Midnight Watch Project
State Impact Center / January 20, 2021
The outgoing Trump administration took numerous midnight actions on environmental, climate and energy issues between the election and Inauguration Day. Use the tabs at left to explore by issue area. As of the morning of January 20, 2021, the State Impact Center counted 24 environmental, energy, and climate rules finalized during the midnight period where state attorneys general have been active. Beyond the scope of our tracking, ProPublica identified additional rollbacks of environmental regulations, as well as a number of rules in other subject matter areas. The Biden administration has identified numerous midnight rules, among other regulations, that it seeks to review.
Carbon Emissions Standards for New Power Plants
In December 2018, the Environmental Protection Agency (EPA) proposed to weaken New Source Performance Standards for carbon emissions from new and modified power plants. The agency’s proposed changes would allow new coal-fired power plants to release up to 35 percent more carbon emissions than allowed under existing regulations. As state attorneys general noted in comments filed in March 2019, the proposal violates the Clean Air Act’s mandate that New Source Performance standards reflect the “best” system for reducing emissions, as the proposal would in fact allow emissions to increase. The EPA could finalize the rollback during the transition period.
🔴NEW DEVELOPMENTS: The EPA published the final rule on January 13. The rule does not alter New Source Performance Standards for new and modified coal-fired power plants as originally proposed, and instead establishes a new scheme for determining whether emissions of greenhouse gases (GHG) from a particular sector are significant enough — a threshold set at 3% of overall U.S. GHG emissions — to be regulated under the Clean Air Act. The Clean Air Act provides no justification for the EPA’s arbitrary 3% significance threshold, and the agency’s failure to accept public comment on the threshold scheme before finalizing it likely runs afoul of the Administrative Procedure Act.
Greenhouse Gas Emissions Standards for Airplanes
In August 2020, the EPA proposed the country’s first-ever greenhouse gas emissions standards for airplanes. The standards reflect existing industry practice and would have essentially no effect on the aviation sector’s actual emissions, as state attorneys general emphasized in comments filed in October 2020. The standards could be finalized during the transition period.
🔴NEW DEVELOPMENTS: The EPA published the final rule on January 11. A coalition of 13 state attorneys general challenged the final rule on January 15.
Delaying Fine Adjustment for Non-Complying Automakers
🔴NEW DEVELOPMENT: On January 14, the National Highway Traffic Safety Administration (NHTSA) promulgated an interim final rule delaying the effectiveness of its 2016 penalty adjustment for violations of Corporate Average Fuel Economy (CAFE) standards until model year 2022. The rule was a response to a petition from the Alliance for Automotive Innovation and comes after state attorneys general twice successfully sued NHTSA for previously delaying and rescinding the adjustment. The rule became effective upon publication in the Federal Register and comments were due on January 25, 2021.
Guidance on Treatment of Greenhouse Gases Under NEPA
In June 2019, the White House Council on Environmental Quality (CEQ) published draft guidance on the treatment of greenhouse gases under the National Environmental Policy Act (NEPA). The draft guidance provided little clarity to federal agencies on how to weigh greenhouse gas emissions and climate impacts in NEPA reviews, and instead appeared to encourage agencies to avoid such considerations altogether, as state attorneys general noted in comments filed in August 2019. The administration has since moved ahead with a broad overhaul of NEPA implementing regulations, but the guidance remains unfinalized and its fate is unclear.
National Ambient Air Quality Standards for Ozone
In August 2020, the Environmental Protection Agency (EPA) proposed to retain the existing National Ambient Air Quality Standards (NAAQS) for ozone, despite significant new scientific evidence of ozone’s harm to human health that has emerged since the existing standards were adopted in 2015, as state attorneys general noted in comments filed in October 2020. The attorneys general also noted significant flaws in the process by which the EPA reached its decision, including steps to arbitrarily exclude scientific experts, truncate and eliminate important steps, reduce transparency and curtail opportunities for public input.
