As Earth Day Nears, Recent Environmental Regulations Create a Push to Tackle Climate Change

By Ryan Parzick

The United States is witnessing a series of groundbreaking environmental rulings and regulatory actions that underscore the growing urgency to combat climate change and protect our planet. The Environmental Protection Agency (EPA) issued multiple rulings tackling new vehicle emissions, airborne toxins from chemical plants, and the amount of ‘forever chemicals’ allowed in drinking water. All of these were announced in less than a month! Admittedly, my head is spinning trying to keep up with the implications these rulings will have on the future of environmental protection and climate action. As envelope-pushing as these edicts are, there are also some potential steps backward that could delay, weaken, or even reverse the historical changes prescribed by the new rulings and regulations.

In case you missed these announcements, here’s a summary of the new legislation dissecting the impacts each one could have, including the opposing viewpoints.

New Vehicle Emissions Rules

The EPA officially introduced new regulations aimed at significantly reducing vehicle emissions. According to The Verge, the Biden Administration announced that “light-duty vehicles (passenger vehicles like sedans, SUVs, and trucks) would be required to hit an industry-wide target of 85 grams of greenhouse gas (GHG) emissions per mile by 2032, down from 170 grams per mile in 2027. For medium-duty vehicles (big trucks and vans), the EPA is mandating a 44% reduction in GHG emissions to 274 grams per mile in 2032 from 461 grams per mile in 2027.” Margo Oge, a former director of the EPA’s Office of Transportation and Air Quality, wrote a piece in Forbes stating “the rule stands to reduce greenhouse gas emissions by 7.2 billion metric tons through 2055 by directly targeting the transportation sector, which accounts for 29% of U.S. greenhouse gas emissions. It will reduce greenhouse gas by 56% and significantly reduce nitrogen oxides and particulate matter emissions. That means the rule will help mitigate the worst impacts of climate change and Americans will suffer far fewer asthma cases, premature deaths, and respiratory illnesses.” The Administration estimates the new rules will deliver $13 billion in health benefits to U.S. citizens due to reduced pollution.

While the rules for light-duty vehicles grabbed most of the headlines, new guidelines were issued a week later for heavy-duty vehicles (large vehicles including buses, box trucks, garbage trucks, and short-haul tractor-trailers) which could be just as impactful. The Associated Press (AP) quotes Oge stating medium and heavy diesel trucks make up less than 6% of vehicles on the road “but spew more than half the smog and soot Americans breathe” and contribute to global warming.

There are several groups opposed to these rules, such as — automakers, the oil and gas industry, and political factions — who argue that this is a mandate for electric vehicles. To counter, the light-duty vehicle rules are not prescriptive on how the manufacturer fleets need to meet these benchmarks. Carmakers are free to choose many vehicle-type options, such as more efficient internal combustion engines (ICE), plug-in hybrids (PHEVs), and/or even hydrogen-powered cars. Additionally, the emission targets are for the manufacturer’s entire fleet of vehicles, so large ICE SUVs can still be sold alongside zero-emission vehicles, as long as the average of the fleet meets the standards. Additionally, there is an argument that the target timeline of implementation is not feasible. After reviewing public comments and suggestions from the Biden Administration’s original proposed rules in 2022, the new rules have been modified allowing for less strict standards through 2027, but a quicker ramping up of the reductions between 2027 and 2032. “We are providing a little bit more lead time so that these investments can occur, not just in the automobiles themselves, but the infrastructure,” EPA administrator Michael Regan told Vox.

EPA’s Regulations on Chemical Plant Toxins

In a move to help shield communities from airborne toxins, the EPA announced regulations s targeting over 200 manufacturing facilities emitting hazardous substances like ethylene oxide (used for medical device sterilization and fumigants for certain food products) and chloroprene (used to make a variety of common polymers and resins). These directives aim to reduce cancer risks in neighborhoods within 6 miles of these plants by 96%, requiring facilities to conduct real-time air monitoring at their perimeters and plug any leaks of chemicals from vents and storage tanks. Ultimately, the EPA is aiming for a total reduction of those two chemicals, among other chemicals (like benzene, ethylene dichloride and vinyl chloride — used in manufacturing PVC plastics), by 6,200 tons as well as eliminating 23,700 tons of smog-forming volatile organic compounds each year.

This initiative addresses the long-standing issue of ‘cancer alleys,’ offering hope to those living in the shadow of chemical plants. In an interview with NPR, EPA’s Regan states “This is a game-changer for the health. It’s a game-changer for prosperity. It’s a game-changer for children in these communities nationwide.” His comments reference the goal of environmental justice this rule will provide — as people of color and low-income communities face disproportionately high pollution levels. The new rule goes into effect shortly after being published in the Federal Register, forcing facilities to meet requirements for reducing ethylene oxide within two years and requirements for chloroprene within 90 days after the effective date.

