Author: BSW

EPA’s Regulatory Roll-Back

In March 2025, Administrator Zeldin announced that EPA will reconsider a number of regulations in order to advance various executive orders issued by President Trump and fulfill EPA’s own Powering the Great American Comeback Initiative. These efforts include the 2024 ambient air standard for particulate matter, the 2009 endangerment finding, and the scope of jurisdiction over ‘adjacent wetlands after the Supreme Court’s 2023 decision in Sackett.

In the Biden Administration, EPA lowered the National Ambient Air Quality Standard for particulate matter, the PM 2.5 NAAQS. The standard was reduced to levels that were close to background levels in some areas. EPA announced it is “revisiting” the lower standard because, among other things, the lower standard “raised serious concerns from states across the country and served as a major obstacle to permitting.”

So far, though, EPA has not issued a proposal to revisit the PM 2.5 NAAQS. It faces some hurdles in doing so. It must be done through the administrative rule-making process, which includes public notice and comment. Further, to survive judicial review, EPA must provide a reasoned explanation for the basis of the revision. EPA also stated it would “soon release guidance to increase flexibility on NAAQS implementation…and direction on permitting obligations.” However, these items have not yet been issued.

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The Fading Luster of Carbon Capture

Carbon dioxide (CO2) is used to carbonate beverages and enhance plant growth. It has also been used for decades in enhanced oil recovery, in which CO2 is injected into oil- or gas-bearing formations to help extract oil and gas. Of course, many say that CO2 causes or contributes to climate change / global warming. In 2009, EPA issued its ‘endangerment finding’ in which EPA determined that current and projected concentrations of CO2 and other greenhouse gases in the atmosphere threaten the public health and welfare of current and future generations.

The idea of capturing CO2 before it enters the atmosphere and using it or injecting it for perpetual storage, or sequestration, came about as a way to mitigate the anticipated impacts of climate change. To facilitate carbon capture, use, and storage (CCUS), Congress created the 45Q tax credit in the US Tax Code. Additionally, the Biden Administration touted CCUS as an important tool to address climate change. Even the prior Governor of Louisiana included it as a centerpiece of his climate strategy.

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What A Difference A Single Memo Makes!

The scope of jurisdiction over wetlands under the Clean Water Act has long been debated and litigated. The Supreme Court and other courts have issued various rulings explaining and limiting the scope of such jurisdiction. The Corps of Engineers (Corps) and the Environmental Protection Agency (EPA), though, have not always strictly adhered to those rulings and have sought to expand their jurisdictional reach. Now, the Trump Administration seems determined to force compliance with those rulings.  

The Supreme Court’s ruling in Sackett v. EPA was a clear statement about the limits of jurisdiction over adjacent wetlands pursuant to the Clean Water Act. In adopting Justice Scalia’s opinion in its prior Rapanos decision, the Supreme Court severely limited the Corps’ jurisdiction, holding that the Clean Water Act extends to only those wetlands that are as a practical matter indistinguishable from waters of the United States. The Corps must establish first, that the adjacent body of water constitutes ‘waters of the United States’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters) and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins. Sackett v. EPA, 143 S.Ct. 1322, 1341 (2023).

Despite the clarity of this holding, the Corps seems to have resisted its application, seemingly seeking to assert and/or hold onto jurisdiction as much as possible. An example is found in the Fifth Circuit’s decision in Lewis v. EPA, 88 F.4th 1073 (5th Cir. 2023). In that case, it was clear that the two tracts at issue were miles away from a relatively permanent water body and connected by roadside ditches, a culvert, and a non-relatively permanent tributary. Still, the Corps clung to jurisdiction, forcing the Fifth Circuit to remark on the Corps’ “unwillingness to concede its lack of regulatory jurisdiction” and to emphatically state “enough is enough.” Lewis, 88 F.4th at p. 1076 and 1080. Ultimately, the Fifth Circuit ruled there were no jurisdictional wetlands on the two tracts.

