First observed on April 22, 1970, Earth Day has long been recognized as a watershed moment for the modern environmental movement.  On that day, over 20 million demonstrators nationwide marched to raise awareness of the need to protect and preserve the environment.  The energy generated from that day galvanized the country to action, leading to the creation of the U.S. Environmental Protection Agency (EPA) in December 1970 and the passage of several statutes later that decade—including the Clean Air Act (CAA) the Clean Water Act (CWA), the Endangered Species Act (ESA), and the Resource Conservation and Recovery Act (RCRA)—that serve as the foundation of U.S. environmental legislation.  Today, Earth Day is recognized by countries around the world, and has expanded from its initial focus on pollution control to include elevating environmental justice in low-income, disadvantaged, and indigenous communities and promoting domestic and international climate action.

Beginning with a proclamation on April 19 declaring climate change to be “the existential crisis of our time,” the Biden-Harris Administration marked Earth Day and the week after by announcing a suite of final rules and grant programs aimed at fossil fuel abatement and pollution control, accelerating electric transmission grid modernization and solar energy development, and reducing greenhouse gas (GHG) emissions from the transportation sector.  These actions underscore not only the continued “whole-of-government” approach that the Administration has taken to combat climate change but also the urgency with which federal agencies have moved to promulgate final rules and protect them from potential congressional revocation ahead of the Congressional Review Act deadline later this spring. 

To assist industries and markets as they evaluate the impact of these final rules and programs, we’ve spotlighted several of these Earth Week regulatory and grant-funding actions.

Fossil Fuel Abatement and Pollution Control

Standards to Reduce Pollution from Fossil Fuel-Fired Power Plants.  On April 25, EPA announced four final rules aimed at reducing pollution from fossil fuel-fired power plants.

Final RuleAuthorityEffect
Greenhouse Gas Standards and Guidelines for Fossil Fuel-Fired Power PlantsSection 111 of the CAA (40 CFR Part 60)Repeals the Affordable Clean Energy (ACE) rule that was enacted by the Trump Administration in June 2019 and subsequently vacated by the D.C. Circuit in January 2021.   Sets new emissions standards to ensure that all coal-fired plants that plan to operate in the long-term and all new baseload gas-fired plants control 90 percent of their carbon pollution.  Significantly, the final rule does not set emissions guidelines for existing gas-fired plants, though the rule states that EPA “plans to expeditiously issue an additional proposal” to address these plants.
Mercury and Air Toxics StandardsSection 112 of the CAA (40 CFR Part 63)Strengthens and updates the Mercury and Air Toxics Standards (MATS) for coal-fired power plants by tightening the emissions standard for toxic metals by 67 percent and finalizing a 70 percent reduction in the emissions standard for mercury from existing lignite-fired plants.
Steam Electric Power Generating Effluent GuidelinesCWA (40 CFR Part 423)Strengthens the discharge standards for four types of wastewater generated by coal-fired power plants: flue gas desulfurization wastewater, bottom ash transport water, combustion residual leachate, and various legacy wastewaters.
Legacy Coal Combustion Residuals (CCR) Surface Impoundments and CCR Management UnitsRCRA (40 CFR Parts 9 and 257)Establishes regulatory requirements for the management of coal ash at inactive coal-fired power plants with unused surface impoundments and historical coal ash disposal areas at active coal-fired power plants.

Revised Procedures for Chemical Risk Evaluations Under the Toxic Substances Control Act.  In addition to these regulations targeting fossil fuel-fired power plants, on April 23, EPA issued a final rule amending the procedural framework rule for conducting chemical risk evaluations under the Toxic Substances Control Act (TSCA).  Promulgated under section 6(b)(4)(15) of TSCA at 40 CFR Part 702, the purpose of chemical risk evaluations is to determine if a chemical substance presents “an unreasonable risk of injury to health or the environment, without consideration of costs or non-risk factors.”  The final rule revises certain regulatory definitions and amends the process and requirements that manufacturers and importers of chemical substances must follow when requesting that EPA conduct a chemical risk evaluation.

Accelerating Electric Transmission Grid Modernization and Solar Energy Development

On April 25, the U.S. Department of Energy (DOE) announced two final rules aimed at streamlining the permitting and approval process for electric transmission projects and energy storage systems projects, such as solar and wind energy projects. 

