Time to Regulate Odors
Author
Adam Babich - Tulane University
Tulane University
Current Issue
March-April 2024
Issue
2
Cancer Alley

Why regulate odors? Two reasons: First, to improve public welfare. Odors from air pollution may be an occasional, minor nuisance in most neighborhoods, but not everywhere. For people living adjacent to chemical plants, refineries, and landfills, obnoxious chemical odors can be a daily occurrence that impairs their quality of life. Second, to protect public health. Reducing odors means reducing chemical emissions that cause odors. Many of those chemicals also pose health hazards. Yes, emissions of dangerous chemicals are already subject to Clean Air Act regulatory programs. But those programs are rife with gaps and limitations. The result? Kimberly A. Terrell summarized a 2022 peer-reviewed study that she published with Gianna St Julien as follows: “Numbers of cancer cases are abnormally high among Louisiana’s heavily polluted, predominantly Black neighborhoods,” many of them located in a heavily industrialized corridor known as “cancer alley.”

Can EPA legally regulate odors? Yes! In fact, both EPA and Congress anticipated that possibility. In its 1971 notice that listed nitrogen oxides as a “criteria pollutant” for which the agency would set National Ambient Air Quality Standards, the agency stated that “evaluation of other air pollutants, including fluorides, polycyclic organic matter, and odorous substances, is being conducted, and the list will be revised as the administrator [i.e., EPA] deems appropriate.” In the 1976 case affirming a district court order that required EPA to list lead for regulation, NRDC v. Train, the Second Circuit quoted legislative history that “Congress expects criteria to be issued for nitrogen oxides, fluorides, lead, polynuclear organic matter, and odors, though others may be necessary.” Congress ordered EPA in the 1977 amendments to the Clean Air Act to evaluate “whether air quality criteria or [NAAQS] should be published under the Clean Air Act for odors.” EPA published its response in 1980, concluding that “federal regulatory involvement in odor control does not appear to be warranted.” That conclusion, however, is more than four decades old. If it was ever defensible, it is out-of-date.

The CAA provides ample authority to regulate odors. The heart of the law is the “criteria pollutant” program. That program is built around two expansive commands to the agency in Clean Air Act Section 109: one, “to protect the public health” with “an adequate margin of safety,” and two, “to protect the public welfare from any known or anticipated adverse effects.” To implement those commands EPA sets “primary” NAAQS, which are “requisite to protect the public health,” and “secondary” NAAQS, “requisite to protect the public welfare.” The act’s definitional section clarifies that welfare includes “effects on economic values and on personal comfort and well-being.” The criteria pollutant program is triggered under Section 108 of the act when EPA adds to a list of pollutants that, in the agency’s judgment, “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare” and which are present “in the ambient air” due to emissions from “numerous or diverse mobile or stationary sources.”

Listing of a criteria pollutant triggers a series of deadlines: EPA has 12 months after the listing to issue a criteria document that “accurately reflect[s] the latest scientific knowledge” with respect to “the kind and extent of . . . effects on public health or welfare.” Simultaneously, EPA must propose primary and secondary NAAQS “for any such pollutant.” The agency then has 90 days to issue final standards. After promulgation of NAAQS, Section 110 of the act provides that states “shall” submit for EPA approval plans for “implementation, maintenance, and enforcement” of those standards within three years (a deadline that EPA can extend for 18 months for plans to attain welfare standards). At least since the 1992 Supreme Court opinion in New York v. United States, however, it has been clear that Congress “may not compel the states to enact or administer a federal regulatory program.” Thus, Congress’s provision for state implementation plans is best read as a strong suggestion. But if a state fails to submit an approvable plan, EPA must step in and issue a federal implementation plan. Under Section 172 of the act, the plan should provide for attainment of a welfare standard “as expeditiously as practicable” after EPA designates an area as nonattainment for the standard.

Why is ambient regulation of odors necessary? First, of course, obnoxious odors inarguably impact welfare. In a 2006 Federal Register proposal in the context of landfill gases, EPA recognized that odor problems create “potential for local property devaluation and poorer quality of life for local residents.” For an agency charged with safeguarding welfare “from any known or anticipated adverse effects,” no more should be required. But an important additional consideration is that protection from odors would come with a co-benefit. It would enhance protection of public health. As a practical matter, when changes are made to polluting facilities to reduce an impact from pollution, those changes generally end up reducing other impacts as well. Those reductions are termed co-benefits (or collateral benefits or ancillary benefits).

One might ask, then, why additional health protections are necessary when EPA has already promulgated primary NAAQS “requisite to protect the public health.” At times, the federal government has seemed to equate compliance with primary standards with sufficient protection of public health. During the Clinton administration, EPA’s Office of Civil Rights issued its notorious Select Steel opinion, which rejected a petition for enforcement of the agency’s environmental justice regulations. EPA’s theory in Select Steel was that without a violation of an EPA health-protection standard, “there is no affected population which suffers ‘adverse’ impacts within the meaning of Title VI” of the Civil Rights Act. How can a minority community complain of a disproportionate impact when there is no impact?

Similarly, during the Trump administration, the agency took the position that a cost-benefit analysis of a hazardous air pollutant regulation would give lesser weight to co-benefits from reductions of criteria pollutants, such as particulate matter and ozone precursors. EPA explained that particulate matter and ozone “are already addressed by the numerous statutory provisions governing criteria pollutants.” The Biden administration, however, reversed that position. EPA stated that reducing pollutant concentrations “below the levels of the NAAQS is reasonable and well-supported by scientific evidence.” This is because, for many pollutants, there is no bright-line threshold below which exposures pose no risk of injury.

Congress has recognized that the criteria program’s health-protection standards, although supposedly set with an “adequate margin of safety,” do not protect against all health impacts. Congress made that recognition explicit in the 1977 Clean Air Act Amendments—when adding the Prevention of Significant Deterioration program to keep clean air from deteriorating to the level of the primary NAAQS. In Section 160 of the act, Congress explained that one of its goals was “to protect public health and welfare . . . notwithstanding attainment and maintenance” of all NAAQS. Senator Edmund Muskie (the father of the Clean Air Act) explained in June 1977, “Even at the national primary standard level, which is the health standard, there are health effects that are not protected against.” A 1977 House report acknowledged, “The idea that the national primary standards are adequate to protect the health of the public has been belied.” Further, “The inadequacies of the standards are substantial both with regard to the pollutants which are regulated and with respect to [EPA’s] failure to regulate others.”

To date, EPA has used the criteria program to set standards for only six pollutants—carbon monoxide, nitrogen dioxide, ground-level ozone, lead, particulate matter, and sulfur dioxide. These six pollutants, however, cover a lot of territory. Ground-level ozone, for example, results from an atmospheric chemical reaction involving sunlight, oxygen, volatile organic compounds (VOCs) and oxides of nitrogen (known as NOx). Implementing the ozone standard, therefore, requires EPA and states to regulate VOCs and NOx as ozone precursors. These include a broad collection of chemicals. Another criteria pollutant, particulate matter, consists of small respirable particles which can include a variety of potentially dangerous chemicals. Criteria-program regulations, however, are not designed to abate all risks associated with the specific chemicals that fit within the categories of VOCs, NOx, or particulate matter. For example, benzene is a VOC and also a carcinogen. The criteria-pollutant program, however, only regulates benzene in its role as ozone precursor. The fact that VOC reductions may also reduce cancer risks from benzene is a co-benefit, but EPA did not calibrate its criteria-pollutant regulations for that purpose.

Similarly, the CAA’s Hazardous Air Pollutant program leaves gaps in the protection of public health. The basic hazardous air pollution standard—known as Maximum Achievable Control Technology—is an emission standard, not an ambient standard. Thus, if a neighborhood is surrounded by three major sources of hazardous air pollution, lawful emissions may be up to three times the standard. A limited exception is the MACT standard for oil refineries, which includes a “work practice standard” that generally requires refinery owners to “monitor benzene concentrations around the fenceline or perimeter of the refinery” and “maintain fenceline benzene concentrations at or below the concentration action level” of 9 micrograms per cubic meter. (The quotes are from a 2020 EPA Federal Register notice.)

For new major sources of hazardous air pollutants (i.e., those that emit at least “10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants”), EPA must set a minimum “MACT floor” that is at least as stringent as “the emission control that is achieved in practice by the best controlled similar source, as determined by” the agency. For existing major sources, EPA sets the MACT floor at “the average emission limitation achieved by the best performing 12 percent of the existing sources (for which [EPA] has emissions information).” The D.C. Circuit explained in its 2004 Mossville Environmental Action Now v. EPA opinion that “EPA need not base its standards on actual data, but could lawfully rely on estimates drawn from the regulatory data as to what the best performing 12 percent were achieving.” Further, EPA may select a standard that sources among that best performing 12 percent can meet “every day and under all operating conditions.” EPA does, however, have discretion to go beyond the MACT floors and set more stringent standards after considering “the cost of achieving such emission reduction[s], and any non-air quality health and environmental impacts and energy requirements.” For sources that do not qualify as “major” (known as “area sources”), EPA may promulgate more discretionary standards based on “generally available control technologies.”

The act’s hazardous air program also requires EPA—if necessary “to provide an ample margin of safety”—to issue an additional promulgation eight years after finalizing a MACT standard. For carcinogens, EPA has defined “ample margin of safety” to allow a lifetime excess cancer risk of between one-in-one million and one-in-ten thousand. Neither end of this “acceptable risk” range is firmly rooted in policy, but a one-in-one million risk is roughly consistent with the traditional concept of a de minimis (or trivial) risk. If there are 332 million people in the United States, however—and assuming (a big assumption) that each person faces the maximum allowable risk—we would expect any particular carcinogen regulated at the more stringent end of the range to cause 332 excess cancers within the country. And for a one-in-ten thousand risk, the number would be 33,200 excess cancers. Added to that would be risks from other hazardous air pollutants, including “synergistic risks,” which occur when combinations of chemicals pose risks greater than the sum of the risks posed by each individual chemical.

Another CAA regulatory program is New Source Performance Standards, based on “the Best System of Emission Reduction,” considering cost, any non-air quality impacts, and energy requirements. That program has served two primary purposes. NSPS standards for sources that are also regulated under the criteria program set a floor beneath which other technology-based standards (specifically, Best Available Control Technology and Lowest Achievable Emission Rate, which apply to new major sources or significantly modified major sources of criteria pollutants) cannot lawfully drop. Also, the NSPS program acts as a gap-filler, allowing EPA to regulate new and existing sources that fall at least partially between the cracks in other CAA programs, for example regulation of methane emissions from oil-and-gas production facilities.

EPA’s air quality regulatory programs are hobbled in their ability to protect public health by agency decisions to base regulatory actions on emission estimates rather than on actual emission measurements. In fact, more than five decades after the act was passed, EPA continues to designate areas of the country as “unclassifiable,” meaning that the agency believes it is unable to determine whether health protection standards are met “on the basis of available information.” In her book Next Generation Compliance, veteran environmental regulator Cynthia Giles notes, “When EPA monitors actual emissions, it finds that pollution is much worse than is being reported. . . . The net effect: a lot more pollution [goes] into the surrounding communities than . . . revealed by the estimated emissions.” Here is one example: When EPA set its action level for benzene ambient concentrations at the fencelines of oil refineries, the agency selected a concentration that no refinery would exceed as long as its estimates of fugitive emissions were accurate. Nonetheless, in 2018-2019, benzene concentrations in air around 10 oil refineries blew that limit. The offending refineries include operations by major players such as Chevron, Shell, Marathon, Valero, and BPF Energy. The result provides some insight into the efficacy of using unverified industry estimates of emissions as a basis for protecting public health.

In a 2008 case, NRDC v. EPA, the D.C. Circuit upheld the agency’s 2006 analysis of risks from the synthetic organic chemical industry’s hazardous air pollutant emissions. EPA relied on the seven-year-old results of an American Chemistry Council questionnaire, filled out by member companies, with a 44 percent response rate. In other words, EPA based its analysis that was supposed to provide the public with an ample margin of safety on old industry estimates from a minority of the regulated community. Why? The agency explained that, among other things, reliance on “industry sources is a well-established practice” and it would have been “very costly and time-consuming” for the agency to require collection and submission of data. Upholding EPA’s decision, the court explained, “We generally defer to an agency’s decision to proceed on the basis of imperfect scientific information, rather than to invest the resources to conduct the perfect study.”

Recently, the agency has sought to grapple with the excess emissions caused by “startup, shutdown, and malfunction” events, which can dwarf the emissions that are subject to permit limits. Similarly, the agency is revisiting exemptions for “fugitive emissions”; that is, emissions that “could not reasonably pass through a stack, chimney, vent, or similar opening.” Both of these emission categories are significant contributors to the air pollution problem that are not adequately accounted for in the current permitting regime.

Regulation of odors could help mitigate these deficiencies and focus EPA and state agencies on avoiding local impacts. These often fall on lower-income and minority communities. The problem has been amply demonstrated. The 2002 Third Circuit case of South Camden Citizens in Action v. New Jersey Department of Environmental Protection concerned an air emissions permit issued for a new facility in a neighborhood that already had “two Superfund sites, several contaminated and abandoned industrial sites, and many currently operating facilities, including chemical companies, waste facilities, food processing companies, automotive shops, and a petroleum coke transfer station,” not to mention permits that had been issued for “operation of a regional sewage treatment plant, a trash-to-steam incinerator, and a co-generation power plant.” The neighborhood comprised 63 percent African American, 28.3 percent Hispanic, and 9 percent white residents.

Occasionally, one hears the argument that residents of fenceline communities must have decided, voluntarily, to move close to pollution sources. Of course, Congress intended the Clean Air Act to result in healthful ambient air regardless of a neighborhood’s location. In addition, however, the assumption that residents of overburdened neighborhoods are volunteers is flawed. A 2023 environmental justice lawsuit, Inclusive Louisiana, et al. v. St. James Parish, was based on allegations that, in 2014, St. James Parish adopted a land use plan that steered industry to the parish’s 4th and 5th Districts, which are majority African American, by designating large tracts of property in those districts as “future industrial.” The lawsuit also alleged that the 2014 plan created industrial buffer zones for the parish’s white-majority churches but not Black-majority churches. (In Louisiana, a “parish” is the equivalent of a county.) The court dismissed the case on statute-of-limitations grounds but held that it “cannot say that [the plaintiffs’] claims lack a basis in fact.” Especially given the lack of specific environmental justice legislation, regulation of odors would provide a tool for mitigating the effects of such disproportionate environmental impacts.

Is it practical for EPA to set a welfare standard for odors? It is. One approach to odor regulation is the narrative standard. For example, the Virginia Administrative Code’s Standard for Odor reads, “No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any emissions which cause an odor objectionable to individuals of ordinary sensibility.” Narrative standards are relatively common in Clean Water Act regulation. The U.S. District Court for the Northern District of Florida explained the concept in its 2012 opinion in Florida Wildlife Federation v. Jackson by way of analogy: “a state could adopt a numeric speed limit—70 miles per hour—or a narrative standard—don’t drive too fast. Or a state could adopt a combination of both—don’t drive over 70, and don’t drive too fast for conditions.”

In contrast, Colorado’s odor emission regulation takes a numeric approach. The idea is to determine how many times a sample must be diluted before becoming undetectable: “For areas used predominantly for residential or commercial purposes it is a violation if odors are detected after the odorous air has been diluted with seven (7) or more volumes of odor free air.” The approach is analogous to EPA Method 9 opacity readings, which require trained smoke readers to evaluate emission plumes. Similarly, most odor tests still require human noses, but those noses are deployed systematically, with the aid of a mechanical dilution device such as an olfactometer. The Bay Area Air Quality Management District’s “Odorous Substances” regulation provides, “a diluted sample shall be deemed odorous if during evaluation . . . at least two of the [three] subjects gave negative responses to at least 8 of the 10 odor-free or ‘blank’ presentations and affirmative responses to at least 8 of the 10 sample presentations.” The Bay Area regulation applies after 10 or more people complain to the Air Pollution Control Officer within a 90-day period “until such time as no citizen complaints have been received by the APCO for one year.”

Another approach is to develop ambient concentration standards for specific chemicals, derived from odor measurements. In a 2015 paper, “Approaches to Derive Odor-Based Values,” the Texas Commission on Environmental Quality’s Toxicology Division discusses and provides a list of publications that describe standardized methods for odor measurement. The report highlights odor threshold studies from a 1992 EPA study and a 1989 American Industrial Hygiene Association report. Under this approach, for example, a 1-hour average ambient reading of 30 parts per billion by volume of hydrogen sulfide could be a violation of an odor regulation. Of course—under an EPA welfare standard for odors—no individual source would necessarily be in violation. Instead, the state’s attainment status for the secondary odor standard would be at risk and the state, ideally, would take action to remedy the problem.

For some odors associated with some industries, surrogate odor values may be useful. Moreover—as with all environmental monitoring—technology is constantly improving and the ability to conduct widespread ambient monitoring with “electronic nose” technology may not be far off.

There are no panaceas. Just as all Clean Air Act programs suffer from gaps and mistakes, regulation of odors under the criteria program would pose frustrations. As a secondary, welfare standard, an ambient NAAQS for odors would lack a statutory attainment deadline; instead, attainment would be required on “the date by which attainment can be achieved as expeditiously as practicable after . . . such area [is] designated nonattainment.” This lack of a specific attainment deadline, of course, makes ambient regulation of odors more practical in the short-run and less scary for EPA. It also opens the door for serious foot-dragging that will require political will to overcome. But at least it would provide a handle that would allow reasonably enlightened regulators to insist on fenceline improvements.

Part of the genius of the Clean Air Act is that its overlapping programs can help make up for the shortcomings of individual programs. For example, hazardous air pollution standards result in reduction of ozone precursors that states might never have summoned the political will to mandate in discretionary parts of their state implementation plans. The ozone ambient standard helps limit volatile organic compounds (as ozone precursors) that might otherwise have only been subject to emission standards based on estimates of “acceptable” risk from individual chemicals.

Congress’s failure to enact environmental justice legislation creates a large gap in protection for some of our most vulnerable communities—those near the fencelines of industrial facilities. Regulation of ambient odors as a criteria pollutant would be one step toward addressing that gap. And with practice, and improving technology, an ambient regulation for odors could represent significant progress in realizing the Clean Air Act’s vision: “to protect and enhance the quality of the nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.”

OPENING ARGUMENT The nose is a sensitive instrument for detecting chemicals. EPA can take advantage, making progress in public health protection, and improving quality of life for those who already shoulder a disproportionate share of the burdens associated with industrial society.