🔴NEW DEVELOPMENTS: The EPA published its final decision on December 31. A coalition of 16 state attorneys general challenged the decision on January 19.
National Ambient Air Quality Standards for Particulate Matter
In April 2020, the EPA proposed to retain the existing NAAQS for fine particulate matter (PM2.5) and coarse particulate matter (PM10), even though fine particulate matter is associated with an estimated 45,000 deaths annually in areas that meet existing standards, as state attorneys general noted in comments filed in June 2020. The attorneys general also noted that the EPA wrongly asserted that its decision “raises no environmental justice issues,” despite significant evidence that communities of color and lower-income communities are disproportionately exposed to and harmed by PM pollution.
🔴NEW DEVELOPMENTS: The EPA published its final decision on December 18. A coalition of 17 state attorneys general challenged the decision on January 15.
Once In, Always In
On November 19, the EPA published a final rule replacing its 25-year-old “Once In, Always In” policy, which required that once a facility is classified as a major source of hazardous air pollutants it must keep pollution controls in place even if the facility has the potential to reduce emissions below major source thresholds. The agency previously adopted a similar policy through a guidance memorandum; the U.S. Court of Appeals for the D.C. Circuit dismissed a challenge to the guidance memorandum, holding that it was not a final agency action.
🔴NEW DEVELOPMENTS: A coalition of 13 state attorneys general challenged the final rule on January 19.
Emissions Standards for Ethylene Oxide
In December 2019, the EPA published an advance notice of proposed rulemaking to solicit input on potential revised emissions standards for ethylene oxide (EtO), a flammable and highly reactive gas used by more than 100 facilities across the United States to sterilize medical instruments and other products. In comments filed in February 2020, state attorneys general noted that existing standards fail to adequately protect 288,000 Americans across 36 states who face an elevated risk of EtO exposure, which is associated with cancer, reproductive harm and neurotoxicity. The attorneys general also noted that a statutorily mandated review of the standards is more than five years overdue, and urged the EPA to work with the Food and Drug Administration (FDA) to support research into effective alternatives to EtO sterilization. The EPA has thus far not moved forward with proposing revised standards.
Sell-Through Period for Non-Compliant Wood Heaters
In May 2020, the EPA published a proposed rule that would have allowed the continued sale of wood-burning heaters, boilers and forced-air furnaces that do not comply with emissions standards that took effect in May 2020. Air pollutants emitted by such appliances — in particular, fine particulate matter — cause significant harm to public health, and are particularly dangerous during a respiratory disease pandemic. The proposal would have allowed retailers to continue selling non-compliant products through November 30, 2020, despite the fact that the EPA previously concluded that there was insufficient evidence of a need for a sell-through period, as state attorneys general noted in comments filed in July 2020.
🔴NEW DEVELOPMENT: In mid-November, the EPA reportedly notified industry groups that it would not finalize the proposed sell-through period for non-compliant wood heaters.
Lead and Copper Rule Revisions
In December 2019, the Environmental Protection Agency (EPA) proposed revisions to the Lead and Copper Rule under the Safe Drinking Water Act (SDWA). The proposal includes provisions that weaken important public health protections, including a reduction in the annual rate at which water utilities must replace lead pipes to address harmful levels of lead concentration in water — a change that may violate the SDWA’s anti-backsliding provision, as state attorneys general warned in comments filed in February 2020.
🔴NEW DEVELOPMENT: The EPA published the final rule on January 15.
Preliminary Regulatory Determinations for PFOS and PFOA
In March 2020, the EPA issued a preliminary decision to regulate only two per- and polyfluoroalkyl substances (PFAS) — perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) — under the Safe Drinking Water Act (SDWA). PFAS chemicals can cause reproductive, developmental, liver and kidney damage and have been linked to cancer. In June 2020, state attorneys general submitted comments encouraging the EPA to establish drinking water standards for other PFAS chemicals under the SDWA, in addition to PFOA and PFOS. The final regulatory determination could be published during the transition period.