  • Establishing the Coordinated Interagency Transmission Authorizations and Permits (CITAP) Program.  The CITAP Program establishes DOE as the lead agency for coordinating federal environmental reviews and permitting processes for electric transmission projects that are (1) used in interstate or international commerce and are expected to require an environmental impact statement, or (2) are approved by the DOE Grid Deployment Office.  The rule also sets a two-year deadline for DOE to issue permits and authorizations and enables developers to request that the President issue the appropriate permit if DOE does not adhere to that deadline, which DOE expects will cut the average permitting process for a transmission project by nearly half.  Alongside this final rule, DOE announced up to $331 million in funding from the 2021 Bipartisan Infrastructure Law to support a new transmission line from Idaho to Nevada.
  • Revising DOE’s National Environmental Policy Act (NEPA) Implementing Procedures.  The final rule adds a categorical exclusion for certain energy storage system projects and revises existing categorical exclusions for upgrading powerlines and for solar energy storage systems.  Under NEPA, a categorical exclusion is a category of federal actions that the implementing agency has determined does not individually or cumulatively have a significant effect on the human environment and therefore does not require the preparation of an environmental impact statement or environmental assessment.  By adding and revising categorical exclusions for energy storage systems and electric transmission projects, DOE aims to promote the development of and reduce the regulatory barriers associated with these projects.  This final rule comes just ahead of an expected “Phase 2” NEPA rule by the White House Council on Environmental Quality.

Separately, on April 22, EPA announced sixty selectees for funding under the Solar for All Grant Program, a $7 billion grant program established by the Inflation Reduction Act’s Greenhouse Gas Reduction Fund (GGRF) that is designed to deliver residential solar projects nationwide.  The Solar for All announcement comes on the heels of EPA’s earlier GGRF announcement on April 4 of three selectees for $14 billion of funding under the National Clean Investment Fund and five selectees for $6 billion of funding under the Clean Communities Investment Accelerator to create a national financing network for clean energy projects.

Reducing GHG Emissions from the Transportation Sector

On April 24, the Biden-Harris Administration set a national goal to transition the truck, rail, aviation, and marine freight sector to net-zero emissions.  The national goal operationalizes the global Drive to Zero Memorandum of Understanding, signed by the United States at COP27 in 2022, which commits signatory countries to enable 100% zero-emission new truck and bus sales by 2040 and sets an interim goal of 30% zero emission vehicle sales by 2030.  This builds on EPA’s action on March 29 finalizing new standards for greenhouse gas emissions from heavy-duty vehicles for Model Years 2027–2032.  As part of this national goal, the Administration announced the following actions:

  • Clean Heavy-Duty Vehicles Grant Program.  On April 24, EPA launched the Clean Heavy-Duty Vehicles Grant Program, a $1 billion program designed to fund the replacement of certain heavy-duty vehicles, including school buses and utility and delivery trucks, with zero-emission vehicles.  Entities will be able to apply for grant funds through two funding opportunities: the School Bus Sub-Program (70% of funding) for applicants that seek to replace school buses, and the Vocational Vehicles Sub-Program (30% of funding) for applicants replacing non-school bus heavy-duty vehicles.
  • Reduction of Truck Emissions at Port Facilities Grant Program.  On April 24, the U.S. Department of Transportation announced $148 million in grants to eleven states and Puerto Rico under the Reduction of Truck Emissions at Port Facilities Grant Program.  Established by the 2021 Bipartisan Infrastructure Law, the program aims to reduce pollution from idling trucks and upgrade port infrastructure to improve air quality at ports and surrounding communities. 
  • SuperTruck Charge Program.  OnApril 24, DOE issued a notice of intent to fund demonstration research, development, and demonstration projects for delivering charging infrastructure and grid integration of charging installations for medium- and heavy-duty electric vehicles.  Through the program, DOE will invest $72 million in qualifying projects, with a formal funding opportunity announcement expected in June 2024.

Looking Ahead

As has been the case with prior rules issued by EPA and other federal agencies related to reporting and controlling GHG emissions, these final rules may face legal challenges from regulated industries.  Still, the timing of these final rules insulates them from being overturned through the Congressional Review Act (CRA) if control of Congress and the White House changes as a result of the 2024 elections.  Under the CRA, a new Congress can overturn rules issued by the Executive Branch within 60 legislative days before the prior Congress adjourns by adopting a joint resolution of disapproval signed by the President.  You can find Covington’s analysis of the CRA and its impact on the Biden-Harris Administration’s regulatory agenda here.

Covington’s Environmental and Energy practices, as well as our unique Carbon Management and Climate Mitigation (CM2) initiative, have extensive experience and capabilities helping clients navigate complex environmental and energy regulatory requirements and understand how to best engage with grant-funding opportunities created by the 2021 Bipartisan Infrastructure Law and 2022 Inflation Reduction Act.  Follow Inside Energy & Environment for more updates and analysis of these Earth Week regulatory and grant-funding developments and future government climate action.

