The Inflation Reduction Act doesn’t get around the Supreme Court’s climate ruling in West Virginia v. EPA, but it does strengthen EPA’s future abilities

The Supreme Court limited the EPA’s authority to regulate power plant emissions. Al Drago/Getty Images

by Patrick Parenteau, Vermont Law School

The new Inflation Reduction Act is being justly celebrated as the most significant piece of federal legislation to address the climate crisis to date. It includes about US$370 billion in incentives for everything from solar panels to electric vehicles.

But there’s some confusion around what it allows the Environmental Protection Agency to do.

Comments by politicians on both sides of the aisle have suggested that the new law could upend a recent U.S. Supreme Court decision in which the court’s conservative majority shackled the EPA’s authority to regulate greenhouse gas emissions from power plants.

The new law does amend the Clean Air Act – the nation’s primary air quality law – to define several greenhouse gases as air pollutants. So it will help the EPA as it plans future regulations. But it doesn’t specifically grant the EPA new authority to regulate power plants.

So, as groundbreaking as it is, the Inflation Reduction Act does not change the impact of the Supreme Court’s determination in West Virginia v. EPA that the EPA lacks the authority to require a systematic shift to cleaner sources of electricity generation.

Why the ruling remains a roadblock for the EPA

The court case involved the Obama administration’s Clean Power Plan, a policy that would have required power generators to use cleaner forms of electricity but never went into effect.

Writing for the court in West Virginia v. EPA, Chief Justice John Roberts argued that the EPA was asserting broad new authority under a little-used provision of the Clean Air Act without explicitly being granted the authority to do so by Congress.

In what has become known as the “major questions doctrine,” the court has adopted a more stringent approach to how it interprets laws that gives much less deference to the views of experts at the federal agencies charged with implementing complex, dynamic regulatory programs designed to protect public health and safety. That accurately describes the challenge of dealing with carbon pollution and the profound impacts it is already having throughout the world.

Roberts made clear that Congress could choose to pass more detailed legislation granting EPA the authority at the heart of the case if it wished.

Explaining the ruling in West Virginia v. EPA.

The Inflation Reduction Act amends the Clean Air Act to add seven specific new programs to reduce greenhouse gases and provide funding to the states to develop their own plans. Taken together, these provisions go a long way to address Roberts’ concern that Congress has not spoken plainly enough about EPA’s authority to tackle climate change.

But it falls short of granting EPA the authority to revive the generation shifting approach of the Clean Power Plan.

To get the bill through the sharply divided Congress, the Senate’s Democratic majority used a process called budget reconciliation. That process allows for legislation to pass with only a simple majority of the vote. But legislation passed that way must be closely tied to spending, revenue and the federal debt limit – it cannot set broad national policy.

What the new law does do for EPA’s authority

While the Inflation Reduction Act cannot undo what the Supreme Court has done, it does strengthen EPA’s ability going forward to take stronger actions under the Clean Air Act to reduce greenhouse gases.

The act not only provides substantial increases in EPA’s budget across a wide range of air pollution programs, it also, for the first time, explicitly defines greenhouse gases to include the six specific gases that the EPA determined in 2009 pose a risk to public health and welfare. That 2009 “endangerment finding” was upheld by the Supreme Court in the 2014 case Utility Air Regulatory Group v EPA.

As Sen. Tom Carper, one of the principal architects of the Inflation Reduction Act, said, “The language makes pretty clear that greenhouse gases are pollutants under the Clean Air Act.”

Of course, nothing in life or litigation is certain.

Challenges to EPA’s forthcoming rules replacing the Clean Power Plan, regulating methane emissions from oil and gas operations, tightening tailpipe emission and fuel economy standards, and so on can be expected. But at least now there is clear legislative direction from Congress for the EPA to take bold action needed to meet the profound challenge of climate change and transition to a sustainable economy.

Patrick Parenteau, Professor of Law, Vermont Law School

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Delaying the inevitable? The uncertain future of the EPA’s online archive

Front door of United States Environmental Protection Agency building

Read the full story at New Security Beat.