🔴NEW DEVELOPMENT: The White House completed its review of the final rule on January 14.
Coal Ash Impoundment Closure Regulations
On November 12, the EPA published the second part (first part here) of its rollback of a 2015 rule governing the disposal of toxic coal ash in landfills and surface impoundments. Among other changes, the second part of the rollback would allow certain unlined impoundments to remain open indefinitely. The attorneys general of Maryland, Illinois, and Michigan filed comments opposed to the proposed rule.
Clean Energy & Energy Efficiency
Waiving Energy Efficiency Test Procedures
In May 2019, the Energy Department proposed changes to the process by which appliance manufacturers can seek waivers from Energy Policy and Conservation Act (EPCA)-mandated energy efficiency testing procedures. Under the proposal, the Energy Department would initially grant such waivers by default without review, based on a simple notification from a manufacturer that they do not intend to follow the established test procedures. In addition, if the Energy Department eventually denies a waiver following further review, the manufacturer would be allowed to continue avoiding required compliance testing for an additional 180-day grace period. These changes would effectively allow any company to manufacture and sell non-compliant products for at least half a year, and would burden consumers and businesses with costly long-lasting products that do not meet energy efficiency standards, as state attorneys general warned in comments filed in September 2019.
🔴NEW DEVELOPMENTS: The Energy Department published the final rule on December 11. A coalition of 15 state attorneys general challenged the final rule on January 19.
Efficiency Carve-Out for Fast-Cycle Washers and Dryers
In August 2020, the Energy Department proposed to establish a new product class for fast-cycle clothes washers and dryers, in order to exempt them from energy efficiency standards under the EPCA. Currently, all clothes washers and dryers are subject to energy efficiency standards. The Energy Department’s proposal would create a category of washers and dryers to carve out from the current standards. These appliances would be subject to other standards only if the Energy Department undertook and finalized an additional rulemaking. Such a relaxation of standards violates EPCA’s anti-backsliding provision that prohibits the department from establishing a standard that increases maximum allowable energy use, as state attorneys general warned in comments filed in October 2020.
🔴NEW DEVELOPMENTS: The Energy Department published the final rule on December 16. A coalition of 15 state attorneys general challenged the final rule on January 19.
Special Treatment for Furnaces and Water Heaters
In July 2019, the Energy Department proposed an interpretative rule for energy efficiency standards for residential gas furnaces and commercial hot water heaters. The proposal asserted that non-condensing combustion technology products and equipment are “performance characteristics” that are exempt under EPCA because adopting an energy efficiency standard allegedly would result in the commercial unavailability of non-condensing combustion technology products and equipment in furnaces and hot water heaters. State attorneys general filed comments in September 2019 opposing the proposal on grounds that the Energy Department had correctly concluded in prior rulemakings that non-condensing combustion technology products and equipment are not “performance characteristics” under EPCA, and because the proposal would cost consumers billions of dollars in lost energy savings and increase carbon emissions by millions of metric tons.
In September 2020, after considering public comments on the July 2019 proposal, the Energy Department proposed a supplemental interpretative rule that would deem a residential gas furnace or commercial water heater’s compatibility with existing venting systems a “performance-related feature.” This interpretation of “feature” is inconsistent with EPCA, as state attorneys general noted in comments filed in September 2020.
🔴NEW DEVELOPMENT: The The Energy Department published the final rule on January 15.
Vineyard Wind Project: Final EIS and Permitting Decision
In June 2020, the Bureau of Ocean Energy Management (BOEM) issued a supplement to its December 2018 draft environmental impact statement for Vineyard Wind’s proposed 800-MW wind energy project off the coast of Massachusetts. In its supplement, BOEM expanded its analysis to evaluate cumulative impacts of the project and other reasonably foreseeable offshore wind energy facility projects in the Atlantic Outer Continental Shelf area, forecasting 22,000 megawatts of wind development along the East Coast. In July 2020, Massachusetts Attorney General Maura Healey filed comments noting the importance of the project to the state’s emissions reductions targets and transition to clean energy, and urging BOEM to expeditiously approve the project.
