OVERNIGHT ENERGY: EPA finalizes rule allowing some major polluters to follow weaker emissions standards | Trump executive order seeks to use Defense Production Act to bolster mining | Asbestos ban stalls in Congress amid partisan fight

HAPPY THURSDAY! Welcome to Overnight Energy, The Hill’s roundup of the latest energy and environment news. Please send tips and comments to Rebecca Beitsch at rbeitsch@digital-stage.thehill.com. Follow her on Twitter: @rebeccabeitsch. Reach Rachel Frazin at rfrazin@digital-stage.thehill.com or follow her on Twitter: @RachelFrazin.

CLICK HERE to subscribe to our newsletter.

ONE DAY YOU’RE IN, AND THE NEXT DAY YOU’RE OUT: The Environmental Protection Agency (EPA) on Thursday finalized a rule that could reclassify many “major” sources of pollution as minor ones, allowing facilities to abide by less-stringent emissions standards for dangerous substances such as mercury, lead and arsenic.

The reclassification changes a 1995 rule that for decades has held major emitters to tighter standards even if their operators have taken actions to reduce their pollution — a policy known as “once in, always in.”

The agency estimated that the changes will result in up to 1,258 tons per year of additional emissions of hazardous air pollutants.

John Walke, a senior attorney with the Natural Resources Defense Council, said the rule would allow corporations to emit more of “some of the most potent carcinogens and neurotoxins” they’ve successfully reduced.

“It’s especially outrageous because it’s 100 percent gratuitous: these are plants that have been complying with 95 to 98 percent reduction obligations, with already-installed [pollution] controls, for decades. It’s the triumph of extreme ideology over public health, common sense and the law,” he said.

The rule allows major sources to become reclassified if they now meet the hazardous air pollutants guidelines in place for the smaller “area” polluters — producing 10 tons per year or less of a single toxin, or 25 tons a year for facilities that emit multiple toxins.

The EPA argues that the current policy reduces incentives for facilities to limit their air pollution while rescinding it encourages them to do so. 

“Today’s action is an important step to further President Trump’s regulatory reform agenda by providing meaningful incentives for investment that prevents hazardous air pollution,” said EPA Administrator Andrew Wheeler in a statement, adding that the rule “will end regulatory interpretations that discourage facilities from investing in better emissions technology.”

But critics say facilities that have been ordered to reduce pollution anywhere from 90 to 99 percent may now emit well below the 10 ton and 25 ton threshold, so cutting back on the use of expensive controls could lead their emissions to skyrocket.

“Is industry going to try and save money and pollute more or spend more money and pollute less? I think that question answers itself,” Walke said, accusing Wheeler of “magical thinking.”

When it first proposed the rule, the EPA estimated that about 3,900 emitters could be reclassified and subjected to weaker standards than before.

The finalized version doesn’t provide an explicit estimate of how many facilities may reclassify, saying “the unique nature of each source’s decision process makes it difficult for the EPA to determine the number and type of sources that may choose to reclassify under this rule.”

It added that there are a total of 7,183 facilities currently subject to the major source standards.

Read more about the final rule here. 

MINE! MINE! MINE! A new executive order from President Trump seeks to use the Defense Production Act — the law Democrats urged the president to use to mass produce equipment during the height of the COVID-19 pandemic — as a way to bolster the domestic mining industry.

The order, issued late Wednesday, offers more messaging than substance, railing against China and warning the country could cut off access to critical minerals used in technology ranging from iPhones to medical equipment.

“A strong America cannot be dependent on imports from foreign adversaries for the critical minerals that are increasingly necessary to maintain our economic and military strength in the 21st century,” Trump wrote in the order. 

The executive order largely directs departments to continue studying critical minerals and calls for a few new reports — efforts that are already underway in the Trump administration.  

But Trump also directs the Department of the Interior to consider using the Defense Production Act, one of the most direct interventions yet for an administration that has rolled back numerous environmental laws that could slow mining. 

“As a macro political thing it’s ridiculous that the president still won’t actually use the Defense Production Act for things like PPE that could actually save lives and instead, is invoking it for this very obvious political stunt to show he’s pro mining,” said Brett Hartl, chief political strategist for the Center for Biological Diversity Action Fund, in reference to personal protective equipment.

The 1950 Act, passed at the start of the Korean War, authorizes the president to force businesses to manufacture materials or products deemed necessary for the safety of the nation.

