Trump Administration Releases Unified Agenda of Regulatory and Deregulatory Actions

Date: July 20th, 2017

Explanation: Regulatory action

Agencies: All

The Trump Administration released its Unified Agenda of Regulatory and Deregulatory Actions. The Agenda, which was prepared by the Office of Information and Regulatory Affairs, identifies regulations proposed to be promulgated or revised by federal agencies in the short- and long-term. Regulations proposed for revision include:

The Clean Air Act requires EPA to establish new source performance standards (NSPS) for new and modified stationary emission sources that cause air pollution that may endanger public health or welfare. In December 2010, EPA entered into a settlement agreement to establish NSPS for GHG emissions from  electric generating units.

In April 2012, EPA proposed NSPS for carbon dioxide emissions from new fossil fuel-fired power plants. The proposed standards under section 111(a) of the Clean Air Act were based on the ‘‘best system of emission reduction’’ (BSER) that EPA had determined to be adequately demonstrated for the emissions source. In January 2014, EPA published its withdrawal of the proposal, followed by a new proposed rule with separate standards for modern natural gas plants (combined-cycle) and other facilities, chiefly coal-fired plants. In June 2014, EPA proposed carbon dioxide emission standards for modified and reconstructed power plants. As with new plants, EPA proposed separate standards for gas- and coal-fired facilities.

In October 2015, EPA published a final rule establishing NSPS for carbon dioxide emissions for both new and modified power plants. For new and reconstructed gas-fired plants, under the BSER standard, EPA set the emission limit at 1,000 pounds of CO2 per megawatt‐hour on a gross‐output basis (lb CO2/MWh‐gross). EPA declined to issue standards for modified natural gas plants, based on a need to gather further information. For new coal plants, EPA set the emission limit at 1,400 lb CO2/MWh‐gross, based upon a BSER that would include some carbon capture and sequestration (CCS). For coal plants making larger modifications, EPA set the carbon dioxide emission limit at the level of the facility’s best historical annual performance during the years from 2002 to the time of modification. EPA declined to set NSPS for coal plants making smaller modifications, based in part upon a need to gather further information. For reconstructed coal plants, EPA set the emission limit at 1,800 lb CO2/MWh‐gross for sources with heat input greater than 2,000 MMBtu/h, and 2,000 lb CO2/MWh‐gross for sources with a heat input of less than or equal to 2,000 MMBtu/h.

In conjunction with the NSPS for carbon dioxide emissions from new, modified, and reconstructed power plants, EPA issued separate regulations under section 111(d) of the Clean Air Act applicable to existing power plants.

Litigation: 

The NSPS was subsequently challenged in North Dakota v. EPA (2015). One of the key issues in the case is whether partial CCS is an adequately demonstrated technology for reducing GHG emissions from coal-fired power plants. The Sabin Center submitted an amicus brief on behalf of eleven CCS experts asserting that the technology is in fact adequately demonstrated and thus the coal NSPS is lawful.

On March 30, 2017, the  D.C. Circuit Court of Appeals issued an order to delay oral argument and hold the case in abeyance indefinitely. On August 10, 2017, the court issued another order to continue holding the cases in abeyance pending further action from the administration.

Deregulatory Action: 

On March 28, 2017, President Trump issued an executive order instructing EPA to review the new source performance standards and to rescind or rewrite the rule as needed to promote the President’s goals of energy independence and economic growth. EPA immediately  submitted a request to the D.C. Circuit Court of Appeals to hold the case in abeyance pending EPA’s reconsideration of the rule.

On April 4, 2017, EPA published a notice in the Federal Register announcing that it is reviewing and, if appropriate will initiate proceedings to suspend, revise or rescind the rue.

Rule Documents:

Other Documents:

Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units

President Obama and EPA announced the final Clean Power Plan rule on August 3, 2015. The rule aims to reduce CO2 emissions from existing power plants by 30% below 2005 levels by 2030. To accomplish this, the rule establishes CO2 emission performance rates representing the best system of emission reduction (BSER) for fossil fuel-fired electric utility steam generating units and stationary combustion turbines within each state. States have the flexibility to reach these targets individually or at the regional scale, and to translate the rate-based targets into mass-based targets for compliance purposes. The rule also establishes guidelines for the development, submittal and implementation of state plans to achieve the CO2 emission performance rates.