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Bradford McGann

Bradford McGann is an associate in the firm’s Washington, DC office, where he provides strategic advice to clients as a member of the firm’s Environmental and Energy Practice Group, the Environmental, Social, and Governance (“ESG”) Practice, and the Carbon Management and Climate Mitigation…

Bradford McGann is an associate in the firm’s Washington, DC office, where he provides strategic advice to clients as a member of the firm’s Environmental and Energy Practice Group, the Environmental, Social, and Governance (“ESG”) Practice, and the Carbon Management and Climate Mitigation industry group. Bradford’s work focuses on helping clients understand and navigate multijurisdictional climate-related financial disclosure requirements. He also provides regulatory compliance support for clients engaged in carbon-reduction, renewable-energy, and net-zero efforts. His pro bono practice focuses on issues of immigration and international human rights.

Photo of Gary S. Guzy Gary S. Guzy

Gary Guzy brings thirty five years of experience in environmental law, regulation, and public policy. He provides counsel to industry leaders in the transportation, energy, technology, and consumer sectors on emerging environmental and clean energy issues. He is skilled at creating strategic partnerships…

Gary Guzy brings thirty five years of experience in environmental law, regulation, and public policy. He provides counsel to industry leaders in the transportation, energy, technology, and consumer sectors on emerging environmental and clean energy issues. He is skilled at creating strategic partnerships that bring together diverse groups to resolve challenging public policy controversies through close work with industry and environmental community leaders. Mr. Guzy co-chairs the firm’s Energy Industry Group.

Mr. Guzy served as Deputy Director and General Counsel of the White House Council on Environmental Quality (CEQ). In this position, he helped develop and guide the Obama Administration’s environmental, public health, and clean energy agenda, bringing business insights to government policy and coordinating policy across government agencies. He spearheaded negotiations that achieved the Obama Administration’s agreement to double motor vehicle fuel efficiency standards and significantly cut greenhouse gas emissions with the support of automobile manufacturers, states, labor unions, environmental and consumer groups, and Congress. Mr. Guzy also led CEQ’s efforts to modernize permitting and environmental review under the National Environmental Policy Act, and counseled federal agencies on how to fulfill their NEPA obligations for dozens of high profile decisions and assisted in resolving NEPA controversies at numerous complicated sites.

Mr. Guzy served as General Counsel of the U.S. Environmental Protection Agency and Counselor to the EPA Administrator during the Clinton Administration. He was a member of the Administrator’s senior policy team, setting regulatory, legislative, and communications strategy. He led efforts to design regulatory approaches to protect children’s environmental health, develop and defend new air quality and motor vehicle standards, defend EPA from Congressional oversight investigations, and protect iconic ecosystems such as the Everglades and Yellowstone National Park. He also authored climate change opinions that were later ratified by the U.S. Supreme Court in its landmark decision finding that greenhouse gases are pollutants under federal law.

Mr. Guzy has also served as the chief legal officer, sustainability officer, and climate strategist for a variety of business organizations

Photo of Thomas Brugato Thomas Brugato

Thomas Brugato is special counsel in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean…

Thomas Brugato is special counsel in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean Water Act, RCRA, CERCLA, EPCRA, TSCA, FIFRA, the Endangered Species Act, and the Occupational Safety and Health Act.

Mr. Brugato has extensive experience with EPA’s Renewable Fuel Standard program. He also has particular expertise in advising companies on environmental-related issues arising in the context of product recalls (such as compliance with PHMSA’s hazardous materials transportation regulations), including recalls under NHTSA or CPSC jurisdiction. Finally, Mr. Brugato has significant experience advising clients on Indian law related issues, particularly relating to the Indian Gaming Regulatory Act and tribal sovereign immunity.

Photo of Jayni Hein Jayni Hein

Jayni F. Hein co-chairs the firm’s Carbon Management and Climate Mitigation industry group.

Jayni joins the firm after serving as Senior Director for Clean Energy, Infrastructure & the National Environmental Policy Act (NEPA) at the White House Council on Environmental Quality (CEQ).

During…

Jayni F. Hein co-chairs the firm’s Carbon Management and Climate Mitigation industry group.

Jayni joins the firm after serving as Senior Director for Clean Energy, Infrastructure & the National Environmental Policy Act (NEPA) at the White House Council on Environmental Quality (CEQ).

During her tenure at CEQ, she oversaw the Biden Administration’s ambitious environmental and clean energy agenda, leading work on low carbon projects and climate disclosure, and advancing the successful implementation of the Infrastructure Investment and Jobs Act (2021) and Inflation Reduction Act (2022).

Jayni has extensive experience advising clients on NEPA, Clean Air Act, and Endangered Species Act issues, as well as energy development on public lands. As the former senior political appointee spearheading work to revise NEPA regulations and issue guidance on climate change and greenhouse gas emissions, Jayni offers clients first-hand experience with infrastructure projects that require federal and state permits and authorization. She helps clients identify new funding opportunities and successfully advance clean energy and other infrastructure projects, including onshore and offshore wind, solar, hydrogen, transmission, semiconductor, and carbon, capture, sequestration, and utilization (CCUS) projects.

