As previously reported, President Trump has issued an Executive Order calling on EPA and the U.S. Army Corps of Engineers (Corps) to formally review the “Clean Water Rule” also known as the Water of the United States (WOTUS) Rulemaking. On April 19, EPA laid outs its plans for revising the Clean Water Rule consistent with the Executive Order in a meeting with state and local officials.

EPA envisions a two step process through which it will (i) recodify the regulation in place prior to the issuance of the Clean Water Rule, which is currently the effective regulation due to the nationwide stay of the Rule issued by the U.S. Court of Appeals for the Sixth Circuit, and (ii) ultimately issue a revised rulemaking. Citing uncertainty over the length of the Sixth Circuit stay, EPA believes reinstating the preexisting regulation will increase certainty as to which regulation is in effect pending the issuance of a new rule. As encouraged by the Executive Order, EPA intends for the new definition to reflect the principles that Justice Scalia outlined in the Rapanos v. U.S., 547 U.S. 715 (2006) plurality opinion.

In Rapanos, Justice Scalia interpreted “navigable waters” to mean waters that are “relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] … oceans, rivers, [and] lakes.’” Rapanos v. U.S., 547 U.S. 715, 719 (2006) (citing Webster’s Dictionary).  EPA intends to consult with state and local government officials in developing a new definition.

EPA laid out three potential approaches to determining what constitutes “relatively permanent” waters. First, EPA will consider including: perennial streams plus streams with “seasonal” flow (typically three months of flow); perennial streams plus streams with another measure of flow such as frequency of flow or intersecting water tables; or include only perennial streams (streams that carry flow throughout the year except in extreme drought). In determining how to regulate “continuous surface connections,” EPA will also consider three options, including regulating: only surface connections even through non-jurisdictional features; connections where there is some degree of connectivity based on metrics such a distance; or only wetlands that directly touch a jurisdictional water.

EPA has asked for feedback on these concepts, as well as other suggestions, from the state and local officials by mid-June. EPA did not indicate when it plans to publish the recodified regulation in the Federal Register. EPA’s powerpoint presentation outlining its plans is available here.

In a split decision, a California appellate panel recently affirmed a lower court’s decision upholding the state’s greenhouse gas cap-and-trade program.  Challengers, including the California Chamber of Commerce, the National Association of Manufacturers, and the Pacific Legal Foundation, argued that: (1) the California Air Resources Board (CARB) acted outside of its authority when it created a cap-and-trade program that included an auction of emission allowances, and (2) the revenue generated from the auction sales constitutes an impermissible tax.  California’s Proposition 13 requires taxes to be approved by a two-thirds vote of each house of the legislature.

Continue Reading Split California Appeals Court Upholds State Greenhouse Gas Cap-and-Trade Program

In an April 18th letter to petitioners who requested reconsideration of EPA’s Oil and Natural Gas Sector: Emission Standards for New, Reconstructed and Modified Sources Rule, EPA Administrator Scott Pruitt announced the agency’s intent to convene a proceeding for reconsideration of the rule’s fugitive emissions monitoring requirements.  In its current form, the rule imposes limits on methane, volatile organic compounds and toxic air emissions from new, modified and reconstructed sources in the oil and natural gas industry.  EPA also plans to issue a 90-day stay of the compliance date for the fugitive emissions monitoring requirements.

On April 18th, EPA filed motions in separate cases asking the D.C. Circuit Court of Appeals to delay pending litigation over two Clean Air Act (CAA) rules.  In one case, EPA asked the court to delay oral argument, scheduled for May 18th, in the litigation challenging its supplemental findings regarding the cost of the Mercury and Air Toxics Standards (MATS) Rule, which regulates hazardous air pollutant emissions from coal- and oil-fired power plants.  EPA argues that a continuance is appropriate because it intends to review the supplemental finding for possible modification or repeal, citing President Trump’s recent “Executive Order on Promoting Energy Independence and Economic Growth.”

