2 EPA Rules to Watch in 2017
Now that a new administrator has been sworn in to head the US Environmental Protection Agency, EHS managers are waiting to see how new leadership will impact the air, water, and chemical regulations they deal with every day.
We know already that under the Executive Order on Reducing Regulation and Controlling Regulatory Costs issued last month, Federal Agencies will now be required to eliminate two regulatory requirements for each new significant rulemaking they create.
EPA finalized two new rulemakings in the summer of 2015 that are nearly certain to face challenges under new EPA leadership. EHS managers who have responsibilities for air and water compliance issues should keep an eye on these two rules—EPA’s Clean Power Plan and the Waters of the United States or WOTUS Rule—which have already faced legal scrutiny. These legal battles to some extent involved new EPA Administrator Scott Pruitt, who challenged EPA’s authority on behalf of industry as Attorney General of the State of Oklahoma.
Clean Power Plan for Greenhouse Gases
In August 2015, US EPA completed a Final Rule focused on setting state-specific, rate-based emissions limits for greenhouse gas (GHGs) emissions from electricity generators. This major rulemaking, dubbed the Clean Power Plan, specifically aimed to reduce carbon dioxide (CO2) emissions from coal-fired power plants.The Clean Power Plan was a target of legal challenges from states’ Attorneys General, and in February 2016, the US Supreme Court stayed the rule. A stay prevents EPA from implementing or enforcing the Clean Power Plan, pending the outcome of litigation. EPA and states now await the outcome of the court challenge to determine whether the Plan will move forward.
Because the rule was created under the Clean Air Act section 111(d) and already finalized, repealing it is no simple task. To rescind a regulation already in place, the Administrative Procedures Act requires EPA to submit the rule for a public review and comment period and provide evidence that shows a rule change is necessary.
In this case, opponents of the Clean Power Plan believe the cost-benefit analysis EPA conducted while creating the rule was flawed and/or insufficient. That is the main argument being levied against the Clean Power Plan in court, and it will likely be at the center of any attempt by EPA to rescind or repeal it.
Waters of the United States (WOTUS)Update 03/01/17: Hours after this blog was posted, the president signed an executive order to require EPA to review its Waters of the United States (WOTUS) Final Rule.
In June 2015, EPA finalized a new definition of a key Clean Water Act term—“Waters of the United States.” This rule subjected more bodies of water to US EPA’s Clean Water Act (CWA) programs—oil spill rules, permit requirements, and limits on dredge-and-fill operations—on the basis that they share a “significant nexus” with larger bodies of water like rivers, lakes, and oceans covered under the CWA.
Like the Clean Power Plan, EPA’s WOTUS Rule faced legal challenges. In October 2015, a US Court of Appeals stayed the WOTUS Rule nationwide. Also like the Clean Power Plan, EPA and states now await the resolution of the challenge in court.
When these court cases are resolved, Lion News will report on the decisions and EPA’s likely next steps toward rescinding or retracting the Clean Power Plan or WOTUS rules. The legal challenges to these two rules have outlasted one administration already and could continue for the foreseeable future.
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