Biden regulatory agenda previews busy period before election

The first half of 2024 looks likely to be one of the busiest regulatory periods of the Biden administration, according to rulemaking timeline targets released on Tuesday in the White House’s semi-annual rulemaking agenda.

The spring Unified Agenda, which was released about two months late, describes upcoming rules across the federal government, including at EPA, the Interior and Energy Departments and FERC.

The release showed a significant number of major rulemakings are slated to be finalized in spring 2024. The administration is closely watching the calendar, since any rule finalized later in 2024 could put the rule inside the timeframe for Congressional Review Act resolutions should Republicans win the White House and maintain or grow their power in Congress. (The cut-off date depends on how often Congress is in session; in 2020, it was Aug. 21.)

The dates identified in the Unified Agenda are goals rather than hard deadlines, and rulemakings frequently take longer than expected to complete. But it does highlight administration priorities for the coming year in key policy areas.

Climate change

Despite releasing the new power plant climate proposal, 2060-AV09, a little later than intended, EPA has moved up its target date for finalization. Last fall’s agenda projected a June 2024 date to finish; now EPA is gunning for April 2024. It’s not clear why the rule’s schedule advanced.

On methane, EPA continues to predict finishing sweeping new emissions requirements for the oil and gas sector by August. The rule, Reg. 2060-AV16, was first proposed in 2021 before EPA issued a supplemental proposal late last year. The Bureau of Land Management is targeting a September finalization date for its own separate methane rule applying to public lands, Reg. 1004-AE79. It's the second time the agency has tried to curb methane after an Obama-era rule was struck down.

On vehicles, although EPA proposed one rule covering light-duty vehicles and another covering heavy-duty trucks at the same time, the agency doesn’t appear to be keeping them on the same rulemaking track. The agenda projects finalizing the Phase 3 truck rule, Reg. 2060-AV50, in December. The rule covering light-duty vehicles starting in model year 2027, Reg. 2060-AV49, is projected to be finished in March 2024.

The Council on Environmental Quality aims to issue a final update to its climate guidance regarding greenhouse gas analysis under the National Environmental Policy Act in February, Reg. 0331-AA06. It issued interim guidance in January. A separate rule making broader changes to NEPA regulations known as the Phase 2 rule, Reg. 0331-AA07, has been under review at the Office of Information and Regulatory Affairs since January; the agenda indicates it will be proposed this month.

The Interior Department plans to finish a rule on leasing federal land for conservation and climate resilience purposes, 1004-AE92, by December 2023.

Air quality

EPA is optimistic about finishing its proposal to strengthen the National Ambient Air Quality Standard for particulate matter, Reg. 2060-AV52. The agency in January proposed lowering the limit from 12 micrograms per cubic meter to somewhere within a range of 9-10 micrograms. The agenda projects completing that rulemaking in October.

Lagging much further behind is EPA’s ozone NAAQS rulemaking, Reg. 2060-AV64, which now appears will be delayed until after the 2024 presidential election. The new agenda indicated a proposal will not be released until April 2024, with a final rule "to be determined," almost certainly not until 2025 at least. This rulemaking has proven troublesome. Some of EPA’s earlier work was delayed when the Clean Air Scientific Advisory Committee, a panel of outside experts that reviews EPA’s work on such rules, paused last year to study the underlying science. EPA’s internal staff recommended no change to the ozone standard — but then all but one CASAC member in March agreed it should be lowered dramatically. The panel just finalized that recommendation to EPA on Friday.

A separate review of the lead NAAQS, Reg. 2060-AU86, continues to be over the horizon, with no projected date for a proposal.

On ethylene oxide, EPA still plans to finalize recently proposed rules covering commercial sterilizers, Reg. 2060-AU37, and a large swath of chemical manufacturers, Reg. 2060-AV71, in spring 2024. At least one additional ethylene oxide rule is in the works, Reg. 2060-AV95, which will cover hospital sterilizers. A proposal is projected for February 2024 and a final rule in June 2025.

Water

EPA appears to be scrambling on Waters of the U.S. after the Supreme Court a few weeks ago significantly shrank the reach of federal water jurisdiction. The agency had been planning a follow-up rulemaking to address the Supreme Court’s ruling, but that has now been “withdrawn” from the Unified Agenda, and no rule has yet popped up to replace it. “At this time, the agencies will focus on implementing the January 18, 2023, final rule and [are] withdrawing this separate action as it is not being developed,” the entry said.

EPA is still on track to propose updates to the lead and copper rule, Reg. 2040-AG16, by September and to finalize it in October 2024.

PFAS

After proposing the first-ever federal drinking water standards for PFOA and PFOS, two of the "forever chemicals" contaminating the majority of Americans' drinking water, EPA is optimistic about its timeline to finish the rule. The law gives EPA until September 2024 to issue the final rule, but the agency is now projecting getting it out the door in January instead.

However, EPA is not moving quite as quickly on a rulemaking to list PFOA and PFOS as hazardous substances under the Superfund law, Reg. 2050-AH09. After issuing a proposal last summer, the new agenda pushes back the finalization target, from August 2023 to February 2024.

Meanwhile, EPA in April put out an Advanced Notice of Public Rulemaking about whether to list additional types of PFAS under the Superfund law, Reg. 2050-AH25. The comment period on that proposal just ended; the new agenda does not specify when EPA may issue additional rulemakings.

EPA continues to predict it will propose a rule listing four PFAS chemicals as hazardous under another law, the Resource Conservation and Recovery Act, Reg. 2050-AH26.

