Infrastructure takes a long time to permit in this country. Every president over the past 30-plus years has tried to streamline the federal permitting process for infrastructure. In his first State of the Union, President Trump called for streamlining the federal permitting process so it would take “no more than two years, and perhaps, even one.”
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Core Functions and Cooperative Federalism: EPA’s Draft Strategic Plan
EPA’s draft strategic plan for 2018-2022 represents a dramatic shift in focus to supporting states and tribes as the locus of environmental law implementation and streamlining agency processes to accelerate decisions and increase efficiency. The plan identifies three overarching goals: re-focus EPA on its core mission, restore cooperative federalism and adhere to the “rule of law.” If implemented, the strategic plan should give states latitude to exercise primacy in both policy-setting and implementation of environmental laws.
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From “All of the Above” to “See What Sticks”
Throughout the Obama administration, federal officials from the President on down touted an “all of the above” approach to energy policy. At the same time, they pressed forward with environmental regulations—climate change rules in particular—that would have made a seismic shift in the role fossil fuels play in the nation’s energy mix.
We all know the Trump administration is poised to make major changes. A shakeup for the EPA was a consistent theme of the Trump campaign. The President made things official in March when he signed an executive order that, among other things, called for a “review” of the Clean Power Plan (CPP), the EPA’s program to regulate greenhouse gas emissions from existing power plants, and a proposed rule regarding the CPP is now under review at the White House Office of Management and Budget. The administration has also announced plans to cut the EPA’s budget, to take a new “red team-blue team” approach to climate change science, and to pull the U.S. out of the Paris climate accord. That’s quite a lot of activity for an administration that is often accused of moving too slowly.
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Bay Area Air Regulators Set to Adopt First-of-its-Kind GHG Emissions Cap on Refineries
Just before President Trump announced his decision to withdraw from the Paris Agreement on Climate Change, California is moving ahead with new greenhouse gas (GHG) regulations, making good on its commitment to continue its path regardless of what goes on in Washington, DC. This week, the Board of the Bay Area Air Quality Management District (BAAQMD) held a special meeting to consider a controversial new regulation targeting oil refineries. If adopted, as planned at the June 21, 2017, Board public hearing, Regulation 12, Rule 16: Petroleum Refining Facility-Wide Emissions Limits (Rule 12-16) would establish first-of-its-kind, refinery-specific, facility-wide caps on emissions of greenhouse gases (GHG). The proposed caps limit refinery emissions to seven percent above recent operating levels.
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Environmental Enforcement Efforts Continue Amid Regulatory Rollbacks
The latest news is full of stories of federal agencies reviewing and, in some cases, rescinding environmental regulations and cutting agency spending. From these reports, it could seem the federal government might also cut back its enforcement of environmental laws. But in fact, even in this turbulent regulatory and fiscal appropriations landscape, enforcement–particularly criminal enforcement–of core existing environmental laws is one aspect of environmental regulation that is sure to continue.
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Is Superfund Heading in a New Direction?
In 1980, a lame duck Congress passed the nation’s first legislation, the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §9601 et seq. (CERCLA), to address the cleanup of toxic waste disposal sites. Comprehensive amendments were passed six years later. Over the next 30 years, EPA’s enforcement powers were used with increasing regularity and consistency to study, begin, and often complete cleanups at hundreds of the nation’s contaminated waste sites. The program has always had its critics, but not until the current administration has there been a fundamental reassessment of its basic cost-benefit structure, just as is being done with many other federal programs.
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California Lawmakers Poised to Enact Their Own “Regulatory Freeze”
You’ve likely heard that just hours after the inauguration, White House Chief of Staff Reince Priebus issued a Memorandum for the Heads of Executive Departments and Agencies captioned “Regulatory Freeze Pending Review.” The so-called Regulatory Freeze Memo sought to freeze midnight actions by the Obama administration. In response to President Trump’s freeze actions and expected regulatory reforms, California lawmakers are seeking to issue their own “freeze” to ensure regulations in place just before the transition remain effective in California. On top of that, California legislators have been introducing a series of bills designed to “insulate the state from dangerous rollbacks in federal environmental regulations and public health protections,” including:
- SB 49, entitled The California Environmental, Public Health, and Workers Defense Act of 2017, related to retaining all pre-Trump environmental regulations.
- AB 1646, related to website posting of petroleum refinery risk management plans (RMP) on public agency websites and establishment of emergency notification equipment.
- AB 1647, related to air monitoring for petroleum refineries.
- AB 1648, related to increasing CalOSHA’s refinery inspection resources.
- AB 1649, related to codification of Governor Brown’s Refinery Task Force.
- SB 584, related to speeding up the RPS 50 percent renewable goal by five years and setting a new 100 percent renewable goal at 2045.
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President Orders EPA and Corps to Rescind or Revise the “Waters of the United States” Rule
On February 28, 2017, President Trump signed an Executive Order (EO) that sets into motion a process for the Administrator of the Environmental Protection Agency (EPA) and the Assistant Secretary of the Army for Civil Works (jointly, the “Agencies”) to review the Obama Administration’s Waters of the US (WOTUS) Rule. 80 Fed. Reg. 37,054 (June 29, 2015). The EO directs the Agencies to review the WOTUS Rule for consistency with the Clean Water Act (CWA) and the policies set forth in the EO, stating that “[i]t is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution,” while at the same time “promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles played by Congress and the States under the Constitution.” Following review, the EO instructs the Agencies to publish, as appropriate, a proposed rule for notice and comment rescinding or revising the WOTUS Rule.
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Trump’s One-Two Punch on Regulations
This week President Donald Trump issued an executive order (EO) making good on vows to reduce regulations coming out of Washington. The Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs sets two objectives — first, to eliminate two old regulations for every new one promulgated and, second, to impose a cap on the economic costs of regulations each year.
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President Orders Expedited Review of Infrastructure Projects – Bringing Natural Resource Issues to the Forefront
Yesterday President Trump signed several Executive Orders (EOs) and Presidential Memoranda designed to speed environmental permitting and reviews. Among them is an EO to “Expedite Reviews and Approvals for High Priority Infrastructure Projects.” While past administrations have recognized the costs and delays of federal environmental permitting and encouraged timely decisions by regulatory agencies (e.g., EOs 13,212, 13,274 and EO 13,604), President Trump’s EO reflects a new sense of determination by the White House to move important infrastructure projects forward. The EO reflects a recognition that major infrastructure projects trigger an array of overlapping environmental and natural resource laws and requirements.