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 (WOTUS) Rule, promoting energy dominance, promoting science transparency, ending "sue and settle," and promoting certainty to the auto industry.
It is true President Trump withdrew from the Paris Climate Agreement and EPA is proposing to repeal the Clean Power Plan and the WOTUS Rule. It is promoting science transparency by proposing a rule requiring EPA to ensure that data underlying scientific studies it uses in rule-makings are publicly available in a manner sufficient for independent validation. As to ending the "sue and settle" practice, EPA issued memoranda stating that it will "promote transparency" by announcing or publishing all aspects of the process involving lawsuits against EPA.
EPA also touts that it is ensuring clean air and water. However, while EPA is attempting to "roll back" several high-profile rule-makings issued during the Obama administration, the Clean Air Act and the Clean Water Act, and the pervasive regulatory regimes associated with each, remain in effect. The question becomes, then, whether EPA will enforce the statutes and regulations. EPA is signaling that it will allow delegated states to take the lead in enforcement. To ensure clean air and water, the states will have to uphold and enforce the basic environmental framework and EPA will have to act as a regulatory "backstop" to ensure it is done.
EPA is reducing government regulations in accordance with presidential directives. Perhaps the most well-known directive is Executive Order (EO) 13771, Jan. 30, 2017, under which an agency is required to identify at least two existing regulations to be repealed when it proposes a new regulation. Although EPA claims to have finalized 22 deregulatory actions, many of the deregulatory actions it touts are stays, extensions of effective dates or reconsiderations, and not actual repeals of existing rules.
EPA's claim to "promote energy dominance" is general and vague enough to be realized by virtually any action that promotes energy production. In this regard, EPA touts the repeal of the Clean Power Plan and the WOTUS Rule. EPA also notes that it withdrew the Information Collection Requests that were sent by the Obama administration to existing oil and gas facilities in order to collect information to support emission standards on those existing facilities.
EPA's promotion of certainty to the auto industry consists of a withdrawal of a prior determination regarding greenhouse gas emissions standards for 2022- 2025 light-duty vehicles and a rule-making to establish new standards. While the withdrawal of established standards and developing new standards may not be everyone's idea of the promotion of certainty, EPA explained that many of the key assumptions relied on by EPA, such as gas prices and consumer acceptance of advanced-technology vehicles, were optimistic or have significantly changed and thus were no longer realistic assumptions.
In short, EPA's new deregulatory agenda has produced some successes. However, to fully realize that ambitious agenda, much more work will have to be done.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting, compliance, and due diligence. Prior to joining the firm in 2003, he served as chief attorney for enforcement for the Louisiana Department of Environmental Quality.
For more information, visit www. bswenviroblog.com or contact John B. King at jbk@bswllp.com or (225) 381-8014.
