 10-year cost-share agreements in place. It would also authorize both 30-year contracts and 10-year cost-share agreements to land owned by tribes. On February 10th, 2010 the Natural Resources Conservation Service published the final amendment to the Healthy Forests Reserve Program.
Final Rule for New Categorical Exclusions for Restoration Activities
On February 10th, 2010 the Natural Resources Conservation Service finalized a rule that lists 21 actions as being categorically excluded from needing an environmental assessment or environmental impact statement based on the determination that they “do not individually or cumulatively have a significant effect on the human environment.” This final rule replaces the interim rule published on July 13th, 2009, and aims to streamline NRCS projects with a conservation or restoration focus. The rule will also help the NRCS meet the requirements of the American Recovery and Reinvestment Act of 2009 (ARRA) for complying with NEPA in “the most expeditious manner” possible. Examples of the finalized categorical exclusions include planting vegetation at restoration sites, filling drainage ditches, removing storm debris following a natural disaster, and stabilizing stream banks to reduce erosion.
Final Changes to the Conservation Program Regulations in Compliance with the Agricultural Act of 2014
On April 9th, 2015 the Natural Resources Conservation Service finalized changes to a range of conservation program regulations that were required as a result of the implementation of the Agricultural Act of 2014, replacing the interim final rule published on August 1st, 2014. Effective April 9th, 2015, the rule adds reference of the Regional Conservation Partnership Program (RCPP) to the Watershed Protection and Flood Prevention Act Program and the Healthy Forests Reserve Program, changes the definition of multiple terms (“acreage owned by Indian Tribes”, “privately-held land”, and “legal entity”), and gives the NRCS responsibility for the implementation of the Voluntary Public Access and Habitat Incentive Program (VPA-HIP).
Interim Rule to Amend the Conservation Stewardship Program
The Natural Resources Conservation Service issued an interim rule on November 5th, 2014 to amend the Conservation Stewardship Program (CSP), a program that helps agricultural producers improve the resource conditions on their land in exchange for CSP payment. Regulations had to be amended as necessitated by the Agricultural Act of 2014. The interim rule mandates include that at least five priority resource concerns must be identified for each area or watershed (instead of the previous requirement of three to five), contracts must include all of the applicant’s eligible land, priority is given to veterans, and that the CSP will offer supplemental payment to participants who improve resource-conserving crop rotations. The amended regulations are meant to streamline administration as well as incentivize participation. For further information on the Conservation Stewardship Program, see the link below.
Amendment to the Water Bank Program Land-Use Agreements
On June 9th, 2015, The Natural Resources Conservation Service amended the Water Bank Program (WBP). The program was implemented in accordance with the Water Bank Act of 1971, a congressional declaration made to protect wetland ecosystems. The program aims to conserve water resources, preserve habitats of various species, and issue 10-year land use agreements in migratory waterfowl nesting and breeding areas on privately owned wetlands. This amendment clarifies the fact that lands owned by Indian Tribes are considered privately owned, and are therefore eligible for enrollment in the program.
Community Forest and Open Space Conservation Program
On October 20th, 2011 the US Forest Service created the Community Forest and Open Space Conservation Program (CFP), a competitive grant program that allows local governments, Indian tribes, and non-profit organizations to acquire private land to turn into community forests. The program’s two specified purposes are to provide public benefits to communities (economic, social, and environmental) and to prevent private land from being converted to non-forest ecosystems. Creation of the program was authorized by Section 8003 of the Food, Conservation, and Energy Act of 2008 and was added as an amendment to the Cooperative Forestry Assistance Act of 1978.
3 New Categorical Excusions to NEPA Compliance: Water Restoration Activities
On September 12th, 2013 the US Forest Service published a final rule that added three new categorical exclusions to National Environmental Policy Act compliance. The categorical exclusions are for activities that “(1 ) restore lands negatively impacted by water control structures, (2) disturbance events, and (3) roads and trails.” These actions will no longer require an environmental assessment or impact statement, allowing the Forest Service to perform restoration activities more efficiently, in compliance with Secretary of Agriculture Thomas J. Vilsack’s call for restoring forestlands and aquatic ecosystems in 2009. Lands occupied by National Forest System Roads and National Forest System Trails are not included in this final ruling.
