June 3, 2023

Washington Wire: EPA Releases New Truck Emission Rules



EPA Releases New Truck Emission Rules
On Monday, March 7, 2022, the Environmental Protection Agency (EPA) released long-awaited proposed heavy-duty truck nitrogen oxides (NOx) standards, which have been pending at the agency since Trump officials floated a preliminary rulemaking in January 2020. The EPA was under a tight deadline to issue a proposal this month, or it risked being unable to finalize the rule by the end of this year to allow the tougher limits to take effect in model year (MY) 2027. 
The draft rule, which is the first step in the EPA’s broader Cleaner Trucks Initiative, offers two options curbing emissions of NOx from gas- and diesel-fueled trucks. While both would strengthen standards starting in MY 2027, the first would implement the tighter limits in two phases, with the second phase following in 2031 resulting in the MY 2031 being 90% lower than today’s standards. The second option would immediately jump to full implementation in MY 2027 but result in lower NOx emissions reduction than the first option.
EPA plans to hold a virtual public hearing for this proposal and will be accepting public comments on both options set forth the proposed rule as well as the full range of options between them. A final regulation is expected by the end of the year.



EPA Announces Public WOTUS Roundtables
The Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) have announced the list of regional roundtables to discuss the proposed implementation of a rule updating the definition of the “waters of the United States” (WOTUS) under the Clean Water Act. 
The agencies have implemented three different definitions of WOTUS over the past seven years: the pre-2015 regulatory regime, the 2015 Clean Water Rule, and the 2020 Navigable Waters Protection Rule (NWPR). In December 2021, the EPA and Corps issued a proposed rule to provide an interim definition of WOTUS by reinstating the pre-2015 definition of waters of the U.S. 
The ten roundtables announced by the EPA and Corps focus on specific geographic areas as well as a range of perspectives including agriculture, conservation groups, developers, drinking water and wastewater management, environmental organizations, environmental justice communities, and other key interests in the region. 
The ten selected roundtables are Amigos Bravos (Southwest); Arizona Farm Bureau (Southwest); Cahaba Brewing (Southeast); California Farm Bureau (West); Kansas Livestock Association (Midwest); Natural Resources Defense Council (Northeast); National Parks Conservation Association (Midwest); North Carolina Farm Bureau (Southeast); Regenerative Agriculture Foundation (Midwest); and Wyoming County Commissioners Association/Montana Association of Counties/Idaho Association of Counties (West).
The roundtable discussions are set to take place virtually this spring and summer.
The second step rulemaking, set to be released later this year, will incorporate both the comments filed by stakeholders and the discussions held at the roundtables. 



Supreme Court Hears Arguments in EPA Climate Case
The Supreme Court heard oral arguments on February 28 in the case testing the limits of EPA's greenhouse gas authority. At issue in West Virginia v. EPA is whether the agency can use section 111 of the air act to premise GHG requirements for existing power plants on actions taken "outside the fenceline" of a regulated source, or whether it must base standards on "inside the fenceline" steps.
The dispute began in 2015 with the Obama administration’s adoption of the Clean Power Plan (CPP). The plan never went into effect with several states and private plaintiffs challenging it in federal court, and then a divided Supreme Court put the rule on hold in February 2016. The Trump administration then repealed the CPP in 2019 and issued the Affordable Clean Energy (ACE) rule, which established emissions guidelines only for existing coal-fired steam plants. The repeal of the CPP lead to further legal challenges and in January 2021, the U.S. Court of Appeals for the District of Columbia Circuit vacated the repeal of the CPP, vacated the ACE rule, and sent the issue back to the EPA. The Supreme Court is now hearing a challenge to that ruling by Republican-led states and coal companies.  
Under Trump, the EPA argued that it was compelled to repeal the Clean Power Plan as it exceeded the agency’s authority. According to the Trump administration, the Clean Air Act the agency is limited to implementing measures that can be implemented on the physical premises of a power plant – a limitation known as “inside the fenceline.” Inside-the-fenceline measures include things like installing equipment that can reduce a plant’s pollution.
The CPP, by contrast, included some measures that operated industry-wide. For example, the plan called for “generation shifting,” which is reducing emissions by shifting the source of power generation from higher-emitting power plants to lower-polluting sources of energy (such as wind or solar power), and “emissions trading,” when the government sets a cap on emissions and requires permits for emissions allowed under that cap.
A major component of the case is a battle over the “major questions” doctrine. The coalition of states and coal companies, led by West Virginia, says the outside-the-fence approach in the Obama EPA's CPP is unlawfully broad and violates the major questions doctrine by giving the EPA more expansive authority beyond the expressed authority given by Congress. 
A ruling from the Supreme Court that adopts an expansive interpretation of the major-questions doctrine, requiring agencies to make “decisions of vast economic and political significance,” only with the clear and explicit authority given by Congress, would limit the regulatory actions by the EPA and other federal agencies. 
A decision in the case is expected by this summer. 



USTR Releases Trade Agenda
The Office of the U.S. Trade Representative (USTR) released its annual trade policy agenda on March 1, 2022, along with its first strategic plan since 2013.
The annual agenda and report on 2021 trade activities, submitted as a single document to Congress, tout several initiatives the agency launched in 2021 that explored “how trade policy could contribute to and advance the United States' economic competitiveness, resiliency, and equity,” the report says.
USTR’s Strategic Plan includes six goals: Open foreign markets and combat unfair trade; fully enforce U.S. trade laws, monitor compliance with agreements and use all tools to hold other countries accountable; develop and implement innovative policies to advance the president’s trade agenda; develop equitable trade policy through inclusive processes; effectively communicate the president’s trade agenda, and; achieve organizational excellence as a model employer.
While neither the trade agenda nor the strategic plan offered specific new information on the administration’s China trade policies, according to the report of 2021 trade activities, the administration is “realigning our trade policies towards China to defend the interests of America’s workers and businesses to strengthen our middle-class, create shared sustainable growth, and spur resilient climate action.” 
Additionally, the report states that the administration is “considering all existing tools -- and will potentially seek new ones as needed -- to combat the harms of China’s state-led, non-market practices.” It is long been reported that the Biden administration has been considering launching a new Section 301 investigation of China’s industrial subsidies that could result in additional tariffs on products imported from China. 



Labor Department to Hold Meetings on Overtime Proposal
The Department of Labor will begin a series of meetings with stakeholders on the soon-to-be-released overtime exemption rule under the Fair Labor Standards Act, to increase the minimum salary threshold for workers to qualify for overtime pay when working more than 40 hours per week. The Department of Labor began reviewing the overtime rule issued during the Trump administration last year. One Voice was among a coalition of over 100 business and industry groups that sent a letter to the Department requesting stakeholder meetings before the development and issue of a proposed rule. 
The Wage and Hour Administration of the Department of Labor will be asking during the meetings for stakeholders to weigh in on what the appropriate salary level should be to exempt workers from overtime pay, the costs and benefits of updating the regulation, and the best way to calculate the new salary level. 
Obama finalized the overtime exemption rule in 2016, more than doubling the threshold from $23,660 to $47,476 per year for Executive, Administrative, Professional & Clerical Employees (EAP) and for highly compensated workers from $100,000 to $134,000. One Voice was part of a business coalition lawsuit against the rule, which was ultimately blocked from implementation by the courts. The Trump administration then issued their own rule setting the threshold for EAP employees at $35,568 annually and $107,432 per year for highly compensated employees.