OUT WITH THE OLD AND IN WITH THE REVIEW: A Discussion of Environmental Rules and Policies in the Crosshairs of the Trump Administration
OUT WITH THE OLD AND IN WITH THE REVIEW: A Discussion Of Environmental Rules And Policies In The Crosshairs Of The Trump Administration
Environmental Essentials for In-House Counsel Webinar Series
Presented by: Ryan Eletto and Brittany Pemberton July 18, 2017
TOPICS • Nominations and appointments to key EPA and Interior posts • Actions favorable to the energy and manufacturing sectors • Rollbacks of and litigation regarding Obama administration rules • Litigation over delays to Obama administration rules
FEDERAL APPOINTMENTS: TRUMP ADMINISTRATION
FEDERAL ENVIRO APPOINTMENTS: EPA Position Name Status Deputy Administrator Andy Wheeler, Jeff Holmstead Not yet nominated
Asst. Admin. for OECA
Susan Bodine Nominated, hearing held, not yet confirmed
Asst. Admin. for Air and Radiation Asst. Admin. for Water Office of General Counsel
Bill Wehrum Not yet nominated
Not yet nominated
Not yet nominated
Asst. Admin. of OCSPP
Michael Dourson Not yet nominated
4 Deputy Asst. Admin of OCSPP
FEDERAL ENVIRO APPOINTMENTS: DEPT. OF INTERIOR Position Name Status Deputy Secretary David Bernhardt Nominated, hearing held, not yet confirmed
Asst. Sec’y for Policy, Management, Budget Deputy Asst. Sec’y
Nominated, no hearing yet Appointed – does not require Senate conf. Appointed – does not require Senate conf. Awaiting nomination
Asst. Sec’y f or Policy & Economic Dev’t – Indian Affairs Deputy Asst. Sec’y f or Policy & Economic Dev’t – Indian Affairs
Appointed – does not require Senate conf.
FEDERAL ENVIRO APPOINTMENTS: CEQ AND DOJ
Council on Enviro. Quality (CEQ) Chair DOJ Asst. Attorney General for ENRD
Kathleen Hartnett White
Not yet nominated
Jeffrey Bossert Clark
Nominated, hearing held, not yet confirmed
EXECUTIVE ORDERS & PRESIDENTIAL MEMORANDA Jan 24 Expediting Environmental Approvals for High Priority Infrastructure Projects Jan 24 Reducing Regulatory Burdens on Manufacturing Jan 24 Pipeline Memoranda Jan 30 Reducing Regulation (“2-for-1” and Regulatory Budget)
Establishing Task Forces to Enforce Regulatory Reform
Feb 28 Reviewing WOTUS March 28 Promoting Energy Independence by Reducing Regulatory Burdens April 28 America-First Offshore Energy Strategy
OTHER ACTIONS ON ENERGY • CRA repealed SEC oil and mining extraction revenue reporting • CRA repealed Interior Stream Protection Rule regarding mountaintop mining • Arctic exploration – approval of Eni’s plan to explore the Beaufort Sea • Atlantic exploration – proposal to approve seismic surveys by 5 companies • Opening ANWR to drilling (subject to Congressional approval) • Gulf leasing – Aug. 16 GOM auction of 75.9 million acres • Reduced royalty rate for shallow-water Gulf production • Lease Continuation Direct Final Rule – leases not considered expired unless left undeveloped for 1 year
STATUS OF KEY RULES: WOTUS • What is WOTUS? ‒ The “Waters of the United States” Rule (WOTUS) is a 2015 EPA regulation intended to clarify federal water resource management under the Clean Water Act (CWA). ‒ It was published in response to concerns from legislators, industry, researchers, and others about CWA’s lack of clarity. ‒ Some argue, however, that the rule has had the opposite effect and captures too much under the definition of “navigable waters.”
STATUS OF KEY RULES: WOTUS (CONT’D) Rule Action
2.28.17 – Under review by EPA and the Army Corps pursuant to EO. 4.3.17 – SCOTUS denied EPA motion to hold briefing in abeyance. 6.27.17 – EPA released pre-publication proposal to rescind WOTUS (without a replacement).
Review of the rule ongoing. EPA presented several options for redefining “navigable waters” on 4.19.17. Petitioners filed briefs with SCOTUS on 4.27.17. Decision unlikely this term.
Waters of the United States (WOTUS)
STATUS OF KEY RULES: CLEAN POWER PLAN • What is CPP? ‒ The Clean Power Plan (CPP) is an Obama administration policy first proposed by the EPA in June 2014 that aims to reduce CO2 emissions from electrical power generation by 32 percent within twenty-five years relative to 2005 levels. ‒ Rule is currently at OMB undergoing further review.
STATUS OF KEY RULES: CLEAN POWER PLAN Rule Action
4.28.17 – Case held in abeyance and supp. briefing ordered on whether court should remand or keep case in abeyance. 5.15.17 – Parties filed supp. briefs 6.8.17 – EPA sent proposed rule to OMB regarding a CPP rollback . EPA has requested an indefinite abeyance (which has been opposed).
EPA to provide status reports at 30-day intervals beginning 5.28.17. Awaiting publication of rule following OMB review.
