New Administration, New EPAApril 19, 2017 – Articles
Since taking office on January 20, 2017, President Trump has signaled a new approach to environmental protection under his administration through issuance of Executive Orders, Presidential Memoranda and his initial budget. This article highlights some of those actions.
President Trump has sent a message about the importance of infrastructure projects under his administration. Executive Order 13766, issued on January 24, 2017, provides for streamlining and expediting environmental reviews and approvals for infrastructure projects, particularly for projects classified as “high priority.” Under the Executive Order, high priority projects include those for improving the electric grid and telecommunication systems, as well as repairing and upgrading critical facilities at ports, airports, pipelines, bridges and highways. A governor or the head of any executive department or agency may make a request for an infrastructure project to be classified as high priority. The request is made to the Chairman of the White House Counsel on Environmental Quality (CEQ), who must decide within 30 days whether to grant the request after considering the project’s importance to general welfare, value to the nation, environmental benefits and any other relevant factors. The Chairman may also on his own initiative classify a project as a high priority infrastructure project. For a high priority project, the Chairman of the CEQ is to coordinate expedited procedures and deadlines for completion of environmental reviews and approvals with the head of the relevant agency. If the deadlines established are not met, the agency head is required to provide a written explanation of the delay and concrete steps that will be taken to complete reviews and approvals as expeditiously as possible. Consistent with statements in other Executive Orders, the order is to be implemented consistent with applicable law and subject to available appropriations and is not intended to impair or affect authority granted by law to agencies.
On January 30, 2017, the President issued three related memoranda regarding pipeline projects. One of the Presidential Memoranda addresses construction of the Dakota Access Pipeline (DAPL). The memorandum noted that the DAPL is a substantial multi-billion dollar private investment in energy infrastructure, which is more than 90 percent complete. The 1,100 mile pipeline will carry 500,000 barrels per day of crude oil. The President directs the Army Corps of Engineers, through the Secretary of the Army, to take all actions necessary to review and approve in an expedited manner requests for approvals to construct and operate the DAPL, including easements and rights of way under the Mineral Leasing Act, permits and approvals under Section 404 of the Clean Water Act or under Section 14 of the Rivers and Harbors Act, and any other necessary federal approvals. The memorandum also directs the Corps to consider whether to rescind or modify its December 4, 2016 memorandum addressing the pipeline crossing at Lake Oahe in North Dakota and whether to withdraw the Notice of Intent to Prepare an Environmental Impact Statement. The memorandum further directs the Corps to consider prior reviews and determinations, including the July 2016 Environmental Assessment for the DAPL, as satisfying the requirements of the National Environmental Policy Act, as well as any other legal requirement for executive agency consultation or review. The Corps is also to review and grant, to the extent permitted and warranted, requests for waivers of notice periods related to Army Corps real estate policies and regulations and to issue any approved easements or rights-of-way immediately after notice is provided to Congress under the Mineral Leasing Act.
A second Presidential Memorandum published on January 30, 2017 deals with the Keystone XL Pipeline. In that memorandum the President invited TransCanada Keystone Pipeline to “promptly re-submit its application” to the State Department for a Presidential Permit for Construction/Operation of the Pipeline for importation of petroleum from Canada to the United States. Under Executive Order 11423 (August 16, 1968), as amended, and Executive Order 13337 (April 30, 2004), the Secretary of State receives applications for Presidential Permits for cross-border pipeline projects that serve the national interest. In the January 2017 memorandum, the President directs the Secretary of State to take all actions necessary and appropriate to facilitate expeditious review of an application if submitted by TransCanada, including a final permitting determination within 60 days of submittal of the permit application. The memorandum also directs that to the maximum extent permitted by law, the Final Supplemental EIS issued in January 2014 regarding the pipeline should be considered as satisfying the requirements for NEPA review and any other consultation or review requirement. To the extent permitted by law, any permits or authorizations issued prior to the date of the memorandum are to remain in effect until completion of the project. The memorandum also directs the Army Corps of Engineers and Department of Interior to expedite reviews and requests for authorization, including permitting and rights of way. TransCanada submitted its application and, according to the State Department website, the Presidential Permit was issued on March 24, 2017.
