Inside the EPA
By Nick Van Osdol
- The recent Supreme Court ruling wasn’t the end of the world, and the EPA is still busily creating new rules and updating old ones.
- Chevron deference, a 1984 ruling that gave the EPA (and other federal agencies) purview to take broad laws enacted by Congress (e.g., the Clean Air act) and form specific rules based on them, is still intact.
- The EPA works on much more than you think, e.g., creating policy to curtail potentially dangerous contaminants you’ve never even heard of, like those from asphalt sealants.
- The EPA also isn’t a purely domestic organization. They work internationally to coordinate policies (emission and air pollution are global problems, after all)
- Environmental justice is increasingly a key consideration the EPA considers when making every new ruling or updating old ones.
The direct power plant emissions the EPA can’t regulate in light of West Virginia vs. EPA
In the wake of West Virginia vs. the EPA, the Supreme Court decision that curtailed the EPA’s power to make broad rules encompassing carbon emissions from power plants, I was eager to connect with someone who works at the EPA to understand more of the implications. In the process, I also realized there was an opportunity to learn more about the full scope of what the EPA does.
If you’re anything like me, there are many agencies, organizations, and entities involved in climate in some capacity that still float around a bit nebulously in your consciousness. You know they’re essential, but if pressed to offer a succinct explanation of their role in reversing climate change or mitigating its impact, you’d be a bit scattershot.
Fortunately, I had the chance to connect with Stuart Nissenbaum, a biologist at the EPA. Stuart has worked at the EPA for 18 months after working in stormwater management. Now, he provides scientific and technical expertise to support the formation of the new rules under the Clean Air Act. To learn more about what that entails, here are the highlights from our discussion!
For the purposes of this article, all views expressed are Stuart’s (or my interpretation) and do not represent the views of the EPA.
Inside the EPA
Inside the EPA, what was the reaction to the recent Supreme Court decision?
The Supreme Court decision was not as bad as it could have been. We’re not totally handcuffed. It could have gutted all of Chevron deference. Still, it wasn’t great, and now everything we’re doing has to go through our General Counsel to see how the decision might affect it.
While the Supreme Court decision doesn’t prevent the EPA from conducting business as usual, Stuart noted that there are specific standards and rules he’s working on, such as reevaluating renewable fuel standards, that all have to be evaluated more closely in light of it. It’s a sword of Damocles dynamic – the EPA has to tread more lightly, being careful not to overstep. This dynamic creates a lot more work and slows down rule promulgation.
Notably, the Supreme Court may also revisit Chevron deference in future cases. But for now, the work continues. What is the EPA actively working on? A ton of other stuff, as it turns out, even if direct carbon emissions regulations are out for now.
One new rule that’s front and center focuses on methane emissions. In one of Biden’s first executive orders as president, Biden called for new regulations to curb methane emissions. Methane has 30x the global warming potential of CO2 over a 100-year timeframe and, by some estimates, is responsible for 25% or more of observed global warming. Here’s a status update from Stuart:
Last year during COP26, Biden announced methane emissions reductions targets. We’ve been working diligently on that rule to cover flaring, pigging, and other monitoring controls around oil & gas sites. That’s going to be a huge step in reducing methane emissions. The proposed rule is public, and we’re moving towards a final rule in the next couple months.
New rules: From 0 to 100
The discussion above brought me to another question I had for Stuart: how rules go from a concept in the ether (or executive order) to becoming law? What steps does the EPA take to make a rule? Many of us probably remember the Schoolhouse Rock video from our childhood outlining how a bill becomes a law in the legislative branch of the U.S. government. We didn’t make a new video, but Stuart did outline the process in eight steps:
First, the legislative branch creates broad laws like the Clean Air act. They don’t get into the nitty gritty in these bills (because they’re not environmental experts, scientists, or know how to consider enforcement).