Clean Power Plan
LITIGATION OVER DELAYS OF OBAMA-ERA RULES Rule Stay and Authority
Oil & gas NSPS (Methane Rule)
Final 90-day stay of parts of rule under CAA 307
Stay vacated, rule provisions go back into effect 7/28 Proposal not yet final None Briefing underway Briefing underway Proposal not yet final Two cases likely to be consolidated; no briefing schedule yet
Proposed 90-day stay and proposed 2-year stay under APA or CAA 301 Notice of 90-day delay under CAA 307(d)(7)(B) Final delay of effective date until 2019 under CAA 307 and 112(r) Notice of postponement pending judicial review under APA 705 Proposed further stay through end of reconsideration (no specific authority) Notice of postponement pending judicial review under APA 705
EGU Effluent Limitation Guidelines
BLM Methane and Waste Prevention Rule
OIL & GAS NSPS (METHANE RULE) • Final rule issued June 2016 ‒ Challenged in API v. EPA , 13-1108 (D.C. Cir.) (in abeyance) • Portions of final rule under reconsideration • Stays related to reconsideration:
• Initial 90-day stay under Clean Air Act 307(d)(7)(B) 4/18 • Challenged in Clean Air Council v. EPA , 17-1145 (D.C. Cir.) • Proposed two year stay 6/13 – comments accepted through 8/9 • Proposed additional 90-day stay 6/13 – comments accepted through 8/9 • Initial 90-day stay vacated by D.C. Cir. 7/3 • On EPA’s motion, court withdrew the mandate effecting the vacatur 7/13 Stay temporarily reinstated and rule requirements come back into effect on 7/28
CAA RISK MANAGEMENT PLAN RULE • Final rule issued 1/13 and effective 3/21 ‒ Challenged in American Chemistry Council v. EP , 17-1085 (D.C. Cir.) (in abeyance) • Reconsideration announced 3/13 • Notice delaying effective date by 90 days 3/16 • Final rule further delaying the effective date until Feb. 2019 under CAA 307 and 112(r) 6/14 ‒ Challenged in Air Alliance Houston v. EPA , 17-1155 (D.C. Cir.) ‒ Pending: ENGOs and union petitioners motion for a stay or vacatur of EPA’s delay of the effective date ‒ Industry and some Republican-led states are defending EPA’s decision ‒ Briefing is underway, with the last briefs by the ENGOs and unions due 7/20 • Effect of Methane Rule stay opinion?
POWER SECTOR EFFLUENT LIMITATION GUIDELINES • Final rule issued 11/3/15 ‒ Challenged in Southwestern Elect. Power Co. v. EPA , 15-60821 (5th Cir.) (in abeyance until 8/12) • Reconsideration announced 4/12 • Notice suspending compliance deadlines under APA 705 pending judicial review 4/25 ‒ Challenged in Clean Water Action v. Pruitt , 17-817 (D.D.C.) • Proposal to postpone certain compliance obligations beginning in 2018 until reconsideration is complete 6/6 • Effect of Methane Rule stay opinion?
BLM METHANE AND WASTE PREVENTION RULE • Final rule issued 11/18/16 ‒ Challenged in Wyoming v. Interior, 16-00285 (D. Wyo.) • Compliance dates postponed 6/16 ‒ Challenged in two cases in the N.D. Cal. – State of California v. BLM, 17-03804 and Sierra Club v. Zinke , 17-3885 ‒ No briefing schedule(s) yet ‒ The two challenges are likely to be consolidated • Effect of Methane Rule stay opinion?
STATUS OF OTHER KEY RULES Rule
Trump Administration Response
Cases in Abeyance
4.24.17 – Case removed from 5.8.17 oral argument calendar and placed in abeyance 3.16.17 – Order holding case in abeyance 5.5.17 – BLM reiterated abeyance request 6.20.17 – BLM supplemental reply brief indicates agency will repeal rule. 4.11.17 – OA postponed and case placed in abeyance in response to a motion by EPA 7.12.17 – New petition filed: American Lung Ass’n et al. v. EPA , 17-1172 (D.C. Cir.)
EPA SIP Call on Startup, Shutdown, and Malfunction (SSM) BLM Rule on Hydraulic Fracturing on Federal and Indian Lands
EPA must file status reports every 90 days; parties to file motions to govern within 30 days of EPA decision on the rule. Motion fully briefed. OA scheduled for 7.27.17. EPA must file status reports every 90 days; parties to file “motions to govern” w/n 30 days of EPA decision on 2015 std. Parties to file status reports on 90-day intervals.
2015 Ozone NAAQS (70 ppb)
4.18.17 – Abeyance motion filed by EPA 4.27.17 – Case held in abeyance .
MATS Supplemental Finding
Cases Awaiting Oral Argument
2.13.17 – Briefing completed 4.28.17 – OA proposed for week of 9/11/17. 9.6.16 – Briefing completed , but OA not scheduled. 5.15.17 – Utility Solid Waste Activities Group (USWAG) petition to reconsider specific provisions of CCR Rule.
Cooling Water Intake Requirements CCR Rule (Coal Ash Rule)
Court will set the date for OA.
Court will set date for OA. Awaiting EPA action on USWAG petition.
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