Against this backdrop, the Trump Administration came into office in January 2025. Within 60 days, the EPA and the Corps issued a joint Memorandum to the Field on March 12, 2025 (the Memorandum). [1] The Memorandum states that it is being issued to provide “guidance on the meaning of the ‘continuous surface connection’ requirement” and noting that prior guidance on the subject was “inconsistent with … the Sackett decision.” Further, the Memorandum represented the “agencies’ views on the proper implementation of the definition of ‘waters of the United States’” and will be used “when determining if a wetland has a ‘continuous surface connection’ to a requisite jurisdictional water under the Clean Water Act.”

The Memorandum makes clear that “adjacent” means “physically abutting.” Thus, adjacent wetlands are “those that directly ‘abut’ covered waters.’” It goes on to state that “unless a wetland has a continuous surface connection – directly abutting a requisite jurisdictional water – it cannot be determined to be jurisdictional as an adjacent wetland.”

Importantly, the Memorandum firmly rejected language in prior guidance documents related to “a discrete feature like a non-jurisdictional ditch, swale, pipe, or culvert” because it is “in tension with the pre-2015 regime and Sackett and the purpose of this memo is to align the agencies’ interpretation of adjacency with Sackett.” The Memorandum further states:

Therefore, an interpretation of continuous surface connection which allows for wetlands far removed from and not directly abutting covered waters to be jurisdictional as adjacent wetlands has the potential to violate the direct abutment requirement for adjacent wetlands under the plurality’s standard and now Sackett’s endorsement of that standard. Therefore, any components of guidance or training materials that assumed a discrete feature established a continuous surface connection are rescinded.

In short, “the agencies are interpreting waters of the United States to include only those adjacent wetlands that have a continuous surface connection because they directly abut the requisite jurisdictional water (e.g., they are not separated by uplands, a berm, dike, or similar feature).” Further, “pursuant to the Rapanos plurality, wetlands with only an intermittent, physically remote hydrologic connection to waters of the United States do not implicate the boundary-drawing problem of Riverside Bayview and thus do not have the necessary connection to covered waters that triggers CWA jurisdiction.” Finally, the wetland “must have a continuous surface connection to a requisite covered water making it difficult to determine where the water ends and wetland begins.” Emphasis supplied; punctuation omitted.

What a difference the Memorandum has made! One specific example highlights at least one positive outcome of its application. 

An approved jurisdictional determination (AJD) was issued in December 2024 for a 120-acre site. The northern part had been placed into agricultural use years ago, but the southern portion was wooded. Various drains and ditches crossed the property, carrying water to ditches adjoining the property and eventually to roadside ditches. The roadside ditches ultimately drained to a relatively permanent waterway about a mile away. Prior to the issuance of the AJD, evidence was presented to the Corps in the form of reports and photographs establishing that the various drains and ditches, both on the property and off the property (the roadside ditches) had, at best, only intermittent or ephemeral flow.

Nevertheless, the Corps, in the AJD, described the various drains and ditches as tributaries and asserted that these drains and ditches created a continuous surface connection to the relatively permanent waterway. In fact, the Corps deemed the drains and ditches themselves as relatively permanent waterways, some with seasonal flow. The Corps then asserted jurisdiction over all the wetlands on the tract.

After an administrative appeal was requested and a suit for judicial review was filed, the Corps decided to reconsider the AJD. Applying the concepts included in the Memorandum, the Corps issued a new AJD. This time, the AJD found that the ‘tributaries’ (i.e., the drains and ditches) were not relatively permanent waterways, had only ephemeral to intermittent flow, and so lacked the required continuous surface connection. As a result, the wetlands on the tract were all deemed non-jurisdictional. Based on the application of the Memorandum, the property went from one with jurisdictional wetlands (which require a permit and mitigation to develop) to one without any jurisdictional wetlands or waters at all.

