01/06/2020 - Legal Analysis - Regulatory Rollback

Top 20 Regulatory Rollbacks to Watch in 2020

by Ari Peskoe, Caitlin McCoy, Hana Vizcarra, Laura Bloomer

  1. Fuel Economy and Greenhouse Gas Standards for Cars
    • Ongoing litigation challenging The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program which blocks California from setting its own greenhouse gas standards for vehicles and blocks Zero Emission Vehicle programs in all states.
      • One case challenging the National Highway Traffic Safety Administration’s actions pending in the D.C. District Court. Another case challenging EPA’s actions in the D.C. Circuit.
    • The final fuel economy and greenhouse gas standards are expected in early 2020 and there will likely be litigation challenging those rules as well.
  2. Waters of the U.S. Rule
    • The release of the final rule revising the definition of Waters of the U.S. under the Clean Water Act as well as any litigation challenging the new rule. The definition determines which wetlands and waterways receive Clean Water Act protections.
  3. PURPA Regulations
    • The Public Utility Regulatory Policies Act (PURPA) requires all electric utilities to buy energy from certain types of renewable energy generators. FERC administers rules that are largely unchanged since 1980. In November, FERC proposed significant changes that would have the effect of reducing investment in renewable energy under the PURPA development model. We will follow finalization of the new regulations in 2020 and related litigation.
  4. Strengthening Transparency in Regulatory Science
    • The release and implementation of any supplemental or final proposals to see how EPA incorporates the comments received from scientists and other stakeholders.
    • A final rule limiting the science EPA can consider would significantly impact EPA’s decision-making and rulemaking process, potentially leading the agency to ignore significant scientific findings that should inform its regulatory programs.
  5. Power Plant Effluent Limits
    • EPA has proposed revising the 2015 wastewater guidelines and standards for power plants, including certain exemptions for “high flow” facilities, low utilization boilers, and boilers retiring by 2028. It is possible we will see a final rule in 2020 after a proposed rule was published on Nov. 22, 2019.
  6. Methane Standards from Oil and Gas Facilities
    • The release of a final rule rescinding emissions limits for methane on oil and gas production and processing.
    • The proposed rule was published on Sept. 24, 2019 and proposed several changes to the standards like removing transmission and storage from regulation altogether.
  7. Coal Ash Regulations
      • Finalization of the July 2019 proposed rule, which loosens some requirements from the 2015 rule, and the Nov. 2019 proposed rule, which seeks to comply with the D.C. Circuit’s ruling in Utility Solid Waste Activities Group v. EPA.
      • Latest proposed rule from Dec. 2019 creating the federal program.
      • Potential litigation related to the finalization of any of the three proposed rules.
  8. Affordable Clean Energy Rule
    • Ongoing litigation challenging the Repeal of the Clean Power Plan and the ACE Rule in the D.C. Circuit, including challenges filed by states, cities, public health organizations, environmental organizations, and industry groups which have all been consolidated.
    • EPA is also likely to finalize changes to New Source Review previewed in the proposed ACE Rule, but not included in the final ACE Rule itself.
  9. National Monuments litigation
    • Ongoing litigation challenging President Trump’s order to shrink Grand Staircase-Escalante and Bears Ears National Monuments.
  10. Mercury and Air Toxics Standards
    • The release of the final rule potentially rescinding the determination that it is appropriate and necessary to regulate mercury and other hazardous air pollutant emissions from power plants. The rule will likely also revise the agency’s methodology for analyzing the costs and benefits of regulation, including minimizing the role of co-benefits.
  11. National Environmental Policy Act Guidance
    • The release of revised guidelines for agencies implementing the National Environmental Policy Act on how to consider greenhouse gas emissions when reviewing the environmental impacts of proposed projects.
  12. National Ambient Air Quality Standards for Ozone and Particulates
    • EPA’s actions as it works to finalize its review of the air quality standards for ozone and particulate matter. EPA expects to finish both reviews in winter 2020.
    • While EPA is poised to conclude that both standards adequately protect human health and the environment, current science brings that conclusion into question, especially concerning the health impacts of particulate matter, or soot.
  13. Once In, Always In
    • EPA’s release of the final rule involving regulation of facilities that emit hazardous air pollutants, as well as litigation challenging the rule.
  14. Section 401 Water Quality Certification
    • The forthcoming final rule would allow EPA to issue Water Quality Certifications over state objections concerning a project’s impact on climate change or air quality.
  15. GHG Standards for New Power Plants
    • The release of a final rule revising the 2015 GHG New Source Performance Standards for Power Plants to change the best system of emission reduction for newly constructed coal-fired units. The agency previously determined that partial carbon capture and storage was required for new plants, but has proposed revising that to require the most efficient demonstrated steam cycle instead.
  16. Bristol Bay
    • The finalization of the environmental impact statement for the Pebble Mine Project.
      • The Army Corps of Engineers’ draft environmental review drew significant criticism from other agencies, Congress, and stakeholders. Finalizing an environmental impact statement that fully considers the consequences of the Pebble mine is essential to guaranteeing the Army Corps properly protects the environment as and if (depending on litigation) the project moves forward.
    • EPA’s determination on whether the Pebble Mine project will have “substantial and unacceptable impacts.”
      • The Army Corps has granted EPA an extension until Feb. 28, 2020 to make its decision. If EPA makes this determination, it will elevate the permit decision for higher-level review.
    • Ongoing litigation challenging EPA’s withdrawal of the 2014 proposed determination, which would have blocked the Pebble Mine.
  17. Methane Guidelines for Landfills
    • Ongoing litigation challenging EPA’s final rule modifying the compliance timelines and other requirements from the 2016 emissions guidelines for existing landfills.
  18. Rollback of 2016 Well Control and Blowout Preventer Rule
  19. Arctic Drilling Proposed Rule 
    • This proposed rule would revise specific provisions of the Arctic Exploratory Drilling Rule from 2016, which established a regulatory framework for exploratory drilling in the Beaufort Sea and Chukchi Sea Planning Areas on the Outer Continental Shelf of Alaska.
    • A Notice of Proposed Rulemaking for this rule will likely be issued in early 2020.
  20. BOEM’s 5 Year Leasing Plan for Offshore Drilling / Outer Continental Shelf Lands Oil & Gas Leasing Withdrawal and Reinstatement 
    • The Department of Interior, Bureau of Ocean Energy Management (BOEM) planned to release a new 5 year leasing plan for offshore oil and gas activity. An early draft of the plan would have opened up much of Alaska’s waters and the Atlantic to drilling.
    • We will follow ongoing litigation that has put the 5-year plan on hold. A federal district judge determined President Trump could not issue an Executive Order rescinding President Obama’s withdrawal of portions of the Outer Continental Shelf in Alaska’s Beaufort and Chukchi seas and canyon areas in the Atlantic from leasing. The administration has appealed that decision.