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

A stack of papers

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 13 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.