In February 2022, the Environmental Protection Agency (EPA) announced its plans to shutter its online archive—a key resource on the work of the agency that is relied upon by researchers, legislators, policymakers, and citizens for work on everything “from historical research to democratic oversight.” Pulling the plug would instantly have made public access to a vast array of fact sheets, environmental reports, policy changes, and regulatory actions significantly more difficult.

Months of public backlash ensued—including damning public letters from prominent organizations. And just last week, the EPA announced that it would push back the demise of the archive until July 2023.

News of this welcome reprieve for the EPA digital archive raises a significant question: Why continue with plans to shut it down at all? Postponement does not resolve the eventual damage to government transparency and historical record keeping that the archive’s demise will create. And the concerns of organizations opposed to closure will not be satisfied by an additional year of operation.

Is there a case to be made that this vital resource’s reprieve should be a permanent one?

Biden wants to rebuild the EPA. He doesn’t have the money to do it.

Read the full story in the Washington Post.

After years of neglect, President Biden promised to reinvigorate the EPA as part of his push to tackle climate change and ease the pollution burden placed on poor and minority communities. But the agency’s budgetary woes are preventing the nation’s top pollution regulator from doing its job, in ways large and small.

The agency’s funding has remained stagnant since his inauguration. Its work is hamstrung by low staffing levels not seen since Ronald Reagan left office.

The lack of resources and workers has undercut its ability to inspect facilities, measure contamination, punish violators and write new rules to stem pollution and climate change at a time when scientists say the world needs to act faster to stop runaway global warming.

At the beginning of his term, Biden asked Congress for a big boost to the EPA’s budget, from $9.2 billion to $11.2 billion. But the agency ended up getting only a fifth of that additional $2 billion requested by Biden, an increase that does not keep pace with the rapid rate of inflation.

That means the EPA actually has less spending power since Democrats took full control of the executive and legislative branches, even as its responsibilities grow.

EPA Strategic Plan FY 2022-2026

Download the document.

This Strategic Plan deepens EPA’s commitment to protecting human health and the environment for all people, with an emphasis on historically overburdened and underserved communities. For the first time, EPA’s final Strategic Plan includes a new strategic goal focused solely on addressing climate change and an unprecedented goal to advance environmental justice and civil rights. These priorities are integrated throughout the Plan’s programmatic goals and cross-agency strategies, which are supported by long-term performance goals EPA will use to monitor and communicate progress.

New EPA tool provides the public with customized updates on local enforcement and compliance activities

EPA has announced the of ECHO Notify, a new web tool that empowers members of the public to stay informed about important environmental enforcement and compliance activities in their communities.  Through ECHO Notify, users can sign up to receive weekly emails when new information is available within the selected geographic area, such as when a violation or enforcement action has taken place at a nearby facility. 

“EPA is committed to empowering communities with the information they need to understand and make informed decisions about their health and the environment,” said EPA Administrator Michael S. Regan.  “We’ve also seen that increased transparency leads to stronger deterrence of environmental violations. As more people play an active role in protecting their neighborhoods from pollution, EPA has developed ECHO Notify so that finding updates on environmental enforcement and compliance activities is as easy as checking your email.”

ECHO Notify provides information on all EPA enforcement and compliance activities as well as activities of state and local governments under the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act, and the Safe Drinking Water Act.  

You can find ECHO Notify on EPA’s website at ECHO Notify, as shown below. 

ECHO Notify screen capture

Visitors to the ECHO Notify homepage who wish to receive email updates only need to take a few simple steps: 

  • Create an account, if you don’t have one already;
  • Select a geographic area and/or facility ID(s);
  • Choose the type of compliance and enforcement information of interest;
  • Enter an email address; and
  • Click “subscribe.”

Once subscribed, the user will receive an automated email (typically on Sunday) containing new information from the prior weeklong period. If no new information is available, no email will be sent. Email notifications include links for users to view additional information on ECHO, including a link to each facility’s Detailed Facility Report. Users can easily update their notification selections or unsubscribe at any time.

