Environmental Update

Author: Andrew E. Skroback Publication | August 2017

The US Environmental Protection Agency has decided to move forward with plans to designate which cities and counties are in compliance with new federal ozone limits, imposed in 2015, on pollutants that contribute to urban smog, and which are not, by October 1.

EPA Administrator Scott Pruitt had said as recently as June that the agency would delay any such designations for at least a year. Pruitt had suggested the agency needed more data before making the determinations.

The reversal in early August appears to have been precipitated by a recent court loss by the Trump administration in its effort to back off federal limits on methane emissions from new oil and gas drilling operations and other methane sources and by the filing of multiple lawsuits against the proposed ozone stay by states and environmental groups.

In July, a US court of appeals overruled Pruitt’s attempt to freeze Obama-era EPA rules that set limits on methane emissions after determining that the agency’s delay violated the Clean Air Act, putting the rule back into effect. After Pruitt announced that he would delay the ozone designations, 16 states sued, charging that the delay also violated the Clean Air Act.

The appeals court decision in the methane case may be used by states and environmental groups to challenge other Trump-era efforts to delay Obama-era rules.

Challenges are pending to Pruitt’s efforts to delay implementation of Clean Water Act power plant effluent limits, deadlines for companies to comply with safety requirements to prevent explosions and spills at chemical plants, enforcement of landfill methane limits, and various other environmental regulations. While the recent setbacks to Pruitt on the methane and ozone rules demonstrate there are limits on an agency’s discretionary authority to postpone regulation, the legal issues at the heart of each pending challenge differ and will have to be decided on a case-by-case basis.

Pruitt had challenged the 2015 ozone limits while attorney general in Oklahoma.

Climate Regulation

EPA sent a proposal to withdraw the Clean Power Plan, which sets limits on greenhouse gas emissions by existing power plants, to the White House Office of Management and Budget for review in June, but the agency has not said when further action will be taken.

There is also still no indication whether EPA will try to reexamine its own finding from 2009 that greenhouse gas emissions must be regulated under the Clean Air Act, the so-called “endangerment finding.” That finding is the legal foundation on which all of federal greenhouse gas regulations are built. Its demise could lead to elimination of all federal climate rules.

Pruitt said in July that a recently launched process to “critique” climate science is not aimed at undermining the endangerment finding. He said there could be a legal basis to challenge the finding, but he would prefer that Congress address the issue.

After Paris

The Trump administration notified the United Nations in early August that the United States is withdrawing from the Paris climate accord.

With the withdrawal, efforts to reduce greenhouse gas emissions are devolving from the federal level to states and municipalities. Various states, cities and businesses have said they intend to work toward ensuring the United States meets its pledge to reduce greenhouse gas emissions and have formed partnerships with such names as the US Climate Alliance of States, the Climate Mayors coalition, and the “We Are Still In” declaration. The United States promised to reduce greenhouse gas emissions to approximately 28% below the 2005 level by 2025.

California Governor Jerry Brown and former New York City Mayor Michael Bloomberg launched an initiative in July to build on the state and local movement. Their initiative will track climate-related activities in the United States with the aim of reporting on them at the United Nations’ 23rd Conference of the Parties to the Framework Convention on Climate Change — COP23 — in November 2017.

Enforcement

EPA instituted a new policy in July that requires its regional offices to get approval from EPA headquarters before asking companies for information that would show whether they are complying with federal environmental statutes. Such information requests under the Clean Air and Clean Water Acts have been common, and are usually issued in advance of site visits or other regulatory action.

The agency said the move will improve efficiency. The need for all information requests to run through headquarters could create a bottleneck that delays or reduces the number of enforcement actions.

Sage Grouse

The US Department of Interior ordered nine broad changes on August 4 to an Obama-era plan to protect sage grouse. The recommendations are general directions requiring further agency study and action, but are clearly intended to give states more flexibility to deal with habitat management, waivers, mineral leasing and other development.

Meanwhile, three lawsuits brought by affected industries and states over the extent of Endangered Species Act protections for the greater sage grouse were frozen in July to give the US Department of the Interior time to reconsider its strategy for protecting the birds.The plaintiffs in the lawsuits assert that land use limitations issued in September 2015 to protect sage grouse habitats could block mining, oil and gas drilling, livestock grazing and other activities on millions of acres across the 15 states where the bird lives, with the most pronounced effects in Idaho, Nevada, Utah and Wyoming. The three cases are Am. Exploration & Mining Ass’n v. Interior, W. Energy Alliance v. Interior, and Otter v. Zinke.

Estimates of sage grouse range between 200,000 and 500,000 birds.

Water

EPA and the US Army Corps of Engineers released a joint proposal in late June to rescind and eventually replace a “Clean Water Rule” issued in 2015. The rule defines the extent of federal jurisdiction over “waters of the United States” under the Clean Water Act. The rule has been in limbo since a US appeals court blocked implementation in October 2015.

The Clean Water Act requires companies to have federal permits before discharging any pollutants or dredged or fill material into “waters of the United States.”

Congress did not define the term. The US Supreme Court gave its view of what the term means in 2006 in a case called Rapanos v. United States. Justice Scalia, writing for a plurality of four of the nine justices, defined “waters of the United States” as “relatively permanent, standing or continuously flowing bodies of water,” as well as wetlands with a “continuous surface connection” to such waters. A concurring opinion by Justice Kennedy suggested the term should be defined more broadly to include wetlands that have a “significant nexus” to traditionally navigable waters and “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical and biological integrity of . . . [such] covered waters.”

EPA basically adopted the definition suggested by Justice Kennedy in 2015.

While the 2015 rule remains in limbo, Rapanos and agency guidance issued in 2008 have remained in effect.

President Trump issued an executive order in February 2017 directing EPA and the US Army Corps of Engineers to work toward “revising or revoking” the 2015 Obama-era definition. A newly proposed “interim rule” is the first step in this reconsideration.

The interim approach is to leave in place the definition of “‘waters of the United States’ as it is currently being implemented, that is informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding practice.” According to the two agencies, this approach “simply codifies the current legal status quo while the agencies engage in a second, substantive rulemaking to reconsider the definition of ‘waters of the United States.’”

A formal withdrawal of the 2015 definition is expected.

The withdrawal is a form of insurance by the Trump administration in case the US Supreme Court decides that the US appeals court that froze implementation of the 2015 definition lacked authority to do so. The Trump administration is expected to issue its own definition in December 2017.


Contacts

Andrew E. Skroback

Andrew E. Skroback

Washington, DC