Environmental update

Publication February 20, 2018

The US Environmental Protection Agency sent interim guidance to its regional offices in late January to fill in details of its plan to let states lead on enforcement of federal environmental laws. The state must have an enforcement program authorized by EPA.

This action is part of EPA Administrator Scott Pruitt’s pledge to move to “cooperative federalism.”

The guidance is in the form of a memorandum sent by Susan Bodine, assistant administrator of the Office of Enforcement & Compliance Assurance, to regional EPA assistant administrators.

Bodine also announced a new pilot project at a recent conference under which EPA will use “informal” enforcement, meaning notify a facility of a violation in an effort to achieve immediate compliance without waiting for litigation or other more formal action. Bodine said this may cause a drop in enforcement cases, but could speed compliance.

The guidance says EPA will defer to states in “all EPA compliance assurance activities, such as inspections and enforcement, in authorized State environmental programs.”

For inspections and enforcement, “EPA will generally defer to authorized States as the primary day-to-day implementer of their authorized/delegated programs, except in specific situations. The EPA believes that exceptions to this general practice should be identified through close communication and involvement of upper management of both agencies.”

One issue with pushing enforcement to the states is many states already have tight budgets and may not have the staff or money to take on additional responsibilities for environmental enforcement.

A progress report on implementation is due at the end of September 2018. Headquarters will provide the regional offices with a format for progress reports on implementation in July, and regional offices are to provide the first progress reports by September 28 this year.

Waters of the US

The US Office of Management and Budget moved swiftly to approve a proposal for a two-year delay in enforcement of a 2015 Obama-era regulation on “waters of the United States,” called the WOTUS rule, that was about to go into effect. The WOTUS rule would identify which streams, wetlands and other bodies of water have automatic federal protection. The Trump EPA and Army Corps of Engineers would like to narrow the federal protections as part of a separate rulemaking. It believes the federal government should claim jurisdiction under the Clean Water Act in fewer cases.

Attorneys general from more than a dozen states, including Mississippi, Texas and Louisiana, had sued the Obama administration to stop the WOTUS rule, saying it would apply to lands far from what has been traditionally been considered “navigable waters.” Areas that are considered “waters of the United States,” such as streams and wetlands, require permits to disturb and are subject to oil spill prevention and state water-quality certifications.

The 2015 WOTUS rule has been in abeyance for some time after a US appeals court enjoined enforcement. However, on January 25, the US Supreme Court unanimously set aside the injunction on grounds that the case should have been heard first in a federal district court rather than at the appeals level. The Supreme Court decision in National Association of Manufacturers v. Department of Defense started the clock ticking on lifting the injunction in mid-February.

The Office of Management and Budget then moved quickly to approve a proposed EPA rule delaying enforcement that was already in the works. The delay became official on January 31.

Lawsuits

States and environmental groups that support the 2015 WOTUS rule vowed to overturn the delay in court.

Attorneys general from 10 states and the District of Columbia sued the Trump administration on February 6. The states filing suit are New York, California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont and Washington.

One issue in the litigation is what happens during the period that enforcement of the 2015 WOTUS rule is delayed.

One critic of the delay, the Southern Environmental Law Center, says it will leave EPA and the Army Corps “to apply the text of the Clean Water Act directly, making thousands of case-by-case determinations with no regulatory structure to guide them and ensure consistency.”

Almost all environmental proposals land inevitably in court. It does not matter whether they move in the direction of stronger enforcement or roll back existing rules. In this case, the challengers are expected to argue the Trump administration violated the Administrative Procedures Act because the agencies pushed the rule into effect without a proper rationale to support the delay and without providing a meaningful opportunity for public comment. The rush to act left the public with only 21 days to comment, and the almost immediate decision after the comment period suggests the comments were not given any real consideration.

The agencies received more than 4,600 comments.

There is also controversy around whether the two-year delay in enforcement amounts effectively to repeal of the 2015 WOTUS rule without following the procedures required to rescind a major environmental regulation.

Industry groups and states that oppose the 2015 WOTUS rule are scrambling separately to ask federal district courts for preliminary injunctions to halt enforcement of the 2015 WOTUS rule in case the two-year delay announced by EPA is struck down in court.

Fallout

Litigants have begun to use the Supreme Court ruling that district courts are the proper venue for certain challenges under the Clean Water Act as a tool in other pending lawsuits on environmental issues.

One example is in an ongoing dispute over an EPA decision in September to delay enforcement of Obama-era standards requiring power plants to install equipment to remove heavy metals from wastewater discharges. The litigants were already fighting over whether the suit should be heard in a district court or appeals court. EPA announced a two-year delay in certain deadlines in September, a decision that is also being challenged.

Clean air

There are rumors that EPA Administrator Scott Pruitt may move next to ease enforcement of pollution limits under the national ambient air quality standards program.

The program limits permitted levels of air pollution and has been the main tool the US government has used to improve air quality over the last 50 years. It is largely responsible for transforming US skies from the near China-like conditions experienced in some parts of the US in the 1960s and 1970s to the comparatively pristine levels of soot, haze and other observable pollutants we have today, along with addressing certain non-observable hazards such as lead.

The Clean Air Act requires EPA to set national ambient air quality standards for allowable concentrations of six pollutants in the outdoor air. The six are particle matter, ozone, carbon monoxide, sulfur dioxide, nitrogen dioxide and lead. They are called “criteria” air pollutants because certain levels of each may be reasonably anticipated to endanger public health or welfare. The statute requires EPA to establish a level safe for human health for each with an adequate margin of safety, without regard to cost.

Each area of the country is designated as in attainment, not in attainment, or unclassifiable for each criteria pollutant. The designations change over time as pollution levels fluctuate. A particular power plant may be located in an area that is in attainment for one criteria pollutant, but nonattainment for another criteria pollutant, which could result in more stringent permit requirements.

Once the federal standards are set, states determine their own paths to reduce emissions, which gives states the ability to target reductions with the greatest cost-benefit ratio or to target the lowest hanging regulatory fruit within their borders.

To meet ambient air quality standards, state air agencies develop what are called state implementation plans, or SIPs, that describe how air quality will be maintained if in attainment and how it will be brought into compliance if not. The SIP process produces legally enforceable emissions limits and control requirements and, as such, is an important regulatory tool for controlling air emissions from stationary sources such as power plants.

The national ambient air quality standards are not set in stone. The Clean Air Act requires EPA to review them in light of developing science every five years to determine whether they should be adjusted.

Some states and industry have called for modernization of the review process.

When EPA fails to review the standards on schedule, the agency is often sued to force it to act.

Many on all sides recognize that the five-year time frame has proved too short to allow EPA to review and revise the standards, and then for any new standards to filter down to the states for implementation in their plans.

Critics of the current agency head are suspicious that some delays are a conscious decision not to enforce US environmental laws.

For example, EPA was sued last year for failing to meet a statutory deadline for designating areas of the country that did not meet a 2015 ozone standard, a standard that Pruitt sued EPA to block while he was the Oklahoma attorney general.

When he originally proposed to delay the designations — an action EPA has since withdrawn but without making any designations anyway — Pruitt said the delay was needed to “consider completely all designation recommendations provided by state governors,” and to “rely fully on the most recent air quality data.” Pruitt also wrote that the “additional time will also provide the Agency time to complete its review of the 2015 [national ambient air quality standards for] ozone.”

In response, critics suggest that EPA spends time trying to delay implementation of the national ambient air quality standards just to turn around to argue that EPA should not update those standards because the states have not implemented the previous standards that the agency itself delayed.

More litigation is sure to follow.


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