Whole-of-Society Is Necessary, but Not Easy
Author
Jordan Diamond - Environmental Law Institute
Environmental Law Institute
Current Issue
January-February 2024
Issue
1
Jordan Diamond

It will surprise no one that Inflation Reduction Act implementation is a critical priority for 2024. Eighteen months after the IRA was signed, we’re starting to see the shape, scale, and strategy of some of its programs, and how its nearly $400 billion is being put into play to help realize the transition to a clean energy economy.

One of the most important aspects of the IRA is that it embraces a whole-of-society approach, with its financial incentives designed to provide support across sector value chains. It’s hard to overstate how important this approach is to enable systemic change at the scale needed to shift our economy. Take electric vehicles, for example. You can’t increase sales without increasing charging infrastructure; you can’t increase production without increasing critical minerals mining; and so on.

Last November, ELI’s GreenTech initiative worked with the Georgetown Climate Center and Georgetown Environmental Law & Policy Program to host a multi-stakeholder discussion around IRA implementation. (You can view recordings and other materials at greentechconference.org.) Featuring expert speakers across a variety of industrial sectors and jurisdictional scales—with particular emphasis on power, transportation, and carbon management—the discussion looked at the landscape of the IRA and homed in on where we are seeing progress, where we are encountering obstacles, and where there are gaps.

Those conversations highlighted how many programs are being operationalized that truly do embrace a complete value chain or full lifecycle approach, and this is cause for optimism. To stay on the electric vehicles example, increased charging infrastructure requires increased transmission, which we are trying to figure out how to accelerate; increased critical mineral mining must occur domestically and faces challenges ranging from general public concern to concerns about specific sites; etc. At the same time, many questions remain unanswered and tensions unaddressed, where more work is needed to find the path forward.

Which brings us to the other aspect of a whole-of-society approach, which isn’t about the economy, or sectors, or siloed functionalities—it’s about people. It’s about ensuring everyone is considered in the clean energy transition, that no one is overlooked. On this front, the Biden administration’s Justice40 initiative is key. To date we’ve seen the development of screening tools, equity action plans, community benefits plans, and as I’m writing this, EPA announced it is readying $2 billion in environmental justice spending, arguably the largest allocation ever. But we are still waiting to see if these efforts yield the intended benefits. Returning to the EVs example, novel approaches may be needed to ensure benefits aren’t limited to high-income areas and to elevate community voices in siting decisions.

The clean energy transition is a transformation of our economy, and it truly requires a whole-of-society approach. We’re on the track, but it’s neither easy nor simple, and we have a ways to go.

On "Whole of Society" Approach.

EJ, Climate Change Procedures Result in CEQ NEPA Controversy
Author
David P. Clarke - Writer & Editor
Writer & Editor
Current Issue
January-February 2024
Issue
1
David P. Clarke

Immediately upon assuming office in 2021, President Joe Biden declared a “whole of government” commitment to tackling climate change and environmental justice. Now, with the White House Council on Environmental Quality’s proposed rules placing Biden’s commitment at the center of National Environmental Policy Act reviews, environmentalists and Democratic lawmakers have voiced strong support.

But equally strong opposition has come from 17 governors and Republican members of the Senate Environment and Public Works Committee, among others, ensuring that administration attempts to advance climate and EJ policies through CEQ will face pushback.

The disagreement centers on whether NEPA is a “purely procedural statute.” CEQ acknowledges that view as “correct,” but nevertheless proposes removing NEPA-is-procedural language from the regulations because the council considers such a view of the law’s purpose “inappropriately narrow” and a limitation that minimizes its vision. Lawmakers enacted an “ambitious and visionary national policy” aimed at promoting environmental protection for present and future generations, CEQ states.

The council proposes a new requirement for the environmental documents created during NEPA reviews. When considering alternatives, project reviewers must explicitly identify “environmentally preferable” alternatives, defined as those that would maximize environmental benefits, such as addressing climate change or minimizing effects on EJ communities.

Applauding CEQ’s proposal, the Natural Resources Defense Council, National Audubon Society, and several EJ advocacy groups state that, while NEPA is “procedural in nature,” procedure and substance are “integrally connected.” NEPA’s procedures aim to fully investigate a project’s environmental impacts toward the substantive goal of creating and maintaining conditions that will allow current and later generations to exist in “productive harmony” with nature, the groups argue. They “strongly support” CEQ’s proposal to restore and strengthen a requirement for federal agencies to consider a “reasonable range of alternatives” to a project to lessen climate and EJ impacts.

In a letter to CEQ Chair Brenda Mallory, more than 80 Democratic House members and 11 senators also extol the proposal, asserting that climate and EJ considerations are urgently needed and are “consistent with CEQ’s regulatory authority.” Climate change effects are environmental effects, but despite a “clear obligation” to robustly analyze climate issues, some federal agencies conduct “little or no” analysis, they write. While offering their support for the changes, the Democratic attorneys general of 20 states and the District of Columbia urge “strengthening” certain provisions—for example, the analysis of cumulative effects on communities with EJ concerns and of climate change effects at specific points during NEPA reviews.

In contrast, GOP senators in their own letter to Mallory accuse CEQ of willfully misinterpreting bipartisan reforms adopted in the 2023 Fiscal Responsibility Act, which included the “most substantive” NEPA amendments since the law’s enactment. FRA reforms were intended to streamline an “overcomplicated, needlessly burdensome” NEPA environmental review process. But, instead, CEQ has added more uncertainty and potential legal liability into an “already labyrinthine process,” and has undermined and politicized the FRA’s agreed-upon revisions, the senators write.

Likewise, 17 GOP governors opposing CEQ’s proposal assert it will “undermine” several laudable FRA reforms and will undo the Trump administration’s 2020 NEPA rule, which was designed to increase the process’s efficiency and effectiveness. The rule made no mention of EJ. CEQ’s proposal will decrease efficiency and “drastically” increase the potential for NEPA litigation, the governors concur, and reject CEQ’s proposal to eliminate language describing NEPA as a purely procedural statute, noting that CEQ admits that the description is “accurate.”

Alaska’s Department of Natural Resources in its comments expresses general support for the proposal, but cautions that given the litigious nature of federal permitting, it is “of utmost importance” to avoid ambiguity or “additional process” that enables project opponents to make viable projects “economically unfeasible” through costly litigation and delays. The state emphasizes that NEPA must remain a purely procedural statute and opposes CEQ’s proposal to “recast” NEPA as “the primary regulatory mechanism” for advancing substantive EJ and climate goals. It is “inherently inappropriate” to include substantive requirements in NEPA, and the FRA reforms did not give CEQ any mandate that CEQ could “interpret or clarify” regarding those issues, Alaska’s letter argues.

Lawyers tracking CEQ’s proposal say that, going forward, litigation will undoubtedly focus on the adequacy of EJ and climate change analyses.

EJ, Climate Change Procedures Result in CEQ NEPA Controversy.

Tribes Guaranteed Protection By Treaty
Author
Emily Bergeron - University of Kentucky
University of Kentucky
Current Issue
September-October 2023
Issue
5
Parent Article
Equal Protection for All
Emily Bergeron

Where we are born, live, and work significantly impacts our health. Relevant conditions are known as the social determinants of health. SDOHs include housing, education, income, healthy food, and environmental quality. Some communities bear a disproportionate burden of health risks because of inequities in SDOHs. A more just distribution of (or, more hopefully, an overall reduction of) risk requires considering the cumulative nature of these effects and the intersection between environmental burdens and benefits.

Despite treaty and trust obligations, and due to land tenure issues and other federal policies, Native Americans and Native Alaskans face such cumulative impacts, dealing with health and environmental problems at markedly higher rates. Nearly 25 percent of Superfund sites are in Indian Country; 16 percent of all Native Americans live within three miles of such sites. Over 600,000 Native Americans live near nuclear test sites, uranium mines, power plants, and toxic dumps.

Exacerbating these environmental burdens are multiple bad SDOHs. For example, nearly one in four Native Americans exist at or below the poverty level, more than twice the rate of white people. Hunger and malnutrition persist in Native American communities. One Native American Agriculture Fund study found that 56 percent of respondents experienced food insecurity during the pandemic; 31 percent very low security. This is partly attributable to a long history of social, political, and economic exclusion, forced removal, and a failure to meet specific treaty and trust obligations. Further, land use and zoning policies have disrupted traditional practices, such as cultivating Indigenous foods, hunting, and fishing. Native Americans are more than twice as likely to die due to diabetes than non-Hispanic White people, showing current disparities in healthcare access.

Better enforcement of existing policies could make a striking difference. Food security, for example, could be improved simply by meeting existing treaty and trust obligations. From 1778 to 1871, the United States entered into nearly 400 treaties with tribes across North America, many of which stipulated the government supply Native nations with food, agricultural lands, and farming implements or livestock. Treaty-guaranteed hunting and fishing rights also support subsistence.

Telling of the commitment toward protecting these rights is the Ninth Circuit’s 1976 determination in U.S. v. Washington that treaty rights guaranteed tribes the amount of fish necessary to provide them with a moderate living, but no more. In the 2018 decision in Washington v. United States, the Supreme Court deemed it impossible to uphold treaty obligations simply by allowing access to waters where the state had already destroyed the fishery, ordering the state to remove and replace about 1,000 culverts that blocked migrating salmon. However, this slow, piecemeal enforcement of existing obligations cannot compensate for centuries of failures to provide for the most basic human right.

In the environment, interrelated elements add up to a unified whole, and no component can be wholly understood separately from the system in which it exists. The same is true of environmental justice. It is scientifically well-recognized that risks from environmental pollution are exacerbated when a community faces multiple stressors. And yet, issues such as fair housing, food sovereignty, and environmental justice have operated in distinct siloes in policymaking and advocacy for decades.

The basis for a more inclusive definition of “environment” exists. The Bureau of Indian Affairs’ NEPA Guidebook broadly explains environmental effects include “ecological (such as the effects on natural resources and the components, structures, and functions of ecosystems) [and] aesthetic, historic, cultural, economic, social, or health” impacts. Why not extend this broader definition beyond the confines of this procedural law, and also consider multiple stressors and cumulative impacts?

Funding Can Catalyze Collaboration
Author
Hilary Jacobs - Beveridge & Diamond
Beveridge & Diamond
Current Issue
September-October 2023
Issue
5
Parent Article
Equal Protection for All
Hilary Jacobs

With the passage of the Inflation Reduction Act and the Infrastructure Investment and Jobs Act, the federal government has made billions of dollars available to reduce greenhouse gas emissions and transition to a renewable energy economy. In particular, the IRA directs $40 billion toward disadvantaged communities and communities with environmental justice concerns.

The White House Council on Environmental Quality defines “disadvantaged” as any census tract that experiences certain socioeconomic and environmental, climate, or other burdens. This definition is designed to capture those communities that historically have experienced not only excessive pollution but also under-investment in critical resources such as housing, transportation, water and wastewater, and health care—under-investment that can often be traced back to redlining.

Parts of the two new laws require agencies to prioritize projects in disadvantaged communities. Agencies in turn have begun to require grantees to collaborate with a wide range of stakeholders—including but not limited to communities and businesses—to carry out a grant’s requirements. For instance, the Department of Energy requires many funding applicants to submit a Community Benefits Plan on engaging the community, investing in the American workforce, advising diversity, equity, inclusion, and accessibility, and supporting the administration’s Justice40 Initiative directing 40 percent of overall benefits from federal investments to disadvantaged communities.

CBPs typically require applicants to engage a broad set of stakeholders in project planning, including labor, local businesses, local and tribal governments, and community-based organizations. Applicants must involve local interests in decisions surrounding how a project will be sited, designed, and operated. DOE encourages applicants to enter into community benefits agreements, community workforce agreements, and pacts with local stakeholders to ensure the distribution of community and economic benefits, including access to quality jobs and mitigation of any adverse project impacts. Once an applicant is selected, its CBP will become a contractual obligation of the funding recipient.

For its part, EPA requires applicants for certain IRA and IIJA funding to undertake similar multi-sector engagement efforts. The agency’s long-standing Environmental Justice Collaborative Problem-Solving Agreement Program, which received additional funding under the IRA, anticipates awarding $30 million through cooperative agreements for projects that support community-based nonprofit organizations in their collaboration with a broad set of stakeholders to develop solutions addressing environmental or public health issues in disadvantaged communities. Examples of projects EJCPS has funded include brownfield remediation, trash cleanup, reduction of lead exposure, and water quality monitoring.

Federal funding provides agencies with a unique opportunity to require that grantees conduct robust engagement with potentially affected stakeholders about project impacts, engagement that can lead to formal partnerships, memorialized by binding agreements between grantees and communities, and grantees and the government. These collaborations can enable businesses and industry to undertake performance-enhancing projects supported in part by federal dollars, while simultaneously addressing environmental justice concerns and advancing community interests.

In the absence of sweeping federal environmental justice legislation, and in the presence of legal challenges to government programs designed to address historic injustices, federal grants have a potential to catalyze real change for communities. Though grant periods vary, they can last upward of 12 years, meaning these changes can have real staying power, outlasting political shifts and changes in administrations.

Equal Protection for All
Author
Barry E. Hill - Environmental Law Institute
Environmental Law Institute
Current Issue
September-October 2023
Issue
5
Cover Story Image

There are “literally two Americas,” said Dr. Martin Luther King Jr., a community activist by nature and a spellbinding orator whose words still resonate today. “One America is flowing with the milk of prosperity and the honey of equality. That America is the habitat of people who have food and material necessities for their bodies, culture and education for their minds, freedom and human dignity for their spirits. That America is made up of millions of young people who grow up in the sunlight of opportunity.” But, Dr. King observed, “There is another America. And that other America has a daily ugliness about it that transforms the buoyancy of hope into the fatigue of despair.”

More than a half century later comes confirmation of Dr. King’s analysis in the form of a 2022 EPA-financed study showing that “Historical Redlining Is Associated With Present-Day Air Pollution Disparities in U.S. Cities.” Redlining was state-sponsored segregation—it was federal housing policy starting in the 1930s and was also implemented by state and local officials. The authors of the report demonstrate that historically redlined neighborhoods, in addition to a greater pollution burden today, still are more likely to have high populations of Black, Latino, and Asian residents. In short, the study reveals how racist federal housing policy continues to contribute to enduring inequalities across the United States more than fifty years after housing discrimination was made illegal under federal law.

Redlining was a discriminatory practice in which financial services—mortgages, insurance, loans, etc.—were denied to people who resided in neighborhoods classified as “hazardous” to investment. The federal government deemed these areas as places where property values were most likely to decline, and the areas were marked in red—a sign that they were not worthy of inclusion in homeownership and lending programs. Not coincidentally, most of the “hazardous” areas were neighborhoods where Black residents lived. Banks used these maps to determine where people were able to get loans, based on racial makeup, while real estate agents would only show certain houses to certain families.

Though the maps were internal documents that were never made public by the federal government, their ramifications were obvious to African Americans who could not get home loans that were backed by government insurance programs. Greater understanding of redlining became more prevalent during the Civil Rights Movement, especially in the era leading up to the passage of the Fair Housing Act of 1968. The act prohibits redlining—federal, state, and local government housing policies that explicitly segregated metropolitan areas nationwide in patterns that violated the Constitution.

Yet as the new EPA study shows, the settlement patterns created by redlining persist today—and that formerly redlined areas have greater environmental burdens and still experience “the fatigue of despair.” So, the question is, What remediation can be done today, using the Constitution, to address the environmental and public health concerns of those disproportionately impacted communities—neighborhoods who continue to suffer because of historical redlining? This article argues that a federal lawsuit from two decades ago, Miller, et al. v. City of Dallas, and the cutting-edge outcome of the 1997 Neighbors for a Toxic Free Community v. Vulcan Materials Company litigation in Denver offer litigators and affected communities some practical lessons on a forward course of action into the “sunlight of opportunity.”

EPA defines environmental justice as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. The agency’s definition is focused primarily on the issuance of permits and operation of pollution-generating facilities sited in affected communities. A special concern is the adverse impact on the health of residents who have been environmentally overburdened—exposed disproportionately to harms and risks compared with other communities.

To address their environmental and public health concerns, communities have sought to use the Equal Protection Clause of the Fourteenth Amendment, which reads that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” And “any person” means all persons. Disproportionately impacted communities have not succeeded, however, because of the difficulty in proving in court the discriminatory intent of the government actor(s) in the decisionmaking process. In 1972, the Supreme Court in Village of Arlington Heights v. Metropolitan Housing Development Corp. delineated criteria to determine the intent of a zoning board entrusted with the task of making fair and impartial decisions. The Court concluded that although evidence of racially discriminatory intent is necessary to invoke a “strict scrutiny” analysis, the plaintiff must also show that it was a motivating factor in any decision involving a suspect or protected class. The Court stated that the plaintiff has the burden of showing that the official action affected a protected class in greater proportion than others, and that the official action was intended to discriminate against a suspect or protected class.

Consequently, applying the Arlington Heights criteria resulted in losses in several notable environmental justice cases because of issues related to the legal distinctions in proving discriminatory intent, discriminatory purpose, and discriminatory impact. This was the situation in spite of compelling statistical evidence presented by communities in the 1979 case Bean v. Southwestern Waste Management Corporation, the 1989 case East-Bibb Twiggs Neighborhood Association v. Macon-Bibb County Planning & Zoning Commission, and the 1991 case R.I.S.E. Inc. v. Kay, et al.

But, although a federal district court applied the Arlington Heights criteria, the 2002 result in the Miller v. Dallas case was markedly different. The African American residents of Cadillac Heights presented material facts that would likely prove that the city of Dallas intentionally discriminated against them by providing municipal services unequally based upon race, in violation of the Equal Protection Clause. The municipal services included flood protection, zoning, landfill practices, streets and drainage, protection from industrial uses, and federal funding for housing and community development. The residents offered material facts relating to discriminatory effects; the historical background of the city’s decisions; and Dallas’s departure from normal substantive criteria or standards.

The residents survived the city’s motion for summary judgment because they were able to show that there was a genuine dispute as to material facts, and that Dallas was not entitled to judgment as a matter of law on the claims or defenses raised in its motion. The district court judge determined that the case would proceed to trial. Following the court’s decision, the residents settled for money damages: the city paid $50,000 each to four plaintiffs for the purchase of their homes, and $35,000 each to two plaintiffs for the purchase of their homes. Dallas denied liability, and paid plaintiffs’ attorneys $265,000.