Just as with the vehicle emission rules, industry groups are opposing these requirements. According to The Guardian, Denka, a Japanese company that owns the only U.S. manufacturing plant of chloroprene, said it “vehemently opposes” the EPA’s rule and issued a statement adding that the quick implementation of the rule would force the company to “idle its operations.” The company says that it plans to pursue litigation against the ruling. Additionally, industry groups are concerned about the economic impact of the new regulations, particularly on the manufacturing of products like electric cars, computer chips, and medical equipment that rely on chemicals like ethylene oxide for production and sterilization. Hector Rivero, president and CEO of the Texas Chemistry Council, which represents chemical manufacturers in Texas, wrote in an email to the Texas Tribune that “EPA’s reliance on outdated emissions data has led to a final rule based on inflated risks and speculative benefits.”

EPA’s Stricter PFAS Regulations

The EPA has also proposed stricter regulations on PFAS (perfluoroalkyl and polyfluoroalkyl substances) — a large group of man-made chemicals that are used in the production of a variety of everyday items including: firefighting foam, nonstick cookware, semiconductors, dental floss, clothing, makeup, and furniture. PFAS chemicals are also known as ‘forever chemicals’ due to their persistence in the environment. The new rules would require companies to notify the EPA if they wish to produce or manufacture previously used toxic PFAS chemicals, as well as requiring municipal water to monitor and remove these chemicals to allowable limits if found in the water system.

According to NPR, public water systems will have 5 years to rectify the PFAS contaminations — “three years to sample their systems and establish the existing levels of PFAS, and an additional two years to install water treatment technologies if their levels are too high.” The EPA expects 100 million people will be affected by this rule, due to an estimated 6–10% of water systems having elevated levels of PFAS chemicals.

Despite criticism from environmental groups calling for a complete ban, this proposal represents a significant effort to prevent these harmful chemicals from entering the environment and affecting public health. A litany of local to regional organizations are opposing the rules stating financial and logistical implementation burdens that will be imposed on facilities which provide drinking water. Some funds are available to help utilities. Manufacturer 3M recently agreed to pay more than $10 billion to drinking water providers to settle PFAS litigation and the Bipartisan Infrastructure Law includes billions to combat the substance. There is a likelihood that this could be challenged in the courts by manufacturers and even utilities.

The Supreme Court’s Potential Role in these Rulings

Whether the rules will stick or not, remains unanswered. In addition to the potential legal challenges for each of these rules, there’s also the question of whether or not the EPA will continue to have the right to enforce environmental mandates. A pair of cases are in the process of making their way through the U.S. Supreme Court docket: Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce. Rulings against environmental rules could reverse or significantly curb the Chevron doctrine, which ArsTechnica explains “when the meaning of a law is disputed, the federal agency’s interpretation should be given deference as long as it is reasonable.” If the Supreme Court were to overrule or significantly limit Chevron deference, it could lead to several potential outcomes that might impact EPA’s authority and its recent rulings:

• Increased Judicial Scrutiny: Without Chevron deference, courts may scrutinize EPA’s interpretations of statutes more closely, potentially leading to more frequent overturning of agency rules if the courts find the EPA’s interpretation to be unreasonable or not the best reading of an ambiguous statute.
• Legal Challenges and Uncertainty: A shift in the legal landscape could embolden industry groups and other stakeholders to challenge EPA regulations more aggressively, including those related to PFAS and chemical plant toxins. This could lead to increased litigation and uncertainty regarding the enforceability of EPA’s rules.
• Impact on Rulemaking: Agencies like the EPA might become more cautious in their rulemaking, knowing that their interpretations of statutes are less likely to be upheld by the courts. This could result in more conservative regulatory approaches and potentially slow down the implementation of new environmental protections.
• Shift in Power Dynamics: The balance of power could shift from agency experts, who typically have specialized knowledge and expertise, to the courts, which may not have the same level of technical understanding. This could affect the development and enforcement of complex environmental regulations.
• Regulatory Stability: If Chevron deference is weakened, the stability of existing regulations could be undermined, as subsequent administrations might find it easier to reverse or modify rules established by their predecessors. This could lead to a more volatile regulatory environment.
• Congressional Action: In response to a weakened Chevron doctrine, Congress might feel pressured to draft legislation with less ambiguity to avoid varied interpretations by different administrations and ensure that their legislative intent is carried out.

Cityfi will continue to monitor new legislation and observe how these will unfold in the upcoming months and years. Please reach out to our team of experts to learn more about how we can advise you or your team on similar environmental issues.