🔴NEW DEVELOPMENTS: On December 1, Vineyard Wind announced plans to switch the turbines used in the project. The Interior Department responded by terminating the federal review process for the project, in a notice published on December 16.
Changes to FERC’s Transmission Incentives Policy
In March 2020, the Federal Energy Regulatory Commission (FERC) proposed revisions to its electricity transmission incentives policy. Under Section 219 of the Federal Power Act, FERC establishes incentives-based, including performance-based, rate treatments for the development of reliable and affordable transmission projects. In June 2020, state attorneys general submitted multistate comments (and Virginia submitted state-specific comments) expressing concern that most aspects of FERC’s proposal would impede progress on needed projects for the rapidly changing grid, and would lead to unjust and unreasonable rates. FERC could finalize its revisions during the transition period.
🔴NEW DEVELOPMENT: The proposal was struck from the agenda for FERC’s open meeting on January 19.
Arctic Refuge Seismic Surveying and Lease Sale
In August 2020, the Bureau of Land Management (BLM) issued a record of decision to open the Coastal Plain of the Arctic National Wildlife Refuge to oil and gas leasing. The decision was based on a September 2019 environmental impact statement that, among numerous other flaws and deficiencies, questioned the existence of climate change while simultaneously asserting that the impacts of oil and gas development on the Arctic Refuge ecosystem would be insignificant relative to the impacts of climate change, and failed to analyze environmental impacts associated with seismic surveying that would precede drilling activity.
On November 17, BLM published a call for nominations and comments for tracts of land for oil and gas drilling in the Arctic Refuge, giving the oil and gas industry 30 days — until December 17, 2020 — to provide comments on the tracts that have been identified for potential sale. Normally, BLM would take some time to review the comments before publishing a notice of sale, which would identify a lease sale date at least 30 days in the future.
On December 7, BLM published a notice of sale announcing an Arctic Refuge lease sale scheduled for January 6, 2021. Taking these steps out of sequence — publishing a notice of sale ten days prior to the closing of the public comment period for BLM’s call for nominations — is highly unusual and potentially unlawful. The relevant regulations require that a “detailed statement of the sale, including a description of the areas to be offered for lease, the lease terms, conditions and special stipulations and how and where to submit bids shall be made available to the public immediately after publication of the notice of sale.”
🔴NEW DEVELOPMENT: BLM proceeded with the lease sale on January 6, but received few bids and collected a mere $7 million in federal revenue. No major oil and gas companies submitted bids, and the biggest player in the auction was an economic development corporation owned by the State of Alaska.
BLM accepted comments through November 6, 2020 on a proposed plan to conduct seismic surveying — a subsurface resource exploration technique that poses a significant threat to polar bears and other wildlife — in the eastern portion of the Coastal Plain. State attorneys general filed comments warning that BLM has “failed to provide the public with any information about the environmental impacts” of the plan, which are expected to be significant given that it will likely involve “seismic testing across a third of the Coastal Plain and construction of hundreds of miles of snow access trails, multiple airstrips, and thousands of miles of receiver lines.”
- On December 8, the U.S. Fish and Wildlife Service published a proposed incidental harassment authorization related to the plan’s impacts on polar bears. The Service accepted comments through January 7.
- On December 16, BLM published notice of an environmental assessment and proposed Finding of No New Significant Impact (FONNSI) for the proposed seismic surveying. BLM accepted comments through December 30.