Of course, the key is that evidence was intentionally submitted to the Corps for inclusion in the administrative record showing that the drains and ditches provided only ephemeral and intermittent hydrologic connections. The submittal of that type of evidence is necessary to show the Corps that the required continuous surface connection does not exist and to ensure that the administrative record includes that evidence for any appeal.

The Memorandum is a good, practical first step to ensure adherence to the Supreme Court decisions. It is already making a difference for property owners. Hopefully, EPA and the Corps will take steps to codify these concepts into the applicable regulations.

[1] The Memorandum is available here: https://www.epa.gov/system/files/documents/2025-03/2025cscguidance.pdf.

The Push To Unleash American Energy

On January 20, 2025, the day of the inauguration, President Trump signed Executive Order 14154, Unleashing American Energy. Through the EO, President Trump seeks to “encourage energy exploration and production on Federal lands and waters … in order to meet the needs of our citizens and solidify the United States as a global energy leader long into the future.” He ordered an immediate review of “all existing regulations … and any other agency actions … to identify those agency actions that impose an undue burden on the identification, development, or use of domestic energy resources.” He further ordered that agencies must “expedite permitting approvals” to achieve this overall goal.

The relevant federal agencies have heard the call. Doug Burgum, the Secretary of the Interior, issued Order No. 3418 to implement the EO. In it, Secretary Burgum ordered steps be taken to reduce “barriers to the use of Federal lands for energy development” and that leases cancelled during the Biden Administration be reinstated. Chris Wright, the Secretary of the Department of Energy, criticized net-zero policies, stating that they threaten the reliability of our energy system and achieve “precious little in reducing global greenhouse gas emissions.” He resumed consideration of pending applications to export American liquefied natural gas (LNG). Towards that end, he announced a new export authorization for the Commonwealth LNG project proposed for Cameron Parish, Louisiana and provided an export permit extension for Golden Pass LNG Terminal, currently under construction in Sabine Pass, Texas

EPA is also involved. Administrator Zeldin announced an initiative, titled Powering the Great American Comeback, which included his ‘five pillars’ approach. The ‘pillars’ include Restoring American Energy Dominance and Permitting Reform, Cooperative Federalism, and Cross-Agency Partnership. Energy produced in America “is far cleaner than energy produced overseas” and is better for the environment because “we do it better here.” However, the cost and length of time to obtain necessary permits is a potential impediment to achieving these goals. EPA will “bring down that timeline [to] make sure it doesn’t take as long to get a permit.”

Administrator Zeldin also announced that EPA will reconsider over thirty regulations. These include the standards of performance for oil and gas facilities (Subparts OOOOb/c) and the effluent limitations guidelines and standards (ELGs) for wastewater discharges for oil and gas extraction facilities. EPA will also reconsider regulations on power plants (the Clean Power Plan 2.0).

Overall, though, perhaps the most important one is the reconsideration of the 2009 Endangerment Finding and all of the regulations and actions that rely on it. In the Endangerment Finding, EPA concluded that carbon dioxide (CO2), methane (CH4), and other greenhouse gases threaten public health and welfare. While the Finding itself did not impose any requirements, it was a “prerequisite for implementing greenhouse gas emissions standards for vehicles and other sectors.” Secretary Wright stated that the Finding “has had an enormously negative impact on the lives of the American people. For more than 15 years, the U.S. government used the finding to pursue an onslaught of costly regulations – raising prices and reducing reliability and choice on everything from vehicles to electricity and more.”

In addition to its regulatory impact, EPA provided other reasons for the reconsideration. First, when EPA announced the Finding, it indicated that, by itself, it did not impose any costs and that EPA could not consider future costs when making the Finding. However, EPA has subsequently relied on the Finding as part of its justification for certain regulations with an aggregate cost of more than one trillion dollars. Second, the Finding itself acknowledged significant uncertainties in the science and assumptions used to justify the decision but EPA has never sought comment on major developments in innovative technologies, science, economics, and mitigation that may impact the Finding. Finally, major Supreme Court decisions, including Loper Bright Enterprises v. Raimondo, have provided new guidance on how EPA should interpret statutes to discern Congressional intent and ensure that its regulations follow the law.