EPA has prepared a video that provides an overview of ECHO Notify and explains how to use it.  The video can be seen here, ECHO Tutorial: Intro to ECHO Notify

Internal EPA report describes “incredibly toxic work environment” in New Chemicals Division

Read the full story at The Intercept.

An internal workplace survey commissioned by the EPA reveals a work environment that agency scientists and other staff describe as “hostile,” “oppressive,” “toxic,” “extremely toxic,” and “incredibly toxic.” After whistleblowers from the Environmental Protection Agency’s New Chemicals Division publicly accused several colleagues and supervisors of altering chemical assessments to make chemicals seem safer, the agency hired consultants to ask employees about their experiences of working in the division, which assesses the safety of chemicals being introduced to the market. A resulting report, completed in January and released in response to a public records request in March, reveals a workforce consumed by internal disputes and torn between the agency’s environmental mission and intense pressure from chemical companies to quickly approve their products on tight deadlines.

The EPA plans to sunset its online archive

Read the full story at The Verge.

Come July, the EPA plans to retire the archive containing old news releases, policy changes, regulatory actions, and more. Those are important public resources, advocates say, but federal guidelines for maintaining public records still fall short when it comes to protecting digital assets.

Shuttering EPA’s online archive is a grave disservice to the public

Read the full story from Common Dreams.

The Environmental Protection Agency has announced that it will be discontinuing its online archive in July 2022. This means the public will lose access to tens of thousands of web resources. These resources convey information about critical environmental issues, and past and present agency activities, policies, and priorities. All of these resources are publicly funded and intended for public consumption, but the public will no longer be able to access them.

EPA announces new Science Advisory Board process to strengthen science supporting EPA decisions

The U.S. Environmental Protection Agency (EPA) has announced the implementation of a new process by which the Science Advisory Board (SAB) will assess the science that informs decisions regarding Agency proposed rules. The new process will restore opportunities for peer review and strengthen the independence of the board. The improved process builds on the principle that early engagement with the Science Advisory Board is a priority and will best enable EPA to benefit from the expert advice received from the board. 

“Everything we do as an agency must adhere to the highest standards of scientific integrity, and today’s action is a major step towards stronger, independently reviewed science. This new process, Science Supporting EPA Decisions, will allow EPA to effectively engage the Science Advisory Board while ensuring the important independent advisory status of the Board is maintained.”

Michael S. Regan, EPA Administrator

This new process strengthens peer review at EPA by:

  • restoring the SAB’s role by having structured opportunities to conduct peer review of critical scientific and technical actions developed by EPA.
  • strengthening the independence of the SAB’s role by scoping and identifying the peer review need for EPA decisions.
  • ensuring EPA considers and develops peer reviewed science early in their rule-making development process.
  • restoring public faith in the EPA by ensuring the use of peer reviewed science to inform decision making.

“The Science Supporting EPA Decisions process is a victory for peer reviewed science and will lead to better EPA rule-making decisions” said Thomas Brennan, Director of the SAB Staff Office.  “This process is effective immediately.”

The Biden-Harris Administration is committed to restoring the central role of science and evidence in addressing numerous challenges to public health and the environment, including climate change, environmental justice, PFAS, children’s health, air quality, water quality, contaminated lands, and many others.  Durable EPA decision-making is dependent on the credibility of the science that informs these decisions.  The credibility of the science depends on adherence to well established, time-tested processes and procedures for peer review that assure scientific integrity, and strong peer review depends on engaging independent external experts in a timely and rigorous manner.  Today’s action addresses these goals.

A memo from Associate Administrator for Policy Victoria Arroyo, Deputy Assistant Administrator for the Office of Research and Development Christopher Frey and Director of the SAB Staff Office Thomas Brennan outlines the improved process for engaging the EPA Science Advisory Board (SAB) in the review of the scientific and technical basis of proposed EPA decisions.  This memorandum was issued at the direction of the Administrator and supersedes prior procedures.