National Forest System Land Management Planning Rule for Forest Resiliency
Finalized on April 9th, 2012, the US Forest Service adopted a new National Forest System land management planning rule that applies to the 155 national forests, 20 grasslands, and 1 prairie that comprise the NFS. This rule was based on a modified version of Alternative A presented in the Final Programmatic Environmental Impact Statement, National Forest System Land Management Planning (USDA, Forest Service, 2011) (PEIS). The rule sets specific requirements for the development and structure of all management plans, the purpose of which is to ensure that all management plans are environmentally sustainable, and that NFS lands are more resilient to climate change. This is done by requiring management plans to take into account the holistic impact the plan would have on the landscape, including species-specific, watershed, air, and soil impacts. This planning rule replaces the final 2000 land management planning rule.
National Roadmap for Responding to Climate Change
In February of 2011, the Forest Service released the National Roadmap for Responding to Climate Change, which aims to help units achieve the goals outlined in the 2008 Strategic Framework for Responding to Climate Change. The document, which recognizes the Forest Service’s role in maintaining ecosystem health for future generations, outlines four ways the USFS can address climate change: organizational capacity, partnerships and conservation education, adaptation, and mitigation. The idea of tracking progress by the use of a performance scorecard is introduced. The roadmap contains specific goals including preventing soil erosion, protecting watersheds and natural resources, and providing ecosystem connectivity in order to make landscapes more resilient to climate change. Additionally, it calls for ecosystem vulnerability assessments, monitoring, and public awareness campaigns.
Climate Change Performance Scorecard for the National Roadmap for Responding to Climate Change
In August of 2011, the Forest Service released a guidance document that outlines the finalized climate change performance scorecard used to achieve the National Roadmap for Responding to Climate Change. The scorecard aims to achieve the “organizational capacity” goal of the roadmap, and is used to track Unit progress from 2011-2015. The card contains 10 goals in the form of questions in 4 dimensions, and each unit must achieve 7 of the 10 goals by 2015. Scorecard reporting will happen on an annual basis. Questions include: “is progress being made toward achieving sustainable operations requirements to reduce the environmental footprint of the Agency?” and “is monitoring being conducted to track climate change impacts and the effectiveness of adaptation activities?” Each question then has specific targets that allow a unit to determine if they have reached the goal. The scorecard system is an accountability measure and a way of standardizing the agency’s climate change efforts.
Forest Service Introduces Strategic Framework for Responding to Climate Change
In October of 2008, the Forest Service introduced a “Strategic Framework for Responding to Climate Change,” which gave general instructions for how the USFS would address climate change in the coming years. Measures are taken at the site level, as ecosystems and climate risks vary from site to site. 7 key goals are listed to help carry out the mission: advancing understanding of science, increasing adaptation capacity of forests, promoting mitigation strategies, integrating climate change into policy, reducing the USFS environmental footprint, education outreach, and establishing partnerships.
National Park Service
Proposed Revisions of Park Lands' Oil and Gas Regulations
The National Park Service proposed a rule on November 25th, 2009 to revise nonfederal oil and gas regulations within national park lands. The rule would update current regulations—which haven’t been revised since December of 1979—by implementing stricter regulations to protect natural resources. The rule also proposes removing regulation exemptions so that larger percentages of oil and gas wells in parks are regulated, and increasing assessments for non-compliance.
National Park Service Publishes Climate Change Response Strategy
The National Park Service published their “Climate Change Response Strategy” in September 2010 as a guidance document to comply with the 1916 Organic Act which states that the NPS must conserve lands “by such a manner and by such means as will leave them unimpaired for future generations.” The strategy includes the creation of a NPS Climate Change Coordination Group made up of four Associate Directors, and sets goals under and objectives under 4 categories, consistent with Secretarial Order 3289: science, adaptation, mitigation, and communication. The NPS outlines how they will reduce their own carbon footprint through energy efficiency strategies, apply climate models to their activities, and evaluate the potential for carbon storage and sequestration. This strategy is meant to increase the resiliency of national park lands and address the potential threats of climate change as efficiently as possible.
