A Year in Review: The EPA and the Trump Administration

President Donald Trump took office last January with a keen focus on minimizing regulatory burdens imposed by the Environmental Protection Agency. In the first months of his presidency, Trump took aim at many Obama-era regulations, issuing a spate of executive orders promoting deregulation, reduced regulatory costs, energy independence, expedited environmental reviews for infrastructure projects and economic growth. Two of these orders specifically called for the review and suspension, revision or rescission of the Clean Power Plan (CPP) greenhouse gas standards for existing power plants and the Waters of the United States (WOTUS) rule defining the jurisdictional reach of the Clean Water Act. Trump criticized these and other rules as symbolic of EPA's overreach of authority, while Trump's critics feared that under his direction, EPA would abdicate its responsibility to protect the environment. Indeed, the Trump administration was poised at its outset to significantly impact federal environmental law and policy, with Administrator Pruitt announcing a “back-to-basics” agenda that would refocus EPA on its intended mission, return power to the states, and create an environment where jobs can grow. Was that agenda realized in 2017, and what will we see from EPA in 2018?

As of the close of 2017, Trump's EPA had put the wheels in motion on the repeal and replacement of the CPP and WOTUS rules, both of which had already been suspended in response to judicial challenges. In October, EPA published a proposed repeal of the CPP, and in December published an Advance Notice of Proposed Rulemaking soliciting comment on a replacement for the CPP. These actions put forth a more restrictive interpretation of the scope of EPA's authority under Section 111(d) of the Clean Air Act than that advanced by the Obama administration. Likewise, EPA and the Army Corps of Engineers proposed the first step in a two-step repeal and replacement of the WOTUS rule, which would first recodify the jurisdictional definitions under the Clean Water Act that existed before the WOTUS rule was promulgated. Each of these actions are subject to the same notice and comment procedures by which the CPP and WOTUS rules were initially promulgated, and like the rules themselves, have been controversial. EPA's planned finalization of these rulemaking proposals in 2018 will most certainly lead to judicial challenges by environmental advocacy groups and state attorney generals.

The Trump administration also set out to suspend and revise other high-profile Obama-era rules that were either already effective or slated to take effect in 2017. In doing so, EPA met with immediate challenges to its authority to suspend or delay regulatory requirements. For example, a series of delays of Risk Management Program rule revisions have been challenged by states and environmental and labor groups, and those challenges remain pending before the D.C. Circuit. Likewise, EPA's 90-day stay of methane emission standards for oil and gas operations under the Clean Air Act was immediately challenged by environmental groups. In Clean Air Council v. Pruitt, No. 17-1145 (D.C. Cir. July 3, 2017), the D.C. Circuit held that although the Clean Air Act authorizes EPA to issue a temporary stay pending reconsideration of a rule, such a stay is only authorized when the mandatory criteria for reconsideration are met—that it was impracticable for commenters to raise an objection to the rule during the public comment period, and that the objection is of central relevance to the rule. In examining the bases for EPA's reconsideration of the oil and gas rules, the court found that the criteria for mandatory reconsideration were not met, and thus its issuance of the stay was unlawful. Noting that EPA may nonetheless voluntarily reconsider the rule, the court did not reach the question of whether EPA may stay the rule through notice and comment rulemaking procedures. Indeed, EPA has proposed a longer-term delay of the oil and gas standards pending completion of reconsideration. Once that action is final, likely challenges to the action will explore EPA's authority to suspend otherwise effective regulations after public notice and comment.