EPA, and the other federal agencies reviewing their existing regulations and prior actions to implement the EO, must exercise some caution in changing policies. In very general terms, an agency must indicate an awareness that it is changing position, show that the new policy is permissible under the statute, indicate that the new policy is better, and provide reasons for adoption of the new policy. In light of Loper Bright, an agency would likely have to show that the new policy is not just permissible but in line with the ‘best reading’ of the statute. Overall, the agency must provide a reasoned explanation for the change. They must also follow the Administrative Procedure Act. To amend or revoke a rule, notice and comment are required and decisions are subject to judicial review. The reconsideration process will take some time and the outcome is not at all certain due to the ongoing threat of litigation.

An increased emphasis on the domestic production of oil and gas and a decline in regulatory burdens are certainly welcome to the oil and gas industry and those related industries that depend on fossil fuels. Oil and gas production, which is higher now than at the start of the pandemic (see figures below), can only reach new heights.

A Good Place To Start

The Trump Administration has signaled that it plans to expand energy production, expedite energy permitting, and ‘roll-back’ regulations and practices that impede growth. As part of this effort, Mr. Trump has named Lee Zeldin, a former GOP member of Congress, to lead the EPA.
Mr. Trump has stated that Mr. Zeldin wishes to “ensure fair and swift deregulatory decisions” while maintaining “the highest environmental standards, including the cleanest air and water on the planet.’’ Further, Elon Musk and Vivek Ramaswamy, heads of the so-called Department of Government Efficiency, or DOGE, have vowed to work with the Trump Administration to use executive action “to pursue three major kinds of reform: regulatory rescissions, administrative reductions and cost savings.”

While there are many statutorily mandated regulatory programs and practices that are not easily ignored or revised, there are several regulations and practices that impede growth in violation of the governing statute and/or case law interpreting that statute.  One area that Mr. Zeldin and DOGE can focus on is the EPA/Corps of Engineers’ regulatory definition and interpretation of ‘navigable waters’ and ‘waters of the United States’ in the Clean Water Act.

Under the CWA, “navigable waters” means the “waters of the United States,” or WOTUS.  EPA/Corps promulgated a simple regulatory definition of WOTUS in the early 1970s.  Since then, though, EPA/Corps have expanded the regulatory definition, and their interpretations of the CWA and that definition, to include, as stated in Sackett v, EPA, “almost all waters and wetlands across the country [such that they] theoretically could be subject to a case specific jurisdictional determination.” Obviously, an expansive definition impairs growth and prevents development.  

Over the years, the US Supreme Court has issued several decisions seeking to clarify the meaning of WOTUS and curtail the EPA/Corps’ ever-expanding view of their jurisdiction.  Most recently, the Supreme Court issued its decision in Sackett, which was a full-throated endorsement of Justice Scalia’s plurality opinion in Rapanos v. US.  The Sackett Court completely rejected the ‘significant nexus’ test espoused by Justice Kennedy in his concurrence in Rapanos.

In Sackett, the Supreme Court stated that, to be jurisdictional, the adjacent wetlands “must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.’”  According to the Supreme Court, this requires the party asserting jurisdiction over adjacent wetlands, that is, the EPA/Corps, to establish: 1) that the adjacent body of water constitutes WOTUS (i.e., a relatively permanent body of water connected to traditional interstate navigable waters) and 2) that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.

The EPA/Corps, though, do not seem willing to adopt and apply this simple formulation of WOTUS and the resulting jurisdictional scope over adjacent wetlands. Instead, they seem to retain their previous expansive interpretations to maintain or assert jurisdiction over wetlands that should not, post-Sackett, be included within the scope of the CWA.

