Regulatory Developments

Trump Administration EPA Actions to Date

Stays, delays, proposals in abundance

Five months into his term, President Donald Trump announced that no other president—with the exception of Franklin D. Roosevelt—accomplished so much in the same period of time. As of June 26, 2017, the president has signed 40 pieces of legislation and about an equal number of Executive Orders (EOs). Critics have responded that quantity is not quality, and they point out that Trump has not signed a single piece of major legislation. In fact, a large portion of both the bills signed and the EOs have the same objective—to withdraw or to instruct the heads of federal agencies to review and amend or rescind regulations issued by President Barack Obama’s administration.

Under Administrator Scott Pruitt, the EPA has taken on its new responsibility to deregulate with enthusiasm. Together, the Agency and the White House are changing or setting the stage to change the entire system of federal environmental regulation. The announcements, proposals, EOs, final rules, and new policies have been issued at an aggressive pace. Here we provide a list of actions relevant to EPA rules that have occurred since Trump took office.

January 26, 2017

Responding to a directive from the White House Chief of Staff, the EPA announces a 1-month delay of the effective date of 30 major regulations, including those affecting the renewable fuel standard; certification of pesticide applicators; formaldehyde emissions standards for composite wood products; and the Clean Air Act (CAA) Risk Management Program (RMP).

January 30, 2017

The president issues an EO—Reducing Regulation and Controlling Regulatory Costs—that directs that for every new regulation proposed, each federal agency must identify at least two existing regulations to be repealed; that the total incremental cost of all new regulations, including repealed regulations, to be finalized in 2017 may be no greater than zero; and that any new incremental costs associated with new regulations must, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.

February 28, 2017

A Trump EO directs the EPA and Army Corps of Engineers (Corps) to review and rescind or revise their June 2015 Clean Water Rule, which defined the Clean Water Act (CWA) phrase waters of the United States (WOTUS). Under the EO, any new or revised definition the agencies issue must ensure that the nation’s navigable waters are kept free from pollution and also promote economic growth, minimize regulatory uncertainty, and show due regard for the roles of Congress and the states under the Constitution.

One week later, the EPA and Corps announce their intention to review and rescind or revise the WOTUS definition.

March 13, 2017

The White House releases Trump’s skinny budget, called the Budget Blueprint. The Blueprint proposes thatEPA’s funding for fiscal year (FY) 2018 be cut by $2.6 billion, or 31 percent, the largest proposed reduction for any federal agency. The $5.7 billion budget request for the EPA would be the lowest for the Agency since it received $5.4 billion in FY 1991. The reductions would be achieved by eliminating many nonstatutory EPA programs and 3,200 EPA full-time-equivalent positions.

March 15, 2017

The EPA and the U.S. Department of Transportation announce that they will reexamine the Obama administration’s January 12, 2017, midterm evaluation (MTE) of its fuel-efficiency and greenhouse gas standards for model years 2017–2025 cars and light trucks. The MTE had found that the standards were still appropriate and technologically and economically achievable.

March 16, 2017

The EPA publishes a final rule that provides a 90-day administrative stay of the effective date of the RMP rule amendments, delaying the effective date of the final rule to June 19, 2017.

March 28, 2017

Trump signs his EO—Promoting Energy Independence and Economic Growth—which directs the EPA to review its Clean Power Plan (CPP) and issue a proposal to suspend, withdraw, or revise the rule. Any regulatory action taken by the Agency must support the “national interest to promote clean and safe development of our Nation’s vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation. Moreover, the prudent development of these natural resources is essential to ensuring the Nation’s geopolitical security.” The EO also revokes four Obama-era EOs and memorandums that direct federal agencies to take action to mitigate the effects of climate change on natural resources and national security.

March 29, 2017

Pruitt signs an order denying a petition that sought to revoke all food residue tolerances for chlorpyrifos, an active ingredient in widely used agricultural insecticides; basically, this is a ban on the use of chlorpyrifos. The Obama EPA had also proposed a ban on chlorpyrifos. Pruitt said the order was necessary so that the Agency could “return to using sound science in decision-making—rather than predetermined results.”

April 5, 2017

The White House Council on Environmental Quality (CEQ) withdraws its August 2016 Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews.

April 27, 2017

The EPA announces that it will reconsider its November 3, 2015, final Effluent Limitations Guidelines (ELGs) and Standards for the Steam Electric Power Generating Point Source Category. The Agency also issues a notice delaying the rule’s compliance deadlines pending resolution of claims against the rule that have been filed with the U.S. Court of Appeals for the 5th Circuit. The Agency adds that it intends to request that the 5th Circuit stay the pending litigation for 120 days (until September 12, 2017), “by which time the Agency intends to inform the Court of the portions of the rule, if any, that it seeks to have remanded to the Agency for further rulemaking.”