The Green Parks Plan
The Green Parks Plan, begun in April 2012, outlines how the National Park Service will meet its GHG emissions reductions goal set out in the 2010 “Climate Change Response Strategy.” The plan focuses on the reducing the impact park facilities have on the environment through a number of goals including increasing reliance on renewable energy, improving water use efficiency, adopting green transportation methods, and increasing recycling. Additionally, the NPS sets quantitative targets for reducing emissions. The plan aims to reduce Scope 1 and 2 GHG emissions in 2020 by 35% from the 2008 baseline, and scope 3 emissions by 10%. It also plans to reduce building energy intensity in 2016 by 35% from a 2003 baseline, and water use intensity in 2020 by 30% above a 2007 baseline.
Report to Congress on the Climate Change impacts on Freshwater Resources
In August of 2011, the US Geological Survey published an interagency report to Congress titled “Strengthening the Scientific Understanding of Climate Change Impacts on Freshwater Resources of the United States,” developed in response to section 9506 of the Omnibus Public Lands Act (Public Law 111-11). The mission of the report is to identify key actions to improve the nation’s capacity to detect and predict changes in freshwater resources resulting from climate change, and help improve the quality of observational data in order to help future water resource management. In addition to outlining 25 key findings, the report 6 “next steps” for moving forward. Data and analysis are provided on changing precipitation patterns, altered snowpack characteristics, changing sea levels, disrupted aquatic ecosystems. This report was published after the USGS posted a notice in the Federal register requesting comments on the draft report on March 23, 2011.
Advisory Committee on Climate Change and Natural Resource Science
In May 2013, the US Geological Survey chartered the Advisory Committee on Climate Change and Natural Resource Science (ACCCNRS) in accordance with the provisions of the Federal Advisory Committee Act (FACA). The committee’s role is to advise the Secretary of the Interior on US Geological Survey operations within the National Climate Change and Wildlife Center and the DOI Climate Science Centers. In July 2013, the “ACCCNRS Operating Procedures and Ground Rules” were published, outlining the general requirements of the committee including bi-annual meetings, the designation of a Federal Officer, and the establishment of scientific subcommittees. While the Committee is comprised of NGOs, local and state government officials, Native American Tribes and scientists, the USGS is the central body and provides administrative and logistical support.
Fish and Wildlife Service
Designation of Alaskan Critical Habitat for the Polar Bear
On December 7th, 2010 the Fish and Wildlife Service designated 484,734 square kilometers of Alaskan land and territorial waters as critical habitat for the polar bear. Critical habitat is defined as an area “that contains features essential for the conservation of an endangered or threatened species, and that may require special management or protection.” Designation of this critical habitat was made as a result of declining numbers in the polar bear population resulting from habitat loss due to climate change. The rule, which went into effect on January 6th, 2011, was challenged in court by the Alaska oil industry (Alaska Oil and Gas Association and American Petroleum Institute v. Salazar, Case No. 3:11-cv-0025-RRB) and the critical habitat was vacated and remanded on January 13th, 2013.
FWS Issues Notice of Intent for a PEIS Affecting Migratory Birds
On May 26th, 2015 the Fish and Wildlife Service issued a notice of intent to prepare a Programmatic Environmental Impact Statement (PEIS) to determine the effects of expanding authorization of incidental take of migratory birds to include industrial and commercial activities under the Migratory Bird Treaty Act. The notice outlines the need for incidental take mitigation, stating that migratory bird populations have been declining rapidly as a result of anthropogenic activities and climate change. The proposed strategy intends to expand authorization of incidental take to oil and gas, electric transmission, methane pipes, and wastewater disposal activities. The FWS claims that expanding authorization will give the Service more regulatory control over these activities and allow them to push for activities to include stricter bird conservation measures—however, if authorization is given, it is also likely that the increased incidental take of migratory birds would outweigh the benefits of conservation efforts and lead to even more drastic declines in bird populations. The comment period for this notice of intent closed July 27th.
Final Regulations Allowing Incidental take of Arctic Species During Oil and Gas Exploration
On June 12th, 2013 the Fish and Wildlife Service finalized regulations to allow the “nonlethal, incidental, unintentional take of small numbers of Pacific walruses and polar bears during oil and gas industry exploration” in the Chukchi Sea region off the coast of Alaska for a period of 5 years. Authorization of incidental take is conditional on activities having the “least practicable adverse impact on the species and their habitat,” as well as including mandatory species monitoring and reporting. According to FWS the ruling will have negligible effects on these species, despite the Service’s own Polar Bear Status Review stating, “Climatic warming at predicted rates in the Beaufort and Chukchi seas region is likely to have serious consequences for ringed seals and polar bears, and those effects will accumulate with the effects of oil and gas activities in the region.” The ruling also states that oil exploration would have “major effects” on both species if there were an oil spill.
