On Oct. 16, the Environmental Protection Agency published its proposal to repeal the carbon pollution emission guidelines for existing electric power plants, the centerpiece of the Clean Power Plan, 82 Fed. Reg. 48,035. That action serves as a reminder that the current national administration takes seriously its promise to deregulate business under the environmental laws. Indeed, the president claimed publication of the proposal as a significant accomplishment in a tweet on Oct. 15. In Pennsylvania, however, for the most part the Pennsylvania Department of Environmental Protection—not the federal EPA—issues permits and administers the environmental regulations because Pennsylvania's regulatory program has been delegated or authorized under federal law to satisfy both state and federal requirements. Therefore, a relaxation of federal requirements would not necessarily imply a relaxation of the conditions that a regulated entity in Pennsylvania must meet.

This is not a column about whether the current federal approach is a good idea or a bad one. Clients may like or dislike any given regulatory change. The change may entail competitive advantage or disadvantage; the change may create capacity for a client's emissions by regulating others, or it may grant that capacity to those others. However, almost all clients dislike uncertainty over regulatory requirements.

The Sept. 15, 2015, column in this series, ”When an Agency Changes Its Mind” addressed the issue of when an administrative agency can properly reverse itself. Any action to “formulate, amend, or repeal” a rule is rulemaking subject to the Administrative Procedure Act, 5 U.S.C. Section 551(5), as in Organized Village of Kake v. U.S. Department of Agriculture, 746 F.3d 970 (9th Cir. 2014)(en banc), analyzed the difference between a change in policy, which is generally permissible—and a change in a factual determination—which generally requires new evidence in order to avoid being arbitrary or capricious.