Clean Air Archives - Energy, Chemical & Environmental Trends Watch

Climate Change Environmental Groups Challenge President’s Executive Orders to Expand Energy Development

Margaret Anne Hill, Frank L. Tamulonis III, Stephen C. Zumbrun, and Melissa A. Scacchitti ●

We previously reported that President Trump issued a series of executive actions to fulfill his pledge to advance the United States’ domestic energy economy. These executive actions, such as President Trump’s Executive Orders Unleashing American Energy, Declaring a National Energy Emergency, and Reinvigorating…[the] Coal Industry…., now face legal challenges from environmental groups, led by Our Children’s Trust, a nonprofit law firm that exclusively represents youth plaintiffs against state and federal governments.^[1] Presently, Our Children’s Trust seeks to enjoin these orders from taking effect because of their potential impact on climate change in the youths’ future. This post will provide a brief overview of the litigation and its pending timeline.

Unleashing American Energy: Trump Administration’s Latest Executive Orders

Margaret Anne Hill, Frank L. Tamulonis III, Melissa A. Scacchitti, and Stephen C. Zumbrun ●

New Executive Orders and Proclamation

On April 8, 2025, President Donald J. Trump issued three significant executive orders (“EOs”) and a fourth proclamation consistent with his pledge to “Unleash American Energy.” These Presidential actions, titled (1) Strengthening the Reliability and Security of the U.S. Electric Grid, (2) Protecting American Energy from State Overreach, (3) Reinvigorating America’s Beautiful Clean Coal Industry, and (4) Regulatory Relief for Certain Stationary Sources to Promote American Energy, seek to promote domestic oil, gas, and coal energy production. Each of these actions is discussed below.

Strengthening the Reliability and Security of the U.S. Electric Grid, EO 14262

This EO directs the Secretary of Energy to streamline emergency processes and to develop a uniform methodology for analyzing reserve margins across all regions of the bulk power system. The stated needs for the EO include aging infrastructure, increased need for electricity, and demand for energy use by datacenters.

SCOTUS Declines to Review California’s Clean Air Act Preemption Waiver—Current Implications and Expected Response from the Incoming Administration

Sedalia E. Jones-Kennelly ●

Update and Background

The U.S. Supreme Court, in Diamond Alternative Energy, LLC v. EPA, et al,[1] recently declined to review whether the Environmental Protection Agency (“EPA”) exceeded its authority by granting a preemption waiver for California’s greenhouse-gas emission standards and zero emission-vehicle mandate.[2]

Under the Clean Air Act (“CAA”), “emission standard” refers to the legal limit on the amount of a specific air pollutant that can be released from a source, like a vehicle or factory.[3] CAA Sections 209(b) and 209(e) permit the State of California to request a waiver or authorization from federal preemption of state-level regulatory programs for certain vehicle emissions.[4] The EPA must grant the CAA waiver before California’s rules may be enforced.[5]

Petitioners—a group of states led by Ohio and various fuel industry organizations led by American Fuel & Petrochemical Manufacturers—asked the Court to review the D.C. Circuit Court’s April 2024 decision siding with the EPA. The Circuit Court had found that some petitioners lacked standing to pursue these claims, while others failed on the merits, and upheld the Agency’s authority to grant California this waiver.

The Supreme Court Ends Chevron Deference—What Does This Mean for Environmental Regulation and Enforcement?

Margaret Anne Hill, Frank L. Tamulonis III, and Holli B. Packer ●

The Supreme Court of the United States’ recent ruling in Loper Bright Enterprises v. Raimondo[1]dealt a significant blow to the power of federal agencies by ending the 40-year-old precedent commonly known as “Chevron deference.” Loper has now removed the judicial mandate that courts apply “Chevron deference” and defer to agencies on the interpretation of ambiguous language in laws pertaining to their authority. While it is unclear what impact this ruling will have in environmental enforcement cases as well as environmental regulations, federal judges will now have the power to decide what a law means for themselves, expanding the federal bench’s role in enforcement actions and policymaking.

The Chevron Deference Doctrine

The “Chevron deference” doctrine refers to the Supreme Court’s ruling in Chevron v. Natural Resources Defense Council,[2] which required judges to defer to federal agencies when interpreting ambiguous parts of statutes that those agencies administer. If Congress did not directly address a debated issue, a court was required to uphold the agency’s interpretation of the statute as long as it was reasonable.

The Chevron doctrine involves a two-step test.[3] In the first step, courts determine if Congress has spoken to the “precise question at issue.”[4] If the statute is ambiguous, courts move to step two.[5] However, “if the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”[6] In the second step, courts defer to the agency as long as their interpretation of the statute is reasonable.[7] Reasonableness is not a high bar. Typically, if a court finds the statute to be ambiguous, the agency’s interpretation will receive deferential preference. At the time of the holding, the Chevron doctrine marked a jurisprudential shift in the interpretive power of the courts, which have historically determined “what the law is,”[8] to agencies in the executive branch.[9]

EPA’s Focus on Ethylene Oxide

Margaret Anne Hill, Holli B. Packer, and Robert P. Scott ●

The Environmental Protection Agency issued a final rule on March 14 that will require significantly reduced emissions from commercial facilities that sterilize medical devices and other equipment using ethylene oxide gas (“EtO Rule”). The EtO Rule amends the National Emission Standards for Hazardous Air Pollutants (“NESHAP”), 40 C.F.R. Part 63, Subpart O, and is projected to reduce EtO emissions by over 90 percent nationwide for commercial sterilizers. The impetus for the Rule is a complaint filed by Earthjustice on December 14, 2022, in which the non-governmental organization (“NGO”) requested both injunctive and declaratory relief based upon its claim that the Environmental Protection Agency (“EPA”) had violated Section 112(d) of the Clean Air Act for the past 16 years by failing to review and revise air toxics standards for commercial sterilizers.

