GIEC Air Webinar Mack Mc Guffey Troutman Pepper

GIEC Air Webinar Mack Mc. Guffey Troutman Pepper Hamilton Sanders LLP (404) 885 -3698 mack. mcguffey@troutman. com

Air Rules in Play • Affordable Clean Energy Rule / Clean Power Plan • CO 2 New Source Performance Standards for Electric Utilities • New Source Review • National Ambient Air Quality Standards for Ozone & PM 2. 5 • Startup, Shutdown, & Malfunction • Title V Operating Permit Renewals • Regional Haze

Affordable Clean Energy Rule / Clean Power Plan

Affordable Clean Energy Rule / Clean Power Plan ADMINISTRATIVE • New rulemaking expected to be high priority • Proposed rule likely in 2021 • New rule likely to require “generation shifting” from coal and gas to renewables like the Clean Power Plan JUDICIAL • DC Circuit vacated ACE on the last full day of President Trump’s term – The court rejected Trump EPA claim that Section 111 could only be read one way – The court also rejected Trump EPA claim that a “clear statement” from Congress was needed to authorize the Clean Power Plan • Court has stayed the mandate on the CPP repeal, so no rule will be currently effective • Supreme Court petitions for certiorari likely

CO 2 New Source Performance Standards for Electric Utilities

CO 2 New Source Performance Standards for Electric Utilities ADMINISTRATIVE • • Obama EPA’s 2015 standard based on partial carbon capture & sequestration Trump EPA’s 2018 proposal was based on efficient steam cycle (super-critical), but no final rule issued Instead, Trump EPA issued a “significant contribution” finding, claims utilities are the ONLY sector contributing to climate change (25% of US GHG) Subject to claw-back memo, likely to be reversed by Biden EPA JUDICIAL • Obama rule challenged in DC Circuit in 2015 • Briefing completed just as President Trump took office, but case held in abeyance before oral argument • Next EPA status report due in April, which could trigger reactivation of the case • Issue: Is CCS “adequately demonstrated”

New Source Review

New Source Review ADMINISTRATIVE • Trump Guidance: – – – • • EPA’s project emissions accounting rule has been challenged, but the case will be held in abeyance if EPA reconsiders the rule • Other changes are merely “guidance” that cannot be challenged in court, but will likely be reversed by the Biden EPA Common Control (Apr 2018, Oct 2018, June 2019) Adjacency (Nov 2019) Project Aggregation Final Action (Nov 2018) Begin Actual Construction (Mar 2020) Project Emissions Accounting (Oct 2020) NSR Error Corrections Rule (Jan 2021) Unfinished Business: – – • Actual to Projected Actual Test (Dec 2017) Trump Rules: – – JUDICIAL “Routine” guidance Hourly emission rate test

National Ambient Air Quality Standards for Ozone & PM 2. 5

National Ambient Air Quality Standards for Ozone & PM 2. 5 ADMINISTRATIVE JUDICIAL • EPA decided to retain the ozone standard at 70 ppb, despite calls for 60 ppb (Dec 2020) • DC Circuit has been highly deferential to EPA in setting standards in the past • EPA decided to retain the PM 2. 5 standard at 12 ug/m 3, despite staff recommendation for 8 -10 ug/m 3 (Dec 2020) • Challenges could present new issues regarding EPA decisions that are inconsistent with recommendations • Both standards likely to be reevaluated, but unclear whether Biden EPA will reconsider determinations or just start a new review • Cases could be mooted if EPA issues reconsideration to strengthen standards

Startup, Shutdown, & Malfunction ADMINISTRATIVE • The Trump EPA sought to unravel the 2015 SSM SIP Call once state at a time, and withdrew the SIP Call for Texas, North Carolina, and Iowa • Once the DC Circuit decided to keep all of the cases (at least for now), EPA issued nationwide guidance. • Biden EPA is likely to rescind the guidance and then enforce the SIP Call • New Georgia SSM Rule still pending at EPA JUDICIAL • SSM SIP Call case fully briefed, but never argued, still in abeyance • Withdrawal cases likely to go into abeyance while EPA works to rescind them • With EPA no longer seeking to unravel the SSM SIP Call, the litigation may proceed • Key question: Are Section 112 cases binding on Section 110?

Title V Operating Permit Renewals

Title V Operating Permit Renewals ADMINISTRATIVE JUDICIAL • Trump EPA sought to end the practice of challenging prior actions at every renewal • 5 th Circuit decision upheld EPA’s interpretation of the Title V program • New policy announced in orders denying petitions to object to individual permits • 10 th Circuit decision rejected EPA’s view, and EPA has conceded in new order • Reversing that policy under the Biden EPA will be relatively easy—watch for the first action on a petition to object • Despite circuit split, Supreme Court review is unlikely, given expected reversal in policy

Regional Haze

Regional Haze ADMINISTRATIVE • • • State regional haze state implementation plans for the second planning period are due July 31, 2021 Some states may be late due to late modeling results, others may file early to set precedent (Texas, Ohio, New York) EPA likely to move quickly on actions to approve, disapprove, and issue federal plans, expect proposals by year-end JUDICIAL • Texas’ 5 th Circuit challenge to 2017 regional haze rule revisions may now proceed • Litigation over disapproval of second round SIPs likely, but won’t start until at least 2022 • Litigation in the first round suggests EPA will receive court’s deference, not states

GIEC Air Webinar Mack Mc. Guffey Troutman Pepper Hamilton Sanders LLP (404) 885 -3698 mack. mcguffey@troutman. com