May 5, 2017

The media report that Pruitt plans not to renew the terms of 9 members (half of all 18 members) of EPA’s Board of Scientific Counselors (BOSC). The BOSC reviews work conducted by the Agency’s Office of Research and Development. Members serve a 3-year term and are eligible to serve a second 3-year term. It has been EPA’s standard practice to ask members to serve a second term.

May 12, 2017

The EPA proposes a 12-month extension for implementation of the Agency’s January 4, 2017, Certification and Training of Pesticide Applicators rule. The Agency says it received feedback from states and stakeholders that more time and resources are needed to prepare for compliance with the rule. The extended timeline would enable the Agency to work with states and provide adequate compliance and training resources, says the EPA.

May 12, 2017

The EPA announces a settlement with Pebble Limited Partnership, thereby allowing the company to apply for a CWA permit from the Corps for its massive copper and gold mine in the Bristol Bay region of Southwest Alaska. Under the settlement, the EPA will withdraw its proposed determination of effects of the mine, which would have restricted the use of certain waters in the Bristol Bay watershed for disposal of dredged or fill material associated with mining the Pebble deposit. The restrictions were so severe, it was unlikely the project could have proceeded under them.

May 23, 2017

In its formal proposal to Congress, the administration sticks with the budget and staffing cuts for the EPA introduced in the Budget Blueprint. Included inthe proposal is elimination of nearly $500 million in categorical grants that help the states implement and enforce federal environmental laws, including the CAA, CWA, and Safe Drinking Water Act. Also eliminated is the entirety of $427 million in funding for geographic programs intended to improve the quality of some of the nation’s most iconic waters, including the Great Lakes and Chesapeake Bay.

May 25, 2017

The EPA formally proposes to delay certain compliance dates in the November 2015 CWA effluent limitations guidelines and standards for the steam electric point source category. Specifically, the Agency seeks to postpone the compliance dates for the new and more stringent best available technology economically achievable effluent limitations and pretreatment standards for each of five wastestreams—fly ash transport water, bottom ash transport water, flue gas desulfurization wastewater, flue gas mercury control wastewater, and gasification wastewater. These compliance dates would be postponed until the EPA completes reconsideration of the 2015 rule.

May 31, 2017

The EPA stays for 90 days two revised rules the Agency issued in August 2016: Standards of Performance for Municipal Solid Waste Landfills and Emissions Guidelines and Compliance Times for Municipal Solid Waste Landfills. The rules were originally promulgated in 1996 and were revised by the Obama EPA to address emissions of methane-rich landfill gas from new, modified, and reconstructedmunicipal solid waste (MSW) landfills and existingMSW landfills. Both rules were part of Obama’s Climate Action Plan: Strategy to Reduce Methane Emissions. The stays responded to concerns raised by regulated facilities about specific provisions in those subparts, including surface emissions monitoring; annual liquids reporting; corrective action; overlapping applicability with other rules; the definition of cover penetration; and design plan approval. The Agency says it expects to prepare a proposed rule, which will allow for public comment.

May 31, 2017

The EPA issues a 90-day administrative stay of the fugitive emissions, pneumatic pump, and professional engineer (PE) certification requirements in the Agency’s 2016 New Source Performance Standards (NSPS) for the oil and natural gas (O&G) sector. The NSPS set limits on emissions of methane and volatile organic compounds from O&G facilities. The Agency says it wishes to reconsider the legality of those provisions. The proposal responds to industry concerns that the NSPS requirements were either not included or not adequately described in EPA’s proposed O&G NSPS.

June 1, 2017

Trump announces that the United States will withdraw from of the Paris climate accord. While not indicating if his skepticism about the human impact on the earth’s climate has changed, the president said his administration will engage with other nations on a new U.S. commitment under the Paris Agreement or will consider joining a new agreement.

June 6, 2017

Pruitt announces that he will extend by 1 year the deadline for initial area designations pursuant to the Agency’s 2015 National Ambient Air Quality Standards (NAAQS) for ozone. The EPA says it is giving states more time to develop air quality plans and wants to provide greater flexibility to states as they develop their plans.

June 12, 2017

In a final rule, the EPA delays by 20 months its January 13, 2017, amendments to the RMP regulations. The Agency says the delay will allow it time to conduct a reconsideration proceeding and to consider other issues that may benefit from additional comment. The new effective date of the rule is February 19, 2019.

June 13, 2017

The EPA follows up on its May 31 90-day administrative stay of the fugitive emissions, pneumatic pumps, and PE certification requirements in the O&G NSPS by proposing that these provisions be stayed for an additional 2 years while the Agency reconsiders them.

June 26, 2017

The EPA and the Corps formally propose to rescind the Obama administration’s WOTUS definition. In the proposal, the Agencies also state they will pursue notice-and-comment rulemaking that will include a substantive reevaluation of the definition of WOTUS based on Supreme Court Justice Antonin Scalia’s plurality opinion in Rapanos v. United States.