UPDATE: April 6, 2021: The U.S. Court of Appeals for the District of Columbia Circuit threw out a rule on Monday meant to delay implementation of 2016 landfill methane emission guidelines. The U.S. EPA asked the court in March to vacate the rule in order to review it and other environmental rules set during the Trump administration.
- The Biden administration will review the U.S. EPA's contentious Emission Guidelines for Municipal Solid Waste Landfills (EG) regulation that has been stalled in legal battle for several years, a hint that the new administration may aim to speed the implementation process.
- The 2016 regulation set forth emission guidelines for certain MSW landfills to limit greenhouse gas emissions, directing states to submit plans for complying with the emissions rules, and the EPA to create a federal plan to cover states that do not create their own.
- President Biden announced the review through an executive order on his first day in office, signaling his administration wants the EPA to put states “back on the clock for getting their rules done” and prompt the EPA to move forward with issuing its federal plan, said Pat Sullivan, senior vice president at SCS Engineers.
The executive order is the latest development in a long legal battle over the EG rule. Though it’s not clear when the states and the EPA would be required to finalize their compliance plans, the Biden administration’s inclusion of this landfill emissions rule in its executive order signals the EPA’s window for further delaying implementation could be closing, Sullivan said.
Addressing climate change is a major part of President Biden’s agenda, and landfills are a significant source of methane emissions and a major contributor to global warming, according to the Intergovernmental Panel on Climate Change. Gina McCarthy, who was EPA administrator when the original rule came out in 2016, is back under Biden as a national climate advisor.
The EG rule applies to more than 1,900 MSW landfill sites in the United States and encompasses any MSW landfills that have accepted waste since Nov. 8, 1987. A separate New Source Performance Standards rule applies to any MSW landfills constructed since July 17, 2014.
The EG rule requires states to develop their own implementation plans for compliance, but initial plans were only submitted by regulators in Arizona, California, Delaware, New Mexico and West Virginia. Other state agencies have said they are unsure about whether to submit their own plans or wait for a future federal plan.
Under the Trump administration, the EPA sought to delay finalizing its federal landfill emissions plan and put off approval of any state plans. Industry associations and companies have supported the EPA’s request for a delay, in part because of confusion over what the rules could mean for landfill costs and operations. The National Waste & Recycling Association, one of the industry players that initially sought to challenge the regulations, declined to comment.
Attorneys general from eight states, along with the Environmental Defense Fund, have challenged the delay in court, but the latest ruling from the Ninth Circuit Court of Appeals sided with the EPA's appeal in October. The plaintiffs challenged that decision by asking for a stay in December, but a federal judge denied the request on Jan. 19.
The landfill emissions regulation is one of about 100 included in Biden’s executive order. The list encompasses regulations and other executive actions issued by the Trump administration, and about half of the agency actions listed for review fall under the scope of the EPA. The list also includes two rules related to the disposal of coal ash from electric utilities.
Kevin Minoli, a former senior official in EPA’s Office of General Counsel, said in a statement that the list “should not be viewed as the death knell” for the EPA actions listed. He anticipates the Biden administration will take “appropriate action” on each item, allowing those regulated to weigh in on what that action could look like.