According to Professor Richard Rothstein’s comprehensive 2017 book The Color of Law: A Forgotten History of How Our Government Segregated America, in 1933, faced with a housing shortage, the federal government began a program to increase and segregate America’s housing stock. The government’s efforts were primarily designed to provide housing to middle and lower middle class White families in new suburban communities. Blacks and other minorities were pushed instead into urban public housing projects.

In 1934, the Roosevelt administration and Congress established the Federal Housing Administration. It implemented the government’s segregation efforts by refusing to insure mortgages in or near Black neighborhoods. At the same time, however, the FHA was subsidizing builders who were mass-producing entire subdivisions for Whites with the specific requirement that none of the homes could be sold to African Americans.

Dallas is an excellent example of how this state-sponsored system of segregation worked, in carving out the neighborhood of Cadillac Heights as a minority and low-income community—effects which did not stop with enactment of the Fair Housing Act. In 1950, of the small portion of Cadillac Heights for which census data are available, Tract 89 blocks 32, 33, 34, 35, 53, and 55, were White. Cadillac Heights rapidly became a minority residential area. In 1950, block 32 was zero percent non-White. By 1960, that block was 41 percent non-White. In 1950, Block 33 was zero non-White. By 1960, that block was 74 percent non-White. In 1950, block 34 was zero percent non-White. By 1960, that block was 78 percent non-White. By 1960, 74 percent of the occupied housing units in Census Tract 89 were occupied by non-Whites. The FHA was passed in 1968, banning redlining, but the change in ethnic makeup continued. The 1990 census population for Tract 89 was 82 percent Black and 18 percent Hispanic. The 2000 population for the Cadillac Heights Census Tract—the last census before the lawsuit—was 51 percent Black, 47 percent Hispanic. Pursuant to this systematic government program, local housing policies in Dallas mandated segregation. That’s where and how written and oral mistakes were made by city decisionmakers, demonstrating purposeful racial discrimination.

In Dallas’s motion for summary judgment, the city argued that the residents’ claims of intentional discrimination in the provision of municipal services under the Equal Protection Clause failed as a matter of law because they could not show that any violations of their federal rights were committed pursuant to a policy or custom of the city.

First, citing Arlington Heights, Dallas pointed out that the Supreme Court had made clear that “impact alone is not determinative . . . unless the impact is unexplainable on grounds other than race.” Thus, the residents could not establish a claim for the discriminatory provision of municipal services based solely on evidence of disparate impact. The residents’ mere recitation that some African Americans had been disparately affected by the city’s practices was insufficient to raise a genuine issue of material fact considering the city’s uncontradicted testimony explaining the nondiscriminatory basis for the disparity.

Second, Dallas argued that the residents must show that the city had “selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”

Third, Dallas argued that the residents had no genuine evidence that any of the city’s activities in their neighborhood were motivated by intentional racial discrimination. Instead, the plaintiffs tried to establish that the city had been “thoughtless” and “neglectful” of the neighborhood. Even if that were true, it is not enough to establish a violation of the Fourteenth Amendment.

Fourth, quotes from then-Mayor Ron Kirk, an African American, were not competent evidence sufficient to create a genuine issue of material fact in support of allegations of racial discrimination.

Fifth, the remainder of the residents’ case was based solely on questionable “evidence” of disparate impact. There are legitimate, nondiscriminatory explanations for Cadillac Heights’ situation. The residents have none of the evidence that is typically used to supplement evidence of statistical disparity, such as procedural or substantive irregularities, racially discriminatory statements by city officials, or evidence that similarly situated non-minority neighborhoods were treated differently.

In sum, because the neighborhood had no evidence of intentional discrimination, summary judgment was proper for the city.

The plaintiffs’ brief in opposition provided material facts, as well as the sources of those facts, that Dallas had a history of enforcing racial segregation in neighborhoods by ordinance through direct decisions of its city council. This segregationist tradition eventually led to such a severe shortage of housing deemed “available” for minorities that city leaders spent much of the l940s struggling to address what they called “The Negro Housing Problem.” Dallas’s proposed solution to the problem was implemented by annexation of Cadillac Heights and its designation for “Negro development.”

Furthermore, the city, through zoning ordinances passed by the council, had issued numerous permits to all manner of incompatible, noxious, and hazardous industries to invade and encircle the neighborhood. In the 1980s, when the council overhauled zoning citywide, the city refused to apply the changes to Cadillac Heights in order to keep the industries there. The official action by the council included the adoption of the Southeast Oak Cliff Master Plan that continued the pattern by rezoning the entire Cadillac Heights residential area to industrial. As an example, the City’s Board of Adjustment granted Dixie Metals the right to operate its lead smelter in Cadillac Heights.

Finally, it was the White city attorney Alex Bickley who made the decision to delay or deny enforcement of Dallas’s environmental protection ordinances. He and the council accepted settlements with the industrial polluters that allowed them to exceed the city’s own environmental standards.

In sum, the paucity of municipal services, the lack of flood protection, the incompatible zoning, and the absence of environmental protection were not being inflicted by neglect or by thoughtless city underlings. It was, in fact, the city council and its chief policymakers who officially set the course of action implemented by city employees. The Cadillac Heights residents were able to show that Dallas was not entitled to judgment as a matter of law on the claims or defenses raised in its motion for summary judgment.

It is true that a single federal district court decision more than twenty years ago denying summary judgment against the residents of Cadillac Heights has not led to sweeping legal change. But Miller v. Dallas offers an evidentiary framework for community organizations to use the Equal Protection Clause not only for securing equal municipal services but also for reallocating environmental benefits fairly through collaborative problem-solving. As Dr. King said, “Let us never succumb to the temptation of believing that judicial decrees play only minor roles in solving this problem. Morality cannot be legislated, but behavior can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless.”

Nonetheless, going to court on equal protection grounds may seem an odd recommendation, because community use of the Fourteenth Amendment to address environmental and public health concerns has been problematic due to Supreme Court decisions. The Court’s 1976 ruling in Washington v. Davis instituted the rule that impermissible discrimination under the amendment requires a showing of intent by the state actor(s), not simply of disparate impact. In 1977, the Arlington Heights decision established the criteria to determine whether invidious discrimination underlies an otherwise legitimate exercise of governmental authority.

But using the Arlington Heights factors as its framework for the decision, the district court judge determined in Miller the following material facts compelling. First, zoning for the neighborhood started as residential, but the area was curiously rezoned by the city for heavy industrial uses. Second, the city considered overt racial segregation as a legitimate policy goal for land use decisions through the 1940s and beyond. Third, the city knew that Cadillac Heights would be an industrial area when it designated the neighborhood for “Negro development.” In sum, Miller demonstrates that American cities with a written and oral legacy of racist land use practices may be vulnerable to class action lawsuits brought by community-based environmental justice organizations.

Additionally, residents living in communities of color can bring Equal Protection Clause actions to secure municipal services equal to those in White neighborhoods. In three notable cases—Baker v. City of Kissimmee (1986), Ammons v. Dade City (1984), and Dowdell v. City of Apopkaf (1981)—federal courts have held that the discriminatory intent standard was satisfied by evidence of the government officials’ knowledge of disparate impacts in the provision of municipal services.

Given the legal trends, and depending on the facts, residents living in communities of color should consider bringing class action lawsuits to address their environmental and human health concerns. And to do so from the perspective of using an equal protection argument in seeking an equitable allocation of environmental benefits going forward, which can be easier to establish. Environmental benefits in urban areas include drainage and waste systems; infrastructure that can reduce traffic congestion and improve public health; housing affordability for the poor; addressing environmental degradation; quality drinking water; access to nutritious food; and land security and safe shelter. These environmental benefits are controlled and managed by city decisionmakers who shall not “deny to any person within its jurisdiction the equal protection of the laws.”

Furthermore, I argue that using collaborative problem-solving could be even more effective in addressing the environmental and public health concerns of the greater Cadillac Heights community and similarly affected neighborhoods throughout the United States. And often, as the following example shows, collaborative problem-solving can evolve out of a lawsuit.

The 1997 Neighbors for a Toxic Free Community v. Vulcan Materials Company litigation in Denver serves as a case study. Following a toxic chemical spill in 1995, a nearby West Denver community sued Vulcan Materials Company, a chemical firm, for failing to comply with Section 326 of the Emergency Planning and Community Right-To-Know Act. The fire and release of chemicals caused a toxic cloud of muriatic and hydrochloric acid that covered the community, resulting in the evacuation of 300 people. While no one was injured, the community experienced tremendous disruption. Children at a local daycare center were sheltered at an unidentified location for hours while anxious parents were prevented from trying to find them. Members of the hazardous materials response team went door-to-door in moon suits.

In addition to providing emergency notices to government authorities, EPCRA requires a company to provide information to the local community emergency coordinator. After the facility failed to provide specific information to the residents regarding the event, the community brought a legal action under EPCRA’s citizen suit provision. The lawsuit was filed by Neighbors for a Toxic Free Community, formed by the residents in 1987 to address environmental problems caused by the many industrial facilities located in the West Denver area. The residents are of mixed heritage, mostly Hispanic, generally with low incomes and few economic resources.

Instead of responding directly to the residents’ allegations or providing the information that the community sought, the company replied that even if what the residents alleged were true, the court had no jurisdiction to hear the civil complaint and should dismiss the case for the residents’ lack of standing. The district court rejected the motion for summary judgment, finding that the residents had standing to bring their suit, and scheduled the case for trial. Notably, this was the first time that a nongovernment entity was deemed to have standing to bring a citizen suit against violators of EPCRA.

At this point, attorneys for Vulcan Materials recommended that a collaborative approach, through a mediator, might offer the most favorable outcome for both the company and the residents. Going into the mediation, the company’s primary goal was to avoid the expense of trial and a potentially adverse legal precedent.

In the mediation, residents stated that their requests for information about the potential adverse health effects of the accident, which had gone unanswered, combined with the handling of the spill by Denver and the company, had left the community “feeling discounted and disrespected . . . [and that] this might be one more instance of a company being unwilling to respond to a low-income community of color.”

Company managers, speaking directly to neighborhood leaders rather than through lawyers, apologized for the spill and the community’s treatment. They explained the circumstances that led up to the release and the lessons that Vulcan had learned. Moreover, company officials described new precautions that would further reduce the chances of a similar release and the steps that would be followed both locally and companywide to ensure a more appropriate response should a release occur. Company managers also offered to establish an ongoing dialogue with the residents to improve the flow of information between the company and the surrounding neighborhood.

Finally, company officials described their feelings of being isolated from the surrounding residents. They shared about not knowing how to access community leaders. They expressed concern that the safety of chemical tanks and employees were in danger, as gunshots had been fired at the tanker cars by intoxicated individuals. The possibility of tankers exploding because of errant gunshots was a mutual concern of both the company and the community. In turn, having heard Vulcan Materials acknowledge responsibility and state its desire to engage the community for assistance, the residents saw a chance to transform the conflict into an opportunity.

Company representatives stated that they would be willing to work with the neighbors to improve relations and the level of communication. The residents, in turn, said that they would be willing to work with the company to help “teach” officials how to work proactively with other host communities of its facilities and operations across the country. Based on this greater understanding of mutual interests, which extended beyond those at issue in the litigation, the community and the company negotiated a set of principles upon which a Good Neighbor Agreement would be based.

Not all cases are appropriate for a structured mediation process. Rather, the West Denver outcome elucidates the value of collaborative problem-solving between two opposing stakeholders as a means of developing pragmatic, mutually beneficial solutions that are tailored to the fact-specific situation, and improved relationships going forward.

Dr. King reminded us that the “arc of history is long, but it bends toward justice.” As these examples show, communities can seize the initiative and use the courts and direct negotiations on the road to “equal protection of the laws” for all. TEF

COVER STORY Communities have not been able to prove discriminatory intent in inequitable environmental burden cases, but they may be successful in securing equitable environmental benefits by using the laws effectively and by engaging in collaborative problem-solving.

Clean Air, Climate Change, and the Inflation Reduction Act
Author
Greg Dotson - University of Oregon School of Law
Dustin J. Maghamfar - U.S. Energy Foundation
University of Oregon School of Law
U.S. Energy Foundation
Current Issue
July-August 2023
Issue
4
Two smokestacks billowing smoke across the sky.

In August 2022, the U.S. Congress took arguably its most significant action in history to address climate change. Using the budget reconciliation process, Congress passed the Inflation Reduction Act (IRA),1 legislation that invests hundreds of billions of dollars over the next 10 years to address climate change. Combined with the Infrastructure Investment and Jobs Act of 2021 (IIJA)2 and the CHIPS and Science Act of 2022,3 Congress is implementing a climate-focused, innovative industrial policy that will move the United States toward a clean energy future.4

According to President Joe Biden, the IRA is “the most important climate initiative ever, ever, ever.”5 Numerous energy modelers have released analyses projecting that following passage of the IRA, the United States will reduce greenhouse gas (GHG) emissions by approximately 40% by 2030 from 2005 levels.6

The IRA accomplishes this through a combination of tax expenditures, direct spending, programmatic direction to guide that spending, and—to a lesser extent—revenue collection. Congress dedicated the lion’s share of federal resources for addressing climate change in new or reinvigorated tax policy. These provisions will encourage renewable energy deployment, widespread electrification and energy efficiency, sale of zero emission vehicles (ZEVs), continued use of existing nuclear power plants, domestic clean energy manufacturing, and new and emerging technologies like green hydrogen and carbon capture at industrial sources.

The IRA also provided substantial new authorities and resources for EPA to address climate change. The legislation adds seven new sections to the CAA, supplementing EPA’s existing regulatory programs with new financial tools to address climate change and guaranteeing resources for those efforts for the coming decade. Congress passed this historic legislation just weeks after the U.S. Supreme Court, in West Virginia v. Environmental Protection Agency, constrained the U.S. Environmental Protection Agency’s (EPA’s) regulatory authority to address GHGs under one section of the Clean Air Act (CAA).7

Additionally, the IRA includes funding for EPA activities authorized by the CAA outside of these new sections. Congress has provided the Agency with $41.457 billion in resources through fiscal year 2031 to address the nation’s emissions, including from the power sector, the oil and gas sector, and the transportation sector.8 Combined with $60.885 billion in investments under the IIJA,9 Congress has provided EPA—which has an annual budget of more than $9 billion—more than $100 billion in new funding to tackle climate, environment, and public health problems through grants and loans.

This Article focuses on the IRA’s new CAA sections—what we call the CAA Amendments of 2022. We will first discuss the budget reconciliation process that produced the IRA, then describe the new CAA provisions, and finally explain the major implications of this historic legislation. Specifically, we will describe how the IRA confirms that reduction of GHGs is a core goal of the CAA, that the funding provided by the IRA should allow EPA to increase the ambition of its CAA rulemakings, and that the IRA confirms the applicability of the CAA to greenhouse gases in three important, specific areas: California’s ability to regulate GHG emissions from vehicles; EPA’s authority to regulate methane emissions from oil and gas facilities; and EPA’s authority to regulate GHG emissions from power plants.

I. Procedural Background on the IRA

An understanding of the processes and congressional rules that shaped the IRA is essential to understanding and interpreting the legislation, including what was included or not, in what form, and why. On August 11, 2021, the U.S. Senate passed a budget resolution establishing the congressional budget for the federal government for fiscal year 2022, setting forth budgetary levels for fiscal years 2023 through 2031, and providing reconciliation instructions for legislation that increases the deficit.10 Adoption of a budget resolution is necessary to enable the use of the budget reconciliation process.11

On August 24, 2021, the U.S. House of Representatives passed the resolution.12 The House passed the reconciliation bill entitled the “Build Back Better Act” in November 2021.13 After months of negotiation, the Senate passed the IRA on August 7, 2022.14 The House passed the Senate amendment five days later.15 President Biden signed the IRA into law on August 16, 2022.16

The major advantage of a reconciliation bill in Congress is that it has a privileged status, allowing the legislation to avoid the need to overcome a filibuster in the Senate.17 That means that the legislation needs just a simple majority to pass the Senate—not a 60-vote supermajority, as Senate rules require for almost all other legislation.

The IRA needed this advantage to arrive at the president’s desk. During the 117th Congress, the Senate was split evenly in partisan membership, with 50 senators in the Democratic caucus and 50 senators in the Republican caucus. Republican officials in the House and the Senate consistently opposed the use of the reconciliation process for President Biden’s climate agenda and offered no support for the resulting outcome.18 The IRA passed the Senate with all 50 senators in the Democratic caucus supporting the legislation and Vice President Kamala Harris providing the tie-breaking vote in favor.19

While avoiding the filibuster was critical to the passage of the IRA, the budget reconciliation process does come with limitations. Congress’ budget rules apply strict requirements to ensure that “extraneous matters” are not considered in the reconciliation process.20 Known as the Byrd Rule, after the late Sen. Robert C. Byrd (D-W. Va.), this rule describes half a dozen situations in which provisions would be considered extraneous in the reconciliation process. Any extraneous provision can be stricken on the Senate floor upon objection, unless 60 senators vote to waive the requirements of the Byrd Rule.21 As a general matter, a provision that does not have a budgetary effect—that is, it does not produce a change in outlays or revenue—is considered extraneous.22

Two categories of extraneous matter are more subjective than the others, and are frequently the subject of parliamentary litigation in the reconciliation process. First, provisions that are not a necessary term and condition for a provision with a budgetary effect are considered extraneous.23 What provisions are or are not necessary terms and conditions is a focal point of contention. Second, even if a provision has a budgetary effect, that provision could be deemed extraneous if the budgetary component is “merely incidental” to the nonbudgetary components of the provision.24 This element of the Byrd Rule means essentially that the policy effect of a provision cannot outweigh in importance the budgetary effect of the provision.25

The practical effect of the Byrd Rule was that Congress could not amend the CAA in ways that were unrelated to the budgetary provisions included in the IRA. Text could be included only to the extent that the words themselves had budgetary effect or the words were a necessary term and condition for the budgetary provisions. These restrictions significantly limited the extent to which Congress was able to include new statutory definitions and other program specifications in the IRA.

Even with the limitations of the Byrd Rule, however, reconciliation provided an opportunity to strengthen current law. It enabled Congress to establish new programmatic goals and incentive programs and to amend the current statutory provisions of the CAA to make explicit that GHGs are air pollutants and that reducing them is a core objective of the Act. The Byrd Rule provided important design criteria for the IRA, and because congressional drafters were mindful of its strictures, only one CAA-related provision was struck as a result of the Byrd Rule.26

II. New Authorities and New Resources

The IRA adds seven new sections to Title I of the CAA, denominated as new §§132 to 138. The chairman of the House Energy and Commerce Committee called these “the most important and far-reaching amendments to the CAA in more than a generation.”27 These sections provide authority and resources for EPA to encourage the deployment of zero emission heavy-duty vehicles and zero emission port equipment, help capitalize green banks, pursue emission reductions in the power sector, reduce methane emissions in the oil and gas sector, support the development and implementation of subnational climate pollution reduction plans, and make grants to support environmental justice activities.28 In total, Title VI of the IRA provides $41.457 billion in new resources to EPA29 to empower and supplement its regulatory efforts with incentive-based programs and programmatic spending.30 We next consider each of the seven new sections.