Continue Reading EPA Seeks Delays in Pending Air Rules Litigation

On April 5, 2017, the EPA responded to a request from industry stakeholders saying it will reconsider the Obama-era Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category rule (“ELG Rule”) that set the first federal limits on how much toxic metal can be discharged with power plants’ wastewater.  80 Fed. Reg. 67838 (Nov. 3, 2015).

Continue Reading EPA Letter Announces Plans to Reconsider Power Plant ELG Rule and Intent to Request to Stay Pending Litigation

The EPA published a notice in the April 13th Federal Register requesting public comments on regulations that may be appropriate for repeal, replacement, or modification.  This request follows President Trump’s February 24th Executive Order that, among other things, requires federal agencies to establish a Regulatory Reform Task Force (“Task Force”) to make recommendations targeting specific federal regulations for elimination or modification.  Task Forces must seek input from entities affected by federal regulations, including businesses, consumers, non-governmental organizations and trade associations.  EPA’s Task Force is requesting comments on regulations that eliminate jobs or stifle their creation, impose costs that exceed benefits, implement Executive Orders or other Presidential directives that have been rescinded or modified, or are otherwise ineffective or outdated.  Comments will be accepted through May 15.

Continue Reading EPA Seeks Comments on Job-Killing, Costly Regulations

In an April 11, 2017 Order, the D.C. Circuit Court of Appeals granted EPA’s petition to indefinitely delay oral argument in the Ozone NAAQS litigation.  Originally scheduled for February 16, 2017, oral argument was rescheduled for April 19, 2017.  EPA petitioned the court to further delay oral argument because it intends to review the NAAQS rule.  In granting EPA’s request, the court ordered that the NAAQS litigation be held in abeyance.  EPA must file status reports on its review of the NAAQS rule at 90-day intervals, beginning 90 days from this Order.  Within 30 days of EPA informing the court of what action it has or will take with respect to the rule, the parties must file motions to govern future proceedings.  The court’s Order can be accessed here.

On April 10, the D.C. Circuit heard oral argument in an appeal filed by Sierra Club and other environmental groups seeking to force EPA to release utility effluent treatment data that the agency used to inform its Steam Electric Effluent Limitations Guidelines (ELG) rule.  The environmental groups are requesting that the D.C. Circuit overturn the district court’s ruling, which sides with EPA. EPA collected the data from electric utility companies on their wastewater treatment technologies, pollutants, and incremental costs.  The environmental groups plan to use the data to support their appeal of the ELG rule, which is pending in the 5th Circuit.

Continue Reading D.C. Circuit Hears Oral Argument in Utility ELG Data Suit

The Environmental Protection Agency (EPA) recently initiated actions in response to multiple Executive Orders issued by President Trump directing major regulatory reforms.  In a staff memo intended to facilitate compliance with the “Enforcing the Regulatory Reform Agenda” Executive Order, EPA Administrator Scott Pruitt designated a Regulatory Reform Officer and established a Regulatory Reform Task Force to evaluate existing regulations and make recommendations regarding those that can be repealed, replaced or modified to reduce the burdens on the regulated community.  Administrator Pruitt further directed the Offices of Air and Radiation, Land and Emergency Management, Chemical Safety and Pollution Prevention, Water, Environmental Information, Congressional and Intergovernmental Relations and Small and Disadvantaged Business Utilization to provide the Task Force with recommendations for specific rules that should be targeted.  Each of these offices must hold a dedicated public meeting and provide their recommendations by May 15th.

Continue Reading EPA Begins to Move on Executive Orders

ATLANTA – April 3, 2017 – Troutman Sanders LLP announced today the addition of a team of nationally recognized lawyers specializing in oil and gas pipeline legal issues. Bob Hogfoss, Catherine Little and Annie Cook have joined the firm as partners. They previously practiced at Hunton & Williams LLP.

Continue Reading Troutman Environmental Team Grows Again: Nationally Recognized Pipeline Group Joins Troutman Sanders