National Oceanic and Atmospheric Administration
Proposal to Amend Critical Habitat Regulations
On May 12th, 2014 NOAA’s National Marine Fisheries Service and the Fish and Wildlife Service proposed a rule to amend parts of their regulations on designation of critical habitat for endangered species. The rule would clarify and standardize procedures for designating critical habitat. More importantly, the amendment would give the Services the ability to take climate change into account in their critical habitat designations. Currently, land can only be designated if it falls in a species historical range. However, taking into account that climate change may affect species’ ranges, NOAA and the FWS propose to allow lands to be deemed a critical habitat “where the best available scientific data suggest that specific unoccupied areas are, or it is reasonable to infer from the record that they will eventually become, necessary to support the species' recovery.”
NOAA Launches Climate-Smart Sanctuaries Initiative
In 2010, NOAA launched its Climate-Smart Sanctuaries Initiative to help the National Marine Sanctuary System (NMSS) address and adapt to climate change as a means of complying with Executive Order 13423 (Strengthening Federal Environmental, Energy, and Transportation Management). It includes a process for developing a climate change site scenario and climate action plan for each sanctuary, as well as outlining the requirements for obtaining certification as a “climate-smart” sanctuary. In order for a sanctuary to receive certification, it must go through a peer-review process to be completed by at least three objective experts who rank the sanctuary’s efforts in a number of categories including but not limited to waste management, energy efficiency, adaptation measures, and outreach. The initiative is first being piloted in the Gulf of Farallones National Marine Sanctuary.
NOAA's National Marine Fisheries Service Publishes Draft Climate Science Strategy
In January 2015, NOAA’s National Marine fisheries Service published a Draft Climate Science Strategy for public review. The document outlines a plan to increase the generation of climate information to better achieve the NOAA Fisheries’ living marine resources stewardship mission, and to better understand how climate change will affect living marine resources. The strategy is described a tool for compliance with the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and the National Environmental Policy Act (NEPA). Seven objectives are outlined with specific actions needed to achieve them over the next 5 years. The strategy recognizes a wide range of climate change effects on marine resources including rising ocean levels and temperatures, ocean acidification, altered storm tracks, changes in ocean circulation, stratification, and nutrient availability.
NOAA Releases "Next Generation Strategic Plan" to Achieve Long-Term Climate Change Adaptation
In December of 2010, NOAA released it’s Next Generation Strategic Plan, outlining 4 long-term goals: (1) climate adaptation and mitigation, (2) weather-ready nation, (3) healthy oceans, and (4) resilient coastal communities and economies. The plan details how NOAA will address climate change and it’s impact on water resources over the following 5 years, providing unbiased scientific information for public and governmental use that will help to achieve longer-term improvements. Specific objectives include reduced loss of life and property from climate events, increased efficiency in water usage, reduced health impacts from air pollution, production gains in renewable energy, and increased integration of science into fishery management.
NOAA Publishes National Marine Sanctuaries of the West Coast Ocean Acidification Action Plan
On August 5th, 2011 NOAA published the National Marine Sanctuaries of the West Coast Ocean Acidification Action Plan, which was developed by a task force comprised of members from each of the five west coast national marine sanctuaries. The document outlines a coordinated regional plan to address chemical ocean changes resulting from anthropogenic carbon dioxide emissions that includes 7 strategies: (1) monitoring for ocean acidification, (2) research on ocean acidification, (3) education and outreach, (4) mitigating damages to sanctuary resources, (5) influencing regional and national policy, (6) demonstrate leadership by reducing carbon emissions, and (7) internal coordination on ocean acidification issues. This strategy plan was created in response to the Federal Ocean Acidification and Monitoring Act of 2009, which requires that NOAA “have an active monitoring and research program in regards to ocean acidification.”