A. Clean Heavy-Duty Vehicles

The IRA establishes a new §132 of the CAA,31 in which Congress appropriated a total of $1 billion to EPA to award grants and rebates to states, tribes, cities, and schools for deploying zero emission class 6 and class 7 heavy-duty vehicles, such as certain types of garbage trucks and school buses. “Zero emission vehicle” is defined as “a vehicle that has a drivetrain that produces, under any possible operational mode or condition, zero exhaust emissions” of any criteria air pollutant32 or GHG. Of the $1 billion total, $400 million is appropriated solely for vehicles in communities located in areas designated as nonattainment for air pollution. The grants and rebates must be awarded on a competitive basis.

This section and many others in the IRA use a standard formulation, present in numerous reconciliation bills, that gives the Agency Administrator substantial discretion (cabined by any statutory requirements of the program) to establish the time, manner, and content of funding applications. EPA may use 3% of the unrestricted $600 million funding for the administrative costs of carrying out this section, including for hiring staff and contractors and conducting outreach to prospective applicants.

Section 132 allows EPA to award funds to cover up to 100% of costs for the following: (1) “the incremental cost[ ] of replacing” a polluting vehicle with a ZEV; (2) infrastructure associated with charging, fueling, or maintaining ZEVs; (3) “workforce development and training to support” maintenance, charging, fueling, and operation of ZEVs; and (4) “planning and technical activities to support the adoption and deployment of zero-emission vehicles.” Allowing up to 100% of costs to be covered is a notable increase from other EPA grant programs, which generally require a nonfederal cost-share.33 Also, the availability of grant funding for work force, training, and planning activities should facilitate a holistic and therefore more effective approach to the transition to ZEVs, particularly in combination with other IRA and IIJA incentives for ZEVs.34

B. Grants to Reduce Air Pollution at Ports

New §133 of the CAA appropriates $3 billion to EPA to award rebates and grants to reduce GHG and other air pollutant emissions at ports.35 EPA may award funds on a competitive basis to port authorities; state, regional, local, or tribal agencies with jurisdiction over a port; air pollution control agencies; and private companies partnered with an eligible public entity that operate port equipment. The funds may be used to (1) purchase or install zero emissions port equipment or technology (defined as human-operated equipment or human-maintained technology) for use at or to directly serve a port; (2) conduct planning or permitting in connection with such purchase or installation; and (3) develop climate action plans for ports.

Per §133(d), climate action plans must include goals and strategies to reduce emissions of GHGs, criteria pollutants, and hazardous air pollutants, a strategy to engage with and address potential effects on low-income and disadvantaged near-port communities, and actions to increase the port’s resilience. Of the $3 billion total, $750 million is appropriated solely for ports located in air pollution nonattainment areas. EPA may use 2% of the total funding for administrative purposes.

Given the relatively broad sweep of the statutory language here, as well as in other new CAA sections, EPA will have substantial discretion in setting up a program that meets the statutory objectives. For example, although §133 does not require an applicant to have a climate action plan in place to be eligible for funding, the section makes developing such plans one of the three key uses for funds, and describes in some detail what constitutes a qualified plan. EPA might well determine that applications consistent with applicable climate action plans would better advance Congress’ objectives, compared to applications without such guiding context, and thus EPA might find it appropriate to provide some preference in the award process to applications associated with qualifying climate action plans.

C. Greenhouse Gas Reduction Fund

The IRA adds a new §134 of the CAA—the Greenhouse Gas Reduction Fund—that establishes the foundation for a national green bank program to support the rapid deployment of clean energy technologies.36 Section 134 does this by authorizing “eligible recipients” to provide grants, loans, and other forms of financial assistance to low- and zero emission projects. “Eligible recipients” for EPA awards are nonprofits that meet specified criteria, including being designed to provide and leverage capital and other financial assistance for deployment of GHG-reducing products, technologies, and services, and being publicly or charitably funded.

The statute requires these recipients to “prioritize investment” in projects that “lack access to financing” and to recycle revenue received from loan repayments and other sources “to ensure continued operability” of the financing entities. Unlike the direct grant programs established in other new CAA sections, §134 aims to create a long-term, self-sustaining system for climate finance.

The $27 billion program has cross-cutting potential across many sector priorities, including $15 billion in dedicated funding for low-income and disadvantaged communities, and is split between two general funding streams: $20 billion for the national green bank program, which will be allocated to and administered by nonprofit finance entities, and $7 billion to deploy “zero-emission technologies” and to carry out other GHG emission reduction activities in low-income and disadvantaged communities, including distributed clean electricity generation. In addition to “eligible recipients,” the $7 billion may be allocated to and administered by state, local, and tribal governments, and can be used for grants and loans as well as financial and technical assistance.

The $20 billion national green bank program aims to rapidly deploy low- and zero emission technologies through two mechanisms: first, by providing direct financial and technical assistance to projects that “reduce or avoid GHG emissions and other forms of air pollution”; and second, by providing capital to state, local, or regional green banks (either by establishing new ones or expanding existing ones) to further support low- and zero emission projects in their respective geographies. This funding includes $8 billion limited to project assistance in low-income and disadvantaged communities. Qualified projects are defined as “projects, activities, and technologies that reduce or avoid greenhouse gas emissions and other forms of air pollution in partnership with, and by leveraging investment from, the private sector,” as well as projects and activities that help communities reduce or avoid such pollution.

Congress appropriated $30 million to EPA for administrative costs necessary to carry out §134. EPA must begin awarding funds in the first quarter of 2023, and has until the end of the third quarter of 2024 to award the remaining funds. The impact of these substantial quantities of dollars cannot be overlooked, especially with respect to their potential to expand access to financing in historically underserved communities.

D. Low Emissions Electricity Program

The IRA amends the CAA to establish a new §135 that appropriates funds for EPA to establish a Low Emissions Electricity Program.37 The section provides $17 million for consumer-related education and partnerships; $17 million for education, technical assistance, and partnerships within low-income and disadvantaged communities; $17 million for industry-related outreach and technical assistance; $17 million for outreach and technical assistance to state, tribal, and local governments; $1 million to assess the anticipated reductions in GHG emissions that result from changes in domestic electricity generation and use through fiscal year 2031; and $18 million to ensure that reductions in GHG emissions from domestic electricity generation and use are achieved through use of the existing authorities of the CAA. This provision is discussed in further detail below.

E. Methane Emissions Reduction Program

The IRA amends the CAA to establish a new §136 to address major domestic sources of methane, a potent GHG.38 This section directs EPA to provide $850 million in incentives for methane mitigation and monitoring for the oil and gas sector. Another $700 million is appropriated for these same activities specifically with respect to “marginal conventional wells,” which are conventional oil and gas wells that are only marginally economic due to their low rate of production, yet are responsible for substantial methane emissions. These funds can be used for the following purposes: (1) to provide assistance to regulated entities in reporting their GHG emissions; (2) to support methane emissions monitoring; (3) to fund activities that reduce GHG emissions from oil and gas systems, clean up legacy pollution, build climate resilience in communities where oil and gas is produced, and invest in environmental restoration; and (4) to cover the administrative costs of implementing §136.39

Additionally, the provision directs EPA to impose and collect a charge on emissions of methane air pollution that are emitted from petroleum and natural gas systems, based on the quantities of these emissions reported by the owners and operators of the facilities. The fee program applies to onshore and offshore oil and gas production, oil and gas gathering, and natural gas processing, transmission, underground storage, and liquefied natural gas facilities.

This provision builds upon an established methane pollution reporting program operated by EPA. In 2007, Congress directed the Agency to establish a GHG reporting program.40 EPA promulgated regulations to require reporting in 2010, and revised those regulations in 2016. Owners and operators of petroleum and natural gas systems must report emissions of methane air pollution to the Agency on an annual basis when these systems emit more than 25,000 tons of carbon dioxide equivalent per year.41 Emitting 25,000 tons of carbon dioxide is equivalent to burning 58,000 barrels of oil or to 131 rail cars of coal.42

New CAA §136 requires owners and operators of petroleum and natural gas systems to pay a fee for each ton of methane air pollution that they report emitting above a certain threshold level of emissions, termed the “waste emissions threshold.” This structure allows the owners and operators to avoid the fee by reducing the amount of pollution they emit. The waste thresholds are drawn from voluntary goals many oil and gas companies have adopted.

The Congressional Budget Office estimated that this fee provision would increase federal revenue by $6.35 billion between 2022 and 2031. As explained below, the fee can be avoided if expected regulations of methane emissions under §111 of the CAA are promulgated and fully implemented.

The section also contains provisions that respond to recent research and reports that methane emissions have been greatly underreported.43 Section 136 requires EPA to revise its GHG reporting rule for the oil and gas sector within two years of the date of enactment of the IRA, to “ensure the reporting” and “calculation of charges . . . are based on empirical data” and “accurately reflect the total methane emissions” from the applicable facilities.44 If the revised, more accurate reporting rule results in more methane emissions being reported, then this section could generate more revenue than the Congressional Budget Office estimated.

The broader import of §136 is discussed in greater detail below.

F. Climate Pollution Reduction Grants

The IRA amends the CAA to establish a new §137, entitled “Greenhouse Gas Air Pollution Plans and Implementation Grants.”45 This section provides $250 million to EPA to make grants for the costs of developing plans to reduce GHG air pollution and $4.75 billion to EPA to make competitive grants to implement such plans. Of the $4.75 billion, 3% is reserved for administrative costs, which include providing technical assistance to applicants, developing a model GHG air pollution reduction plan, and modeling applicants’ plans. EPA may award grants to states, air pollution control agencies, municipalities, tribes, and combinations of these entities.

The statute gives EPA broad authority to set parameters for the plans and determine what the applications must contain, although all applications must discuss the projected reduction in GHG air pollution in total and with respect to low-income and disadvantaged communities, enabling EPA to weigh applications by how they would benefit such communities consistent with the Biden Administration’s Justice40 commitment (discussed further in Part III). Additionally, EPA is directed to structure implementation awards based on a grantee’s performance in implementing its plan and achieving the projected reductions in GHG air pollution.

As exemplified by this section, the CAA Amendments of 2022 build on Title I’s cooperative federalism-based approach to addressing air pollution, in which EPA sets targets and the states have primary responsibility (e.g., through state implementation plans) to determine how to achieve those targets. The climate pollution reduction grants, along with the grants to develop climate action plans for ports46 and for planning costs associated with deploying clean heavy-duty vehicles,47 incentivize subnational entities to engage in strategic planning to address sources of climate pollution, and could lead to the development of more state climate plans. This may lead to a boom in planning on how to reduce climate pollution under the auspices of the CAA, with numerous opportunities for synergies with state implementation of requirements under §§110, 111, and 112, among others, for both GHGs (as applicable) and other air pollutants.

G. Environmental and Climate Justice Block Grants

The IRA amends Title I of the CAA to establish a new §138,48 which appropriates $3 billion to EPA to award grants and provide technical assistance to community-based nonprofits, either alone or in partnership with a tribe, local government, or institute of higher education, for environmentally related activities that benefit disadvantaged communities. Activities eligible for funding fall into five categories:

  • Community-led pollution monitoring, prevention, and environmental remediation, and investments in low- and zero emission and resilient technologies and related infrastructure and work force development that help reduce GHG emissions and other air pollutants;
  • Mitigation of climate and health risks from urban heat islands, extreme heat, wood heater emissions, and wildfire events;
  • Climate resiliency and adaptation;
  • Reduction of indoor toxics and indoor air pollution; and
  • Facilitation of engagement of disadvantaged communities in state and federal public processes, including facilitating such engagement in advisory groups, workshops, and rulemakings.

Seven percent of the funding is reserved for administrative costs.

H. General Provisions of the CAA and the New Amendments

As discussed above, the provisions of a budget reconciliation bill must produce a change in outlays or revenues of the federal budget. Precisely how provisions are drafted to achieve that outcome is an important and fundamental question faced by Congress as it considered the legislation that became the IRA. A provision could be drafted as an amendment to laws already in the U.S. Code or as a non-amendatory provision (referred to as a “freestanding provision”). Whether a provision is freestanding or amendatory has no effect on its budgetary impact, and in either case the provision must comport with the Byrd Rule.

Reconciliation bills often contain both freestanding provisions and provisions that amend existing laws. In past reconciliation bills, for example, Congress amended the Flood Control Act of 1968,49 trust fund provisions established by the Superfund Amendments and Reauthorization Act of 1986,50 the Communications Act of 1934,51 and the Social Security statutes.52 The choice matters, however, because by choosing an amendatory provision, Congress can take advantage of other provisions of the underlying statute that apply to the new provision by operation of law. By situating a new provision in a statute such as the CAA, legislators can take advantage of an array of preexisting statutory tools that apply to all CAA provisions. This becomes particularly important in the reconciliation context, where Congress is quite limited in the types of provisions it can include.

The IRA is the first time Congress has amended the CAA in a reconciliation bill, and the consequences of an amendatory approach are especially significant for these provisions, given the history and complexity of the underlying law. Because the IRA amended Title I of the CAA, Congress was able to rely upon existing provisions of the Act to provide important statutory elements that are at minimum useful, and likely in some respects essential to administrability, for implementation of the new provisions. The general provisions of the CAA apply to “this chapter” (chapter of Title 42 where the CAA is codified) and to “this subchapter” (Title I of the CAA); therefore, the general provisions apply to the CAA Amendments of 2022 by operation of law.53

Some key provisions that apply to the new amendments include:

  • Rulemaking authority. Section 301 of the CAA authorizes the EPA Administrator “to prescribe such regulations as are necessary to carry out his functions under this chapter.”54 This authorizes the Administrator to issue regulations as necessary to implement §§132 to 138. The existence of §301 in existing law was the reason that a specific rulemaking authority clause in new §136, the Methane Emissions Reduction Program, was deleted as duplicative prior to Senate passage of the legislation.
  • Judicial review. Section 307 of the CAA prescribes that “nationally applicable regulations promulgated, or final action taken, by the Administrator under this chapter may be filed only in the United States Court of Appeals for the District of Columbia.”55 Any nationally applicable regulations promulgated by EPA to implement new §§132 to 138 will therefore be reviewable only in the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit. This is particularly salient for the Methane Emissions Reduction Program, which specifically requires the use of notice-and-comment rulemaking to update reporting requirements.56
  • Administrative proceedings. Section 307 provides the Administrator with tools to ensure that the provisions are implemented in accordance with the law. The section authorizes the Administrator to “issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and he may administer oaths” for “any investigation, monitoring, reporting requirement, entry, compliance inspection, or administrative enforcement proceeding under [this] chapter.”57
  • Enforcement. Section 113 of the CAA provides for civil and criminal enforcement as well as assessment of civil administrative penalties.58
  • Citizen suits. Citizens are empowered to help compel implementation of the new CAA sections. Section 304 of the CAA authorizes any person to bring a civil action against the EPA Administrator “where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.”59
  • Recordkeeping. Section 114 of the CAA authorizes the Administrator “[f]or the purpose . . . of carrying out any provision of this chapter,” to require any person “who is subject to any requirement of this chapter” to maintain records, make reports, and “provide such other information as the Administrator may reasonably require.”60 Section 311 of the CAA requires that “[e]ach recipient of assistance under this chapter” keep such records as the EPA Administrator shall prescribe, in order to facilitate an effective audit.61
  • Labor standards. Section 314 of the CAA directs the Administrator to “take such action as may be necessary to insure” that all workers on “projects assisted under this chapter” shall be paid prevailing wages as determined by the Secretary of Labor.62
  • Retention of state authority. Section 116 of the CAA provides that “nothing in this chapter shall preclude or deny the right of any State or political subdivision” to adopt or enforce limits or requirements relating to air pollution.63

It is questionable whether the features of these broadly applicable provisions of the CAA could have been duplicated or mirrored in reconciliation legislation due to the Byrd Rule. By adding the new provisions as §§132 through 138 to Title I of the CAA, however, Congress secured the same result, or perhaps even a better one, since restatements of the general provisions would not necessarily have carried along with them the interpretations and precedents that have been developed over time for the preexisting CAA general provisions. The general provisions, as well as the comparative lack of ambiguity about their meanings, should greatly assist EPA as it carries out the new provisions.

I. New Funding for Air Pollution Initiatives

In addition to new sections of the CAA, the IRA includes new or additional funding for a host of existing or new air pollution-related EPA activities. These funding provisions are described briefly below. They range from new funding for existing programs like the Diesel Emissions Reduction Act (DERA) Program to new undertakings such as establishing a program to facilitate the decarbonization of construction materials. While smaller in dollar amounts than the CAA Amendments, these provisions are critically important investments in public health, reducing GHG emissions, and responding to the concerns of low-income and disadvantaged communities.

