As the Biden administration enters its final weeks, EPA continues to press forward on some fronts, while relinquishing on others to incoming President-elect Donald Trump.
In a decision issued Monday that marks the latest twist in a see-saw regulatory battle, the agency rejected an industry coalition’s petition to scrap toughened safeguards against accidental releases of dangerous air pollutants from refineries, chemical plants and thousands of other operations that must file plans to manage those risks.
In the petition, the coalition, whose members include the U.S. Chamber of Commerce, the American Chemistry Council and the American Fuel & Petrochemical Manufacturers, wrote that the more stringent regulations impose “multiple unlawful and highly prescriptive mandates that undermine the performance-based flexibility that is the linchpin of process safety.” Besides rescinding the rules, the coalition asked EPA to freeze implementation.
In a thumbs-down that marked one of his last official acts, however, ex-EPA Administrator Michael Regan found that the petition “fails to identify any information or circumstances that warrant mandatory reconsideration.”
The rejection clears the way for proceedings to resume in a lawsuit brought last year by coalition members before the U.S. Court of Appeals for the District of Columbia Circuit. But with Trump set to take office Jan. 20, they could also ask his administration to revisit the regulations.
It was a tactic used successfully during Trump’s first term, when EPA largely rolled back an earlier bid to tighten a similar batch of requirements issued in the final days of President Barack Obama’s second term.
American Chemistry Council spokesperson Scott Jensen said Thursday the coalition is already working on a letter to Trump’s transition team that will request a start to a new rulemaking process. While Jensen did not have a specific timetable, “obviously we want it to go over to them as soon as possible,” he said in a phone interview.
Elsewhere, the Biden administration is already yielding`sway to its successor.
Late last month, EPA signaled that it is ending plans for now both to widen the geographic reach of its latest good neighbor smog control framework and tighten emission standards on large trash incinerators that may be located near people of color and low-income communities.
The final versions of both rules had been under review by the White House regulations office since September, with a goal of completing work before the year’s end. Instead, both have now been withdrawn, according to notices posted on a government tracking website.
Asked earlier this week about the reasons for the withdrawals, EPA spokesperson Nick Conger in an email noted that only recently amended consent decrees in litigation with environmental groups pushed back the respective deadlines to finalize both rules.
“EPA will continue working on these Clean Air Act actions,” Conger said in an email.
For the update to the incinerator standards, the new due date falls near the end of this year.
Under an earlier EPA proposal, the rule would have toughened New Source Performance Standards and emissions guidelines for dozens of large municipal incinerators that are sources of smog-forming nitrogen oxides, lead, mercury and other pollutants.
The new December 2025 deadline means that almost another year will pass before EPA updates standards that have remained largely unchanged since 1995.
Filings in the litigation before the U.S. District Court for the District of Columbia do not explain why the challengers, led by the California-based East Yard Communities for Environmental Justice, agreed to the delay. An Earthjustice attorney representing them could not be reached for comment.
Under the Clean Air Act’s good neighbor provision, states are barred from allowing smog-forming pollution from power plants and other industries that contributes to downwind compliance problems outside of their borders.
The original good neighbor framework, issued in March 2023, initially applied to 23 states. It aims to ensure nationwide compliance with EPA’s 70 parts per billion limit for ground-level ozone, a lung-damaging compound that is the main ingredient in smog.
Under the proposed expansion issued a year ago, EPA sought to add Arizona, Iowa, Kansas, New Mexico and Tennessee to a cap-and-trade program to cut power sector emissions of nitrogen oxides.
Since then, the agency has stayed implementation of the original 23-state good neighbor plan in response to a Supreme Court ruling.
“We decided from our part" that "it didn’t make sense for EPA to finalize” the proposed expansion that would then immediately be stayed, Sierra Club senior attorney Zachary Fabish said in an interview. Previously due in November, the final version must now be completed by February 2026.
Asked whether he has any concerns about the Trump administration’s follow-through, Fabish said “the law requires something to be done.” Otherwise, he added, the environmental advocacy group will be at the forefront "of making sure that EPA and the states are following through on their obligations."