By way of example, in one pre-Sackett jurisdictional determination, the EPA/Corps relied on the ’significant nexus’ test to assert jurisdiction over isolated wetlands.  After a request to review that prior determination in the wake of Sackett, the EPA/Corps determined that the very same isolated wetlands remained jurisdictional. EPA/Corps merely changed the designation of the ditches draining the wetland area to now claim that those ditches provide a ‘continuous surface connection,’ even though in the prior determination they claimed those same ditches were ephemeral at best.

These approved jurisdictional determinations are subject to judicial review under the Administrative Procedure Act. In other words, the recipient may file a petition or complaint for federal judicial review of that AJD.  Additionally, since the Supreme Court’s decision in Corner Post, such a review may be filed within six years of the harm or injury from the AJD and not the date of issuance of that AJD.  Still, the EPA/Corps should faithfully apply Sackett in the first instance instead of issuing expansive AJDs and requiring recipients to seek judicial review.

There are presumably many fertile grounds for DOGE to attack throughout the federal government.  However, the EPA/Corps’ current interpretation of WOTUS stifles, delays, and impairs growth and development, contrary to the Supreme Court’s express ruling in Sackett. Mr. Zeldin and DOGE would help growth tremendously if they addressed this issue as one of their first priorities.  

Trump, Part Two

The second Trump Administration will likely usher in a pitched battle between its attempt to ‘roll-back the Biden Administration’s environmental rules and policies and environmentalists’ defense of those same rules and policies. The outcome is anything but clear.

The Biden Administration still has some time and power to cement its legacy. In this interim transition period, it can, among other things, deny requests for reconsideration of promulgated rules, grant petitions of objection to Title V permits, and seek expedited rulings in multiple court cases across the country. It can also finalize proposed rules and policies. However, those actions can be undone, delayed, or stymied once the Trump Administration assumes control of the EPA and the Department of Justice.

Once the Trump Administration is in place, there are any number of possibilities. Most importantly, President Trump has the power to issue executive orders. He can revoke, rescind, or amend any existing executive order issued by President Biden. He can also issue his own orders with new policies, guidance, and requirements. It is likely that prior executive orders regarding climate change and environmental justice will be targeted for revocation or revision.

Mr. Trump has picked Lee Zeldin, a former Congressman from New York, as the Administrator of EPA. In announcing the pick, Mr. Trump stated that Mr. Zeldin will “ensure fair and swift deregulatory decisions that will be enacted in a way to unleash the power of American businesses, while at the same time maintaining the highest environmental standards, including the cleanest air and water on the planet.” Mr. Zeldin stated that he would prioritize efforts to “roll back regulations” that have caused American businesses to struggle and would “restore US energy dominance … while protecting access to clean air and water.”

One possible regulatory ‘roll-back’ is the joint EPA and Corps of Engineers rule on “Waters of the United States,” which published in the wake of Sackett v EPA. That rule has been criticized for imposing jurisdiction on waters well beyond that allowed by the Supreme Court’s ruling. The EPA/Corps have also issued guidance which provides expansive interpretations of jurisdiction which the Corps is currently following. It is likely the scope of jurisdiction under Sackett will be codified in a rule and the EPA/Corps guidance, which retains an expansive view of jurisdiction, will be reissued to more properly align with Sackett.

Oil and gas industry interests have advocated for repeal of certain Inflation Reduction Act energy policies and the issuance of numerous executive orders relating to, among other things, prioritizing natural gas and liquefied natural gas exports, prioritizing American energy production, and requiring agency actions to align with statutory intent. Additionally, they have suggested modification of EPA’s methane emissions rules and greenhouse gas reporting requirements, modifying or repealing the methane fee implementation rule, revoking and replacing CEQ’s NEPA Phase 1 and Phase 2 rules, and revoking the SEC’s climate disclosure rule.

Further, other than those rules specifically required by statute, it is likely that EPA will not promulgate additional rules as expansive or far-reaching as have been proposed during the Biden Administration. The Trump Administration will also likely utilize the Supreme Court’s ruling in Loper Bright, which overruled Chevron and generally curtailed the application of deference to EPA’s interpretation of a statute, to provide a ‘best reading’ of an environmental statute that does not allow for expansive interpretations of the applicable statute.