National Petroleum Reserve-Alaska Integrated Activity Plan
In June 2020, BLM released a final environmental impact statement (EIS) and integrated activity plan (IAP) to open an additional 6.6 million acres of the National Petroleum Reserve-Alaska to new oil and gas leasing. The expansion would include crucial wildlife habitat — including areas around the Teshekpuk Lake wetlands complex — that BLM designated as off-limits to leasing in its 2013 integrated activity plan, which was completed after extensive research and broad public involvement. The EIS fails to provide a defensible, evidence-based justification for the expansion of leasing into these areas, as state attorneys general noted in comments filed on the draft EIS in January 2020. The attorneys general also highlighted the plan’s failure to adequately account for the plan’s potential climate impacts, especially with regard to migratory birds, emphasizing that conditions are worse now for the Reserve’s wildlife than they were in 2013 as a result of the intensifying impacts of climate change.
🔴NEW DEVELOPMENT: On January 4, BLM published a record of decision adopting the new integrated activity plan. Under the new IAP, roughly 82% — 18.6 million acres — of the National Petroleum Reserve-Alaska will be open to oil and gas drilling.
🔴NEW DEVELOPMENT: On January 15, 2021, the Interior Department published a final rule eliminating several key provisions in the 2016 Valuation Rule, which had reformed procedures for determining the royalties owed to the federal government from coal, oil and gas extracted on public lands. The rule will take effect on February 16, 2021. The rule will become effective on February 16, 2021. California and New Mexico twice successfully sued to defeat prior attempts to delay and repeal the Valuation Rule.
Offshore Oil and Gas Development
In January 2018, the Interior Department’s Bureau of Ocean Energy Management (BOEM) proposed a revised Outer Continental Shelf (OCS) Oil and Gas Leasing Program for 2019-2024. The plan would open more than 90% of the United States’ offshore waters for oil and gas exploration and development, including areas adjacent to East and West Coast states that strongly oppose such development off their shores and lack the onshore infrastructure needed to receive and process oil and gas. Many of the areas included in the plan have little production potential, and opening them for leasing is “simply not worth the environmental and economic disruption, much less the risk of a disaster with adverse effects persisting for many years,” as state attorneys general emphasized in comments filed in March 2019. The administration paused the plan following a March 2019 decision by the U.S. District Court for the District of Alaska that vacated a similar attempt to restart offshore leasing in Arctic waters; that decision was appealed to the U.S. Court of Appeals for the Ninth Circuit, which has not yet issued a ruling. President Trump has since placed a 10-year moratorium on offshore energy development off the coasts of Florida, Georgia, South Carolina, and North Carolina, and the fate of the revised OCS leasing program remains unclear.
Excluding Forest Service Actions from NEPA Reviews
On November 19, the U.S. Forest Service published a final rule that will allow a range of actions by the service to proceed without undergoing full National Environmental Policy Act (NEPA) review. The rule expands two existing categorical exclusions and creates six new exclusions for activities with potentially significant environmental impacts, including “activities related to recreation special uses, administrative sites, recreation sites, and restoration and resilience projects, along with two [categorical exclusions] for certain road management projects.” The changes took effect immediately upon the rule’s publication.
Restricting LWCF Implementation
On November 9, Interior Secretary David Bernhardt issued an order that would effectively give state and local governments the ability to block federal acquisitions of land through the Land and Water Conservation Fund (LWCF). The order requires the federal government to obtain a “written expression of support by both the affected Governor and local county or county-government-equivalent” before completing a LWCF-funded acquisition. The LWCF provides funds for states to spend on qualifying projects; neither the language nor the structure of the LWCF allows for states to also exercise a veto over federal conservation investment decisions. Both Republican and Democratic lawmakers who championed the legislation sharply criticized the order, as did conservation groups.
Endangered Species Act: Definition of “Habitat”
In August 2020, the U.S. Fish and Wildlife Service and National Marine Fisheries Service proposed a new, restrictive definition of the term “habitat” under the Endangered Species Act (ESA). By narrowly defining habitat, the proposal threatens to “arbitrarily limit the Services’ ability to recover imperiled species by reducing — in some cases potentially severely — the amount and type of critical habitat that can be protected under the Act,” as state attorneys general warned in comments filed in September 2020.