NOAA Publishes The Ocean and Great Lakes Acidification Research Plan
In April 2010 NOAA published The Ocean and Great Lakes Acidification Research Plan, a collaborative effort involving over 70 scientists across the agency and was created in response to the Federal Ocean Acidification and Monitoring (FOARAM) Act of 2009. The Act mandates that NOAA maintain an active monitoring and research program regarding ocean acidification resulting from anthropogenic climate change. The research plan’s stated purpose is to “predict how ecosystems will respond to acidification and to provide information that resource managers can use to address acidification issues.” The plan calls for regional-level implementation, taking into account unique differences between oceans, coastal areas, and great lakes regions, and specifies 6 goals called “themes.” The themes are: to develop the monitoring capacity to track ocean acidification and its impacts (1); assess the response of species to ocean and lake acidification (2); predict ecological responses to acidification (3); develop management strategies for responding and adapting to the consequences of ocean acidification (4); provide a synthesis of acidification data and information (5); and provide an educational and public outreach strategy (6). Within each theme, specific quantitative tasks are outlined to achieve concrete results from the plan’s implementation.
Proposed Amendment to the Hawaiian Islands Humpback Whale National Marine Sanctuary
On March 26th, 2015 NOAA proposed amending the Hawaiian Islands Humpback Whale National Marine Sanctuary (HIHWNMS), with the purpose of moving toward an “ecosystem-based management approach” rather than a single-species approach. The proposed changes include expanding the definition of sanctuary resource from only humpback whales to “any living or non-living resource of a National Marine Sanctuary that contributes to the conservation, recreational, ecological, historical, research, educational, or aesthetic value of the sanctuary.” Additionally, the rule would add new areas to the sanctuary boundary totaling 255 square miles, add more stringent protection measures for whales, and create three Special Sanctuary Management areas. These measures, if finalized, would preserve marine resources and build ecosystem resiliency against climate change.
National Marine Sanctuary Boundaries Expanded to Include Upwelling Center
On March 12th, 2015 NOAA expanded the boundaries of Gulf of the Farallones National Marine Sanctuary (GFNMS) and Cordell Bank National Marine Sanctuary (CBNMS). The rule extends the sanctuary boundaries north and west of the current borders in order to encompass the coastal upwelling center off of Point Arena. Upwelling centers are areas where cold, nutrient-rich water from the deep ocean moves to the surface along the coast and increases the productivity of marine life. By including Point Arena in the boundaries of the sanctuary, the regulation will protect important marine resources and strengthen ecosystem resiliency. The current sanctuary regulations are extended accordingly to the expanded areas, ensuring that the upwelling center is protected from pollution, oil discovery and exploration, and the taking of marine organisms. The regulation expands the total area of the GFNMS from 1.282 square miles to 3,295 square miles, and expands the CBNMS from 529 square miles to 1,286 square miles.
Five Geographic Areas Added to Fagatele Bay National Marine Sanctuary
On July 26th, 2012 NOAA expanded the Fagatele Bay National Marine Sanctuary through the addition of five geographical areas in compliance with The National Marine Sanctuaries Act (NMSA). The small sanctuary, located off of the coast of American Samoa, provides refuge for many native Indo-Pacific species and coral reefs and has been negatively impacted by commercial fishing and coral bleaching caused by anthropogenic climate change. The newly included areas, chosen based on their biological value, are: Fagalua/Fogama’a, Swains Island, Ta’u, Aunu’u and Muliāva. The regulation expands the sanctuary from .25 square miles to approximately 13,581 square miles, and attempts to make the ecosystem more resilient to climate change effects including increased natural disasters, acidification, and temperature increases.
Ocean Acidification Research Area Created Within National Marine Sanctuary Boundaries
On October 14th, 2011 NOAA created a research area within Gray’s Reef National Marine Sanctuary (GRNMS) off the coast of Georgia. In compliance with the National Marine Sanctuaries Act, the final rule designates a portion of the sanctuary for conducting controlled scientific studies without human activities or interference. The purpose of the research area is to create a space for researchers to examine the effects of climate change and ocean acidification on the sanctuary, and provide early warning services for losses in ecosystem integrity. Climate change effects can be hard to determine due to the “overwhelming effects of fishing,” making a research area necessary to carry out this work successfully and accurately. The research area occupies 8.27 square miles of the southern portion of the sanctuary.
