Last week the Trump Administration posted its Spring 2017 Update to the Unified Agenda of Federal Regulatory and Deregulatory Actions (Update) on the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA) website. The Update outlines the actions that administrative agencies plan to issue in the near and long term. The introduction to the Update states that “the Agenda includes the withdrawal and reconsideration of numerous regulatory actions.” In addition to planned actions, the Update also includes an “inactive” list of “regulations still being reviewed or considered.”
Pre- and proposed rules listed in EPA’s section of the Update include:
- Second Action: Definition of “Waters of the U.S.” (RIN: 2040-AF75): The EPA and the Department of the Army are “conducting a substantive re-evaluation and revision of the definition of ‘waters of the United States’” pursuant to the President’s Executive Order. (The first action proposing to recodify preexisting rules was published today in the Federal Register. Comments on the first action are due by August 28, 2017.)
- Response to December 9, 2013, CAA Section 176A Petition From Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, and Vermont (RIN: 2060-AT22): EPA is considering its response to the petition filed by certain northeastern states requesting that EPA add Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, West Virginia, and Virginia to the current Ozone Transport Region. The Update states that pursuant to a consent decree the EPA must finalize its response by October 27, 2017.
- Review of the Primary National Ambient Air Quality Standards for Nitrogen Dioxide (RIN: 2060-AR57): The Clean Air Act requires EPA to review and (as applicable) revise the criteria for primary (health-based) and secondary (welfare-based) national ambient air quality standards (NAAQS) every five years. In yesterday’s Federal Register, EPA published a proposed rule to retain the current primary nitrogen dioxide (NO2) NAAQS.
Long-term actions listed in EPA’s section of the Update include:
- Review of the Clean Power Plan (RIN: 20160-AT55): The abstract to the proposed rule was first sent for OMB review in mid-June 2017 and has been since updated. The abstract now states that “[t]his action proposes to withdraw the Clean Power Plan on grounds that it exceeds the statutory authority provided under section 111 of the Clean Air Act.”
- Review of the Standards of Performance for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary Sources: Electric Generating Units (RIN: 2060-AT56): Similar to the CPP Review, the abstract for this proposed action states that EPA “proposes to withdraw these standards on grounds that they exceed the statutory authority provided under section 111 of the Clean Air Act.”
- Reconsideration of the Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (RIN: 2040-AF777): EPA is reconsidering the Clean Water Act effluent limitation guidelines and standards that were adopted in 2015.
- Review of the 2016 Oil and Gas New Source Performance Standards for New, Reconstructed, and Modified Sources (RIN: 2060-AT54): EPA will review the 2016 Oil and Gas New Source Performance Standards and “address issues that [it] decides to reconsider.”
While the specific justifications for the withdrawal of the CPP and the carbon new source performance standards remain to be seen, the rules could echo the statutory authority claims that litigants presented to the D.C. Circuit in West Virginia v. EPA and in North Dakota v. EPA.