🔴NEW DEVELOPMENTS: The Services published the final rule on December 16, defining “habitat” for the purposes of critical habitat designations as “the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.” A coalition of 18 state attorneys general challenged the final rule on January 19.
Endangered Species Act: Critical Habitat Designation Process
In September 2020, the U.S. Fish and Wildlife Service proposed changes to the process for designating critical habitat for protection under the ESA. The proposed changes would skew the process in favor of development and extractive industries by giving private parties inappropriate influence over whether the Service undertakes analyses of the benefits of excluding areas from critical habitat designations, and over the information used in such analyses. The changes threaten to “reduc[e] — potentially drastically — the amount of critical habitat ultimately designated and protected” under the statute, as state attorneys general warned in comments filed in October 2020.
🔴NEW DEVELOPMENTS: The Fish and Wildlife Service published the final rule on December 18. A coalition of 18 state attorneys general challenged the final rule on January 19.
Migratory Bird Treaty Act: Elimination of Prohibition on Incidental Take
In February 2020, the U.S. Fish and Wildlife Service published a proposed rule that would redefine the scope of the Migratory Bird Treaty Act (MBTA) to no longer prohibit the incidental “take” of migratory birds. The proposal would reverse decades of regulatory precedent in order to shield industries and developers that recklessly kill migratory birds from liability under the MBTA. The change directly conflicts with the MBTA’s text, legislative history and fundamental purpose protecting migratory birds, as state attorneys general emphasized in comments filed in March 2020. The Fish and Wildlife Service released a final environmental impact statement on November 27.
🔴NEW DEVELOPMENTS: The Fish and Wildlife Service published the final rule on January 7. A coalition of 11 state attorneys general challenged the final rule on January 19.
Revised Method for Evaluating Impacts of Pesticides on Endangered Species
In May 2019, the EPA proposed changes to its process for evaluating risks posed by pesticides to endangered species. The proposal would limit the scope of the agency’s review of the effects of pesticides on endangered species, including species on the brink of extinction, and “precludes any analysis of the effects of climate change” on the habitats of listed species. State attorneys general filed comments in August 2019 warning that the proposal contravenes the Endangered Species Act’s “policy of institutionalized caution” by unlawfully allowing the EPA to rely on incomplete and unreliable data and unreasonably restricting the potential habitat areas to be analyzed. The EPA could finalize the changes during the transition period.
Safety & Toxics
Risk Evaluation for Asbestos
In April 2020, the Environmental Protection Agency (EPA) released a draft risk evaluation for asbestos, finding that certain conditions of asbestos use — including the import of asbestos and asbestos-containing products — present no unreasonable risk to human health and the environment. As noted by state attorneys general in comments filed in June 2020, the EPA failed to consider all uses of asbestos in its evaluation, excluded exposure to legacy asbestos from consideration, and even conceded that the use of commercial and consumer asbestos does in fact present an unreasonable cancer risk.
🔴NEW DEVELOPMENT: The EPA published a final risk evaluation for chrysotile asbestos on December 18.
Risk Evaluation for Perchloroethylene
In May 2020, the EPA released a draft risk evaluation for perchloroethylene (PERC), a hazardous chemical commonly used in dry cleaning. The draft risk evaluation includes numerous deficiencies and underestimations of the risk that PERC poses to human health and the environment. It is particularly egregious from an environmental justice perspective, due to disproportionately high exposure rates to PERC among residents of low-income communities and communities of color, as highlighted in comments filed by state attorneys general in July 2020.
🔴NEW DEVELOPMENT: The EPA published the final risk evaluation on December 18.
