1. Air & Waste Management Association (Southwest Ohio) May 2, 2017
The Winds of Change
Air & Waste Management Association (Southwest Ohio) May 2, 2017
J. Wray Blattner
Thompson Hine LLP

2. Guidance or Executive Orders
Revise or Rescind
The administration must conduct rulemaking, and survive judicial challenge. This may take years to complete
Final Rule
Enforcement Discretion
This can be done immediately as courts have been very deferential to agency implementation
Modify Legal Defense
Courts have been critical of agencies that modify legal strategies for political reasons. However, an agency may choose not to appeal a decision
Executive Option Set
Recall
Proposed Rule
Proposed rules not finalized and published in the Federal Register may be voluntarily withdrawn
Re-Propose
Agencies that are required to re-propose rules by statute or judicial order may re-propose with significant changes
Revise or Rescind
This can be done almost immediately
Guidance or Executive Orders
Enforcement Discretion
This can be done almost immediately
Budget

3. Legislative Branch Options Set
This applies to all rules, finalized within the last 60 “legislative days.” Joint Resolution requires only a simple majority to pass and Presidential approval.
Final Rule
Congressional Review Act (CRA)
A new law may override or amend the legal basis for a regulation. This action requires 60 votes in the Senate.
New Law
Final Rule, Proposed Rule, Guidance or Executive Order
Appropriations Rider
Congress may block an agency from finalizing a regulation by restricting funds.
Reconciliation
Policies that impact the federal budget may be amended in a budget “reconciliation” package. Such a package requires only a simple majority to pass

4. Executive Orders E.O. 13771 January 30, 2017 E.O. 13777 March 1, 2017:
“2 for 1”: Two rules to be repealed for every new rule issued
E.O March 1, 2017:
Agencies must establish “Regulatory Reform Task Forces”; identify regulations for reconsideration
E.O March 3, 2017:
Directs EPA and Army Corps of Engineers to repeal the 2015 “Waters of the United States” rule

5. Executive Orders
E.O March 28, 2017: “Promoting Energy Independence and Economic Growth”
Instructs agencies to immediately review, suspend, revise, or rescind any regulations that “unduly burden” development of domestic energy resources
Clean Power Plan (existing electric generating units)
GHG NSPS for new, modified electric generating units
Model GHG trading rules
Methane and VOC NSPS for oil and gas sector

6. Executive Orders E.O. 13783 March 28, 2017 (continued) Silent on:
Revokes Obama’s June 2013 Climate Action Plan
Lifts moratorium on new coal leases on federal lands
Ends use of “social cost of carbon” in economic analysis of rulemakings
Silent on:
2009 Endangerment Finding
2015 Paris Agreement (26-28% reduction in GHG emissions)

7. The Trump Administration Has Slashed EPA’s Budget
$2.6 Billion reduction to $5.7B
Lowest level since 1990
Elimination of 3,200 jobs
Prioritized funding for drinking water and wastewater infrastructure
$2.3B for State Revolving Fund ($4 million increase over 2017)

8. Budget
Taking a Hit:
Office of Enforcement & Compliance Assurance: $129M cut to $419M
Office of R&D: $233M cut to $250M
State “Categorical Grants”: $482M cut to $597M
Hazardous Substance Superfund Account: $330M cut to $762M
Eliminates funding for certain regional efforts such as Great Lakes Restoration Initiative and Chesapeake Bay ($427M)
Eliminates 50 programs, including Endocrine Disruptor Screening program

9. Congressional Review Act
5 U.S.C. §§801 et seq.
Product of Newt Gingrich’s “Contract with America” (1996)
Empowers Congress, through Joint Resolution of both houses, to reject agency regulations

10. Congressional Review Act
Agencies must submit report on rulemakings to Senate and House of Representatives
Congress has 60 “legislative” days to issue Joint Resolution
President then approves or veto’s JR
Simple majorities required in each House; filibuster not permitted
Following successful JR, CRA prohibits issuance of a rule in substantially same form as the repealed regulation (unless the rule has been specifically authorized by subsequent legislation).

11. Congressional Review Act
Pre-2017: CRA used only once to overturn a regulation
President Obama vetoed all five JRs Congress produced
As of April 24, Congress has issued and President Trump has approved 14 Joint Resolutions
Rules issued after May 30, 2016 are at risk (for 60 legislative days post-issuance)
In the cross-hairs:
June 3, 2016 NSPS for methane and VOC emissions at Oil & Gas operations
Revised Risk Management Plan rule

12. Clean Power Plan
GHG emissions regulations for existing electric generating units
Industry & States (including Ohio) challenged October 2015 rules in federal Court of Appeals for District of Columbia
Court of Appeals rejected request for stay of implementation of CPP pending decision on merits
U.S. Supreme Court granted stay
April 28: Court of Appeals grants EPA request to pause litigation (60 days); parties to file briefs on whether rules should be remanded to EPA
What next?

13. Ozone NAAQS
Industry and public health and environmental groups appealed the October 2015 rule lowering the revised ozone NAAQS from 75 ppg to 70 ppb
D.C. Court of Appeals acceded to EPA’s request and canceled April 19 oral arguments (Murray Energy Corp. v. EPA, D.C. Cir. No )
EPA to re-evalute the standard
What next?

14. Methane and VOC NSPS for Oil & Gas (June 2016 Rulemaking)
EPA has requested stay of litigation (American Petroleum Institute v. EPA, D.C. Cir. No )
April 18, EPA announced it will reconsider the fugitive emissions monitoring requirements and will stay the June 3 monitoring compliance date
What next?

15. Startup, Shutdown and Malfunctions
EPA SIP call in May 2015 requiring 36 states (including Ohio) to revise their SSM rules
Several states and industry groups filed suit
April 24 D.C. Circuit Court of Appeals grants EPA’s request to postpone May 8 oral arguments
EPA to re-evaluate SIP call
What next?

16. Mercury Air Toxics MACT
EPA MATS rulemaking finalized March 2013
D.C. Circuit upholds the rules, but Supreme Court holds that EPA failed to conduct required cost-benefit analysis
EPA conducts cost analysis, concludes benefits sufficiently outweigh costs
Litigation resumes at Court of Appeals
April 27: Court grants EPA’s request to delay May 18 oral arguments to allow agency to re-evaluate rules
What next?

17. Risk Management Program
January 13, 2017: EPA issues rule amending RMP, expanding requirements and making response program information potentially available to the public through LEPC’s (40 CFR Part 68; 82 Fed. Reg. 4594)
February and March: Joint Resolution introduced under CRA in both the House and Senate (but not passed….yet)
March 13: Following industry’s February 28 petition, Administrator Pruitt announces reconsideration of the rule and stays compliance date to June 19, 2017
March 14: 11 states petition for reconsideration of rule, seek extension of stay
April 3: EPA proposes to delay the effective date to February 19, 2019 (82 Fed. Reg ); NPRM to follow

18. EPA Request for Comment
E.O “Enforcing the Regulatory Reform Agenda”
Directs agencies to create “Task Forces” to evaluate existing regulations
April 13 EPA Request for Comment (82 Fed. Reg )
Seeks input on regulations “that may be appropriate for repeal, replacement, or modification”
Comments due May 15