  • Diesel emissions reductions. Congress appropriated $60 million in funding to EPA to provide grants, rebates, and loans to address diesel emissions in low-income and disadvantaged communities through the long-standing DERA Program.64 Specifically, these funds can be used to identify and reduce diesel emissions resulting from goods movement facilities and vehicles servicing such facilities to address the health impacts of these emissions in such communities. Two percent of the funding is reserved for administrative costs.
  • Air pollution monitoring. The IRA provides to EPA, for grants and other activities pursuant to §103(a)-(c) and §105 of the CAA,65 $117.5 million for air toxics and community air quality monitoring systems66; $50 million for grants and other activities to expand, replace, repair, operate, and maintain the national ambient air quality multipollutant monitoring network67; and $3 million to deploy, integrate, and operate air quality sensors in low-income and disadvantaged communities.68 This funding addresses major gaps in capital funding for monitoring air quality and air toxics in such communities.69
  • Wood heaters. Through the same sections of the CAA, the IRA provides $15 million for grants and other activities for testing and other Agency activities related to reducing pollution from wood heaters.70
  • Methane monitoring. Once again using §103(a)-(c) and §105, Congress provided $20 million for grants and other activities for methane emissions monitoring.71
  • GHG and zero emission state standards for mobile sources. As discussed in greater detail below, Congress appropriated $5 million to EPA to make grants to states to adopt and implement GHG and zero emission standards for mobile sources pursuant to §177 of the CAA.72
  • Funding to address air pollution at schools. This section provides EPA with $50 million for grants and other activities to monitor and reduce air pollution and GHG emissions at schools pursuant to §§103 and 105 of the CAA.73 Of those funds, $37.5 million is provided for grants to monitor and reduce air pollution and GHG emissions at schools in low-income and disadvantaged communities, and $12.5 million is provided for technical assistance to help schools address environmental issues, identify and mitigate ongoing air pollution hazards, and develop school environmental quality plans that include standards for school building design, construction, and renovation.
  • Funding for §211(o) of the CAA. This section provides $15 million to EPA for alternative renewable fuels programs.74 Of these funds, $5 million is provided for the purpose of testing fuels and fuel additives with respect to environmental and public health effects, and $10 million is provided for grants to support investments in advanced biofuels, which are 50% cleaner than traditional fuels.
  • Funding for implementation of the American Innovation and Manufacturing Act. This section provides $38.5 million to EPA to carry out the American Innovation and Manufacturing (AIM) Act75 to phase down hydrofluorocarbons (HFCs)—climate super-pollutants, carrying hundreds to thousands of times the heat-trapping potential of carbon dioxide.76 Of these funds, $20 million is provided for general implementation of the AIM Act, $3.5 million is provided to fund the deployment of implementation and compliance tools (e.g., for addressing illegal trade of HFCs), and $15 million is to fund competitive grants for reclaim and innovative HFC destruction technologies. Of amounts made available for competitive grants, 5% is reserved for administrative costs necessary to carry out the grant program.
  • Funding for enforcement technology and public information. This section provides $25 million to help modernize EPA’s enforcement technology and public information.77 Of these funds, this section provides $18 million to update the Integrated Compliance Information System and any associated systems, necessary information technology infrastructure, or public access software tools to ensure access to compliance data and related information.78 Second, the section provides $3 million for grants to states, Indian tribes, and air pollution control agencies to update the systems of those entities to ensure communication with EPA’s Integrated Compliance Information System and any associated systems. Third, the section provides $4 million to acquire or update inspection software and related devices for use by the Agency, states, Indian tribes, and air pollution control agencies.
  • GHG corporate reporting. This section provides $5 million for EPA to carry out a program that helps enhance standardization and transparency of corporate climate action commitments and plans to reduce GHG emissions.79
  • Decarbonizing construction materials and products. The IRA contains four provisions designed to work together to establish a programmatic structure for the decarbonization of construction materials and products. Two of these provisions provide resources for EPA to establish an analytic framework for the program.
    First, the IRA provides $250 million to EPA to support the development, standardization, and transparency of environmental product declarations for construction materials and products.80 EPA can use the funds to provide technical assistance and grants to businesses that manufacture these materials to develop and verify environmental product declarations. The funds can also be used to carry out other activities that assist in measuring and steadily reducing the quantity of embodied carbon of construction materials and products. Of amounts made available in this section, 5% is reserved for administrative costs.
    Second, the IRA provides $100 million to EPA to develop and carry out a program, in consultation with the administrators of the Federal Highway Administration and the General Services Administration, to identify and label low-embodied carbon construction materials and products.81 EPA is to identify materials and products with substantially lower embodied carbon emissions than the industry average for such products based on environmental product declarations or determinations by state agencies. The funds may be used for administrative costs associated with conducting the activities under this section.
    The other two sections of the IRA relating to low-embodied carbon construction materials and products provide funds to help develop markets for these products by supporting their procurement by federal agencies. The IRA provides $2 billion for the U.S. Department of Transportation to incentivize the use of these materials in transportation projects82 and $2.15 billion for the General Services Administration to use these materials in the construction or alteration of federal buildings.83
  • EPA efficient, accurate, and timely review. This section provides EPA with $40 million to improve the efficiency of environmental reviews, permitting, and project approvals, including through the hiring and training of personnel, the development of environmental data or information systems, and increased public engagement and transparency.84

III. Alignment With Justice40

In January 2021, President Biden announced the Justice40 Initiative to ensure that 40% of the overall benefits of relevant federal investments flow to disadvantaged communities, and to track performance toward that goal through the establishment of an Environmental Justice Scorecard.85 Many provisions of the IRA align with the principles of the Justice40 Initiative, as explained below.

These provisions needed to be crafted carefully not only for Byrd Rule considerations, but because of potential legal challenges. More than one year before the IRA, Congress enacted the American Rescue Plan Act (ARP),86 which was also passed under the Senate’s budget reconciliation rules. The ARP included a loan forgiveness program, administered by the U.S. Department of Agriculture (USDA), which specifically targeted relief to farmers “who belong[ ] to a group ‘subjected to racial or ethnic prejudice.’”87

Several courts enjoined USDA from making payments under this program pending litigation challenging the program on equal protection grounds.88 Federal courts apply “strict scrutiny” to racial classifications such as those used in the ARP loan forgiveness program. After examining the evidence before Congress, the courts hearing challenges to the ARP program found at the preliminary injunction stage that the federal government had not demonstrated a “compelling interest for considering race” or that the program was “narrowly tailored.”89

This experience reminded Congress of the potential for litigation to significantly slow or even derail implementation were the IRA not drafted in a race-neutral fashion. Accordingly, in the clean air provisions of the IRA, Congress pursued alignment with the executive branch’s Justice40 Initiative in race-neutral ways.90 In many provisions, as noted above, funds are appropriated specifically for low-income and disadvantaged communities, such as the Greenhouse Gas Reduction Fund, in which $15 billion of the total $27 billion is appropriated for low-income and disadvantaged communities. In some of the CAA Amendments of 2022, such as new §132, Clean Heavy-Duty Vehicles, 40% of the total funds were appropriated to benefit communities in nonattainment areas, thus taking advantage of the program’s placement in the CAA by using that Act’s terminology.91

Congress also took a broader lens to its alignment with the Justice40 Initiative as well, such as in appropriating $3 billion to carry out activities that benefit disadvantaged communities—as defined by the EPA Administrator—in new CAA §138, Environmental and Climate Justice Block Grants. In developing §138, Congress was aware of the Council on Environmental Quality’s (CEQ’s) efforts to develop a climate and economic justice screening tool to identify disadvantaged communities,92 and chose to support those efforts with funding in the IRA93 in expectation of synergies between §138 and CEQ’s program.

Smaller provisions such as the DERA appropriations were also tied to low-income and disadvantaged communities, and others, such as the $170 million for air quality monitoring, while only partially targeted are expected to significantly benefit low-income and disadvantaged communities.

Finally, it is worth noting that while Congress specifically appropriated funds to benefit low-income and disadvantaged communities, there are no restrictions in the IRA that would prevent EPA from awarding additional unrestricted funds to benefit those communities.

IV. Major Implications of the IRA

By enacting the provisions described above, Congress has removed any doubt that reducing GHG emissions is a core goal of the CAA. In addition to the unprecedented resources and new programmatic duties established by those specific provisions, the IRA has three broader implications. First, the IRA codifies in the CAA that carbon dioxide and other GHGs are “air pollutants” under the Act. This statutorily affirms the Court’s holding in Massachusetts v. Environmental Protection Agency,94 and should influence how the courts interpret the central authorities of the CAA.

Second, the funding provided by the IRA will allow EPA to increase the ambition of its CAA rulemakings, by lowering costs and demonstrating the feasibility of pollution control technologies.

Third, the language in the IRA confirms the applicability of the CAA to GHGs in three important specific areas: California’s ability to regulate GHG emissions from vehicles; EPA’s authority to regulate methane emissions from oil and gas facilities; and EPA’s authority to regulate GHG emissions from power plants.

Each of these implications is discussed in turn below.

A. Reflecting Massachusetts v. Environmental Protection Agency in the CAA

Massachusetts, which determined that the CAA’s definition of “air pollutant” includes GHGs, had been settled law for 15 years by the time Congress considered the IRA.95 Yet prior to passage of the IRA, there was an effort by some to argue that Massachusetts was wrongly decided and should be reversed. The language in the IRA should foreclose this argument, because it makes clear that carbon dioxide and five other GHGs are “air pollutants.”

Some have never conceded the outcome of Massachusetts. For example, EPA’s denial of a 2017 petition to reconsider EPA’s endangerment findings, based in part on the argument that Massachusetts was wrongly decided, is now being litigated.96 There is some interest among Supreme Court Justices in revisiting the decision. In a concurring opinion in American Electric Power Co. v. Connecticut, Justices Samuel Alito and Clarence Thomas indicated receptivity to reconsidering Massachusetts.97 In Utility Air Regulatory Group v. Environmental Protection Agency, they argued that Massachusetts “was wrongly decided at the time.”98

Some in Congress have attempted to legislatively reverse Massachusetts over the years, but those attempts have always failed.99 Since Massachusetts was decided, EPA has accordingly implemented the CAA, issuing findings of endangerment to human health and the environment for emissions of six GHGs from mobile sources, new power plants, aviation, and the oil and gas sector.100 These six GHGs are carbon dioxide, HFCs, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride.

The CAA Amendments of 2022 apply, in various instances, to air pollutants, criteria air pollutants, hazardous air pollutants, and GHGs. In drafting the amendments, Congress faced an important challenge—how to craft the new provisions in a way that would not upset Massachusetts or other important preexisting interpretations of the CAA. Congress had to be careful, for example, to ensure that the IRA amendments to the CAA were not drafted in a manner that would invite the reopening of Massachusetts by suggesting that GHGs were not air pollutants.

As passed by the House in November 2021, the proposed amendments to the CAA did not define the term “greenhouse gas.” Instead, the text generally referred to “greenhouse gas air pollution,” “greenhouse gas emissions,” or simply “greenhouse gases.”101 The one exception to this was in the provision relating to pollution reduction at ports, which contained a reference to “any greenhouse gas other than water vapor.”102

As the reference to water vapor makes clear, there are substances in addition to the six GHGs identified in EPA’s endangerment findings that are GHGs from a scientific standpoint.103 As scrutiny under the Byrd Rule intensified in the Senate, the use of the term “greenhouse gas” raised questions. Would the House-passed provisions expand the types of GHGs EPA had sought to regulate? Could it have unintended effects on the use of IRA funding by making resources available to address a list of pollutants that was too expansive? Does identifying GHGs and air pollutants in parallel fashion suggest that they are two distinct, non-overlapping categories?

Whether or not these questions pointed to genuinely problematic ambiguities, the first publicly released version of the Senate amendment to the reconciliation bill sought to bring clarity to the issue by including a GHG definition used repeatedly throughout the draft provisions amending the CAA.104 Adding such a definition was permissible under the Byrd Rule because that definition was a necessary term and condition for the provisions that appropriated funding. That definition simply stated that the term “greenhouse gas” would have the “meaning given the term in section 211(o)(1)(G) (as in effect on the date of enactment of this section).”105 Section 211(o)(1)(G) provides that “[t]he term ‘greenhouse gas’ means carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, sulfur hexafluoride. The Administrator may include any other anthropogenically emitted gas that is determined by the Administrator, after notice and comment, to contribute to global warming.”

Some negotiators raised questions about this definition during the Byrd Rule review process. For instance, §211(o) contains a provision that states, “Nothing in this subsection . . . shall affect or be construed to affect the regulatory status of carbon dioxide or any other greenhouse gas, or to expand or limit regulatory authority regarding carbon dioxide or any other greenhouse gas, for purposes of other provisions (including section 7475) of this chapter.”106 A question was raised about whether using the §211(o)(1)(G) definition would be at odds with this existing congressional direction on interpretation. Additionally, a concern was raised that referencing the §211(o)(1)(G) definition could inadvertently allow EPA to bypass the endangerment findings typically required for regulation. As a result, congressional negotiators agreed to simply include a definition of “greenhouse gas” in each new CAA section, identifying the specific pollutants that EPA had previously identified as endangering public health and welfare.

This approach offered the benefit of ensuring that IRA resources provided through the new CAA sections would not be expended to address GHGs of less concern, such as water vapor. It also comported with the Byrd Rule, which precluded Congress from amending the general definitions section of the CAA in a reconciliation bill. Congress was able to draft the IRA amendments in a way that limited the GHGs to be addressed to a smaller set than the entire universe of heat-trapping gases, while restating in statutory language the key holding of Massachusetts. Congress used essentially two drafting formulations to accomplish this result.

First, in each of the CAA Amendments of 2022, the term “greenhouse gas” is defined as “the air pollutants carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride.” Because the IRA added this language to Title I of the CAA, and because the CAA’s definition of “air pollutant” applies to that title,107 the IRA further confirms that the six enumerated gases are “air pollutants” under the Act.

Second, Congress used wording elsewhere in the IRA to make apparent its understanding and intent that GHGs are air pollutants. A new CAA section provides funding for “community-led air and other pollution monitoring, prevention, and remediation, and investments in low- and zero-emission and resilient technologies and related infrastructure and workforce development that help reduce greenhouse gas emissions and other air pollutants.”108 Similarly, in a freestanding section addressing air pollution in schools, EPA was authorized to provide funding “for grants and other activities to monitor and reduce greenhouse gas emissions and other air pollutants at schools in low-income and disadvantaged communities.”109

These textual formulations reflected the Massachusetts understanding that GHGs are a subset of the category of air pollutants.110 Additionally, the text of new §137 appropriating $5 billion to support development and implementation of climate pollution reduction plans consistently references “greenhouse gas air pollution,” specifying the type of air pollution for which funding is provided.111

This drafting approach codified in statute the law as it had been interpreted for 15 years. Congress in the IRA did not grant new authority to regulate GHGs under §202 of the CAA. Indeed, the rules of the Senate would make it difficult to provide that authority in a reconciliation bill. What Congress could and did do is draft the CAA Amendments to reflect current law and enshrine that understanding in statute. The chair of the Senate Environment and Public Works Committee stated after the IRA passed, “The language, we think, makes pretty clear that greenhouse gases are pollutants under the Clean Air Act.”112

The new language in the IRA does not mean that every mention of “air pollutant” in the CAA will be interpreted to apply to GHGs. In Utility Air Regulatory Group, the Supreme Court recognized that “[o]ne ordinarily assumes ‘that identical words used in the same act are intended to have the same meaning.’”113 The Court deviated from this rule only because the statutory context was fundamentally different and “calamitous consequences” would result.114 Congress has now enshrined in law its agreement that GHGs are “air pollutants.” That should be the rule for the CAA barring overwhelming contextual or structural counter-indications.

B. Integrating Direct Spending and Regulatory Programs

The new provisions in the IRA and the resources they provide can play an important role in pushing forward technology deployment. Yet, they are not intended to function alone. The IRA not only leaves in place existing CAA regulatory authorities that apply to GHGs and other air pollution, in numerous respects it bolsters and enhances the effectiveness of those authorities. Years after EPA acted to regulate GHG emissions from renewable fuels, vehicles, new large stationary sources, new and modified fossil fuel-fired power plants, the oil and gas industry, landfills, and aircraft engines, Congress has now built on that foundation with new complementary financial resources that will enable EPA to accelerate the use of the CAA’s technology-forcing authorities.

Congress has taken a similar approach to addressing environmental challenges in the past, with programs that deliver financial assistance working in tandem with regulatory obligations. Congress first addressed water pollution in the Federal Water Pollution Control Act of 1948 (FWPCA).115 In the 1972 Amendments, Congress began offering construction grants for sewage treatment plants.116 Then, in the 1987 Amendments to the Clean Water Act, Congress established the Clean Water State Revolving Fund as a more expansive financial assistance program for a wide range of water infrastructure projects.117 The Safe Drinking Water Act (SDWA) was first enacted in 1974 to protect public health.118 Twenty-two years later, in 1996, Congress established the Drinking Water State Revolving Fund to assist with the construction of drinking water infrastructure.119

The CAA was originally enacted in 1970,120 and Congress has provided some federal financial incentives for air pollution control over the years. For example, in 2005, Congress established DERA to provide financial assistance to help reduce pollution from diesel engines.121 Additionally, Congress established tax credits for zero emission electric vehicles in 2009.122 In each of these cases, Congress did not abandon or relax regulation of wastewater, drinking water, or air emissions when deciding to supplement regulatory authority with financial incentives.

Congress’ decision to provide hundreds of billions of dollars in the IRA to address the climate crisis also has direct and important consequences for EPA rulemakings. Many EPA authorities require consideration of cost, technical feasibility of pollution control, and an analysis of baseline conditions.123 The IRA investments help demonstrate technology and bring down cost curves, which makes it easier for EPA to justify more stringent regulatory requirements under existing regulatory authorities. For example, the IRA changes the economics of carbon capture and sequestration across multiple applications. In transportation, the IRA’s investments dramatically heighten expectations of the deployment of zero emission heavy-duty vehicles, and EPA has already announced that it will split off GHG standards from a heavy-duty vehicles rulemaking addressing emissions of nitrogen oxides in order to issue more stringent GHG standards given the new reality created by the IRA.124

This dynamic could play out across a panoply of CAA regulatory standards.125 For example, the combination of the IRA’s incentives for electric vehicles, electric vehicle charging infrastructure, and support for state GHG and zero emission standards could lead EPA to determine under §202 of the Act that less lead time is necessary to bring an increasing percentage of ZEVs to market.126

Similarly, IRA incentives for clean power generation and carbon capture could significantly affect state and federal determinations about what constitutes “best available control technology,” which must be installed by new major sources of pollution in attainment areas.127 These determinations are based upon the achievable level of emissions reduction given cost and other factors.128 A recent analysis of the cost impacts of the IRA found that the average cost of clean electricity generation and storage technologies would cause a double-digit percentage decline in the average cost of electricity over the lifetime of a facility relative to their pre-IRA counterparts.129 As part of the preconstruction permitting process under the Prevention of Significant Deterioration program, a state permitting agency could examine a proposed fossil-fueled electricity generating project and determine that a zero emitting facility is “warranted and appropriate” as “best available control technology.”130

Setting standards of performance under §111 is a key regulatory tool for addressing GHG emissions from existing stationary sources of air pollution.131 EPA determines an appropriate performance standard by examining the “degree of emission limitation achievable through the application of the best system of emission reduction.”132 To identify this “best system,” EPA must consider the cost of achieving such reductions, and must determine that such reductions have “been adequately demonstrated.”133

Accelerated investment in pollution control technology could improve both the affordability and demonstrability of emissions reductions. The recent Supreme Court decision in West Virginia determined that EPA could not use the authority of §111 to impose a cap-and-trade program that transforms the nation’s energy system, but left the authority to impose pollution controls intact.134 The virtuous interaction between incentives and standard-setting described here can deliver accelerated emissions reductions of both GHGs and conventional pollution.

