Kenneth J. Markowitz Stacey H. Mitchell Dario J. Frommer Christopher A. Treanor January 16 2023 Climate change policy update: omnibus spending bill, Growing Climate Solutions Act and new EPA definition of US waters Akin Gump Strauss Hauer & Feld LLP | Environment & Climate Change - USA Kenneth J. Markowitz, Stacey H. Mitchell, Dario J. Frommer, Christopher A. Treanor Environment & Climate Change Omnibus spending billGrowing Climate Solutions ActClimate aid falls short of Biden's pledgeEPA redefines waters of the United States in effort to restore water protectionsEPA unveils new emissions rules for heavy-duty vehiclesNew guidance to disclose climate impacts in environmental reviewsEPA proposes rule to reduce soot emissionsNew York climate scoping planVirginia's joint commission objects to withdrawal from RGGIDepartment of Ecology updates plan for zero-emission vehiclesDEQ's advanced clean cars programmeNCUC issues order on carbon planAlternative transport, climate resiliency and air pollutionMinnesota's first possible carbon pipeline projectThis article outlines pertinent legal and policy climate change developments in the United States during the past week.(1)Omnibus spending bill On 29 December 2022, President Joe Biden signed a $1.7 trillion omnibus spending bill. The omnibus includes "modest increases for energy and environment agencies" and provides funding for more than 1,000 climate-related, congressionally directed projects.Growing Climate Solutions ActWith the support of the House Agriculture Committee chair, Representative GT Thompson, the omnibus text included the Growing Climate Solutions Act. The bill – which was introduced by Representative Abigail Spanberger and Senator Mike Braun – seeks to assist farmers in measuring and verifying greenhouse gas reductions through partnerships between third-party conservation vendors, farmers and the Department of Agriculture.Climate aid falls short of Biden's pledgeThe omnibus included $1 billion to assist vulnerable countries in addressing climate change, which falls short of President Biden's promise that, by 2024, the United States will devote $11.4 billion annually to ensure developing nations can transition to clean energy. While democrats advocated for the spending bill to include $3.4 billion for such global climate programmes, republicans objected to what they referred to as "radical environmental and climate policies".EPA redefines waters of the United States in effort to restore water protectionsOn 30 December 2022, the Environmental Protection Agency (EPA) announced a final rule regarding the waters of the United States that establishes which waterways are federally protected under the Clean Water Act. This move reverses the Trump administration's definition, which the EPA argues will "strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies, and downstream communities".EPA unveils new emissions rules for heavy-duty vehiclesThe EPA released new rules on 20 December 2022 that are the first update to heavy-duty vehicle clean air standards in over 20 years. The more stringent regulations are expected to see significant emissions reductions by 2045, including:a 48% reduction in nitrogen oxide;a 28% reduction in benzene;a 23% reduction in volatile organic compounds; andan 18% reduction in carbon monoxide.New guidance to disclose climate impacts in environmental reviewsThe White House Council on Environmental Quality issued its Guidance on Consideration of Greenhouse Gas Emissions and Climate Change. The guidance – directed by President Biden's Executive Order 13990 to protect public health and address climate change – seeks to support federal agencies as they assess and disclose climate impacts. Notably, the guidance:emphasises a "rule of reason" regarding the depth of climate analysis;outlines best practices for analysing climate-related effects;provides recommendations for contextualising climate impacts;suggests that agencies reduce greenhouse gas emissions;furthers environmental justice consideration in climate analyses; andbolsters environmental review efficiency.EPA proposes rule to reduce soot emissionsThe EPA released a proposed rule seeking to slash soot emissions. With the Trump administration previously rejecting stronger soot standards, the EPA determined that the current allowed levels of soot are taking an unacceptable toll and is planning to reduce limits "from an annual average of 12 micrograms per cubic meter of air to between 9 and 10 micrograms". Interestingly, EPA Administrator Michael Regan noted that the agency is still considering thresholds as low as eight micrograms and as high as 11 micrograms.New York climate scoping planOn 19 December 2022, New York's Climate Action Council, the Department of Environmental Conservation and the State Energy Research and Development Authority approved and adopted the New York State Climate Action Council Scoping Plan. The scoping plan, mandated by the Climate Leadership and Community Protection Act, outlines guidance for New York to meet its ambitious climate goals, including reducing greenhouse gas emissions from the 1990s levels by 40% in 2030 and by 85% in 2050. The scoping plan's recommendations will:provide the foundation to significantly reduce greenhouse gas emissions, drive critical building and transportation electrification, secure climate justice, and advance the State's commitment to economywide carbon neutrality by 2050 consistent with interim and long-term directives established in the Climate Act.Virginia's joint commission objects to withdrawal from RGGIVirginia's Joint Commission on Administrative Rules objected to Governor Glenn Youngkin's regulatory action to withdraw the commonwealth from the regional greenhouse gas initiative (RGGI). The Commission is statutorily authorised to suspend the effective date of an objected regulation with the approval of the governor. However, the legislative committee will not likely pursue such action as there will not be concurrence with Governor Youngkin. However, the commission may also send recommendations to the governor and the General Assembly regarding its regulation review.Department of Ecology updates plan for zero-emission vehiclesOn 19 December 2022, Washington's Department of Ecology updated its clean vehicles programme, requiring that "all new, light-duty vehicles sold in Washington meet zero-emission vehicle (ZEV) standards by 2035". This update follows the California Air Resources Board, as statute requires the Department of Ecology to "follow California's strong emissions standards for cleaner vehicles".DEQ's advanced clean cars programmeOn 19 December 2022, Oregon's Department of Environmental Quality updated the state's low emission vehicle/zero emission vehicle programme, which "requires auto manufacturers to deliver to Oregon a certain percentage of zero-emission passenger cars, SUVs, and light-duty trucks through the 2025 model year".NCUC issues order on carbon planUnder direction from House Bill 951, the North Carolina Utilities Commission (NCUC) released its carbon plan detailing a path forward to achieve a 70% reduction in carbon emissions from 2005 levels by 2030 and carbon neutrality by 2050. The carbon plan is the culmination of 31 days of expert witness testimony, five public hearings and nearly 500 consumer statements. The NCUC is statutorily required to review the carbon plan every two years and called on Duke Energy to release its updated carbon plan proposal on 1 September 2023.Alternative transport, climate resiliency and air pollutionAs the 2023 Washington State legislative session started on 9 January, lawmakers are expected to focus on implementation. With some of the state's cap-and-trade programme's revenue already dedicated to transportation, members are considering projects including alternative transportation, climate resiliency, and assisting communities suffering from the worst air pollution. Additionally, it is expected that legislators will debate the expansion of solar and wind energy. Finally, the 2023 session will revive a bill to increase recycling and reduce consumer plastic by placing more responsibility on the packaging industry.Minnesota's first possible carbon pipeline projectMinnesota's Public Utilities Commission determined that a proposed pipeline – slated to reach 28 miles – must be subject to an environmental review. While the project passed unanimously through its permit application, the environmental review will allow the public to comment and ask questions about the pipeline and how it might impact them.For further information on this topic please contact Kenneth J Markowitz, Stacey H Mitchell, Dario J Frommer or Christopher A Treanor at Akin Gump Strauss Hauer & Feld LLP by telephone (+1 202 887 4000) or email ([email protected], [email protected], [email protected] or [email protected]). The Akin Gump Strauss Hauer & Feld LLP website can be accessed at www.akingump.com.Leila Fleming, public policy specialist, assisted with the preparation of this article.Endnotes(1) For further updates, including upcoming congressional hearings, federal agency climate news and events, click here. For the previous week's update, click here.