EPA is gearing up for another big deregulatory push this fall as the agency aims to finalize a number of major actions in the next few months.
Some of its most contentious regulatory rollbacks are still pending, including defining what waters the federal government can regulate under the Clean Water Act, determining the degree automakers should improve fuel economy over the near term and establishing what types of scientific research can be used to draft regulations.
The bureaucracy is completing the actions as the agency faces a countdown to release rules before the 2020 presidential election year and well ahead of when the regulations could become vulnerable under the Congressional Review Act, should Democrats control Congress and the White House in 2021.
Waters of the U.S.
At the top of the agenda is the agency’s pending release of its repeal of the Obama-era Clean Water Rule, which sought to clarify which wetlands and waterways are protected as "waters of the U.S.," or WOTUS, under the Clean Water Act.
Legal action has blocked the 2015 rule in 27 states while leaving it in effect in 22 others. The status in New Mexico is unclear.
The coming EPA rule, expected at any time, would bring all 50 states back under regulations that have been in place since the 1980s, as interpreted by guidance written by the Bush administration in 2008.
The Trump team is simultaneously working to finalize a new definition of WOTUS, which would further roll back Clean Water Act protections under those 1986 regulations.
As proposed, the regulation would no longer protect ephemeral streams that flow only after rainfall or snowmelt. Wetlands without surface water connections to larger waterways would also be exempt (Greenwire, Dec. 11, 2018). EPA leaders have said they expect to finalize the new definition by the end of this year.
New Source Performance Standards
While EPA has already finalized its replacement for the Clean Power Plan, the agency is yet to publish a final replacement for carbon emission standards for new and modified power plants.
In its proposal, EPA stated it would no longer consider partial carbon capture and storage the "best system of emissions reductions," saying the technology had not yet been adequately demonstrated and was still too expensive.
Critics of the rule change say the agency’s changes are ignoring the Clean Air Act’s imperative to drive technological innovation.
EPA projected in the White House’s fall update of federal regulatory actions that it would release a final rule in September.
Clean car standards
Still embroiled in a conflict with California over the stringency of vehicle fuel efficiency standards, EPA and the Department of Transportation are expected to come out with a final rule this fall.
The agencies are reportedly considering splitting the rollback into two parts. EPA may first withdraw California’s Clean Air Act waiver for greenhouse gases, which allows the state to set stricter vehicle emission standards than the federal government. EPA and DOT would then release their final plan for freezing fuel economy standards at 2020 levels through 2026 (Climatewire, Sept. 6).
An analysis earlier this summer by the think tank Energy Innovation suggested the rollback could cost the economy $400 billion through 2040 (Greenwire, Aug. 7).
Under a double-pronged initiative made public last November, EPA took two steps that could affect its 2015 New Source Performance Standards for wood stoves and other wood-fired home heating appliances (E&E News PM, Nov. 26, 2018).
The first, set to be issued in final form next month, would allow some dirtier burning systems to be sold for two years past next May’s final compliance date for the standards.
At the same time, EPA also sought public input on the possibility of extending similar "sell-through" relief to the rest of the industry, as well as on the option of pushing back the May deadline.
On that score, the agency plans to formally issue a proposed rule by December, according to the administration’s Unified Agenda. The timetable for a final rule has yet to be determined, the agenda indicates.
In a draft rule unveiled in December, EPA proposed to scrap the legal justification underpinning its 2012 regulations on emissions of mercury and other hazardous pollutants from oil- and coal-fired power plants (Greenwire, Dec. 28, 2018). But the actual standards, which the power industry has almost fully implemented, would be left in place.
EPA plans to issue the final version by November, according to the latest version of the Unified Agenda.
The proposed rule, formally dubbed "Strengthening Transparency in Regulatory Science," was released in April 2018; it would bar the agency from using scientific studies in crafting significant new rules unless the underlying research data is "publicly available in a manner sufficient for independent validation," according to the text.
While EPA aims to complete work on the rule by this December, agency officials still haven’t fleshed out key elements of the proposal — including a precise definition of "validation," according to responses provided in late July to an independent advisory committee (Greenwire, Aug. 28).
Oil and gas
EPA is expected to finalize its withdrawal of 2016 control technique guidelines for the oil and gas industry, though it’s unclear when that may occur.
The guidelines cover emissions of volatile organic compounds from existing oil and gas sources in specific smog-affected areas of the country. The guidelines also serve to control methane emissions from existing sources, along with VOCs.
EPA first proposed withdrawing the control technique guidelines in March 2018, and the agency has shown little movement on them since.
These guidelines have added significance now that EPA is proposing dramatic changes to how it controls methane from the oil and gas sector. A newly proposed rule would eliminate the requirement for EPA to regulate all oil and gas sources.
Control technique guidelines would be one of the remaining ways the federal government could still encourage some amount of methane control from existing oil and gas sources.
The agency could also come out with a number of proposed rules this fall, including revisions to the Lead and Copper Rule, which is aimed at controlling the concentration of the metals in drinking water. The White House Office of Information and Regulatory Affairs received the draft proposal from the agency in early June.
EPA is also overdue to release draft effluent limitation guidelines for power plants. The regulation would address toxic wastewater discharges and would revise a 2015 rule.
The air office is also expected to draft a cost-benefit rule, which is meant to guide how EPA addresses cost-benefit analysis in future air pollution regulation. Other EPA offices are expected to draft their own cost-benefit rules as well, though those deadlines are not yet known.
Reporters Ariel Wittenberg and Maxine Joselow contributed.