EPA revokes Trump-era air permitting policy

By Sean Reilly | 12/15/2022 04:10 PM EST

The 2017 memo effectively dropped enforcement of a key facet of the New Source Review program intended in part to limit air pollution from industrial plant expansions.

Michael Regan

EPA Administrator Michael Regan. Francis Chung/E&E News

EPA Administrator Michael Regan has scrapped a Trump-era permitting policy whose development ensnared a top appointee in allegations of ethical overstepping.

In a memorandum dated Friday but posted online this week, Regan revoked a December 2017 memo from then-EPA chief Scott Pruitt that effectively dropped enforcement of a key facet of the New Source Review program intended in part to limit air pollution from industrial plant expansions (Greenwire, Dec. 8, 2017). Regan offered no rationale for retracting the earlier policy almost two years into his tenure at EPA; it’s unclear how much effect the nonbinding Pruitt memo had on New Source Review permitting decisions, most of which are made by state and local regulators.

But the circumstances that underlie the 2017 memo’s creation later became a point of attack for critics of Bill Wehrum, who headed EPA’s air office under Pruitt from late 2017 to mid-2019.


As the memo makes clear, it was influenced by a long-running lawsuit by DTE Energy Co. challenging EPA’s forecast of the emissions expected from an overhaul of one of the Detroit-based utility’s coal-fired power plants.

Before rejoining EPA, Wehrum was a partner at a law firm that represented DTE in the litigation. Democratic lawmakers later cited emails and other agency records showing that Wehrum was involved in the memo’s drafting and sought an investigation by EPA’s inspector general (Greenwire, Feb. 25, 2019).

Wehrum acknowledged to The Washington Post that he discussed the draft memo with EPA colleagues before its release but said his involvement had been limited to a discussion of a 2002 set of air rules.

He resigned without explanation a few months later (Greenwire, June 26, 2019).

Created by Congress in 1977, the New Source Review program requires industries to get pre-construction permits for plant expansions and other upgrades that are expected to lead to significant increases in air pollution. Business groups have objected that the program’s requirements are cumbersome and self-defeating; environmental groups see New Source Review as a cornerstone of clean air protection.

Under his 2017 policy, Pruitt signaled that EPA would no longer second-guess companies’ predictions of the emission increases expected from specific plant projects, a key factor in determining whether New Source Review requirements apply.

DTE two years ago settled its suit against EPA with a deal to shutter three coal-fired power plants by the end of this year (E&E News PM, Dec. 3, 2020).

Regan’s decision to revoke the policy was previously reported by Inside EPA.

As E&E News reported last year, EPA under President Joe Biden’s administration has been slow to revoke Trump-era guidance for Clean Air Act policies (Greenwire, June 15, 2021).

Even as the agency is proceeding with reviews of four of the six pollutants covered by National Ambient Air Quality Standards, for example, another Pruitt memo setting terms for those reviews remains posted on an official website.

Late last year, however, EPA withdrew 2020 guidelines intended to circumvent an Obama-era ban on state loopholes for excess emissions resulting from plant startups, shutdowns and equipment malfunction (Greenwire, Oct. 1, 2021).