Pacific Fishery Management Council
Pacific Coast Fishery Ecosystem Plan for the California Current Large Marine Ecosystem
In July of 2013, The Pacific Fishery Management Council published the Pacific Coast Fishery Ecosystem Plan for the U.S. Portion of the California Current Large Marine Ecosystem. The plan’s purpose is to enhance the Pacific Fishery Management Council’s species-specific management programs, with specific attention paid to improving the council’s information regarding climate change and human-induced impacts to marine ecosystems. Changes in ocean temperature, acidity, and deep-water oxygen are assessed at the global scale, while upwelling patterns, changes in phenology, and interannual patterns are studied at the local and regional level. The plan calls for increased incorporation of scientific data on these topics into their management strategies in order to assess how fish populations will change in size and location over in the future.
Western Pacific Fishery Management Council
Council Reorganizes, Replaces Fishery Management Plans with Fishery Ecosystem Plans
On September 24th, 2009 the Western Pacific Fishery Management Council published 5 Fishery Ecosystem Plans that replace the Fishery Management Plans (FMP) that were previously in use. While the Fishery Management Plans dictated how the council would management five different species, the Fishery Ecosystem Plans dictate how the council will manage five geographical areas. These FEPs represent the shift toward ecosystem-based approaches to fishery management, and map out how the Council will reorganize itself to accommodate this new approach. The five Fishery Ecosystem Plans are the American Samoa Fishery FEP, Hawaii FEP, Marianas FEP, Pacific Remote Islands Area FEP, and the Pelagic FEP. The purpose of this shift is the recognition that “many of Earth’s marine resources are stressed and the ecosystems that support them are degraded.” In order to restore resiliency and promote restoration of these habitats an ecosystem-based approach is shown to be more successful, as it takes into account the interactions and relationships of species within an ecosystem rather than one species in isolation. While anthropogenic climate change is not explicitly listed as a cause of degradation, the plans recognize the effects of climate change on coral reef habitats and also call for the creation of a Regional Ecosystem Advisory Committee to investigate “land-based and non-fishing activities that potentially affect the marine environment.” Through these measures, the Council has built into its FEPs the ability to address climate change and to preserve biodiverse ecosystems.
North Pacific Fishery Management Council
Council Approves Fishery Management Plan for Fish Resources of the Arctic Management Area
In August of 2009, the North Pacific Fishery Management Council approved a new Fishery Management Plan (FMP) for Fish Resources of the Arctic Management Area in compliance with the Magnuson-Stevens Act. The plan recognizes that climate change and melting sea ice will create conditions in which commercial fishers may want to develop in the Alaskan Arctic Exclusive Economic Zone (EEZ). In response to these climactic changes, the FMP states, “All federal waters of the U.S. Arctic will be closed to commercial fishing for any species of finfish, mollusks, crustaceans, and all other forms of marine animal and plant life.” Using an ecosystem-based management approach, the FMP protects Arctic marine resources from potential adverse effects of commercial fishing and addresses the impacts of climate change on species’ ranges and resiliency.
Gulf of Mexico Fishery Management Council
Council Passes the Generic Annual Catch Limits and Accountability Measures Amendment
In September 2011, The Gulf of Mexico Fishery Management Council passed the Generic Annual Catch Limits/Accountability Measures Amendment for the Council’s Red Drum, Reef Fish, Shrimp, Coral and Coral Reefs. In compliance with the Magnuson-Stevens Act’s requirement to prevent overfishing, the amendment specifies overfishing limits, annual catch limits, and optimal yield limits, and also implements accountability measures if these limits are not met. When determining optimal limits, the amendment recognizes the potential negative effects of climate change, although states that “the extent of these effects are not known at this time.” However, the amendment includes a list of potential stressors from climate change including temperature changes, organism metabolic changes, decreases in marine productivity, altered species interactions, changes in precipitation patterns, and species susceptibility to predators. The new measures implemented by this amendment could “decrease the carbon footprint from fishing if some fishermen stop or reduce their number and duration of trips due to the establishment of catch limits.” Additionally, the amendment notes the Deepwater Horizon oil spill as a negative impact on the environment that may affect species populations over time.