The memo was issued on February 28, 2022 and is available on the SAB Staff Office website.

EPA announces appointment of Robin Morris Collin as EPA Senior Advisor to the Administrator for Environmental Justice

U.S. Environmental Protection Agency (EPA) Administrator Michael S. Regan has announced the appointment of Robin Morris Collin to be EPA’s Senior Advisor to the Administrator for Environmental Justice. Collin will advise Administrator Regan as the Agency works to advance environmental justice and civil rights in communities that continue to suffer from disproportionately high pollution levels, including low-income communities and communities of color.

Collin is nationally recognized for her leadership and scholarship in the areas of sustainability, energy, and environmental justice, and joins the Agency after serving as the Norma Paulus Professor of Law at Willamette University in Oregon. Collin was one of the first U.S. law professors to teach sustainability courses in a U.S. law school and served as founding chair of the State of Oregon’s Environmental Justice Task Force, among other positions on local, state, and federal environmental justice organizations.

“From my first day at EPA, I have committed to embedding equity, environmental justice, and civil rights into the DNA of the Agency’s programs, policies, and processes, and to delivering tangible results to underserved communities. That’s why I am so pleased to welcome Robin, one of the nation’s foremost experts and a lifelong advocate for overburdened communities, as my senior advisor for environmental justice,” said Administrator Michael S. Regan. “Robin brings a wealth of experience and knowledge to the agency and is the ideal person to ensure our most vulnerable populations have a seat at the table as we work to deliver environmental justice.”

“Climate change is the single greatest environmental challenge of our time. Environmental justice is the way a multiracial, multi-ethnic society engages that challenge.  I am honored to serve in this role to protect our land, air, and water and, as part of that work, lift up underserved communities so that we may all thrive together,” said Robin Morris Collin. “I look forward to the privilege of working with Administrator Regan and the experienced, thoughtful, and collaborative leadership team at EPA.”

Prior to her time at Willamette University, Collin held professorships at Tulane Law School, McGeorge School of Law, and the University of Oregon, and visitorships at Washington & Lee Law School, and Pepperdine Law School. Her work on environmental justice has been published in numerous academic journals. Throughout her career, Collin has been recognized for creative and entrepreneurial leadership and her ability to develop equitable solutions, receiving the EPA Environmental Justice Achievement Award, the Leadership Award by Oregon State Bar as founder of the Sustainable Futures section of the Bar, the Judith Ramaley Award for Civic Engagement, and the David Brower Lifetime Achievement Award.

Collin comes from a family of academic and entrepreneurial achievers. Her great grandfather, an enslaved person, became a professor of math and Greek at Bennet College in North Carolina, and her father, John Payton Morris, founded an ocean-going vessel line in Maryland. Collin holds a B.A. from Colorado College and a J.D. from Arizona State University.

“Professor Collin is an excellent choice to lead the EJ efforts at the EPA,” said Dr. Beverly Wright, founding executive director of the Deep South Center for Environmental Justice (DSCEJ). “We look forward to working with her and Administrator Regan to continue this important work on behalf of the Biden-Harris Administration to address the urgent needs of underserved communities that have been left behind for way too long.”

“I am thrilled that Professor Collin has been appointed by the Biden-Harris Administration to serve in this critical role at the EPA,” said Dr. Robert Bullard, Distinguished Professor of Urban Planning and Environmental Policy at Texas Southern University. “Professor Collin has dedicated her entire life’s work to uplifting communities in need and I know that together we will work towards delivering meaningful results to those that need it most.”

In last year’s Fiscal Year 2022 budget request, President Biden proposed creating a new National Program Manager (NPM) for Environmental Justice and Civil Rights at EPA. The head of the new NPM would be an Assistant Administrator to be nominated by the President and confirmed by the Senate.  Further information and details on the proposed reorganization are under development. EPA is working closely with the Office of Management and Budget and Congress on the proposal.