Aug 11, 2021

Clean Air Act: The Status of EPA’s Associated Litigation

The current leadership of the U.S. Environmental Protection Agency (“EPA”) used the remaining time in Trump administration to alter the criteria for evaluating scientific studies used to enact public health policy, change the methodology for conducting oil and gas tank inspections, and finalize more rollbacks of environmental protections. The changes made during these last weeks are mostly formal finalizations of rule changes presented earlier during the administration’s tenure. Many of these changes are likely to be challenged by the incoming Biden administration, the large numbers of changes to environmental policy made in recent years mean there may be delays and/or complications involved in restoring policy to where it was before Trump took office.


EPA Finalizes Scientific Studies Data “Transparency” Rule

The EPA also finalized a plan it says will improve the “credibility” of science by increasing scrutiny of the types of scientific studies used to create public policy. The Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information Rule, as it is known, says only those scientific studies that make all of their underlying data and models public can be considered in crafting public policy. These “pivotal” studies are to be deemed more important than the studies with confidential data. The EPA claims independent verification of research is crucial and that this evaluation cannot be properly completed without all of the data being made public. Though earlier versions of this rule applied to a range of scientific studies, this finalized version only sets requirements for “dose-response” studies.

Owners and operators of large fuel tanks (also known as volatile organic liquid storage vessels) will now be able to conduct tank inspections without first emptying or degassing the containers. This change is of particular interest in the wake of the COVID-19 pandemic related shutdowns because the global oil surplus has placed a premium on storage space. The agency says the new inspection methodology involves less venting and flaring than the old process, which means a reduction in Volatile Organic Compound (“VOC”) emissions. However, the change comes in response to complaints from tank owners and operators, who say regulations governing the inspection process (known as the New Source Performance Standards) are burdensome and time-consuming for them, particularly in the context of oil surpluses. The original announcement of changes was made in October and met with praise from industry groups. The final changes should affect approximately 3,500 fossil fuel manufacturing facilities and bulk stations across the country.

nact them, will be a formidable task for the incoming administration. Though it is likely many or most of the policies will be reversed, it is not clear how long the process will take.

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