It’s up to federal agencies like the EPA to interpret these laws and create rules based on them. Chevron deference is the Supreme Court case that upheld federal agencies’ ability to operate in this capacity, i.e., it granted broad statutory authority for federal agencies to take laws and create rules from them. Here’s how that happens:
- Based on laws from the legislative branch, the EPA’s Action Development Process governs how it makes rules. To start, they engage various stakeholders within the EPA first, including its Office of Policy, Office of the General Counsel, Office of Enforcement, Compliance, and Assurance, etc…
- Next, the EPA shops initial proposals with geographic stakeholders. For example, in the case of methane emissions regulations, regions of the country in the west with a significant oil & gas industry presence.
- Then, the proposal goes to a review called Early Guidance, which may involve initial meetings with administrators, depending on how much of a priority it is for the administration.
- Based on results from early guidance, the EPA formulates a variety of options for the ruling, including preferred options and others that may be less ambitious but satisfy other stakeholders.
- The options go to Option Selection, which may involve meeting with administrators again.
- The EPA creates a final package, the NPRN (‘Notice of proposed rulemaking’), which is published in the Federal Register and opened to the public for comments, often for months.
- Then, the EPA processes the comments on its final package. Then, it must go through all the above steps again before delivering a final bill to the White House.
- Finally, conditional on a positive final White House review, the rule is ready for signature.
This process can take 18 months to two years for each rule. Sometimes executive orders can accelerate the process, but the timescales are pretty long, especially when considering the final step, in which all steps are repeated.
What’s next from the EPA?
Of course, I was also keenly interested in what’s coming next from the EPA. Across the organization, here’s some of what Stuart was able to share:
- An updated lead & copper rule for drinking water
- Updated TSCA rules (Toxic Substance Control Act)
- Fuel standards for all vehicles for 2027 and beyond
- Listing new hazardous air pollutants (HAPs)
The last one is an interesting example of important work that often flies under the radar. Under the Clean Air Act (1970), Congress established a list of hazardous air pollutants. But the list hasn’t been updated in 30+ years! The first new HAP, 1-BP (1-Bromopropane), a solvent used in dry cleaning among other applications, was added in December. Now, the EPA is working on the infrastructure to add more. Things like , aerosol PFAS, toxic to humans and used in things like firefighting foams, might come under consideration once the infrastructure is in place.
I was also curious to hear Stuart discuss how the EPA prioritizes the many rules and protections it could focus on. Stuart describes a tiering system below that helps highlight the tradeoffs that any federal agency has to make:
Some of it is statutory. We have risk and technology reviews – every eight years, we have to review the technology and the risk and change standards as necessary. Then some things pop up based on new science or research. In short, research that says, ‘This is bad.’ We tier priorities across three tiers, Tier 1 being the most important. Tier 3 might include emissions from asphalt sealant. We have to regulate it, but it doesn’t carry the gravity of trucks on the highway, per se.
In closing, I also asked Stuart what the most common misnomers about the EPA are. He had a lot to say about this one:
People underestimate how much is out there that they don’t know about. They probably would never consider setting renewable fuel standards, let alone tar sealants. There’s a lot that people don’t think about in their daily lives that we’re behind the scenes working on.”
Another big one now that’s come to the fore is environmental justice. We do environmental justice analyses in every rule we make now and have a (rapidly growing) environmental justice team. How do we work with low-income and marginalized communities?
Finally, we also do a lot with the international community. When people find out we have an international department, that blows their minds sometimes. Air pollution doesn’t just stay in the United States, so we work with international partners constantly. I’m working with the international community on arctic wildfires and black carbon mitigation.
The key takeaways for me here are similar to those I outlined in the tl;dr section above. For one, the EPA works on rules and regulations for all kinds of emissions and pollutants that rarely surface in climate conversations, which risk myopically focusing on CO2 emissions at times.
This also spells opportunity. There are startups keenly focused on reducing methane emissions. And a select few that are thinking about fertilizers and their pollutants, including NO2 emissions.
Who is thinking about ethylene oxide emissions? A few companies, perhaps. Or removing PFAS from drinking water? The policy tailwinds for anyone willing to take the leap are coming. And there can be a lot of power in going narrow with a technology’s focus. It also behooves us to pay more attention to the full scope of pollutants out there, as the EPA attempts to. It’d be a boon for the environment and perhaps for founders and investors alike.