Investment in subnational climate mitigation efforts could also play a beneficial role in federal standard-setting. For example, funds provided through the climate pollution reduction grants in the IRA can help states, municipalities, and Indian tribes innovatively achieve emissions reductions. In turn, those entities’ efforts will demonstrate the feasibility of technology that can then be required at the federal level. A similar dynamic could occur as a result of projects encouraged through the IRA’s tax provisions, which could help scale and commercialize new renewable energy technologies.

Finally, Congress has brought a new focus on zero emission technology to the CAA that was previously lacking. When Congress passed the CAA Amendments of 1990,135 it included language specifically recognizing California’s new ZEV mandate.136 The Act, otherwise, did not include explicit congressional direction to focus on zero emission technological solutions prior to enactment of the IRA. The CAA’s broad regulatory authority implicitly encompassed zero emission technologies, and EPA has adopted regulatory policies that encourage zero emission technology in rulemakings.137

The IRA directs EPA to support zero emission technologies for heavy-duty vehicles138 and port equipment,139 to reduce emissions in low-income and disadvantaged communities,140 as well as to support state ZEV requirements.141 This is a recognition of the evolving importance and availability of zero emission technologies.

C. Buttressing Current Legal Interpretations

In addition to providing a foundation for more ambitious regulations that better protect and deliver more benefits to low-income and disadvantaged communities, the CAA Amendments of 2022 buttress current law by codifying several critical judicial precedents and Agency interpretations relating to climate change. Specifically, the IRA demonstrates congressional support for state and federal regulation of GHG emissions from mobile sources,142 the application of §111 of the CAA to GHG emissions from the oil and gas sector,143 and EPA’s authority and duty to address GHG emissions from the power sector.144 We describe these provisions below.

1. Confirming How the CAA Applies to State and Federal Regulation of GHG Emissions From Mobile Sources

Congress included a provision in the IRA to encourage states to adopt and enforce GHG and zero emission standards for mobile sources pursuant to existing authority under the CAA.145 This provision (referred to below as the “State ZEV Provision”) appropriates $5 million to provide grants to states “to adopt and implement greenhouse gas and zero emission standards for mobile sources pursuant to §177 of the Clean Air Act (42 U.S.C. 7507).”146 In addition to the funding, the State ZEV Provision affirms EPA’s current and longest-standing legal interpretations of how the CAA governs state and federal regulation of GHG emissions from mobile sources.

The following legal conclusions are all necessary preconditions for state adoption of GHG and zero emission standards pursuant to §177:

  1. States would ordinarily be preempted from establishing GHG and zero emission standards under §209(a) of the CAA;
  2. Section 209(b) of the CAA authorizes EPA to waive preemption of state GHG and zero emission standards; and
  3. States are not preempted from establishing GHG and zero emission standards by the Energy Policy and Conservation Act (EPCA) of 1975.

Each of these three necessary preconditions reflect the current prevailing interpretation of the law. With enactment of the IRA’s State ZEV Provision, Congress relies upon and endorses these important legal interpretations.

Section 177 is only available for state emission standards ordinarily preempted by §209(a) of the CAA, which specifies that “[n]o State . . . shall adopt or attempt to enforce under the Clean Air Act, any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part.”147 The Act defines an “emission standard” to include state requirements that limit emissions of “air pollutants.”148 Therefore, for the state GHG and zero emission standards to be preempted under §209(a), it is a necessary precondition that GHGs are air pollutants and that EPA can establish GHG and zero emission standards pursuant to the CAA.

If GHGs were not considered to be air pollutants or EPA could not regulate GHGs from motor vehicles pursuant to the CAA, then §177 would not apply to state GHG and zero emission standards because such standards for motor vehicles would not be preempted by §209(a). As discussed above, the Supreme Court has determined that GHGs are air pollutants under the Act.149 The D.C. Circuit confirmed that EPA could establish GHG emissions standards pursuant to §202 of the CAA, finding that EPA’s interpretation to do so was “unambiguously correct.”150

It is also a necessary precondition for the State ZEV Provision to function that §209(b) of the CAA provides for EPA to waive preemption of state GHG and zero emission standards. Section 209(b) requires the EPA Administrator to waive federal preemption of California vehicle emissions standards when certain conditions are met.151 Since 1968, EPA has waived preemption of California vehicle standards more than 70 times.152 Moreover, the Agency has repeatedly waived preemption of California GHG and zero emission standards specifically.153

Once EPA waives preemption of a set of California emissions standards, §177 of the CAA allows other states with air pollution problems to also adopt and enforce those same standards. By providing grants to states to adopt and implement California’s GHG and zero emission standards for mobile sources, the State ZEV Provision makes clear that Congress endorses EPA’s understanding that §177 allows states to adopt California’s GHG and zero emission standards and that California itself can adopt GHG and zero emission standards. It also makes clear that Congress indeed favors the adoption of such standards by California and other states.

Finally, it is a necessary precondition to the provision’s adoption that state GHG and zero emission standards are not preempted by the EPCA. The ability of states to adopt GHG and zero emissions standards has been litigated and upheld in two different federal district courts, which both considered and rejected arguments that state GHG emissions standards were preempted by the EPCA’s language precluding states from establishing standards relating to fuel economy standards.154 Informed by those judicial decisions, Congress enacted the Energy Independence and Security Act of 2007155 to protect EPA’s and California’s authorities to regulate GHG emissions from mobile sources.156 California has adopted and enforced GHG standards and a state ZEV mandate for many years. Here, too, Congress based the State ZEV Provision on affirming current law.

While the State ZEV Provision reflects a straightforward recognition of the current and most enduring interpretation of the CAA, it is still noteworthy because this legal interpretation was rejected by EPA at the end of the George W. Bush Administration in 2008 and during the Donald Trump Administration in 2019.157 Both the 2008 and 2019 actions were short-lived and reversed before they could be reviewed by a court, due in no small part to their legal infirmities. Nevertheless, Congress has now reduced the likelihood of any future such attempts, and the attendant uncertainty and regulatory confusion that could ensue, by enshrining the current interpretation in law.

What the state ZEV provision does is use Congress’ appropriations power to ratify EPA’s interpretation of the CAA. Congress can confirm an executive authority by appropriating funding in specific ways that make its intentions to confirm the authority clear. As the Supreme Court stated in Ex parte Endo, Congress can confirm or ratify executive authority through an appropriation if “the appropriation . . . plainly show[s] a purpose to bestow the precise authority which is claimed.”158

In cases like Ex parte Endo and Tennessee Valley Authority v. Hill,159 where the appropriation is a lump sum that does not expressly fund the specific action in question, the Court has rejected finding confirmation in the appropriation. But where the appropriation has been explicit, such as in Fleming v. Mohawk Wrecking & Lumber Co. and Brooks v. Dewar, the Court has found confirmation.160 As Justice Neil Gorsuch wrote in Epic Systems Corp. v. Lewis, “It is this Court’s duty to interpret Congress’s statutes as a harmonious whole rather than at war with one another.”161 If an appropriation expressly provides funding for an agency to carry out a specific action, a ruling that the agency lacks the authority to do so would conflict with the specific language of the appropriation, violating “guiding principles” of law.162

When reviewing for ratification by appropriation, courts have looked for two additional elements. First, courts require that the agency have at least an arguable basis for the action ostensibly being ratified.163 Given the lengthy pedigree of the interpretation of how the CAA applies to state and federal GHG standards for mobile sources from 2009 to 2019 and the return to that understanding in 2022, and given the holding of Massachusetts, this element is easily met.

Second, ratification by appropriation “will not be accepted where prior knowledge of the specific disputed action cannot be demonstrated clearly.”164 While there was no live dispute around the legal interpretation at the time the IRA was enacted, Congress was well aware that the Trump Administration had attempted to reverse the decade-long understanding of the California waiver in 2019. The House Committee on Energy and Commerce held an oversight hearing about that reversal at which senior political appointees of the Trump Administration testified.165 In addition, 118 members of the House and 29 senators objected at the time in a 2020 amicus brief in a D.C. Circuit case challenging the Trump Administration’s action as “[c]ontrary to the letter and intent” of the law.166

Congress was not only aware of the previous controversy over the California waiver and adoption of the California GHG and ZEV standards by other states under §177. Congress also knew of the pronounced, ongoing shift toward vehicle electrification underway in the transportation sector, and specifically the potentially transformative effect of California’s and EPA’s vehicle regulations. In 2020, California’s governor had issued an executive order directing the California Air Resources Board to require all new vehicles to be ZEVs by 2035.167

In April 2021, the chairman of the Senate Environment and Public Works Committee stated, “The auto industry recognizes that their future is zero emission vehicles,” and urged EPA to set emissions standards that would “result in 50 percent of new vehicles being zero emission vehicles by 2030 and all new vehicles being zero emission vehicles by 2035.”168 President Biden issued an Executive Order calling for one-half of all new light-duty vehicles to be ZEVs by 2030 and directing EPA to use its authority under the CAA to regulate GHGs.169 In further support for this transition, Congress included substantial incentives in the tax title of the IRA to facilitate the transition to ZEVs.170

Thus, all of the criteria for a congressional ratification of executive authority through appropriation are present here. Congress has incorporated into the new statute measures that necessarily depend upon and approve existing regulatory understandings that both EPA and California may control emissions of GHGs and other pollutants by reliance on zero emissions technologies, and that other states may adopt California’s GHG and zero emission vehicle standards under §177.

2. Affirming Regulation of GHG Emissions From the Oil and Gas Sector

The Methane Emissions Reduction Program in new §136 of the CAA combines investment, improved monitoring, internalization of pollution costs, and regulation to address methane emissions from the oil and gas sector. With this section, Congress pointedly confirms its agreement with EPA’s conclusion that §111 of the CAA applies to GHGs.

Section 136(f)(6) explains how the new fee on methane emissions relates to regulation of those emissions from oil and gas systems pursuant to §111 of the CAA. Paragraph (6) provides that the charge remains in place until the EPA Administrator determines the following:

  1. EPA has approved state plans pursuant to EPA regulations issued under subsections (b) and (d) of §111;
  2. Those plans are in effect in all states with respect to applicable oil and gas facilities; and
  3. Compliance with the federal regulations and state plans “will result in equivalent or greater emissions reductions as would be achieved by the proposed rule of the Administrator entitled ‘Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review’ (86 Fed. Reg. 63110 (November 15, 2021)).”

As House Committee on Energy and Commerce Chairman Frank Pallone Jr. (D-N.J.) explained in a floor statement, “Once the Administrator makes the appropriate determination, the exemption may be applied to any applicable facility subject to and compliant with methane standards pursuant to CAA Section 111.”171

This provision enacts into statute Congress’ agreement with EPA’s conclusion that §111 applies to GHG emissions from new and existing sources. According to Chairman Pallone, “Congress recognizes and reaffirms that regulation of methane from both new and existing oil and gas sources, including those located in the production, processing, transmission, and storage segments, is clearly authorized under CAA Section 111.”172

Congress also sets a clear expectation of effectiveness for the regulations under §111. EPA estimates:

The proposed rule would reduce 41 million tons of methane emissions from 2023 to 2035, the equivalent of 920 million metric tons of carbon dioxide. That’s more than the amount of carbon dioxide emitted from all U.S. passenger cars and commercial aircraft in 2019. In 2030 alone, the rule would reduce methane emissions from sources covered in the proposal by 74 percent compared to 2005.173

EPA and the industry will have a strong incentive to adopt and support regulations at least as stringent as what was described in the proposal. This provision will likely also encourage states to adopt plans, in a timely manner, that will achieve the level of emissions reduction required by the final rule and can be approved by EPA. A rule that would not achieve at least the specified level of reduction or that is not adopted by all the relevant states would leave facilities subject to charges under §136 of the CAA (if emissions were above the thresholds) as well as regulatory obligations under §111.

3. Affirming EPA’s CAA Duty to Reduce GHG Emissions From the Power Sector

The new Low Emissions Electricity Program, §135 of the CAA, affirms EPA’s responsibility for decreasing GHG emissions from the domestic power sector. In it, Congress funds EPA to conduct a wide range of activities that will support and accelerate reductions in GHG emissions from the power sector, including funding the Agency specifically to use its CAA authorities to “ensure” that such reductions occur, which necessarily requires rulemaking.

Section 135 directs EPA to engage with the full range of stakeholders—consumers, low-income and disadvantaged communities, industry, and state, tribal, and local governments.174 Congress provided the Agency with $68 million for education, partnerships, and technical assistance with these communities.175

Section 135 imposes on EPA a broad and comprehensive duty, instructing the Agency to focus on emissions related to the “generation” of electricity and also its “use.” This spares EPA from having to unnecessarily cabin its examination of pollution and avenues for mitigation. It recognizes that more efficient use of electricity can reduce emissions just as cleaner sources of generation can.

Section 135(a)(5) requires EPA to assess GHG emissions reductions that will “result from changes in domestic electricity generation and use that are anticipated to occur on an annual basis through fiscal year 2031.” Congress understood in requesting this assessment that the process of decarbonizing U.S. electricity production was already well underway and accelerating even prior to enactment of the IRA. In 2020, more than double the amount of electricity was produced from zero-carbon sources (including wind and solar, nuclear, hydropower, and geothermal) compared to burning coal.176 Between 2015 and 2020, zero-carbon electricity generation grew by approximately 20% while coal-fired electricity generation declined by nearly 40%.177

By the time Congress passed the IRA, more than one-half the U.S. population was served by states or territories that had enacted laws or adopted goals to eliminate GHG emissions from the power sector.178 Additionally, 75% of U.S. customer accounts are served by utilities with a 100% carbon-reduction target, or a utility owned by a parent company with a 100% carbon-reduction target.179 And since 2015, expert projections of power-sector carbon emissions in 2030 under a business-as-usual scenario (i.e., no additional policies prior to passage of the IRA) have changed from an expected 17% decline from 2005 levels to an expected 46%-50% decline.180 This indicates the rapid transition of the power sector to cleaner forms of energy production that is already occurring even prior to additional federal policy interventions. EPA is required to complete its assessment of anticipated emissions reductions within one year of enactment.181

Section 135(a)(6) builds off of this required assessment. This paragraph provides EPA with $18 million for the purpose of “ensur[ing] that reductions in greenhouse gas emissions are achieved through use of the existing authorities of this Act, incorporating the assessment.”182 By requiring a “reduction” that incorporates EPA’s assessment, Congress is directing the Agency to use the authorities of the CAA to achieve greater reductions than would otherwise be achieved. Moreover, while the activities under the first four pots of funding would be expected to reduce GHG emissions from the power sector, none of those activities would mandate reductions. EPA will have to determine what combination of legally enforceable regulations and use of other authorities under the Act satisfy the requirement to “ensure” such reductions occur.

As Chairman Pallone stated, “CAA Section 111 is one of the ‘existing authorities’ funded by Section 60107 of this Act.”183 Other CAA authorities may also be used by the Agency to reduce emissions from the power sector. He elaborated, “Congress intends that EPA construe its authority under the existing CAA authorities broadly, consistent with the requirements of those authorities, so EPA can promulgate impactful and innovative regulations, as appropriate.”184

This provision can be seen as a response to those who sought to convert the Supreme Court’s decision in West Virginia into a categorical weakening of EPA’s authority to use the CAA to reduce climate pollution. While the provision does not directly address the specific holding of that decision, it makes clear that Congress agrees that the CAA regulatory authorities apply to GHGs and directs EPA, backed by specially designated resources, to use its CAA authorities to achieve greater reductions in GHG emissions from the power sector than expected in the newly calculated baseline. This amounts to a significant new development in EPA’s mandate to address climate pollution from power plants.

V. Statutory Interpretation and Reconciliation

The role of the courts is to interpret the law. A full discussion of differing judicial approaches to accomplishing this task is well beyond the scope of this Article. It suffices to say that even courts committed to a textualist approach accept that factors outside of the text can inform statutory interpretation. Among these factors is an understanding of the federal legislative process. The Supreme Court has recognized, for example, that the reconciliation process can limit congressional debate and result in “inartful drafting,”185 and this can affect statutory interpretation. Accordingly, judges seeking to interpret the CAA Amendments of 2022 may wish to build on this recognition and familiarize themselves with the limitations of the reconciliation process.

Laws enacted through the reconciliation process are full-fledged statutes, having secured passage of both houses of Congress and approval by the president. They are every bit as binding as other acts of Congress. Still, the rules governing the reconciliation process can limit the tools Congress has to structure and draft text and express its intent. As discussed, the Byrd Rule applies constraints on what can be included in a reconciliation, but these constraints are enforced selectively. When senators fail to identify Byrd violations or choose not to raise a point of order, noncompliant language can be enacted as part of a reconciliation bill. Thus, some policy changes can be made through reconciliation simply due to lack of enforcement of the Byrd Rule.

Even when the Byrd Rule is being strictly adhered to, however, reconciliation bills can contain major policy changes. The Byrd Rule requirement that a budgetary effect of a provision cannot be merely incidental to any policy changes it contains is a balancing test. In general, the more budgetary effect, the more policy change is permissible under the Byrd Rule. Accordingly, the IRA contains policy changes large and small. These range from the decision to focus the IRA’s appropriations for DERA funding on goods movement,186 to creating new and complex programs that address methane pollution,187 to enshrining Supreme Court decisions in statute.

While the permissibility of policy changes associated with budgetary provisions and their terms and conditions is determined by the Senate Parliamentarian’s necessarily uncertain exercise of judgment, the Byrd Rule’s prohibition on provisions without any budgetary effect is a brighter line of which courts should be aware. For example, with the definition of “greenhouse gas” now included in each of the new sections, a court may be invited to draw meaning from the exclusion of that defined term in other sections of the CAA. Such an approach would be erroneous, however, since the Byrd Rule prevented Congress from inserting extraneous matter, such as adding the definition of “greenhouse gas” to §202, §111, or other sections of the CAA because such amendment would have no budgetary effect, nor would it be a necessary term and condition.

Some may argue that the lesson of the IRA is that Congress intended to turn away from regulation in favor of financial incentives with this legislation. That would also be erroneous, given the budgetary nature of a reconciliation bill and the procedural limitations imposed by the reconciliation process. Of course, a budget reconciliation bill necessarily focuses on spending or raising money. But the statutory language, as examined above, reinforces and supplements, rather than supplants, EPA’s regulatory authorities. As Chairman Pallone explained when the IRA passed the House, the IRA “reinforces the longstanding authority and responsibility of the [EPA] to regulate GHGs as air pollutants under the Clean Air Act.”188

Many provisions of the IRA illustrate this fundamental point. As explained above, the methane emissions charge applies to a facility only until it is replaced by, and the facility complies with, fully implemented regulations under §111. The Low Emissions Electricity Program directs EPA to use its authorities, including regulatory authorities, to ensure reductions in emissions from the power sector. Congress relied upon and endorsed the state and federal regulatory landscape for tailpipe emissions, including regulations to reduce GHG emissions and requiring production of ZEVs. It also invested in EPA’s enforcement tools used for regulatory violations.