Rule Documents:

Associated Rule Proposals:

Additional resources below

Litigation: 

Industry groups and states immediately challenged the final rule in West Virginia v. EPA, No.15-1363 (D.C. Cir. 2015).  In February 2016, the U.S. Supreme Court stayed the Clean Power Plan pending review in the D.C. Circuit Court of Appeals. In January 2017, State opponents of the EPA’s Clean Power Plan filed a petition for a new lawsuit, asking the D.C. Circuit Court of Appeals to review EPA’s denial of requests for reconsideration of the rule (which were filed after the rule was finalized but before the Supreme Court stayed its implementation).

On April 4, 2017, EPA  submitted a motion to hold the case in abeyance  pending it’s reconsideration of the rule. On April 28, the court granted EPA’s request and ordered a 60-day stay of the litigation as well as supplemental briefings on whether the case should be remanded to the agency rather than held in abeyance. On August 8, the court issued an order prolonging the stay for another 60 days. On November 9, the court indicated that the stay would remain in effect for an additional 60 days.

Deregulatory Actions: 

On March 28, 2017, President Trump issued an executive order directing EPA to review the Clean Power Plan and to rescind or rewrite the rule as needed to promote the President’s goals of energy independence and economic growth. EPA immediately submitted a request to the D.C. Circuit Court of Appeals to hold the case in abeyance pending EPA’s reconsideration of the rule. On April 4, 2017, EPA published a notice in the Federal Register announcing that it is reviewing and, if appropriate will initiate proceedings to suspend, revise or rescind the rule.

The March 2017 executive order also directed EPA to review and rescind or re-write the proposed rule establishing federal implementation plans and model trading rules. On April 3, 2017, EPA officially withdrew that rule proposal as well as the rule proposal establishing details for the Clean Energy Incentive Program (CEIP).

On October 16, 2017, EPA published a proposal to repeal the Clean Power Plan. EPA did not specify whether it would promulgate a new rule, under section 111(d) of the CAA, to regulate carbon dioxide emissions from existing power plants.

On November 8, 2017, EPA announced that it was extending the comment deadline for the proposed repeal by 32 days to January 16, 2018.

OnDecember 28, 2017, EPA issued an advanced notice of proposed rulemaking to replace the Clean Power Plan in which it solicited comment on what the EPA should include in a potential new rule to regulate GHG emissions from existing power plants under CAA section 111(d).

Effects of Staying and Possibly Rescinding the Plan: 

If implemented, the Clean Power Plan would reduce carbon pollution from the power sector by 32% in 2030, amounting to 870 million tons less carbon pollution, the equivalent of taking 166 million cars off the road for a year. Climate and public health benefits would reach between $34 and $54 billion annually by 2030 and reduced emissions of toxic air pollutants such as sulfur dioxide would have resulted in the prevention of over 1,500 premature deaths annually. Learn more>>

New Source Performance Standard for Oil and Gas Sector

On June 3, 2016, EPA published a final rule setting NSPS for greenhouse gases (namely methane) and volatile organic compounds, applicable to new, modified, and reconstructed facilities in the oil and gas sector. Affected facilities include well sites, gathering and boosting stations, processing plants, and compressor stations.

Litigation: The methane emission standards were challenged in North Dakota v. EPA, No. 16-1242 (D.C. Cir. 2016). State and industry petitioners argued that the rule exceeded EPA’s statutory authority, was unconstitutional, and was arbitrary, capricious, an abuse of discretion, and not in accordance with law. On January 4, 2017 the case was consolidated with American Petroleum Institute v. EPA, No. 13-1108 (D.C. Cir. 2013) and Independent Petroleum Association of America, et al. v. EPA, No. 15-1040 (D.C. Cir. 2015). On January 24, 2017 state and industry petitioners filed a motion asking the D.C. Circuit Court of Appeals to delay the briefing schedule to “allow time for new administration personnel to be briefed on the rules, issues, and history of this litigation, and it would allow them to provide meaningful input on the parties’ discussions regarding the briefing schedule and format.”