Pesticide Reregistration Decision for Flonicamid
In September 2020, the EPA proposed an interim reregistration decision for the pesticide flonicamid. In comments filed in November 2020, California Attorney General Xavier Becerra highlighted the inadequacy of the proposed interim decision, emphasizing that the EPA will violate the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) if it moves forward without reviewing relevant studies and sufficiently analyzing the threat that flonicamid poses to pollinators. The EPA could finalize the interim reregistration decision during the transition period.
Risk Assessment for Ethylene Oxide
On November 20, the EPA released a draft risk assessment for ethylene oxide (EtO), a carcinogenic gas used as a fumigant to sterilize medical equipment and spices. Notably, instead of endorsing a definitive method for evaluating the cancer risks of EtO exposure, the draft risk assessment provides a range of methods, some of which suggest EtO’s carcinogenic potential is far lower than estimated by the EPA’s independent Integrated Risk Information System (IRIS) program. The EPA will accept comments on the draft risk assessment through January 19, 2021.
Superfund Financial Assurance Requirements
On December 2, the EPA issued final rules limiting the financial responsibility of three industries under the Comprehensive Environmental Response, Compensation, and Liability Act (the Superfund statute). Under Superfund, if the owners and operators of a site contaminated with hazardous substances are unable to fund cleanup efforts, the EPA will use taxpayer funds to clean up the sites. The pace of EPA-funded cleanups is often constrained by fund availability.
Under the EPA’s final rules, owners and operators in the three industries — fossil fuel-fired power plants, the petroleum and coal products manufacturing industry, and the chemical manufacturing industry — will not be required to establish and maintain evidence of financial responsibility to fund the cleanup of hazardous substances. Consequently, owners and operators in the three industries could declare bankruptcy to avoid Superfund liability, leaving taxpayers on the hook to pay for EPA’s cleanup of the contaminated sites, and leaving nearby communities waiting on the EPA to complete its cleanup activities.
EPA Restrictions on Use of Science in Rulemakings
In March 2020, the EPA released a supplemental proposal to modify and expand its April 2018 proposal to limit the agency’s reliance on scientific studies that do not provide public access to all underlying data and methodologies. The new proposal directs the agency to give preference to studies with public data — a change from the agency’s original proposal to disqualify studies without public data altogether — but extends the original proposal’s restrictions beyond formal rulemaking processes to apply to all of the EPA’s science and research. The proposed restrictions are “a ‘solution’ in search of a problem” and “will only detract from the robustly transparent peer review process that EPA currently uses to evaluate the integrity of scientific studies and modeling,” as state attorneys general emphasized in comments filed in May 2020. The EPA’s final rule has been under review at the White House since September 2020, and could be published during the transition period.
🔴NEW DEVELOPMENTS: The EPA published the final rule on January 6. A coalition of 18 state attorneys general challenged the final rule on January 19.
Changes to Cost-Benefit Analysis of Clean Air Act Regulations
In June 2020, the EPA proposed drastic changes to its approach to cost-benefit analyses of environmental regulations under the Clean Air Act. The proposal would establish a one-size-fits-all methodology for cost-benefit analyses, and would bar consideration of co-benefits, which result from reductions in pollutants that are not the direct subject of the regulation. In August 2020, state attorneys general filed comments objecting to the proposal, emphasizing that failing to consider co-benefits not only disregards fundamental economic principles but violates EPA’s statutory duties and undercuts the agency’s core mission to protect human health and the environment.
🔴NEW DEVELOPMENT: The EPA published the final rule on December 23. A coalition of 18 state attorneys general challenged the final rule on January 19.
Changes to Regulatory Enforcement
In January 2020, the White House Office of Management and Budget (OMB) issued a request for information regarding potential changes to regulatory enforcement and adjudication. In the request, OMB solicited proposals that would limit the ability of federal agencies to investigate and enforce laws that protect the environment, public health and civil rights. OMB presented no evidence or examples of deficiencies in the current enforcement system, as state attorneys general emphasized in comments filed in March 2020. The attorneys general highlighted that enforcement actions under this administration have actually declined, contradicting OMB’s premise that enforcement actions are increasing. The proposal could be finalized during the transition period.