However, these anticipated actions will not be met with silence or inaction. Environmentalists will use public pressure, the comment process, litigation, and any other methods or means at their disposal, to oppose, delay, or stop any possible ‘roll-backs’ by the Trump Administration. They did so with some success in the first Trump Administration and so have experience with opposing a Trump-controlled EPA. It has been reported that they anticipate a second Trump Administration to overreach in its actions and they will be ready to exploit any such errors.

The extent to which the second Trump Administration will be successful in moving away from the Biden Administration and imposing its own agenda is hard to predict. Regardless, as with the first Trump Administration, it promises to be a litigious and contentious time.

Has EPA’s Environmental Justice Efforts Reached Their Peak?

EPA’s environmental justice efforts have certainly increased since January 2021 when the Biden Administration came into power. From Administrator Regan’s Journey to Justice tour in 2021, embedding environmental justice concepts in all aspects of EPA’s activities, and accepting and aggressively investigating civil rights complaints, it seemed environmental justice was EPA’s Number One priority. While additional efforts were perhaps overdue, EPA’s fast-paced journey to environmental justice has not been without potholes and roadblocks.

One such roadblock is the decision issued by Judge Cain in Louisiana v EPA. Judge Cain issued a preliminary injunction in January 2024 prohibiting EPA from imposing or enforcing any disparate impact-based requirements against the State of Louisiana or any State agency.” EPA even posted a Notice of Compliance on its website stating EPA has “ceased any and all imposition or enforcement of their Title VI disparate-impact requirements and cumulative-impact-analysis requirements under Title VI.” In response to the filing of the lawsuit, EPA had closed several investigations it was actively conducting in Louisiana regarding alleged disparate impacts in agency decision-making along the Mississippi River. Further, after the decision, 23 states petitioned EPA in April 2024 to amend its regulations to conform to Title VI (i.e., remove the disparate impact component in the regulations).

To avoid additional potholes in its environmental justice journey, EPA seems to have allowed other entities to take the wheel, or EPA seems focused on less problematic matters that yield outcomes that can be touted as successes.

One recent example of EPA allowing others to steer the course is the recent agreement entered into between Michigan and the Michigan Environmental Justice Coalition. The agreement, to which EPA is not a party, contains significant concessions by Michigan and requires, among other things, environmental justice analyses for hazardous waste permit applicants and cumulative impacts analyses for permitting across the state. The agreement to conduct a cumulative impact analysis is interesting because EPA has not yet issued reliable guidance on how to properly conduct such an analysis.

EPA, for its part, seems to have turned at least some of its focus on procedural issues and less substantive matters which it can tout as a success. In August 2024, it issued the Civil Rights Guidance on Procedural Safeguards: Requirements and Best Practices to assist recipients of EPA financial assistance when developing and improving their legally required civil rights compliance efforts. The guidance document reiterates the requirements of the existing regulations, found at 40 CFR Part 7, and adds suggested best practices to guide a recipient in the proper courses of action to fulfill those requirements.

For example, one requirement in the regulations is that a recipient must “designate a nondiscrimination coordinator” whose overarching role is to help ensure compliance with EPA regulations implementing the federal civil rights laws. The guidance memorandum then sets out best practices to accomplish this requirement, such as giving the nondiscrimination coordinator the authority to provide information externally to the public, provide notice to the public of the grievance procedures and the ability to file a complaint, establish a mechanism to implement the grievance procedures, and ensure proper training is provided. EPA’s environmental justice efforts have been applauded by some and derided by others. States currently aligned with EPA’s vision, such as Michigan, embrace and agree to the additional requirements imposed on their programs. Other states not as fully aligned with EPA, such as perhaps Louisiana, resist the imposition of requirements not explicit in federal law and regulation. For its part, EPA seems to seek whatever progress it can make given the resistance to its efforts.