Finally, Congress invested in the implementation of the AIM Act; while not part of the CAA, the AIM Act’s historic programs to address climate super-pollutant HFCs is the most significant grant of regulatory power to EPA in recent history.189 When viewed in light of the reconciliation process limitations, it becomes even clearer that there is no merit to any argument that Congress now disfavors regulation to address emissions of GHGs, including under existing CAA authorities.

In construing the CAA Amendments of 2022, courts should be aware of how the Byrd Rule fences off budgetary provisions alone for privileged treatment, while remaining cognizant that the IRA is every bit an act of Congress—pursuant to the U.S. Constitution, duly passed by both chambers of Congress, and signed into law by the president.

VI. Conclusion

After years of trying and failing, Congress has enacted landmark legislation to tackle climate change. Through the CAA Amendments of 2022, Congress provides EPA with more than $41 billion to establish new programs and use existing ones. This new funding and authority, combined with the preexisting regulatory authority to address GHGs in the CAA, create a powerful set of tools to move the nation decisively forward on cutting climate-destabilizing air pollution. ELR

This article appeared in The Environmental Law Reporter, January 2023, titled “The Clean Air Act Amendments of 2022: Clean Air, Climate Change, and the Inflation Reduction Act."

Authors' Note: Greg Dotson served as Chief Counsel for the Senate Environment and Public Works Committee during development and enactment of the Inflation Reduction Act. Dustin Maghamfar served as Air and Climate Counsel for the House Energy and Commerce Committee during House development and passage of the Build Back Better Act, including the Clean Air Act Amendments later enacted in the Inflation Reduction Act.

Special thanks to Cora Sutherland, Greg Giunta, and Edward Nuñez, law students at the University of Oregon School of Law, for their research assistance and support. And thank you to the extraordinarily dedicated staff in the House and Senate without whom the Inflation Reduction Act would not have been possible.

 

1. Pub. L. No. 117-169, 136 Stat. 1818 (2022).

2. Pub. L. No. 117-58, 135 Stat. 429 (2021).

3. Pub. L. No. 117-167, 136 Stat. 1366 (2022).

4. See Lachlan Carey & Jun Ukita Shepard, Congress’s Climate Triple Whammy: Innovation, Investment, and Industrial Policy, RMI (Aug. 22, 2022), https://rmi.org/climate-innovation-investment-and-industrial-policy/ (calculating nearly $80 billion annually in climate spending between 2022 and 2027).

5. President Biden Remarks on Democracy, C-SPAN (Sept. 1, 2022), https://www.c-span.org/video/?522563-1/president-biden-calls- americans-defend-threats-democracy.

6. Rhodium Group projects that by 2030, the IRA will achieve an economywide reduction in GHG emissions by 32% to 42% of 2005 levels. John Larsen et al., Rhodium Group, A Turning Point for U.S. Climate Progress: Assessing the Climate and Clean Energy Provisions in the Inflation Reduction Act (2022), https://rhg.com/research/climate-clean-energy-inflation-reduction-act/. Similarly, Energy Innovation projects a 37% to 41% reduction by 2030. Megan Mahajan et al., Energy Innovation Policy and Technology LLC, Modeling the Inflation Reduction Act Using the Energy Policy Simulator (2022), https://energyinnovation.org/wp-content/uploads/2022/08/Modeling-the-Inflation-Reduction-Act-with-the-US-Energy-Policy-Simulator_August.pdf. REPEAT Project mirrors these estimates, projecting a 42% reduction by 2030, with a trajectory that exceeds a 50% reduction by 2035. Jesse D. Jenkins et al., REPEAT Project, Preliminary Report: The Climate and Energy Impacts of the Inflation Reduction Act of 2022 (2022), https://repeatproject.org/docs/REPEAT_IRA_Prelminary_Report_2022-08-12.pdf.

7. 142 S. Ct. 2587, 52 ELR 20077 (2022); 42 U.S.C. §§7401-7671q, ELR Stat. CAA §§101-618.

8. Congressional Budget Office, Cost Estimate: Estimated Budgetary Effects of Public Law 117-169, to Provide for Reconciliation Pursuant to Title II of S. Con. Res. 14 (2022).

9. Fact Sheet, U.S. EPA, EPA & The Bipartisan Infrastructure Law (Nov. 6, 2021), https://www.epa.gov/infrastructure/fact-sheet-epa-bipartisan-infrastructure-law.

10. S. Con. Res. 14, 117th Cong. (2021/2022).

11. Megan S. Lynch, Congressional Research Service, R44058, The Budget Reconciliation Process: Stages of Consideration (2021).

12. S. Con. Res. 14, 117th Cong. §1 (as passed by House, Aug. 24, 2021).

13. H.R. 5376, 117th Cong. (as passed by House, Nov. 19, 2021).

14. Id. (as passed by Senate, Aug. 7, 2022).

15. Id. (as resolved by House, Aug. 12, 2022).

16. Id. (enacted as Pub. L. No. 117-169, 136 Stat. 1818 (2022)).

17. Lynch, supra note 11.

18. See U.S. Senate, Roll Call Vote 357, 117th Congress-1st Session, https://www.senate.gov/legislative/LIS/roll_call_votes/vote1171/vote_117_1_00357.htm (last visited Nov. 3, 2022) (budget resolution passing solely with votes by the Democratic caucus); U.S. House of Representatives, Roll Call 258—Bill Number: H. Res. 601,https://clerk.house.gov/Votes/2021258 (last visited Nov. 3, 2022) (House resolution providing for the adoption of the budget resolution passing with solely Democratic House votes); see also Nick Sobczyk, Republicans Maneuver to Thwart Reconciliation, E&E News (July 12, 2022), https://www.eenews.net/articles/republicans-maneuver-to-thwart-reconciliation/.

19. U.S. Senate, Roll Call Vote 325, 117th Congress-2nd Session, https://www.senate.gov/legislative/LIS/roll_call_votes/vote1172/vote_117_2_00325.htm (last visited Nov. 3, 2022).

20. Congressional Budget Act §313, 2 U.S.C. §644.

21. See Lynch, supra note 11.

22. Congressional Budget Act §313(b)(1)(A). The stringent effect of the Byrd Rule is demonstrated by the fact that even the title of the bill was subject to its rigorous test. Sen. Lindsey Graham (R-S.C.) struck the title of the legislation from the bill because it had no budgetary effect. Thus the title “Inflation Reduction Act” appears nowhere in the enacted legislation.

23. Id.

24. Id. §313(b)(1)(D).

25. See, e.g., Emily Cochrane, Top Senate Official Disqualifies Minimum Wage From Stimulus Plan, N.Y. Times (Feb. 25, 2021), https://www.nytimes.com/2021/02/25/us/politics/federal-minimum-wage.html.

26. The House had included a provision to provide $45 million to EPA to implement nine sections of the CAA with respect to GHGs. A version of this provision was included in the Senate amendment, which included eight of the nine CAA sections and specified the six enumerated GHGs. A majority of the Senate had voted to retain the provision when Sen. Shelley Moore Capito (R-W. Va.) sought to strike it. U.S. Senate, Roll Call Vote 293, 117th Congress-2nd Session, https://www.senate.gov/legislative/LIS/roll_call_votes/vote1172/vote_117_2_00293.htm (last visited Nov. 3, 2022).

The Senate parliamentarian subsequently advised that the provision was “overbroad” and subject to the Byrd Rule after hearing a number of arguments regarding the multiplicity of sections and how each related to the multiplicity of GHGs. The provision was struck by a point of order. En bloc point of order made by Senator Graham to text on page 689, lines 8-16 of the IRA (Aug. 6, 2022).

27. 168 Cong. Rec. E868 (daily ed. Aug. 23, 2022) (statement of Rep. Frank Pallone Jr.).

28. IRA, Pub. L. No. 117-169, §§60101, 60102, 60103, 60107, 60113, 60114 & 60201, 136 Stat. 1818 (2022).

29. Congressional Budget Office, supra note 8.

30. EPA’s spending cannot exceed what Congress appropriated in the IRA without additional congressional action, in contrast to the uncapped tax provisions of the bill. While the Congressional Budget Office includes projected outlays for these tax provisions in its cost estimate, actual outlays could be higher. Investment firm Credit Suisse has suggested that total climate spending under the IRA could exceed $800 billion, more than double the Congressional Budget Office’s estimate, and catalyze another $900 billion in private investment. Robinson Meyer, The Climate Economy Is About to Explode, Atlantic (Oct. 5, 2022), https://www.theatlantic.com/science/archive/2022/10/inflation-reduction-act-climate-economy/671659/.

31. IRA, Pub. L. No. 117-169, §60101, 136 Stat. 1818 (2022).

32. Criteria air pollutants are those for which EPA has established a national ambient air quality standard pursuant to CAA §109, 42 U.S.C. §7409. See U.S. EPA, Criteria Air Pollutants, https://www.epa.gov/criteria-air-pollutants (last updated Aug. 9, 2022).

33. See, e.g., CAA §105(a) (limiting federal share to 60%).

34. E.g., the $5 billion Clean School Bus Program under the IIJA and the §45W commercial clean vehicles tax credit created by the IRA.

35. IRA, Pub. L. No. 117-169, §60102, 136 Stat. 1818 (2022).

36. Id. §60103.

37. Id. §60107.

38. Id. §60113.

39. CAA §136(a) & (b).

40. Consolidated Appropriations Act, Pub. L. No. 110-161, 121 Stat. 1844 (2007).

41. 40 C.F.R. §98 (2022).

42. U.S. EPA, Frequently Asked Questions—Q22. How Much Is 25,000 Metric Tons of CO2 Equivalent (mtCO2e)?, https://ccdsupport.com/confluence/pages/viewpage.action?pageId=91554027 (last updated Aug. 29, 2019).

43. See, e.g., Amanda Garris, Industrial Methane Emissions Are Underreported, Study Finds, Cornell Chron. (June 6, 2019), https://news.cornell.edu/stories/2019/06/industrial-methane-emissions-are-underreported-study-finds; Kristina Marusic, Oil and Gas Methane Emissions in US Are at Least 15% Higher Than We Thought, Env’t Health News (Apr. 23, 2020), https://www.ehn.org/fracking-methane-leaks-2645817287.html; Press Release, International Energy Agency, Methane Emissions From the Energy Sector Are 70% Higher Than Official Figures (Feb. 23, 2022), https://www.iea.org/news/methane-emissions-from-the-energy-sector-are-70-higher-than-official-figures; Steven Mufson, Oil and Gas Companies Underreported Methane Leaks, New Study Shows, Wash. Post (June 8, 2022), https://www.washingtonpost.com/climate-environment/2022/06/08/oil-gas-methane-house-science-permian/.

44. CAA §136(h).

45. IRA, Pub. L. No. 117-169, §60114, 136 Stat. 1818 (2022).

46. CAA §133(a)(1)(C).

47. Id. §132(b)(4).

48. IRA, Pub. L. No. 117-169, §60201, 136 Stat. 1818 (2022).

49. Section 5001 of the Omnibus Budget Reconciliation Act of 1993 amended the Flood Control Act of 1968 to authorize the U.S. Army Corps of Engineers to collect fees.

50. Section 1321 of the Taxpayer Refund and Relief Act of 1999, which was passed by the 105th Congress in 1999 and vetoed by President Bill Clinton, would have consolidated the Hazardous Substance Superfund and Leaking Underground Storage Trust Funds into a single Environmental Remedial Trust Fund.

51. The Omnibus Budget Reconciliation Act of 1993 amended the Communications Act of 1934.

52. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 amended the Social Security statutes. The Deficit Reduction Act of 2005 amended the Social Security statutes. These provisions did not relate to Social Security’s Old-Age, Survivors, and Disability Insurance program that the Byrd Rule specifically considers to be extraneous. Congressional Budget Act §313(b)(1)(F), 2 U.S.C. §644(b)(1)(F).

53. Title III of the CAA is entitled “General Provisions,” but the reference to general provisions here encompasses both Title III and the broadly applicable provisions of Title I of the CAA.

54. CAA §301(a), 42 U.S.C. §7601(a) (emphasis added).

55. CAA §307(b)(1), 42 U.S.C. §7607(b)(1) (emphasis added).

56. IRA, Pub. L. No. 117-169, §60113, 136 Stat. 1818 (2022).

57. CAA §307(a), 42 U.S.C. §7607(a) (emphasis added).

58. CAA §113, 42 U.S.C. §7413.

59. CAA §304(a)(1), 42 U.S.C. §7604(a)(1) (emphasis added).

60. CAA §113, 42 U.S.C. §7413 (emphasis added).

61. CAA §311(a), 42 U.S.C. §7611(a) (emphasis added).

62. CAA §314, 42 U.S.C. §7614 (emphasis added).

63. CAA §116, 42 U.S.C. §7416 (emphasis added).

64. IRA, Pub. L. No. 117-169, §60104, 136 Stat. 1818 (2022).

65. CAA §103(a)-(c) authorizes research and development for the prevention and control of air pollution, including air pollutant monitoring. CAA §105 authorizes grants to air pollution control agencies to support air pollution planning and control programs. Congress appropriated an additional $25 million to EPA for grants and other activities authorized under these sections in IRA §60105(f).

66. IRA, Pub. L. No. 117-169, §60105(a), 136 Stat. 1818 (2022).

67. Id. §60105(b).

68. Id. §60105(c).

69. Tim McLaughlin et al., Exclusive: U.S. Air Pollution Monitoring Network Falling Into Disrepair—GAO Report, Reuters (Dec. 7, 2020), https://www.reuters.com/article/usa-pollution-airmonitors-gao/exclusive-u-s-air-pollution-monitoring-network-falling-into-disrepair-gao-report-idUSKBN28H1V5.

70. IRA, Pub. L. No. 117-169, §60105(d), 136 Stat. 1818 (2022).

71. Id. §60105(e).

72. Id. §60105(g).

73. Id. §60106.

74. Id. §60108.

75. H.R. 133, 116th Cong. §103 (2021).

76. IRA, Pub. L. No. 117-169, §60109, 136 Stat. 1818 (2022).

77. Id. §60110.

78. These EPA databases contain compliance and permit data for sources of pollution. See U.S. EPA, ICIS-AIR Overview, https://www.epa.gov/enviro/icis-air-overview (last updated Oct. 27, 2022); U.S. EPA, PCS-ICIS Overview, https://www.epa.gov/enviro/pcs-icis-overview (last updated Oct. 27, 2022).

79. IRA, Pub. L. No. 117-169, §60111, 136 Stat. 1818 (2022).

80. Id. §60112.

81. Id. §60116.

82. Id. §60506.

83. Id. §60503.

84. Id. §60115.

85. Exec. Order No. 14008, §223, 86 Fed. Reg. 7619, 7632 (Feb. 1, 2021).

86. Pub. L. No. 117-2, 135 Stat. 4 (2021).

87. Christine J. Back & April J. Anderson, Congressional Research Service, The American Rescue Plan Act: Equal Protection Challenges 2-3 (2021), https://crsreports.congress.gov/product/pdf/LSB/LSB10631.

88. Id. at 3; see also id. at 1-2 (explaining equal protection principles).

89. Id. at 1-2, 3-4.

90. “At least one potential legislative option . . . to avoid triggering strict (or intermediate) scrutiny is to target relief based on race- or sex-neutral characteristics.” Id. at 4.

91. Other similar terms, such as “disadvantaged and underserved communities,” find their roots in the lexicon of implementing agencies. See IRA, Pub. L. No. 117-169, §60501, 136 Stat. 1818 (2022) (the Neighborhood Access and Equity Grant Program, administered by the Federal Highway Administration).

92. CEQ Publishes Draft Climate and Economic Justice Screening Tool, Key Component in the Implementation of President Biden’s Justice40 Initiative, White House (Feb. 18, 2022), https://www.whitehouse.gov/ceq/news-updates/2022/02/18/ceq-publishes-draft-climate-and-economic-justice-screening-tool-key-component-in-the-implementation-of-president-bidens-justice40-initiative/.

93. Pub. L. No. 117-169, §60401, 136 Stat. 1818 (2022).

94. 549 U.S. 497, 37 ELR 20075 (2007).

95. Id.

96. See Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act; Final Action on Petitions, 87 Fed. Reg. 25412 (Apr. 29, 2022). When EPA denied that petition in April 2022, the petitioners commenced legal action in the D.C. Circuit. Brief for Petitioner, Concerned Household Elec. Consumers Council v. Environmental Prot. Agency, No. 22-1139 (D.C. Cir. Oct. 14, 2022).

97. 564 U.S. 410, 430, 41 ELR 20210 (2011).

98. 573 U.S. 302, 343, 44 ELR 20132 (2014).

99. See, e.g., S.J. Res. 26, 111th Cong. (2010); H.R. 910, 112th Cong. (2011); S. 482, 112th Cong. (2011); S. Amend. 183 to S. 493, 112th Cong. (2011).

100. 74 Fed. Reg. 66496 (Dec. 15, 2009); 80 Fed. Reg. 64510 (Oct. 23, 2015) (cites the same definition, id. at 64527, though the brief discussion of the danger from power plant emissions focuses on carbon dioxide alone); 81 Fed. Reg. 54422 (Aug. 15, 2016); 81 Fed. Reg. 35824, 35830 (June 3, 2016); see also id. at 35843 (making an alternative endangerment finding, but concluding that such a finding was not legally required).

101. See H.R. 5376, 117th Cong. (2021) (House engrossed version).

102. Id. §30102.

103. See, e.g., Gunnar Myhre et al., Anthropogenic and Natural Radiative Forcing, in Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change 659, 720 (T.F. Stocker et al. eds., Cambridge Univ. Press 2013), https://www.ipcc.ch/site/assets/uploads/2018/02/WG1AR5_Chapter08_FINAL.pdf at 720.

104. See Amendment in the Nature of a Substitute (ERN22335), available at https://www.democrats.senate.gov/imo/media/doc/inflation_reduction_act_of_2022.pdf.

