EPA’s 500th Day Victory Lap

On the 500th day of the Trump Administration, EPA touted its “notable policy achievements,” highlighting nine such achievements in a “promises made, promises kept” format. However, some of the noted achievements are works in progress and perhaps need more concrete results before a ‘mission accomplished’ banner is hung at EPA headquarters.

The nine ‘achievements’ listed by EPA include: withdrawing from the Paris Climate Agreement, ensuring clean air and water, reducing burdensome government regulations, repealing the so-called “Clean Power Plan,” repealing the Waters of the United States Rule, promoting energy dominance, promoting science transparency, ending ‘sue and settle,’ and promoting certainty to the auto industry. Continue reading “EPA’s 500th Day Victory Lap”

EPA Enforcement In The Coming Years

EPA’s enforcement presence has been reduced over the last several years. This trend will continue during the Trump Administration as EPA re-defines its relationship with states and tribes. Even so, EPA has announced an enforcement approach that will maintain it as a formidable enforcer of our environmental laws.

According to EPA’s web-site, EPA’s budget was $10.3B in FY 2010, $8.1B in in FY 2016, and $8.06B in FY 2017. For those same years, EPA’s employee count was 17,218, 14,779, and 15,408, respectively. So, EPA’s budget and employee count were on a downward trend during the Obama years.[1] Continue reading “EPA Enforcement In The Coming Years”

Clean Water Rule Jurisdiction Resolved in National Association of Manufacturers v. the Department of Defense But Uncertainty Prevails

On January 22, 2018, the United States Supreme Court issued its unanimous ruling in National Association of Manufacturers v. the Department of Defense, et al., No. 16-299.  The decision resolves the issue of the proper court for judicial review of the Clean Water Rule (Rule) issued by the Environmental Protection Agency (EPA) and the Corps of Engineers (Corps).

This article will provide some background about the Rule and legal challenges, information about the Supreme Court’s ruling, and highlight some of the uncertainties created in the wake of the decision. Continue reading “Clean Water Rule Jurisdiction Resolved in National Association of Manufacturers v. the Department of Defense But Uncertainty Prevails”

Oil and Gas Production is Not Waiting for EPA

EPA is continuing its attempts to stay or postpone various Obama-era requirements on the oil and gas industry. It has proposed 90-day and two-year stays of the most recent and encompassing regulations imposed during the last years of the Obama administration. Some of these attempts are ensnared in court proceedings. However, the oil and gas industry itself is not idly standing by waiting for relief. Instead, oil and gas production is steadily climbing to record levels. Continue reading “Oil and Gas Production is Not Waiting for EPA”

The Administration Restrains Itself

The Trump administration has recently signaled a retrenchment in agency actions. These voluntary actions curtail the administrative agency from exercising powers or authority beyond what may be provided to it under applicable statutes and regulations.

The attorney general issued a memorandum to all Department of Justice components in November stating that the department will no longer engage in the practice of issuing guidance documents that effectively create rights or obligations binding on persons or entities outside the executive branch without undergoing the rulemaking process. The memorandum barred any guidance documents of general applicability and future effect that are designed to advise parties outside the executive branch about legal rights and obligations falling within the department’s regulatory or enforcement authority.

When issuing guidance documents, the department was instructed, among other things, to identify the document as guidance and clearly state that they have no legally binding effect on persons or entities outside the federal government. Also, guidance documents should not be used for the purpose of coercing persons or entities outside the federal government into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or regulation.

As to the Department of Justice, this will end the practice of issuing guidance documents that have the effect of binding anyone outside of the government, unless the proper rulemaking procedures are followed. It is unclear whether the memorandum applies outside of the Department of Justice. Regardless, in addition to its public efforts, EPA has quietly taken two actions that voluntarily restrict its ability to inject itself into state permitting issues.

First, in a memorandum posted on EPA’s website in December relating to the pre-construction analysis of New Source Review applicability, Administrator Scott Pruitt announced that EPA will no longer delve into, or “second-guess,” the pre-construction applicability analysis submitted or performed by an applicant. Thus, when an applicant performs the applicability analysis in accordance with the calculation procedures in the regulations and follows the applicable recordkeeping and notification requirements, that owner or operator has met the regulations. In such cases, EPA will not substitute its judgment for that of the applicant’s emissions projections. Essentially, this action reverses a prior policy in which EPA asserted the right to require additional analysis despite the applicant’s projections or compliance with calculation protocols.

Secondly, Administrator Pruitt issued two orders in October denying petitions for objections to Title V air permits issued by state agencies. Under the Clean Air Act, any person may petition the EPA to object to the terms and conditions within a state-issued Title V permit. Title V permits usually contain requirements from the pre-construction Prevention of Significant Deterioration (PSD) Program. Over the last several years, citizen groups have successfully petitioned EPA to issue objections to PSD permit conditions included in Title V permits. These two decisions state that the petition for objection process is not the proper forum or method to object to PSD requirements. Instead, the state’s administrative and judicial review process should be utilized.

These actions are seen by many as a departure from the recent past, in which agencies wielded authority without appropriate limitations. Certainly, they suggest that agencies will now act in a more restrictive manner.

EPA Unveils Framework For Industry Input on Regulations

Since the beginning of the Trump administration, many of the rules issued by the Obama administration, such as the Clean Power Plan and the Clean Water Rule, have been targeted for review. Scott Pruitt and EPA have been in roll-back and repeal mode.  However, with the newly announced Smart Sectors Program, EPA seems to be taking a positive approach to dealing with industry and the regulated community instead of merely dealing with previously issued rules. Continue reading “EPA Unveils Framework For Industry Input on Regulations”

The Ozone Two-Step

Regulatory certainty is a benefit for industry, allowing orderly design, planning, and budgeting for capital expenditures. Many environmental regulations have been in place for many years and provide a certain level of continuity. However, the national ambient air quality standard for ozone has not proven itself to be a model of stability over the years.

The Clean Air Act requires that national ambient air quality standards be set at a level that protects human health and the environment with an adequate margin of safety. For years, the standard for ozone was set at 80 parts per billion (ppb). In 2008, EPA lowered the standard to 75 ppb. However, when the Obama Administration entered office in January, 2009, EPA reviewed actions taken by the previous Bush Administration. As to ozone, EPA initiated a rule-making in 2010 to reconsider the 2008 Standard, relying on, among other things, the fact that 75 ppb was above the range recommended by EPA’s scientific advisory board and so may not be protective of human health. The reconsideration rule proposed that the standard be set between 60 and 70 ppb. Continue reading “The Ozone Two-Step”