Emissions Controls and Reporting

The EtO Rule imposes strengthened standards for EtO emissions from the proposed rule following the receipt of public comments. It requires continuous emissions monitoring and quarterly reporting for most commercial sterilizers to ensure that emissions are controlled. Notably, the EtO Rule establishes revised standards for existing sources such as sterilization chamber vents and aeration room vents, as well as for previously unregulated emissions that escape via building leaks and chamber exhaust vents.

Climate Change Litigation—State Tort Cases Move Ahead

Margaret Anne Hill and Stephen C. Zumbrun ●

Climate change-related litigation has been increasing in the United States for the past several years. Not only have the actual number of these types of cases increased, but the claims raised in these cases have been expanding—from state tort claims (nuisance, trespass, and negligence) to federal and state constitutional claims. These cases have been slowly working their way through the legal system, with a major consideration being: Should these cases be in state court, involving state tort claims, or federal court, involving federal statutes or federal common law, because of the major national policy implication of climate change that these cases have the potential to affect?

The Hydrogen Color Wheel: A Primer

Frederick M. Lowther ●

The international dialogue about climate change and the “net zero” world now includes a focus on hydrogen as an abundant source of energy useful in myriad ways (refining, fertilizer production, motive power, etc.) with potentially zero climate-harmful emissions. For those of us who took Chemistry 101 in high school, we know that hydrogen is by far the most abundant element in the Universe, representing an estimated 70 to 75 percent of all known matter. While that is an awesome number (giving rise to the common student question “How do we know that?”), the fact is that, here on Earth, hydrogen does not exist as a “free” gas—it is present here only in combination with other elements, notably oxygen, carbon, and nitrogen. Thus, to capture hydrogen for use in multiple applications, it must be separated from the paired substances (most commonly water (H₂O) and natural gas (CH₄)).

In the discourse around capturing hydrogen as a free gas, a color-coding terminology has emerged that rivals a paint store. I call it the “hydrogen color wheel” and it is the source of much confusion. While each of the color “codes” involves a somewhat detailed explanation, my goal in this post is to keep the detail short and within understandable limits.

The Beginning of the End of the Internal Combustion Engine? California to Phase Out Gas-Powered Vehicles by 2035

Robert C. Levicoff ●

A leader in stringent auto emission regulations, the State of California recently took additional steps in its effort to further protect the environment. On August 25, 2022, the California Air Resources Board (“CARB”) voted to require all new cars and light trucks sold in the state to be “zero-emission” by 2035.^[1] The plan, officially known as the CARB Advanced Clean Cars II rule, was originally introduced via executive order by Gov. Gavin Newsom nearly two years ago.^[2]

The plan mandates that “[i]t shall be a goal of the State that 100 percent of in-state sales of new passenger cars and trucks will be zero-emission by 2035. It shall be a further goal of the State that 100 percent of medium- and heavy-duty vehicles in the State be zero-emission by 2045 for all operations where feasible and by 2035 for drayage trucks. It shall be further a goal of the State to transition to 100 percent zero-emission off-road vehicles and equipment by 2035 where feasible.”^[3]

Supreme Court Limits EPA’s Authority under the Clean Air Act

Margaret Anne Hill, Frank L. Tamulonis III, and Stephen C. Zumbrun ●

After seven years, three presidential administrations, and two appearances before the Supreme Court, the Obama Administration’s “Clean Power Plan” (“CPP”)—a Clean Air Act regulation designed to limit carbon emissions from existing coal-fired power plants (and later revised by the Trump-era “Affordable Clean Energy” (“ACE”) rule)—was struck down by the Supreme Court on June 30, 2022. See West Virginia et al. v. Environmental Protection Agency et al., No. 20-1530.

Relying on Section 111(d) of the Clean Air Act (“CAA”), the Environmental Protection Agency’s (“EPA’s”) CPP set a carbon emission limit that was essentially unattainable for existing coal-fired power plants. Consequently, EPA determined that the “best system of emission reduction” for carbon from these plants was to cause a “generation shift” from higher carbon emitting coal-fired sources to lower-emitting sources, such as natural gas plants or wind or solar energy facilities. Compliance with the CPP would have required a plant operator to: (1) reduce the amount of electricity the plant generated to reduce the plant’s carbon emissions; (2) build a new natural gas plant, wind farm, or solar installation, or invest in someone else’s existing facility and increase generation there; or (3) purchase emission allowances as part of a cap-and-trade regime. See West Virginia at 8.

December 1, 2020: Live CLE Webinar “The Energy Industry after the Election: What to Expect in 2021 and Beyond”

The energy industry has been at the forefront of the 2020 election, and energy development is an issue that polarizes Americans and our businesses and political leaders in choosing the path for the future. Energy developments are inextricably linked to our economy and national security, and the decisions and policies that will be implemented over the next four years are critical to the nation and our participation and role in world affairs.

Please join us for the webinar, The Energy Industry after the Election: What to Expect in 2021 and Beyond, on Tuesday, December 1, 2020, from 12:00 p.m. to 1:30 p.m. EST, where thought leaders from Blank Rome LLP and Blank Rome Government Relations LLC will provide their perspectives and insights on the following post-election topics:

The energy agenda of 117th Congress
- Tax incentives
- Hydraulic fracturing
- Renewables
- Climate change
The energy priorities of the next presidential administration
- Energy policy
- Regulatory developments impacting energy development and growth
- Impacts of climate litigation and the ESG movement
Transactions and energy development: Impact of the election on the markets

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New Executive Orders and Proclamation

Strengthening the Reliability and Security of the U.S. Electric Grid, EO 14262

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