NCDEQ Files Motion to Withdraw from CPP Litigation

Earlier today, the North Carolina Department of Environmental Quality (NCDEQ), filed a motion to withdraw as a petitioner from the Clean Power Plan litigation.  The NCDEQ is one of the 25 petitioners in Docket No. 15-1363, the lead petition in West Virginia v. EPA.  The motion does not explain the basis for the withdrawal.

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State Air Pollution Control Agencies Submit Recommendations to Trump’s Administration

Shortly after EPA Administrator Pruitt’s confirmation, the National Association of Clean Air Agencies (NACAA)—a nonpartisan association of air pollution control agencies in 40 states, the District of Columbia, four territories, and 116 metropolitan areas—submitted a set of nine policy recommendations to the Administrator entitled “Improving Our Nation’s Clean Air Program: Recommendations from the National Association of Clean Air Agencies to President Trump’s Administration.”

The recommendations include the following:

  1. Improve Technical Assistance to State and Local Agencies, especially in the areas of providing training on air pollution topics and developing new and revised emission factors.
  2. Ensure State and Local Air Agencies Have the Resources They Need to Implement Federal Requirements by, among other things, increasing federal funding for state and local air agencies and providing the agencies with flexibility over how the funds are used.
  3. Improve Regulatory Assistance to State and Local Air Agencies Through Effective Federal Measures for Mobile and Stationary Sources, including by adopting more stringent standards for nitrogen oxides from heavy-duty vehicles and engines and for greenhouse gas emissions from both light- and heavy-duty vehicles.
  4. Continue and Expand Efforts to Address the Transport of Air Pollution by updating transport standards for the East and Midwest and by assessing and developing programs to address transport in the Western United States.
  5. Ensure Effective Establishment and Implementation of the National Ambient Air Quality Standards (NAAQS) by, among other things, continuing “the science-based process for reviewing and revising the NAAQS, [and] leaving consideration of cost or feasibility of attainment to the implementation phase,” “issu[ing] timely rules and guidance related to implementation of the NAAQS,” and “work[ing] with state and local air agencies to better understand the sources and contributions of background ozone.”
  6. Address Critical Air Monitoring Challenges by investing federal resources to maintain and modernize ambient air monitoring infrastructure and continuing to evaluate new air sensor technology.
  7. Identify and Address Toxic Air Pollution Challenges by, among other things, continuing to evaluate sources of Hazardous Air Pollutants, especially minor or mobile sources or those that are not listed as a source category under Section 112(c) of the Clean Air Act, and streamlining the National Air Toxics Assessment process so that results are made available in a more timely manner.
  8. Support State and Local Efforts to Address Climate Change by continuing to “consult with state and local air pollution agencies” and to provide “the appropriate level of financial and technical resources” if “state and local air agencies are obligated to implement and enforce federal GHG-related programs.”
  9. Improve the Integration of Federal, State, and Local Data Programs and Requirements “to address concerns about minimum data requirements, data quality and data use (including public access to data that have not been quality assured).”
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Renewable Energy on State Agendas

While the new administration shapes its policies on renewable energy development, the Governors’ Wind & Solar Energy Coalition, a bipartisan group made up of twenty state governors,* published a letter earlier this month urging the President to support the nation’s expanding renewable energy industry. The Coalition focuses on the development and distribution of solar and wind energy. One of its goals, identified in a 2008 report by the Bush Administration’s Department of Energy includes working to increase wind energy’s contribution to the nation’s electricity supply to 20% by 2030.

The Coalition’s letter makes four specific recommendations: (1) include funding for grid modernization in national infrastructure legislation; (2) adopt comprehensive long-term offshore wind development legislation; (3) increase federal funding for wind and solar research and development; and (4) streamline the permitting process to provide for better collaboration with relevant federal agencies. The Coalition also suggests creating “a new state-federal task force, perhaps in conjunction with the Federal Energy Regulatory Commission and the National Laboratories, to examine options to modernize and streamline state and federal regulatory processes,” with the goal of stimulating private sector and utility investments in the electric system.

The letter follows legislative initiatives focusing on renewable energy in several states. The Maryland Senate voted earlier this month to override Governor Larry Hogan’s veto of a bill to increase the state’s renewable energy standards from 20% to 25% by 2020.  In December, Illinois passed legislation setting a Renewable Portfolio Standard (RPS) target of 25% by 2025 and creating a community solar program, among other provisions. Also in December, Michigan passed sweeping reforms to its statewide energy policy that include increasing its target RPS to 15% by 2021.


* Members of the Governors’ Wind & Solar Energy Coalition include: Arkansas, California, Colorado, Delaware, Hawaii, Illinois, Iowa, Kansas, Maryland, Massachusetts, Minnesota, Montana, New York, North Dakota, Oregon, Pennsylvania, Rhode Island, South Dakota, Virginia, and Washington.

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Senate Confirms Pruitt as EPA Administrator

The United States Senate voted to confirm Oklahoma Attorney General Scott Pruitt as EPA Administrator this afternoon, by a vote of 52-46. The vote took place as scheduled and fell largely along party lines. Senator Susan Collins (R-ME) was the lone Republican to vote against Mr. Pruitt, while two Democrats, Senator Joe Manchin (D-WV) and Senator Heidi Heitkamp (D-ND) voted for him.  Senators John McCain (R-AZ) and Joe Donnelly (D-IN) did not vote. Mr. Pruitt is expected to be sworn in at 5:00 PM today.

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The Paris Agreement and the New Administration

Earlier this month, the Congressional Research Service (CRS) released its report entitled Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement.  This report examines issues around withdrawing from treaties under domestic and international law, specifically applying its analysis to the Paris Agreement and the Joint Comprehensive Plan of Action related to Iran’s nuclear program.

While there is some dispute over the procedures for withdrawing from a treaty that was entered into by the President with the advice and consent of the Senate (per the Constitution), the Obama Administration considered the Paris Agreement an executive agreement not requiring the Senate’s advice and consent.  The CRS Report concludes that there does not seem to be a restriction on unilateral withdrawal from this Agreement by the President.

However, by its terms, a party cannot actually withdraw from the Paris Agreement until November 2019.  The Report notes that the Paris Agreement is a subsidiary to the 1992 United Nations Framework Convention on Climate Change (UNFCCC), though, and withdrawal from the UNFCCC will effectively withdraw the party from the Paris Agreement. But because the George H.W. Bush Administration entered into the UNFCCC with the advice and consent of the Senate, it is unclear whether unilateral withdrawal by the President would be upheld if challenged.

Another option to change course on the Paris Agreement would be non-implementation.  The Agreement has been interpreted to not create a binding duty to take particular steps or to meet emission reduction targets.

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