Climate Regulation Tracking Service
Last Updated: April 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, the first an “endangerment finding” for six greenhouse gases—carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)—and the 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.
Finding of Failure to Submit
Federal Implementation Plan
EPA Plans to Defer GHG Permitting Requirements for CO2 Emissions from Biomass and Other Biogenic Sources
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. By July 2011, EPA plans to complete a rulemaking stating the same. This deferral will allow the agency further time to analyze whether biomass GHG emissions should require a permit under the PSD program. Among the issues under review include whether burning certain types of biomass may emit the same amount of CO2 emissions that would be emitted if they were not burned as fuel, while others may result in a net increase in CO2 emissions. Before the end of the three-year period, the agency intends to issue a second rulemaking that determines how these emissions should be treated or counted under GHG permitting requirements. The agency will also issue guidance shortly that will provide a basis that state or local permitting authorities may use to conclude that the use of biomass as fuel is the best available control technology for GHG emissions until the agency can complete action on the three-year deferral in July.
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.
Deferral for CO2 Emissions from Bioenergy and Other Biogenic Sources under PSD and Title V Programs
On July 1, 2011, EPA signed a Final Rule deferring for three years, the requirement for PSD and Title V permits for bioenergy and other biogenic sources. The deferral will allow the agency more time to precisely measure the carbon dioxide emitted by those operations. The impacted facilities include stationary sources such as biomass combustion plants, landfills where carbon dioxide is emitted from the decomposition of biogenic materials, wastewater treatment plants, and manure containment facilities.
GHG Standards for Fossil Fuel Fired Power Plants and Petroleum Refineries
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.
Court of Appeals for the D.C. Circuit Overturns CSAPR (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. The EPA petitioned for review of the vacation.
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.
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.
EPA Finalizes 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 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. The proposed rule is to be finalized by March 2013.
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 is due May 26, 2012, 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.
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 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). The rule requires reporters to begin monitoring on January 1, 2010, and the first reports will be due on March 31, 2011.
Greenhouse Gas Reporting Rule Amendments and Source Additions
On March 22, 2010, EPA proposed four new rules to make amendments and additions to the Greenhouse Gas Reporting Rule. The comment period for these proposed rules closed on June 11, 2010. The rules were expected to be finalized in September 2010, and facilities affected by the rules but not already required to monitor GHG emissions under the Reporting Rule would have to begin monitoring in January 2011 and submit their first reports to EPA by March 31, 2012.
- Subpart A - General Provisions: Corporate Parent/NAICS Amendments: Proposed Rule
- Subpart W - Petroleum and Natural Gas Systems: Proposed Rule
- Subpart RR - Carbon Dioxide Injection and Geologic Sequestration: Proposed Rule
- Subparts I, L, DD, OOa, and SS - Electronics Manufacturing, Fluorinated Gas Production, Imports and Exports of Equipment Pre-charged with Fluorinated GHGs or Containing Fluorinated GHGs in Closed-Cell Foams, Use of Electric Transmission and Distribution Equipment, Manufacture of Electric Transmission and Distribution Equipment: Proposed Rule
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
On June 28, 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.
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 Proposes Updates to GHG Reporting Program
On Dec. 20, 2010, EPA announced three concurrent actions relating to data elements reported under EPA’s GHG Reporting Program (GHGRP).
- EPA postponed the deadline for facilities to submit data used for calculating their 2010 GHG emissions from March 31, 2011 until 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. Interrim Final Rule.
- EPA is proposing to defer reporting of data elements that are inputs to emission equations for calendar years 2010, 2011, and 2012 until March 31, 2014. The public has 30 days from the date of publication in the Federal Register to submit comments on the proposed deferral, or 45 days if a hearing is requested. Preamble and 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 Extends Reporting Deadline for 2010 GHG Emissions
On March 17, 2011 EPA issued a final rule that extends 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 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.
Industrial Boilers and Incinerators
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.
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.
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.
Petition to reconsider Greenhouse Gas Motor Vehicle Rule rejected by EPA
The EPA rejected Pacific Legal Foundation’s (PLF) April 2011 petition to reconsider the light-duty vehicle emissions rule on the 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.
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.
Sec. 202 GHG Regulation of Cars and Light Duty Trucks
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 and will become effective 60 days after its publication in the Federal Register.
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.
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 Postpone Release of Fuel Economy and GHG Standards for Model Years 2017-2025 Light Duty Vehicles
On September 28, 2011 EPA and the NHTSA announced that they will postpone the planned September 30th release of a proposed second round of coordinated greenhouse gas (GHG) emission and fuel economy standards for light duty cars and trucks, covering vehicles in model years (MY) 2017-2025. The agencies stated that "[g]iven the historic nature of this joint rule between EPA and DOT, as well as the necessary coordination with California, it was recently determined that additional time was needed.” According to the agencies, the proposal will now be released in mid-November. Additionally, California, which has unique authority to set standards more stringent than those set by the federal government, will also delay its own rulemaking timetable in order keep its process aligned with EPA and NHTSA. However, the agencies have not changed their plans to finalize the rules by the end of 2012.
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).
Motor Vehicle Fuel Economy Label
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.
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.
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.
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.
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.
Published Executive Order 13514
Winston & Strawn Briefing on Executive Order
Holland & Knight Alert on Executive Order
Patton Boggs Alert on Executive Order
Congressional Research Service Report on Executive Order
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.”
Council on Environmental Quality
CEQ Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions (February 18, 2010)
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.
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.
Federal Trade Commission
Federal Trade Commission Revisions to "Green Guides" for Environmental Marketing Claims
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 at http://www.ferc.gov/industries/electric/indus-act/trans-plan.asp.
Securities and Exchange Commission