EPA’s Rollback Timeline: A Review of the Fall 2018 Unified Agenda

Last week, the Trump administration released its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions. The regulatory agenda, released each spring and fall, primarily lays out the actions that administrative agencies plan to issue over the next year. Published by the Office of Information and Regulatory Affairs, this fall’s Agenda details the regulatory rollbacks the administration is prioritizing during President Trump’s third year in office.

The Environmental Protection Agency’s agenda lists 148 proposed or final rules planned for the coming year, including many of the Trump administration’s most controversial regulatory and deregulatory actions. While the agenda is non-binding, it appears that the EPA intends to finalize its repeal of the Obama-era Clean Power Plan (replacing it with the so-called “Affordable Clean Energy” rule) and its rollback of fuel economy standards for passenger vehicles and lights trucks in the coming months. Additionally, the Agency will focus on finalizing roll backs of protections for agricultural workers and their families, New Source Review permitting revisions, and a reevaluation of cost-benefit analyses and co-benefits in the Mercury Air Toxics Standard.

State attorneys general have sharply criticized these efforts as attacks on public health and the environment, and have vowed, in many cases, to fight the rules in court.

• Clean Power Plan & Affordable Clean Energy rule. EPA’s final replacement rule for the Obama-era Clean Power Plan (CPP) is scheduled for release in March, 2019 - five months after comments close on the draft plan on October 31. In August 2018, EPA released its proposal for rolling back the CPP with a significantly watered down replacement rule. The proposed replacement rule is based on a narrow and restrictive interpretation of EPA’s authority under the Clean Air Act to meet its legal obligation to reduce carbon emissions. In February 2018, 18 attorneys general filed comments opposing EPA’s proposed rulemaking to replace the CPP.
• The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule. EPA and the Department of Transportation are planning to release their final rule to rollback Obama-era fuel efficiency standards in March, 2019. In August 2018, EPA and DOT released the proposed rule to freeze the fuel efficiency standards at 2020 levels, instead of maintaining annual increases in fuel efficiency through 2026. The proposal also would rescind California’s waiver to set its own standards for regulating greenhouse gas emissions from vehicles. A large coalition of attorneys general - representing 1/3 of the country - have vowed to fight this rollback.
• Pesticides - Minimum Age Requirements and Agricultural Worker Protection Standard. EPA is planning to release two proposed rules removing protections for agriculture workers and their families in January, 2019 with the final rules scheduled for September, 2019. The EPA will be rolling back the 18-year minimum age requirement for applying Restricted Use Pesticides, the most toxic pesticides available in the U.S., to 16-years-old. The revisions to the Worker Protection Standard will include changes to application exclusion zones, buffer zones intended to protect workers from harmful pesticide exposures. Attorneys general have been at the front of the battle to protect the workers and the public from pesticides in the last year.
• New Source Review and Permitting. EPA’s agenda lists numerous proposals related to New Source Review (NSR). One of these rules is an action to formalize a March, 2018 guidance memo related to project emissions accounting, scheduled for February, 2019. The guidance updated the agency’s policy to reduce the need for some plants to obtain preconstruction permits required under the NSR program for modifications and construction. The Agency is also introducing a proposed rule to repeal the its “Once In, Always In” policy, released as a memo earlier this year, in February 2019. In April 2018, California Attorney General Xavier Becerra brought a suit against EPA for withdrawing the “Once In, Always In” policy.
• Mercury Air Toxics Standard. A draft plan to review the cost-benefit analysis used to justify limits on emissions of mercury and other hazardous pollutants from coal-fired power plants will be released in November, 2018. The draft rule is largely expected to redefine how EPA incorporates the co-benefits of regulations, like avoided deaths from reduced particulate matter pollution, into their cost-benefit analysis to favor polluters over public health.

There are two notable omissions from EPA’s list for next year, potentially indicating that Acting Administrator Andrew Wheeler is retreating from the controversial rules first proposed under former EPA Administrator Scott Pruitt.

• Strengthening Transparency in Regulatory Science. Pruitt’s infamous Anti-Science rule would prohibit the EPA from utilizing scientific studies that do not provide public access to all underlying data and methodologies in future rulemakings. Critics, including a coalition of 16 state attorneys general, have assailed this as a thinly-veiled attempt to exclude health studies from rulemakings that may justify regulations. The final version of this rule is now planned for 2020, indicating it has moved down on the Agency’s priority list.
• Repeal of Emission Requirements for Glider Vehicles, Glider Engines, and Glider Kits. Glider kits are new truck chassis that are equipped with refurbished diesel engines and powertrains. They generate 20 to 40 times higher emissions than new trucks with new engines. EPA issued a proposal in November 2017 that would exempt gliders from air emissions requirements, based on the assertion that gliders do not qualify as motor vehicles. The final rule date is now listed as “to be determined,” indicating it will likely not be revisited in the near future. In July 2018, a coalition of 16 attorneys general sued the EPA over its attempt to suspend an Obama-era rule limiting the manufacture of new glider trucks. The EPA withdrew its proposed suspension a few days after the AGs announced their lawsuit.

Other rulemakings planned for the next year include a two-step process on Waters of the U.S.; updates to the lead and copper drinking water rule; and CERCLA financial assurance requirements for chemical, petroleum, and coal manufacturing industries. The entire agenda can be viewed here.