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 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.

Supreme Court Deals a Blow to the Administrative State

The Supreme Court has overruled Chevron, its forty-year-old decision which has allowed administrative agencies to impose their regulatory will on industries, small businesses, and individuals by requiring that courts defer to an agency’s interpretation of a statute. According to EPA Administrator Regan, the decision “hits EPA extremely hard.”

In general terms, Chevron provides guidelines for a court to review an agency’s action pursuant to an act of Congress using a two-step framework. First, a court must assess whether Congress, in the statute, has spoken directly to the issue at hand and, if so, that is the end of the inquiry as the clear will and intent of Congress must be followed. However, if the statute is silent or ambiguous as to the agency action at issue, the court must, as the second step, defer to the agency’s interpretation if it is based on a permissible construction of the statute. As many statutes are silent or ambiguous as to an issue, Chevron allowed agencies to wield great power to act as long as the action was based on a permissible reading, even if the court did not necessarily agree with that reading.

In overruling Chevron, the Court relied on the intent of the Framers and its traditional role, finding that it has always been the province of the court to interpret the law. The passage of the Administrative Procedure Act (APA) in 1946 did not change this traditional role as the APA codified the traditional understanding that courts must decide all relevant questions of law. The Court stated: “The APA, in short, incorporates the traditional understanding of the judicial function, under which courts must exercise independent judgment in determining the meaning of statutory provisions.”

Chevron changed that approach. Instead of a court interpreting a statute and/or deciding relevant questions of law, an agency was allowed to provide a permissible reading of a statute and a reviewing court was required to defer to that reading. In the Court’s view, Chevron “defies the command of the APA” and “triggered a marked departure from the traditional approach.” As a result, Chevron had to be overruled.

But, what is left in its place? The Supreme Court was somewhat unclear. It did state that a court must find a “best reading” of a statute and answer “the question that matters: Does the statute authorize the challenged agency action?” To get to that ‘best reading,’ the Court provided some guidance.

First, a court may “seek aid from the interpretations of those responsible for implementing particular statutes.” An agency interpretation “may constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Second, an interpretation “issued contemporaneously with the statute at issue, and which have remained consistent over time, may be especially useful in determining the statute’s meaning.” Finally, a statute may provide some authority for an agency to “exercise a degree of discretion.”

The Court also referenced a decision older than Chevron and the APA, Skidmore v Swift, to provide some criteria for accepting an agency interpretation: The weight or deference provided to an agency “would ‘depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.’” Even if there is now some uncertainty in how to determine whether the statute authorizes the agency’s action, a court cannot simply defer to an agency’s reading of a statute as they have done in the decades since Chevron was decided. Instead, the court must interpret the law and owes little, if any, deference to the agency’s interpretation. As a result, an agency will be unable to issue regulations or take actions that go much beyond the relevant statute.