Democrats called on Trump to use the legislation to mass produce items necessary to combat the coronavirus when the outbreak began in the United States in March.

Trump issued the Wednesday order after holding a campaign rally in Duluth, Minn., near the Boundary Waters Canoe Area that has been eyed to expand mining for its nickel and copper reserves — neither of these are critical minerals.

Hartl said using the act to spur mining is both an unreasonable and unnecessary step that would interfere with free markets.

“It is all based on at its core is this anti-China rhetoric. ‘China has all these rare earth metals and the Chinese communists are going to cut us off, and we’ll be stranded.’ It’s just political. China has sold us and continues to sell us critical minerals because it’s in their interest to make money and be a part of the global economy,” Hartl said.

“Republicans love free markets unless they’re not working toward their sort of perceived objectives,” he added.

Read more about the executive order here. 

ASBESTOS BILL DELAY: Democrats and Republicans are each accusing the other of holding up a bill to ban asbestos that had been expected to pass with little controversy this week.

The Alan Reinstein Ban Asbestos Now Act exited committee with just one no vote and was expected to sail through the voting process without amendments.

But Democratic aides on the Energy and Commerce Committee say that progress has stalled as GOP lawmakers object to a provision that assures the legislation would have no impact on ongoing litigation over injuries tied to use of talcum powder.

“Everyone should be able to support a ban on this known carcinogen, which has no place in our consumer products or processes. More than 40,000 Americans die every year from asbestos exposure, but Republicans are willing to look the other way,” Committee Chairman Frank Pallone Jr. (D-N.J.) said in a statement.

“Republicans walked away from this opportunity to ban asbestos merely over language that prevents shutting the courtroom door. This raises serious questions about the sincerity of their intentions,” he added. 

Asbestos, tied to lung cancer, mesothelioma and asbestosis, is still used in a surprising number of products despite its dangers, largely within the automotive sector along with other industrial uses. 

The bill bars the production, use and importation of asbestos, implementing a ban on the substance within a year of its passage, with a few narrow exceptions.

The legislation would amend the Toxic Substances Control Act, which doesn’t deal with the cosmetic uses of asbestos being challenged in court.

A number of women have waged successful legal battles arguing their ovarian cancer was linked to the use of asbestos-laced baby powder.

Democratic aides say they added the so-called savings clause “to make sure nothing in the bill would block the minority women who are primarily bringing suits over harm from cosmetic talc.”

Republicans, however, say the addition of the clause is another example of trial lawyers holding up liability protections that give businesses certainty.

“What does this new language do? As you can probably guess, it creates questions about the intent of the law that could lead to uncertainty in interpretation and implementation of the law. This, in turn, could lead to litigation,” the minority wrote in a blog post.

Read more about the hold up here. 

LEGISLATIN’ CONSERVATION: Congress has approved a bipartisan conservation bill on Thursday, approving funding for several popular conservation grants. 

The House approved the America’s Conservation Enhancement Act by a voice vote, reauthorizing the North American Wetlands Conservation Act (NAWCA), National Fish and Wildlife Foundation (NFWF) Act and Chesapeake Bay Program through 2025. 

NAWCA grants protect wetlands from floods, erosion and poor air and water quality and seek to increase bird populations; the NFWF helps conserve  fish, wildlife, plants and habitats and the Chesapeake Bay program helps to restore the mid-Atlantic body of water. 

The bill also authorizes funding to combat invasive species, creates grants to help states and tribes pay farmers for livestock that was attacked by protected species and aims to tackle a neurological disease that impacts deer, elk and moose

The legislation was already approved by the Senate but still needs presidential approval to become law. 

OUTSIDE THE BELTWAY:

Mexican congress votes to fine people who block beach access, The Associated Press reports

Glass Fire Rages Across Northern California, Burning Thousands Of Acres, NPR reports

How Biden’s $1.7 trillion climate plan would change America after Trump’s Big Oil presidency, CNBC reports

Secret tapes reveal Pebble’s plans to offset wetlands damage, E&E News reports

ICYMI: Stories from Thursday…

IG report: FEMA mismanaged Puerto Rico aid distribution following hurricanes Irma, Maria

Southern California rattled by more than 80 small earthquakes

EPA finalizes rule allowing some major polluters to follow weaker emissions standards

Trump executive order seeks to use Defense Production Act to bolster mining

Asbestos ban stalls in Congress amid partisan fight