Deregulatory Action: 

On March 28, 2017, President Trump issued an executive order instructing EPA to review the oil and gas rule and to rescind or rewrite the rule as needed to promote the President’s goals of energy independence and economic growth. EPA immediately submitted a motion to the D.C. Circuit Court of Appeals to hold the case in abeyance pending EPA’s reconsideration of the rule. The court granted EPA’s request on May 18, 2017.

On April 4, 2017, EPA published a notice in the Federal Register announcing that it is reviewing and, if appropriate, will initiate proceedings to suspend, revise or rescind the rule.

On April 18, 2017, EPA sent a letter to fossil fuel companies stating that it intended to reconsider the fugitive emission standards in the NSPS (the companies had petitioned EPA for reconsideration of those standards). On June 5, 2017, EPA issued a federal register notice stating that it is granting reconsideration of additional requirements in the NSPS, specifically the well site pneumatic pumps standards and the requirements for certification by professional engineer. The EPA indicated that it was staying the requirements for three months pending reconsideration. On June 16, 2017, EPA proposed a two-year stay of the NSPS requirements.

On July 3, 2017, the U.S. Court of Appeals for the District of Columbia Circuit vacated the initial three month stay of the rules, holding that the EPA lacked authority under the Clean Air Act to issue the stay. The court issued a mandate, requiring EPA to begin implementing the rules. The mandate was delayed for 14 days on July 13, 2017, “to give EPA time to determine whether to seek panel rehearing, rehearing en banc, or pursue other relief.” The 14 day period ended on July 28, 2017.

On July 31, 2017, a majority of the full court of the U.S. Court of Appeals for the District of Columbia Circuit ordered “the Clerk to issue the mandate . . . forthwith,” requiring EPA to begin implementing the rules.

On November 8, 2017, EPA issued a notice of data availability in support of its proposed two year stay of the NSPS requirements. The notice provides additional information on topics raised in comments on the stay, including challenges associated with implementing the NSPS requirements, and EPA’s authority to stay implementation.

Methane Waste Prevention Rule

In November 2016, BLM published a final rule to reduce waste of natural gas (methane) from oil and natural gas production activities on federal and tribal land. The rule includes new requirements for flaring, capture, leak detection, and venting. According to BLM, the rule could eliminate 175,000-180,000 tons of methane emissions annually (equivalent to 4.4-4.5 million metric tons of carbon dioxide).

Deregulatory Action

On February 3, 2017, the House passed a resolution to  (H.J. Res. 36) to repeal the Bureau of Land Management (BLM)’s methane waste prevention rule using the Congressional Review Act (CRA).  However, on May 10, 2017, the Senate voted against the resolution (S.J. Res 11).

On March 28, 2017, President Trump issued an executive order directing BLM  to review the methane waste rule and to rescind or rewrite the rule as needed to promote the President’s goals of energy independence and economic growth. On March 29, 2017, the Department of Interior issued Secretarial Order 3349, which directs BLM to review the the methane waste prevention rule and report on whether the rule is fully consistent with the executive order’s policy of promoting domestic energy production.

On June 15, 2017, BLM issued a federal register notice announcing that it was postponing the compliance dates for certain provisions of the Methane Waste Prevention Rule (finalized on November 10, 2016), which aims to reduce waste of natural gas (methane) from oil and natural gas production activities on federal and tribal land. BLM said that it was delaying the compliance dates pending the outcome of litigation over the rule. On October 5, 2017, BLM issued a follow-up proposal to postpone key requirements of the rule until January 17, 2019.

On November 1, 2017, BLM sent a proposal for “revision or rescission” of the Methane Waste Prevention Rule to the White House Office of Information and Regulatory Affairs.

On December 8, 2017, BLM issued a final rule postponing several key requirements of the Methane Waste Prevention Rule.

On February 22, 2018, BLM published its proposed revisions to the Methane Waste Prevention Rule. BLM proposed to rescind several provisions of the 2016 rules, including those governing leak detection and repair. Other provisions, including those dealing with venting and flaring, would be substantially revised.