Consistent with President Trump’s public statements encouraging retention of manufacturing jobs in the United States, the third of the pipeline memoranda directs the Secretary of Commerce, in consultation with other relevant departments or agencies, to develop a plan for all new pipelines, as well as retrofits, repairs or expansions, inside the United States to use materials and equipment produced in the United States to the maximum extent possible. For purposes of the Presidential Memorandum, “produced in the United States” means, with regard to iron or steel products, all manufacturing processes from the initial melting stage through application of coatings occurred in the United States. Steel or iron materials or products manufactured abroad from semi-finished steel or iron from the United States do not meet the definition of “produced in the United States.” Steel or iron material or products manufactured in the United States from semi-finished steel or iron of foreign origin also do not meet the definition of “produced in the United States.”
In addition to infrastructure development, President Trump is focused on reducing regulations, streamlining permitting and reducing regulatory burdens. Executive Order 13771 (also referred to as the “2 for 1” order), issued January 30, 2017, directs an agency proposing or issuing a new regulation to identify two regulations to be repealed. The Executive Order also addresses regulatory costs. It sets a cap of zero on the total incremental cost of new regulations, including repealed regulations for fiscal year 2017, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget (OMB). Beginning with fiscal year 2018, the head of each agency is to identify, for each regulation that increases incremental costs, the offsetting regulations and provide the best approximation of total costs or savings associated with each new regulation or repealed regulation. Each year, the Director of OMB will identify the incremental cost allowance for each agency. The Executive Order does not apply to regulations issued with respect to the military, national security or foreign affairs, regulations related to agency organization, management or personnel, or any other category of regulations exempted by the Director of OMB. However, the Executive Order notes that these restrictions apply unless prohibited by law or the regulations are otherwise required by law. A lawsuit challenging this Executive Order was filed by Public Citizen, Inc., the Natural Resources Defense Council and the Communications Workers of America in the U.S. District Court for the District of Columbia on February 8, 2017. Public Citizen, Inc., et al. v. Trump, et al., Case No. 1:17-cv-00253-GK.
On February 24, 2017, President Trump issued Executive Order 13771, “Enforcing the Regulatory Reform Agenda.” This order directs each agency within 60 days to designate a Regulatory Reform Officer (RRO) to oversee implementation of regulatory reform initiatives and policies. The RRO is also to oversee identification of programs and activities that derive from Executive Orders, guidance, policy memoranda or other sources that have been rescinded. Within each agency a Regulatory Reform Task Force is to be established in which the RRO, along with other designated personnel, will participate. Entities staffed by officials from multiple agencies are to form a Joint Regulatory Reform Task Force with representatives from constituent agencies. These Task Forces are to evaluate existing regulations and make recommendations to agency heads regarding repeal, replacement or modification consistent with applicable law. Each Task Force is to seek input from entities affected by the regulations including state, local and tribal governments, businesses, non-governmental organizations and trade associations. The agency head is to prioritize the regulations that the Task Force has identified as outdated, unnecessary or ineffective. Within 90 days of the issuance of the Executive Order, each Task Force is to provide a report to the agency head on the status of improving implementation of regulatory reform initiatives and identifying regulations for repeal, replacement or modification. Certain subject agencies will be required to incorporate these action items into their annual performance plans under the Government Performance and Results Act. The Director of OMB is to provide guidance on implementation of these requirements.
In a related action, on January 24, 2017, the President issued a Presidential Memorandum to the heads of executive departments and agencies addressing streamlining permitting and reducing regulatory burdens on domestic manufacturers. The Secretary of Commerce is to conduct outreach to stakeholders concerning the impact of federal regulations and solicit comments within 60 days concerning actions that would streamline permitting and reduce regulatory burdens. The Secretary of Commerce is to coordinate these activities with the Secretary of Agriculture, Secretary of Energy, the EPA Administrator, the Director of OMB and the Administrator of the Small Business Administration as well as others as appropriate. The Secretary of Commerce is to submit a report to the President within 60 days of the initial work and include a plan to streamline permitting processes and reduce regulatory burdens. Recommendations for changes to policies, practices or procedures to promote more expeditious action are also to be included.
