Environmental Protection Agency

On October 14, 2022, the EPA proposed revisions to the Clean Air Act’s New Source Review (NSR) permitting regulations.  These revisions would require facility owners/operators of all existing industrial facilities considered “major sources” to include “fugitive” emissions of air pollutants when determining whether a physical or operational change at their facility is a “major modification” which would need a major NSR permit before starting construction.  The permit would include required emission control measures to ensure that changes at the facility would not degrade air quality. “Fugitive emissions” are emissions that could not reasonably pass through a stack, chimney, vent, or similar opening. 

As part of this action, the EPA has reconsidered a 2008 rule that requires only certain types of industrial source categories to include fugitive emissions when determining whether a change is a major modification.  In response to a 2009 petition for reconsideration of the 2008 Fugitive Emissions rule, EPA stayed the rule’s effectiveness and later amended portions of the agency’s NSR regulations to reflect earlier requirements. To bring closure to the reconsideration proceeding, the EPA is proposing to fully repeal the 2008 rule by removing certain remaining stayed provisions of the regulations adopted in 2008. EPA also is proposing to remove a related exemption for modifications that would be considered major solely due to the inclusion of fugitive emissions. As a result of the proposed changes, all existing major stationary sources would be required to include fugitive emissions in determining whether a project is a major modification. These changes would more effectively carry out the purposes of the NSR program to preserve and/or improve air quality and will provide greater clarity to all stakeholders.

On October 1, 2021, the Environmental Protection Agency released its FY 2022-2026 Strategic Plan Draft. EPA’s strategic plans are meant to communicate the agency’s priorities and provide a roadmap for achieving its them. The first-listed goal in the Draft Plan is to “[t]ackle the climate crisis,” which the Draft Plan breaks down into three separate objectives:

  • Objective 1.1: Reduce Emissions that Cause Climate Change
  • Objective 1.2: Accelerate Resilience and Adaptation to Climate Change Impacts
  • Objective 1.3: Advance International and Subnational Climate Efforts

The Draft Plan includes information on strategies and long-term performance goals pertinent to each objective. It also emphasizes that “[p]olicies to tackle climate change must address the disproportionate vulnerability of low-income communities and communities of color while also dealing with the legacy pollution those communities continue to endure.” This Draft Plan contrasts with EPA’s Strategic Plan for Fiscal Years 2018-2022, which made no mention of climate change.

2021 Climate Adaptation Action Plan

On October 7, 2021, twenty-three federal agencies released plans detailing how they will adapt to climate change and increase resilience to climate change impacts. The plans include a variety of resiliency and adaptation measures, including steps to develop a more resilient supply change, to enhance protections for workers and communities, and to increase climate literacy and leadership within Federal agencies. The climate adaptation and resilience plans were previously submitted to and reviewed by the National Climate Task Force, White House Council on Environmental Quality’s Federal Chief Sustainability Officer, and the Office of Management and Budget. President Biden mandated these plans in his January 27, 2021 Executive Order on Tackling the Climate Crisis at Home and Abroad.

Clean Air Act Regulations:

On March 11, 2024, EPA issued a final rule requiring facilities that store hazardous chemicals to consider, and plan for, the increased risk to their facilities caused by climate change. The Clean Air Act requires EPA to adopt regulations that minimize the risk of accidental releases of hazardous pollutants (see 42 U.S.C. § 7412(r)). Under this authority, EPA has long maintained a Risk Management Program ("RMP"), which regulates facilities which store substances that could cause hazardous pollution if released. These facilities "are required to assess their potential release impacts, undertake steps to prevent releases, plan for emergency response to releases, and summarize this information in a risk management plan" which is submitted to EPA. 

On August 31, 2022, EPA proposed a number of amendments to the RMP "to improve chemical process safety; assist in planning, preparedness, and response to [RMP]-reportable accidents; and improve public awareness of chemical hazards at regulated sources." Among other changes, EPA's proposed rules would require chemical facilities to explicitly discuss and plan for "external events such as natural hazards, including those caused by climate change or other triggering events that could lead to an accidental release." EPA's proposed rule cites a recent study by the Center for Progressive Reform, EarthJustice, and the Union of Concerned Scientists, which indicates that one-third of RMP facilities are at risk of climate-related events, such as wildfire, flooding, hurricane storm surge, and/or coastal flooding.

The final rule requires chemical facilities to assess, and plan for, impacts on their facilities from external events such as natural hazards. The final rule then defines "natural hazards" as "meteorological, climatological, environmental or geological phenomena that have the potential for negative impact, accounting for impacts due to climate change." This rule, as finalized, aligns with the recommendations of climate advocates and scholars concerned about the increasing risks that climate change may pose for chemical facilities. 

Clean Water Act Regulations:

On March 28, 2024, the U.S. Environmental Protection Agency (EPA) issued a final rule requiring facilities that may become major sources of water pollution to plan for the impact of climate change. Under the Clean Water Act, EPA requires facilities that have the potential to cause major pollution to submit plans that include discharge detection systems, evacuation plans, response actions, and containment measures, among other things. Among other changes, the new rule embeds consideration of climate-related risks into regulatory requirements for RMPs. The CWA, as amended, defines the worst case discharge for a facility as “the largest foreseeable discharge in adverse weather conditions.”

The new rule amends the definition of "adverse weather" to mean "weather conditions that make it difficult for response equipment and personnel to clean up or respond to discharged CWA hazardous substances, accounting for impacts due to climate change, such as the increased frequency and intensity of extreme weather events, temperature fluctuations, rising seas, storm surges, inland and coastal flooding, drought, wildfires, and permafrost melt in northern areas and that must be considered when identifying response systems and equipment in a response plan for the applicable operating environment."

In addition, the new rule requires EPA regional administrators to assess facilities' vulnerability to, and adaptation around, climate change risks when identifying potential sources of major pollution that will be required to submit RMPs.