In addition, leveraging her government experience, Jayni advises companies and investors on ESG compliance and strategy in light of increased scrutiny of corporate climate and net-zero commitments. She advises clients on the legal and policy issues relating to ESG and climate-related regulatory requirements, investor demands, global reporting frameworks, and strategic business opportunities.

Clients benefit from her ability to creatively troubleshoot issues, establish relationships across government, and engage policymakers, industry, non-profit organizations, and other key stakeholders in constructive conversations around climate change, environmental justice, and corporate decarbonization goals.

Prior to CEQ, Jayni led energy and climate work at think tanks at NYU Law and Berkeley Law.

Photo of Carol Browner Carol Browner

Carol M. Browner brings nearly four decades of experience advising on environmental and energy policies affecting global energy, environmental, public health, and business matters.

She provides counsel to industry leaders in the energy, transportation, and consumer product sectors on regulatory matters, environmental impact…

Carol M. Browner brings nearly four decades of experience advising on environmental and energy policies affecting global energy, environmental, public health, and business matters.

She provides counsel to industry leaders in the energy, transportation, and consumer product sectors on regulatory matters, environmental impact issues, corporate sustainability approaches, and strategic partnership development to advance clean energy, ESG, and other business priorities.

Carol joins the firm after serving as Senior Counselor in the Sustainability practice of the Albright Stonebridge Group, a global strategy firm.

Carol served as Assistant to President Barack Obama and Director of the White House Office of Energy and Climate Change Policy, where she oversaw the coordination of environmental, energy, climate, transport, and related policy across the U.S. federal government. During her tenure, the White House secured the largest investment ever in clean energy and established the national car policy that included both new automobile fuel efficiency standards and first ever greenhouse gas reduction standards.

Carol is the longest serving Administrator of the Environmental Protection Agency. As Administrator, she adopted the most stringent air pollution standards in U.S. history; set the first fine particle clean air standard; and spearheaded the reauthorization of the Safe Drinking Water Act as well as the Food Quality Protection Act. Carol was known for working with both environmentalists and industry to set science-based public health protections while providing businesses important flexibilities in how to meet those standards. She worked across the agency to ensure a focus on protecting vulnerable populations and promote environmental equity.

Additionally, Carol serves on a number of boards of directors advising on environmental and energy issues, including as Chair of the Board of the League of Conservation Voters, as Chair of the Sustainability Committee of the Board of Directors for Bunge Limited, and as a Board Member of Innovyze.

Photo of W. Andrew Jack W. Andrew Jack

Andrew Jack has a diverse corporate and securities practice with clients principally in the energy, industrial manufacturing, technology and sports and entertainment industries. He regularly represents corporations, board committees, and other forms of enterprises in mergers and acquisitions, strategic alliances, financing activities, securities…

Andrew Jack has a diverse corporate and securities practice with clients principally in the energy, industrial manufacturing, technology and sports and entertainment industries. He regularly represents corporations, board committees, and other forms of enterprises in mergers and acquisitions, strategic alliances, financing activities, securities law compliance, corporate governance counseling, and executive compensation arrangements. Mr. Jack also co-chairs the firm’s Energy Industry Group.

Photo of Kevin Poloncarz Kevin Poloncarz

Kevin Poloncarz represents a broad range of clients on policy, regulatory, litigation, commercial, and enforcement matters involving air quality, climate change, and clean energy. He co-chairs the firm’s Environmental Practice Group and Energy Industry Group.

Mr. Poloncarz is ranked by Chambers USA among…

Kevin Poloncarz represents a broad range of clients on policy, regulatory, litigation, commercial, and enforcement matters involving air quality, climate change, and clean energy. He co-chairs the firm’s Environmental Practice Group and Energy Industry Group.

Mr. Poloncarz is ranked by Chambers USA among the nation’s leading climate change attorneys and California’s leading environmental lawyers, with sources describing him as “a phenomenal” and “tremendous lawyer.” He was named an “Energy & Environmental Trailblazer” by the National Law Journal in 2017 and was inducted as a Fellow of the American College of Environmental Lawyers in 2018.

He has extensive experience with California’s Cap-and-Trade Program, Low Carbon Fuel Standard (LCFS), Renewables Portfolio Standard (RPS), and is recognized as a leading advisor on carbon markets. He also assists energy-sector clients in obtaining and defending state and federal approvals for major projects throughout California.

Mr. Poloncarz also assists clients with the development and execution of legislative and policy strategies supporting decarbonization, including carbon capture and sequestration, low-carbon fuels, advanced transportation and energy storage, and is a registered lobbyist in California and Oregon.