South Atlantic Fishery Management Council
Amendment 6 to the Fishery Management Plan for Coral, Coral Reefs, and Live/Hardbottom Habitats of the South Atlantic Region
In October of 2009, The South Atlantic Fishery Management Council passed Amendment 6 to the Fishery Management Plan for Coral, Coral Reefs, and Live/hardbottom Habitats of the South Atlantic Region, included under the Comprehensive Ecosystem-Based Amendment 1 for the South Atlantic Region (CE-BA 1). The amendment alters the Coral FMP to establish Coral Habitat Areas of Particular Concern (CHAPCs) with the goal of protecting coral reef ecosystems from degradation. The amendment prohibits all use of “bottom damaging” fishing gear, which includes bottom longline, trawl, dredge, anchors, pot or trap, etc. While the amendment does not mention climate change as a contributing factor to coral degradation, the preservation of coral habitats will improve the resiliency of marine ecosystems and help to mitigate the effects of climate change on marine resources.
Council Passes Comprehensive Ecosystem-Based Amendment 2 for the South Atlantic Region
On December 30th, 2011 the South Atlantic Fishery Management Council passed the Comprehensive Ecosystem-Based Amendment 2 for the South Atlantic Region. The Amendment includes the South Atlantic Region’s Amendment 1 to the FMP for Pelagic Sargassum Habitat of the South Atlantic Region (Sargassum FMP); Amendment 7 to the FMP for Coral, Coral reefs, and Live/Hard Bottom Habitats of the South Atlantic Region (Coral FMP); and Amendment 25 to the FMP for the Snapper-Grouper Fishery of the South Atlantic Region (Snapper-Grouper FMP). It also includes the South Atlantic and Gulf of Mexico Fishery Management Councils’ Amendment 21 to the FMP for Coastal Migratory Pelagic (CMP) Resources (CMP FMP). Noteworthy changes brought about by this amendment include the establishment of Annual Catch Limits (ACL) for species not currently overfished, the designation of 2 new Essential Fish Habitat (EFH) for Sargassum and Habitat Areas of Particular Concern (EFH-HAPCs) for Snapper-Grouper and Coral FMPs.
Mid-Atlantic Fishery Management Council
Omnibus Amendment Establishes Annual Catch Limits and Accountability Measures
On August 12th 2011, NOAA approved the Mid-Atlantic Fishery Management Council’s Omnibus Amendment created in conjunction with the National Marine Fisheries Service. The Amendment applies to 6 of the Council’s Fishery Management Plans, and includes Amendment 13 to the Atlantic Mackerel, Squids, and Butterfish FMP; Amendment 3 to the Bluefish FMP; Amendment 2 to the Spiny Dogfish FMP; Amendment 15 to the Summer Flounder, Scup, and Black Sea Bass FMP; Amendment 16 to the Surfclam and Ocean Quahog FMP; and Amendment 3 to the Tilefish FMP. The Omnibus Amendment sets Annual Catch Limits and Accountability Measures, in compliance with the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006. Through the prevention and ending of overfishing, marine resources will be more resilient to the effects of climate change. However, the Amendment fails to take climate change into account when determining Annual Catch Limits, stating that climate change is “beyond the scope of NMFS and Council Management.”
New England Fishery Management Council
Draft Omnibus Essential Fish Habitat Amendment 2
On October 1st, 2014 the New England Fishery Management Council published a draft of Omnibus Essential Fish Habitat Amendment 2, which would apply to 7 of the Council’s Fishery Management Plans. In compliance with the Magnuson-Stevens Fishery Conservation Management Act, the amendment—if passed—would minimize the negative effects of fishing on Essential Fish Habitat (EFH) through stricter regulations. It would also designate Habitat Areas of Particular Concern (HAPCs), which would require higher standards of protection and attention from the Council and Federal State Actions. One of the criterion for determining the location of an HAPC is “sensitivity to anthropogenic stresses.” As a result of this designation, ecosystems particularly at risk from climate change would have higher levels of protection.
Caribbean Fishery Management Council
Caribbean Annual Catch Limit Amendment
On December 20th, 2011 NOAA approved the Caribbean Fishery Management Council’s Annual Catch Limit Amendment. The Amendment sets Annual Catch Limits and Accountability Measures for reef fish, spiny lobster, queen conch resources, and corals and reef associated plants and invertebrates, in compliance with the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006. Through the prevention and ending of overfishing, marine resources will be more resilient to the effects of climate change.