Waters of the U.S.
The new administration has taken specific action with respect to the waters of the United States final rule that was published in the June 29, 2015 Federal Register. Executive Order 13778, which was signed on February 28, 2017, directs EPA and the Army Corps to review the rule as well as all orders, guidelines, rules, regulations or policies implementing or enforcing the rule. With respect to litigation over the final rule, the Executive Order also directs the Attorney General to be notified of the pending review of the rule so that the Attorney General may, as appropriate, inform any court of such measures pending completion of further administrative proceedings. The Executive Order directs EPA and the Corps to review the final rule and publish for notice and comment a proposal to rescind or revise it “as appropriate and consistent with law.” The Executive Order specifically directs the Administrator and the Corps to consider interpreting the term “navigable waters” in a manner consistent with the opinion of Justice Scalia in Rapanos v. United States, 547 U.S. 715 (2006). Newly appointed EPA Administrator Scott Pruitt has announced the agency’s intent to review and rescind or revise the rule in a notice that was published in the March 6, 2017 Federal Register.
Clean Power Plan
On March 28, 2017, President Trump issued a much anticipated Executive Order for review of President Obama’s Clean Power Plan, related rules and agency actions. Executive Order 13783, among other things, directs EPA to immediately review and, if appropriate, revise, suspend or rescind (a) the emission guidelines for existing electric generating units, (b) the performance standards for new, modified, or reconstructed electric generating units, and (c) the proposed federal plan requirements for greenhouse gas emissions from electric generating units. (Those proposed requirements were withdrawn on April 3, 2017, at 82 Fed. Reg. 16144.) The EPA Administrator was directed to immediately notify the Attorney General of the actions taken so that the Attorney General could, as appropriate, notify the court in pending litigation over the rules to seek a stay or otherwise delay further litigation. The guidance and technical support documents issued by the Interagency Working Group on Social Cost of Greenhouse Gases are withdrawn as no longer representative of governmental policy. All moratoria on coal leasing of Federal land are to be lifted. The June 3, 2016 final rule regarding emissions standards for new, modified and reconstructed sources in the oil and natural gas sector are to be reviewed and, if appropriate, suspended, revised, or rescinded.
Other Regulatory Actions
In addition to these Executive Orders and Presidential Memoranda, the Trump administration has taken steps to delay effective dates and to extend comment periods for rules that were either finalized or proposed by the prior administration shortly before leaving office. The new administration has imposed a regulatory freeze on new regulations being sent for publication. Regulations that have been sent but not yet published are to be withdrawn from the Office of the Federal Register. The effective date of regulations that have been published but not yet effective is to be delayed for 60 days to allow review by the new administration. In some instances the time period has been extended even longer. For example, amendments to the Risk Management Plan Requirements pursuant to Section 112(r) of the Clean Air Act were initially to become effective on March 14, 2017, but the effective date was extended to June 19, 2017. A proceeding for reconsideration of those amendments is being convened by EPA Administrator Pruitt. Additionally, Kentucky (through Governor Bevin), Louisiana, Arizona, Arkansas, Florida, Kansas, Texas, Oklahoma, South Carolina, Wisconsin and West Virginia petitioned EPA to reconsider the rule and defer the effective date to September 2018. EPA is now proposing to extend the effective date to February 19, 2019.
Finally, the new administration has proposed a budget that would result in approximately a 30 percent cut in EPA’s budget for the next fiscal year. Despite rumors of its demise, the Office of Enforcement and Compliance Assurance (OECA) has not yet been eliminated but has been the subject of substantial cuts. Elimination of two EPA regional offices is under consideration. If adopted, the budget cuts will undoubtedly result in a reduction in federal regulatory development and a shift of more responsibility to the states, many of which face their own financial challenges.
It is clear that President Trump is intent on changing the approach to regulatory development and implementation of environmental programs at EPA. There will be strong opposition to this regulatory roll-back and battles will continue to be fought in the courts. For the time being, the environmental regulatory landscape is in a state of flux. We will continue to follow these developments in future issues of the Air Quality Letter.