Litigation: 

On July 5, 2017, the States of California and New Mexico filed suit in the U.S. District Court for the Northern District of California, challenging BLM’s decision to postpone certain compliance dates of the Methane Waste Prevention Rule. A second suit challenging BLM’s decision was filed by 17 environmental groups (led by the Sierra Club) on July 10, 2017.

On October 4, 2017, the U.S. District Court for the Northern District of California issued a decision holding that BLM had violated the APA by postponing the compliance dates after the rule’s effective date had already passed. The court vacated the postponement notice, thereby reinstating the original deadlines for compliance with the rule.

On December 19, 2017, the States of California and New Mexico sued the administration, challenging issuance of the December 2017 rule postponing implementation of the Methane Waste Prevention Rule. A second suit challenging the rule was filed by 17 conservation and tribal citizens groups.

On February 22, 2018, the U.S. District Court for the Northern District of California granted a preliminary injunction enjoining BLM from enforcing the December 2017 rule. The court held that the plaintiff’s “are likely to prevail on the merits,” indicating that BLM’s reasons for adopting the December 2017 rule are “untethered to evidence contradicting the reasons for implementing the Waste Prevention Rule,” and BLM appears to be “casually ignoring all of its previous findings and arbitrarily changing course.” The court further found that, without a preliminary injunction, the plaintiffs would suffer “irreparable injury caused by the waste of publicly owned natural gas, increased air pollution and associated health impacts, and exacerbated climate impacts.”

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Energy Efficiency Standards for Appliances and Equipment

The Department of Energy (DOE), through the Buildings Technologies Office, sets minimum energy efficiency standards for approximately 60 categories of appliances and equipment used in homes, businesses, and other applications, as required by existing law. The appliances and equipment covered provide services that are used by consumers and businesses each day, such as space heating and cooling, refrigeration, cooking, clothes washing and drying, and lighting. DOE’s minimum efficiency standards significantly reduce U.S. energy demand, lower emissions of greenhouse gases and other pollutants, and save consumers billions of dollars every year, without lessening the vital services provided by these products. In addition, DOE implements laws designed to limit the water consumption of several plumbing products. Fact Sheet >>

For regulations pertaining to appliance standards and test procedures, see CFR Title 10, Chapter II, Part 430; for commercial and industrial equipment standards and test procedures, see Title 10, Chapter II, Part 431; for certification, compliance, and enforcement standards, see Title 10, Chapter II, Part 429.

Deregulatory Action: On January 20, 2017, the Trump Administration issued a Presidential Memorandum entitled “Regulatory Freeze Pending Review” which directs all agencies to postpone the publication of new and pending regulations in order to give the new administration time to review those regulations. More info >>

The memorandum indefinitely postpones the publication of four energy efficiency standards finalized by the Department of Energy (DOE) in December 2016 as part of the Energy Conservation Program (these standards have not yet been published in the Federal Register and thus had to be withdrawn for review). These include:

Shortly after the memorandum was issued, DOE also postponed the effective date of certain energy efficiency standards that had already been published in the Federal Register until March 21, 2017:

Update:

On March 20, 2017, DOE further postponed the effective date of test procedures for walk-in coolers and freezers, central air conditioners and heat pumps, and compressors, and conservation standards for ceiling fans.

On May 24, 2017, DOE published a notice announcing that the standards for ceiling fans would go into effect on September 30, 2017.

Litigation

On April 3, 2017, a coalition of states filed a lawsuit challenging the administration’s decision to delay the energy efficiency standards for ceiling fans. The plaintiffs included California, Connecticut, Illinois, Maine, Massachusetts, New York State, New York City, Oregon, Vermont, and Washington, and the Pennsylvania Department of Environmental Protection. The same coalition also submitted a 60-day notice to DOE regarding to the failure to promulgate publish final standards for compressors, walk-in coolers and freezers, power supply equipment, portable air conditioners, and commercial boilers.

On February 15, 2018, the U.S. District Court for the Northern District of California held that DOE’s failure to publish the four energy efficiency standards violated its duties under the Energy Policy and Conservation Act. The court therefore granted the plaintiff’s motion for summary judgment and ordered DOE to publish the standards.