Energy efficiency

The agenda also laid out timelines for a series of looming energy efficiency rulemakings under the Energy Department that the Biden administration has called crucial to reducing costs for households and for cutting emissions from a range of appliances.

But Republicans on the Hill have criticized the administration’s various efficiency regulations as part of a broader anti-fossil fuel agenda, while manufacturers have called the actions burdensome given the amount of efficiency-related regulations the administration is pursuing at the same time.

The regulatory agenda on Tuesday provided some clarity into timelines for several key efficiency actions, including a closely watched rulemaking examining whether DOE should amend the efficiency standards for consumer water heaters. A proposed rulemaking, Reg. 1904-AD91, is expected some time this month.

Final action on a separate rulemaking, Reg. 1904-AD15, setting new efficiency standards for conventional cooking products, is slated for January 2024.

The Energy Department has come under fire from Republicans for its proposal setting new energy efficiency requirements for electric and gas cooking tops and ovens. House Republicans are slated to pass legislation, H.R. 1640 (118), this week that would prohibit DOE from finalizing or enforcing those standards. (A separate action on gas stoves by the Consumer Product Safety Commission is in the very early stages and does not yet appear on the agenda; House Republicans on Tuesday passed legislation, H.R. 1615 (118), that would bar the CPSC from banning gas stoves.)

The unified agenda also includes updates on several other efficiency rulemakings, including a separate proposal to potentially amend energy efficiency standards for dehumidifiers, Reg. 1904-AE61, that is poised for September, and another rulemaking to consider establishing initial energy efficiency standards for fans and blowers, Reg. 1904-AF40, that is expected in October.

Final action on another efficiency rulemaking, Reg. 1904-AD20, for non-weatherized gas furnaces and mobile home gas furnaces is also planned for October. And a finalized efficiency rule is also slated for November, Reg. 1904-AD99, for consumer clothes dryers and for December for clothes washers, Reg. 1904-AD98.

Final action on a rulemaking for microwave ovens is also set for July of this year, Reg. 1904-AE00.

FERC transmission rules

FERC has a proposal to improve regional transmission planning and cost allocation (Reg. 1902-AF87) and a separate rulemaking aimed at unclogging the lengthy queue of generators trying to connect to the grid (Reg. 1902-AG00), but both items are listed as “next action undetermined” on the agenda with a May 2024 date.

A proposal to modify incentives to keep utilities in organized power markets (Reg 1902-AF70) previously had a November 2023 final rule date, but is now listed as moving to the final rule stage by May 2024, according to the agenda.

The commission revised its regulations to provide incentives to utilities to invest in advanced cybersecurity technology and participate in cybersecurity threat information sharing programs, as directed by the bipartisan infrastructure law (Reg. 1902-AG03). The regulation will take effect on July 3.

FERC sought comments about the potential to issue a proposal to block utilities from recovering money from customers related to their spending on political and public relations campaigns (Reg. 1902-AF92). The commission separately proposed a duty of candor requirement that would ban utilities from submitting false or misleading information to the commission (Reg. 1902-AG04). But the agenda did not specify next steps for either of the items, with the rulemaking process continuing until May 2024.

FERC initiated a rulemaking to require transmission providers to submit one-time reports on how they assess their systems’ vulnerability to extreme weather (Reg. 1902-AF99), as well as a proposal to direct the nation’s reliability coordinator, the North American Electric Reliability Corporation, to come up with new rules governing how utilities should weatherize transmission against extreme hot or cold weather (Reg. 1902-AG01). The next actions for those items are undetermined, with the process continuing until May 2024, according to the agenda.

The commission could also issue a final rule on how grid operators should register wind, solar and other non-hydropower renewable resources that might otherwise be considered too small individually to have a significant impact on the grid (Reg. 1902-AF96).

Nuclear

The Nuclear Regulatory Commission has a proposal to update the process for environmental reviews for renewing operational nuclear plants licenses (Reg. 3150-AK32). The public comment period ended in May, with a final decision expected by April 2024.

The agency is expected to issue a final rule to amend its regulations to add cybersecurity requirements for certain nuclear facilities by January. (Reg. 3150-AJ64).

The NRC has proposed amending its regulations to add new emergency preparedness requirements for small modular reactors and other new technologies such as non-light-water reactors and non-power production or utilization facilities, with a final rule expected by July (Reg. 3150-AJ68)

Finance

The Securities and Exchange Commission has punted by six months its plans to finalize a contentious rule requiring corporations to publicly disclose their risks from climate change, Reg. 3235-AM87. In January, the Biden administration suggested it would be completed in April; now the agenda projects October. Republicans and some Democrats have attacked the rule as outside the SEC's mission, raising the specter of a "major questions" legal challenge to the eventual rule, but Chair Gary Gensler has defended it as part and parcel of the SEC's authority.

Flooding

The Federal Emergency Management Agency will propose a rule updating federal flood standards, Reg. 1660-AB12, changing how the agency defines the floodplain. That effort would roll in elements of the Federal Flood Risk Management Standard, which raises minimum elevation for actions that use federal dollars. FEMA is targeting a rollout this month.

FEMA will also issue an interim final rule clarifying how people can obtain federal aid after disasters. The regulation, Reg. 1660-AB07, broadly aims to address inequities that prolong recovery for people that face greater hardships such as lack of transportation or poverty. FEMA said it will improve access to home repair funds, reassess how FEMA processes insurance claims and eliminate requirements to apply for a Small Business Administration loan for additional assistance, among other provisions. That final rule is scheduled for October.