Changes to NEPA Analysis of Transportation Infrastructure Projects
On November 23, the Transportation Department proposed changes to its National Environmental Policy Act (NEPA) procedures. Comments on the proposal were due December 23, 2020, which may provide the Transportation Department with sufficient time to finalize the rule before Inauguration Day.
NEPA requires that before the Transportation Department provides funds to construct a transportation infrastructure project, such as expanding a highway or building a light rail line, it must conduct a NEPA analysis of the project’s potential environmental impacts, including greenhouse gas emissions. Nearly all transportation infrastructure projects receive some level of federal funding and thus are subject to NEPA.
The proposal would roll back the Transportation Department’s NEPA requirements to mirror the Council on Environmental Quality’s July 2020 final rule that eliminated several key, long-standing NEPA obligations — including, for example, the requirement to analyze climate-related and other “cumulative” and “indirect” environmental effects. The changes would limit the ability of federal agencies, including the Transportation Department, to comprehensively evaluate the impacts of their actions on the environment and public health, as state attorneys general warned in comments filed in March 2020.
Changing of FERC Chairmanship
On November 5, President Trump named James Danly as chairman of the Federal Energy Regulatory Commission (FERC). He replaces Neil Chatterjee, who will remain on FERC as a commissioner. The president may name a new chairman from the sitting commissioners at any time. Although both Danly and Chatterjee are Republicans appointed by Trump to FERC, Chatterjee has taken some steps as chair that may be seen as too friendly to cleaner technologies, such as finalizing Order 2222, which aims to remove barriers to the participation of distributed energy resource aggregators in wholesale electricity markets. He also recently convened a technical conference to discuss carbon pricing in organized wholesale markets, and FERC issued a proposed policy statement on the same topic shortly thereafter. Danly dissented from Order 2222 and the proposed policy statement. As Chairman, Danly will still have a single vote, but he will also be able to guide the path of the agency.
Removal of U.S. Global Change Research Program Director
On November 6, the White House removed climate scientist Michael Kuperberg from his leadership post at the U.S. Global Change Research Program (USGCRP), where he was expected to oversee development of the Fifth National Climate Assessment, slated for finalization in 2023. Mr. Kuperberg, who led USGCRP through the development of the Fourth National Climate Assessment, has been directed by the administration to return to his previous position as a scientist at the Energy Department. USGCRP is responsible for coordinating efforts by 13 federal agencies to produce a National Climate Assessment every four years, as mandated by Congress.
The following week, the Trump administration installed David Legates, a scientist who has downplayed the harms of climate change, to oversee USGCRP. The administration also placed a second official, Ryan Maue — who holds similarly questionable views on climate — into a USGCRP oversight role.
🔴NEW DEVELOPMENT: Legates and Maue were removed from their positions at USGCRP in mid-January.
In October 2020, President Trump issued a memorandum on hydraulic fracturing. The memorandum “directs certain officials to assess the potential effects of efforts to ban or restrict” fracking and “other innovative technologies.” The memorandum directed the Energy Department to submit two different reports to the president by January 9 on the economic impacts and national security impacts of prohibiting or restricting the use of fracking.
Weakening of Civil Servant Protections
In October 2020, President Trump issued an executive order that would create a new policymaking classification of federal employees that would no longer receive civil service protections and could be fired as at-will employees. Concerns have been expressed that political appointees at federal agencies could then fire reclassified employees simply because they are perceived as insufficiently loyal to the president. The executive order requires federal agencies to complete a preliminary review of their workforces within 90 days of the issuance of the order — January 19, 2021 — to determine which employees should be reclassified.
🔴NEW DEVELOPMENT: With the exception of the White House Office of Management and Budget, federal agencies largely failed to implement the executive order before the change in administrations.