105. Id.

106. CAA §221(o)(12).

107. Id. §302.

108. IRA, Pub. L. No. 117-169, §60201, 136 Stat. 1818 (2022) (emphasis added).

109. Id. §60106 (emphasis added).

110. This formulation was also used in §60501, which amended Title 23 to create a new program implemented by the Secretary of Transportation. But note that §50144, relating to a U.S. Department of Energy loan guarantee program, included the phrase “air pollutants or anthropogenic emissions of greenhouse gases.” Outside of the context of the CAA and EPA, these examples have less, if any, relevance to interpretation of the CAA.

111. IRA, Pub. L. No. 117-169, §60114, 136 Stat. 1818 (2022).

112. Lisa Friedman, Democrats Designed the Climate Law to Be a Game Changer. Here’s How., N.Y. Times (Aug. 22, 2022), https://www.nytimes.com/2022/08/22/climate/epa-supreme-court-pollution.html.

113. 573 U.S. 302, 319, 44 ELR 20132 (2014).

114. Id. at 321-22. The Court noted that interpreting the term “air pollutant” in the permitting context identically with how the term is used elsewhere in the Act would be crushingly expensive, burdensome—including orders-of-magnitude increases in the number of covered sources and the costs of control—and thereby “undermine” Congress’ goals for the CAA. At the same time, the Court upheld as consistent with the Act EPA regulations requiring that sources already subject to regulation under the Act based on their non-GHG emissions must reduce their GHG emissions with the “best available control technology.”

115. Pub. L. No. 80-845, 62 Stat. 1155 (1948); 33 U.S.C. §§1251-1387, ELR Stat. FWPCA §§101-607.

116. Pub. L. No. 92-500, 86 Stat. 816 (1972).

117. Pub. L. No. 100-4, 101 Stat. 7 (1987).

118. Pub. L. No. 93-523, 88 Stat. 1660 (1974); 42 U.S.C. §§300f to 300j-26, ELR Stat. SDWA §§1401-1465.

119. Pub. L. No. 104-182, 110 Stat. 1613 (1996).

120. Pub. L. No. 91-604, 84 Stat. 1676 (1970).

121. Subtitle G of Title VII, Pub. L. No. 109-58, 119 Stat. 594 (2005).

122. Pub. L. No. 110-343, 122 Stat. 3765 (2008).

123. See, e.g., CAA §§111(a)(1), 169(3) (“best available control technology”), 202(a)(2), 202(a)(3)(B)(i).

124. David Shepardson, U.S. EPA to Set Tougher Heavy Duty Emissions Rules in 2023, Reuters (Nov. 3, 2022), https://www.reuters.com/business/environment/us-epa-set-tougher-heavy-duty-emissions-rules-2023-2022-11-03/.

125. Unlike the Clean Coal Power Initiative, established in the Energy Policy Act of 2005, Congress has expressed no concern about federal incentives for technology being used to support determinations of demonstrability or achievability. See 42 U.S.C. §15962(i).

126. CAA §202(a)(2) (codified at 42 U.S.C. §7521(a)(2)).

127. Id. §165 (codified at 42 U.S.C. §7475).

128. Id. §169(3) (codified at 42 U.S.C. §7479(3)).

129. Ian Bowen et al., How Clean Energy Economics Can Benefit From the Biggest Climate Law in US History, ICF (Sept. 16, 2022), https://www.icf.com/insights/energy/clean-energy-economic-benefits-us-climate-law.

130. See U.S. EPA, New Source Review Workshop Manual (Draft) B.13 (1990), https://www.epa.gov/sites/default/files/2015-07/documents/1990wman.pdf.

131. CAA §111 (codified at 42 U.S.C. §7411).

132. Id. §111(a)(1) (codified at 42 U.S.C. §7411(a)(1)).

133. Id.

134. 142 S. Ct. 2587, 52 ELR 20077 (2022).

135. Pub. L. No. 101-549, 104 Stat. 2648 (1990).

136. 42 U.S.C. §7586(f)(4).

137. See, e.g., Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards, 75 Fed. Reg. 25324 (May 7, 2010) (recognizing ZEV technology for regulatory compliance).

138. CAA §132.

139. Id. §133.

140. Id. §§134 & 138.

141. IRA, Pub. L. No. 117-169, §60105(g), 136 Stat. 1818 (2022).

142. Id.

143. Id. §60113.

144. Id. §60107.

145. Id. §60105(g).

146. Id.

147. CAA §209(a) (codified at 42 U.S.C. §7543(a)).

148. Id. §302(k) (codified at 42 U.S.C. §7602(k)).

149. Massachusetts v. Environmental Prot. Agency, 549 U.S. 497, 37 ELR 20075 (2007).

150. Coalition for Responsible Regul., Inc. v. Environmental Prot. Agency, 684 F.3d 102, 42 ELR 20141 (D.C. Cir. 2012). In Utility Air Regulatory Group, the Supreme Court later overturned portions of this decision, but declined to review the court of appeal’s ruling as it related to §202 of the CAA.

151. CAA §209(b) (codified at 42 U.S.C. §7543).

152. See U.S. EPA, Vehicle Emissions California Waivers and Authorizations, https://www.epa.gov/state-and-local-transportation/vehicle-emissions-california-waivers-and-authorizations (last updated June 13, 2022).

153. 74 Fed. Reg. 32744 (July 8, 2009); 78 Fed. Reg. 2112 (Jan. 9, 2013); 87 Fed. Reg. 14332 (Mar. 14, 2022).

154. Central Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F. Supp. 2d 1151, 37 ELR 20309 (E.D. Cal. 2007); Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295, 37 ELR 20232 (D. Vt. 2007).

155. Pub. L. No. 110-140, 121 Stat. 1492 (2007).

156. For a full discussion of the legislative and statutory history of state authority to set GHG standards, see Greg Dotson, State Authority to Regulate Mobile Source Greenhouse Gas Emissions, Part 2: A Legislative and Statutory History Assessment, 32 Geo. Env’t L. Rev. 625 (2020).

157. 73 Fed. Reg. 12156 (Mar. 6, 2008); 84 Fed. Reg. 51310 (Sept. 27, 2019).

158. 323 U.S. 283, 303 n.24 (1944).

159. 437 U.S. 153, 8 ELR 20513 (1978).

160. Brooks v. Dewar, 313 U.S. 354 (1941) (holding that Congress had ratified the Secretary of the Interior’s construction of the Taylor Grazing Act by appropriating funds collected pursuant to the Secretary’s interpretation); Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947) (finding Congress had ratified a presidentially created temporary controls administrator by recognizing the office in an appropriations bill).

161. 138 S. Ct. 1612 (2018).

162. See U.S. Government Accountability Office, Principles of Federal Appropriations Law 2-57 to 2-60, 2-72 to 2-76 (2016).

163. D.C. Fed’n of Civic Ass’ns v. Airis, 391 F.2d 478, 481 (D.C. Cir. 1968).

164. Id. at 482.

165. Driving in Reverse: The Administration’s Rollback of Fuel Economy and Clean Car Standards: Hearing Before the Subcommittees on Consumer Protection and Commerce & Environment and Climate Change of the House Committee on Energy and Commerce, 116th Cong. (2019), https://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=109670.

166. Brief of Amici Curiae Members of Congress in Support of Petitioners at 5, Union of Concerned Scientists v. National Highway Traffic Safety Admin., No. 19-1230 (D.C. Cir. filed July 6, 2020), https://law.ucla.edu/sites/default/files/PDFs/Publications/Emmett%20Institute/Members%20of%20Congress%20Amicus%20Brief%20-%20Filed.pdf.

167. California Exec. Order No. N-79-20 (2020), https://www.gov.ca.gov/wp-content/uploads/2020/09/9.23.20-EO-N-79-20-Climate.pdf; Fact Sheet, California Air Resources Board, Governor Newsom’s Zero-Emission by 2035 Executive Order (N-79-20) (Jan. 19, 2021), https://ww2.arb.ca.gov/resources/fact-sheets/governor-newsoms-zero-emission-2035-executive-order-n-79-20.

168. Letter from Sen. Tom Carper, Chairman of the Senate Environment and Public Works Committee, to Michael Regan, Administrator, U.S. EPA (Apr. 29, 2021).

169. Executive Order on Strengthening American Leadership in Clean Cars and Trucks, White House (Aug. 5, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/08/05/executive-order-on-strengthening-american-leadership-in-clean-cars-and-trucks/.

170. Congress repealed the long-standing per-manufacturer phaseout once 250,000 vehicles were sold, indicating an appreciation of the transition of ZEVs from niche to mainstream.

171. 168 Cong. Rec. E869 (daily ed. Aug. 23, 2022) (statement of Rep. Frank Pallone Jr.).

172. Id. Congress had previously confirmed this understanding with passage of a resolution of disapproval relating to a deregulatory rule issued by EPA in 2019. S.J. Res. 14, 117th Cong. (2021).

173. See News Release, U.S. EPA, U.S. to Sharply Cut Methane Pollution That Threatens the Climate and Public Health (Nov. 2, 2021), https://www.epa.gov/newsreleases/us-sharply-cut-methane-pollution-threatens-climate-and-public-health.

174. CAA §135(a)(1)-(4).

175. Id.

176. U.S. Energy Information Administration, October 2022 Monthly Energy Review fig. 7.2 (2022), https://www.eia.gov/totalenergy/data/monthly/pdf/mer.pdf.

177. Id.

178. Clean Energy States Alliance, Table of 100% Clean Energy States, https://www.cesa.org/projects/100-clean-energy-collaborative/guide/table-of-100-clean-energy-states/ (last visited Nov. 3, 2022).

179. Smart Electric Power Alliance, Utility Carbon-Reduction Tracker: Utilities’ Path to a Carbon-Free Energy System, https://sepapower.org/utility-transformation-challenge/utility-carbon-reduction-tracker/ (last visited Nov. 3, 2022).

180. U.S. EPA, Regulatory Impact Analysis for the Proposed Federal Plan Requirements for Greenhouse Gas Emissions From Electric Utility Generating Units Constructed on or Before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations tbl. 1-3 (2015), https://archive.epa.gov/epa/sites/production/files/2015-08/documents/cpp-proposed-federal-plan-ria.pdf (projecting a 17% reduction in emissions from the power sector below 2005 levels in 2030 without additional action); John Larsen et al., Rhodium Group, Pathways to Building Back Better: Investing in 100% Clean Electricity (2021), https://rhg.com/research/build-back-better-clean-electricity/ (projecting emissions reductions from the power sector in the range of 46%-50% below 2005 levels in 2030 without additional action).

181. CAA §135(a)(5).

182. The House-passed version of this text required that emissions reductions be achieved “from domestic electricity generation and use.” This phrase was deleted prior to Senate consideration, leaving open the possibility that these funds could be used to achieve GHG emissions reductions from outside the power sector.

183. 168 Cong. Rec. E869 (daily ed. Aug. 23, 2022) (statement of Rep. Frank Pallone Jr.).

184. Id. at E868.

185. King v. Burwell, 576 U.S. 473, 491 (2015).

186. IRA, Pub. L. No. 117-169, §60104, 136 Stat. 1818 (2022).

187. Id. §60113.

188. 168 Cong. Rec. E868 (daily ed. Aug. 23, 2022) (statement of Rep. Frank Pallone Jr.).

189. This investment demonstrates that “Congress intends that EPA construe its authority under the AIM Act broadly . . . including adopting innovative and impactful requirements and successfully implementing those regulations to ensure that Congressional goals of addressing climate-damaging hydrofluorocarbons are achieved.” Id. at E880.

ENVIRONMENTAL LAW REPORTER The IRA added seven new sections to the Clean Air Act and provided the Environmental Protection Agency with substantial new authorities and resources.

ELI Report
Author
Margaret Badding - Environmental Law Institute
Environmental Law Institute
Current Issue
May-June 2023
Issue
3

White Paper ELI report developed for power sector highlights environmental justice considerations in renewable energy roll out

The modern energy network is rapidly evolving with new renewable energy and battery storage developments. In 2021, wind, solar, and battery storage accounted for 81 percent of all new capacity added in the United States and produced an estimated 13 percent of electric power generation. While these projects are highly beneficial, including their contributions to decarbonization and reductions to air pollution, they can also raise environmental justice issues for the communities in which they are sited.

In November, the Electric Power Research Institute published a white paper developed by ELI titled “Environmental Justice and Renewable Energy and Storage.” It identifies environmental justice challenges and opportunities in the development of renewable energy and battery storage facilities. The paper intends to be a practical resource for utility companies and provides leading practices to advance environmental justice in siting, designing, constructing, and operating renewable energy facilities, including utility-scale or large-scale solar, wind, and battery storage projects.

The report begins with a detailed discussion of different definitions of environmental justice, including federal, state-level, and community views. The concept of EJ is broken down into four fundamental components: distributive justice, procedural justice, recognition justice, and restorative justice. The paper then discusses how EJ communities can be identified, including mapping and screening tools. These include EPA’s EJSCREEN and the White House Council on Environmental Quality’s Climate and Economic Justice Screening Tool.

The report summarizes common concerns of EJ communities, including decreased property values and impacts on culturally and historically important sites. While these project concerns can affect any community in which a renewable energy facility is being sited, they can be amplified for EJ communities. For instance, decreased property values, while a potential worry for any community hosting a renewable energy facility, can be of particular concern to neighborhoods that have faced disadvantages with home ownership—due to historical issues such as redlining. As such, some EJ communities may experience a proposed energy facility as another instance in a long history of discrimination.

The report identifies leading practices, which include undertaking meaningful engagement with a stepwise approach. That means meeting with community members early in the process, planning a proactive engagement strategy, and increasing community capacity with training, access, and local expertise. It also means designing mitigation approaches collaboratively to address community concerns, and identifying and implementing community benefits. Community benefits can include job creation, access to renewable energy, energy efficiency, grid resilience, brownfields redevelopment, and investments in other community initiatives such as infrastructure upgrades or community co-ownership of projects. Community benefits agreements are discussed as an instrument for providing for community benefits that has been employed in the context of environmental justice.

ELI’s Elly Beckerman, James McElfish, and Elissa Torres-Soto authored the white paper in collaboration with EPRI, an independent non-profit energy research, development, and deployment organization. Torres-Soto gave a presentation on the report and key findings at EPRI’s Sustainability Summit held in November.

A subsequent collaboration between ELI and EPRI this year is examining and highlighting best practices to address EJ challenges in rural and suburban electric transmission development, another fundamental component of the clean energy transition. Given the United States will need to triple its transmission infrastructure by 2050 to fully decarbonize the grid, it is essential to address communities’ experience and EJ challenges affecting transmission projects.

Webinar tackles green hydrogen development opportunities and challenges

As the United States transitions away from fossil fuels, a variety of energy carriers are needed to achieve a carbon-free future. These include not just batteries but green hydrogen, made from carbon-free sources like solar panels or wind turbines. It presents a key opportunity: green hydrogen is storable, versatile, and sustainable. Yet challenges remain to its adoption.

In February, ELI held a webinar titled “Exploring Green Hydrogen’s Role in Our Energy Future,” examining opportunities and challenges facing the energy carrier’s development. The webinar was the first of 2023 in the GreenTech Webinar Series, which facilitates dialogue on catalyzing technologies to respond to environmental issues.

The event was moderated by Beth Deane, chief legal officer of Electric Hydrogen, and featured experts from the federal and state governments and industry leaders.

Sunita Satyapal, Director of the Department of Energy’s Hydrogen and Fuel Cell Technologies Office, provided an overview of DOE’s activities and the current regulatory landscape.

Satyapal discussed recent federal legislation, including the Bipartisan Infrastructure Law—which includes $9.5 billion in clean hydrogen funding and requires the development of a National Clean Hydrogen Strategy and Roadmap—and the Inflation Reduction Act, which created tax credits for hydrogen development up to $3 per kilogram. Satyapal also discussed DOE’s Hydrogen Energy Earthshot to accelerate development. The department’s hydrogen work includes research and development, technology integration, deployment, and financing.

Next, Tyson Eckerle, senior advisor for clean infrastructure and mobility in the California Governor’s Office of Business and Economic Development, discussed green hydrogen development in his state. Eckerle covered the legal context set by AB 1279 and SB 1020, which set legally binding emission reductions and create a path to 100 percent renewable energy by 2045.

To generate new hydrogen markets, demand must be increased by organizing stakeholders and creating scale. Eckerle emphasized the importance of regional networks and partnership with the federal government and private sector, highlighting the private-public duo of the California Fuel Cell Partnership and the Alliance for Renewable Clean Hydrogen Energy Systems.

Last, Venella Yadhati, Senior Manager of Ørsted’s P2X (Power-to-X), provided an overview of the company’s green hydrogen development. Yadhati discussed ongoing international collaboration and hydrogen project constraints, including scale and commercial viability.

GreenTech Webinar Series sponsors are Intel Corporation, BNSF Railway, Marten, and Constellation Energy.

ELI at International Women’s Day and UN Water Conference

Globally, women face disproportionate impacts from climate change and water insecurity, while often being frontline stewards of water resources. Research has shown that gender-inclusive policymaking results in more resilient solutions. Since 2017, ELI has supported empowering women in water decisionmaking as a partner of the Women in Water Diplomacy Network, a program initiated by the Stockholm International Water Institute.

In March, the network elevated the intersectional issues of gender equality and water when ELI co-convened several side events during the UN Women’s Commission on the Status of Women and the UN 2023 Water Conference, both held in New York City.

On March 8, International Women’s Day, Elizabeth Koch, ELI’s senior manager of international programs, spoke at a side event for the UN’s 67th CSW. The event, “Strengthening Rural Women’s Capacity in Natural Resources Management Through Improved Data,” focused on the significance of and strategies for improving gender-disaggregated water data as part of policy design.

Koch discussed the network’s principles of feminist foreign policy, which encompass the “4 R’s”: women’s reality, rights, representation, and resource allocation. Gender-disaggregated data are necessary for each element, to understand and mitigate inequity, Koch said. “If you are doing a water project and not doing the gender assessment, which requires sex-disaggregated data, you are doing a poor job.”

Two weeks later, the network promoted its efforts at the UN Water Conference. Jessica Troell, director of ELI’s International Waters Program, and Koch co-convened four side events and gave presentations on water tenure and women’s rights.

The first event focused on national leadership for inclusive water governance and featured an announcement from the Food and Agriculture Organization launching a global dialogue on water tenure.

The second event focused on integrated policy solutions for sustainable management of freshwater biodiversity and highlighted the network’s work to promote integrated national water laws through evidence-based policy analyses.

The third event discussed the importance of inclusive water diplomacy processes and the connections between women, water, peace, and security. The fourth event focused on benchmarking efforts to monitor key gender indicators across water governance institutions.

Environmental Justice During Renewables Roll Out

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