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The Insider

Industry Groups Eye Legal, Administrative Steps To Weaken EPA Policies

Major industry groups and other critics of significant EPA air, water and other regulations are ramping up legal and administrative efforts for the Trump administration to quickly finalize rollbacks of the policies, ranging from fresh battles over Clean Water Act (CWA) jurisdiction to calls to expand a regulatory waiver for toxic emissions sources to also cover criteria pollutants.

With Congress in recess, much of the attention on environmental policy has shifted to the ongoing industry efforts to soften policies that are in some cases decades old.

At an Aug. 15 EPA public hearing, a printing industry group offered support for a proposal to end the long-running “once in, always in” policy that requires “major” air toxics sources to always be subject to the strict emissions controls for their category of sources, even if they lower emissions to the less-regulated “area” source level. The Trump administration is moving to scrap that policy entirely, which environmentalists warn will lead to removal of air toxics controls.

But the printing industry group backed the plan and also urged EPA to consider similar regulatory relief for other air programs covering criteria pollutants like ozone.

EPA Urged To Expand End Of Strict Air Toxics Policy To Criteria Pollutants
Printing industry officials are urging EPA to not only finalize its rule to scrap the “once in, always in” (OIAI) policy that requires facilities to always meet strict “major” source air toxics rules even if they lower emissions to below the major source threshold, but also to expand aspects of the rule to regulations for criteria pollutants, including ozone.

Marcia Kinter, vice president for government affairs with the Specialty Graphic Imaging Association, told the hearing the proposal is “a great start,” but said EPA could go further to ease permitting burdens for industry outside the air toxics program, including the criteria pollutants regulated by national ambient air quality standards (NAAQS).

Kinter called on EPA to “extend this definitional approach” to other programs under the Clean Air Act, such as permit programs addressing ozone, particulate matter and other criteria pollutants that are regulated under new source review (NSR) and other permit programs in order to ensure that states meet the NAAQS.

But Gretchen Goldman, research director for the Center for Science and Democracy of the Union of Concerned Scientists, told Inside EPA at the event that it is “a terrible idea.”

In court, opponents of the Obama EPA’s CWA jurisdiction rule are waging a new attempt to broaden the scope of a ruling that has halted implementation of the policy in some states.

Industry Targets Minnesota In New Bid To Expand Stay Of Obama CWA Rule
An owner of a Minnesota peat mining firm is seeking to expand the number of states where federal courts have halted implementation of the 2015 Clean Water Act (CWA) jurisdiction rule, asking a federal district court to declare several provisions in the rule are unlawful and unconstitutional and are therefore invalid.

The case filed Aug. 9 in the U.S. District Court for the District of Minnesota, is the latest in a series of lawsuits brought by the free-market Pacific Legal Foundation seeking to block implementation of the Obama-era waters of the United States regulation.

“Plaintiffs challenge several provisions of the 2015 Navigable Waters Definition, as either exceeding the agencies’ statutory authority under the Clean Water Act or Congress’ authority under the Commerce Clause, the Due Process Clause, and the Tenth Amendment. Plaintiffs ask this Court to clarify which regulations are applicable to them, and to determine which provisions of the applicable regulations are statutorily or constitutionally invalid,” the Aug. 9 complaint says.

The complaint notes that federal courts have enjoined the 2015 rule’s definition of navigable waters in roughly half of the country but not in the Land of 10,000 Lakes.

And it comes as the Trump administration is expected to formally rescind the rule in the coming weeks and replace it with a narrower definition of waters of the United States by end of the year.

Separate litigation could test industry’s attempt to secure fresh limits on EPA’s power to regulate some types of air pollution from existing sources.

NRECA Bid To Replace UARG Could Preserve Novel Section 111 Claim
Efforts by the National Rural Electric Cooperative Association (NRECA) to replace the disbanded Utility Air Regulatory Group (UARG) in a suit over EPA’s landfill methane rules could preserve UARG’s novel claims on whether section 111(d) of the Clean Air Act allows EPA to strengthen existing standards.

At issue is National Waste Recycling Association, et al. v. EPA, et al., a consolidated case pending in the U.S. Court of Appeals for the District of Columbia Circuit which challenges EPA’s Obama-era methane standards for existing landfills.

UARG had filed its own suit against the rule, which was later consolidated with the instant suit, arguing that the agency was barred from issuing the rule at all because section 111(d) is “one and done,” and as such updates to the rules are not allowed. After the group wound down and started withdrawing from litigation, it was unclear if the 111(d) claims would continue.

Now NRECA is asking the court to let it replace UARG in the case, which could give the power organization a chance to persist with the 111(d) claims. If successful -- and depending on how the court rules -- that could potentially limit EPA’s power to tighten existing air standards.

The administration is also using court filings in an attempt to fight its critics’ push-back against deregulation. In the most recent example, the Trump administration is urging the D.C. Circuit to reject a suit over EPA’s threshold April 2018 determination that existing vehicle greenhouse gas and fuel economy standards are “not appropriate” and should be eased.

DOJ Downplays Role of NHTSA Penalty Rule In Auto GHG Finding Fight
The Justice Department (DOJ) is urging a federal court to disregard states’ claims that language in a final National Highway Traffic Safety Administration (NHTSA) rule scaling back penalties for fuel economy exceedances proves EPA’s threshold decision to weaken vehicle greenhouse gas standards is final and ripe for suit.

The finding is key to the agency’s ongoing effort to weaken the Obama-era vehicle fuel economy and GHG standards. But the administration claims the finding is not a final agency action, and is therefore not subject to judicial review, and only a final decision on the standards would qualify as something that states and environmentalists could sue over.

States recently filed a letter with the court claiming that the NHTSA penalty rule refers to the April 2018 determination as having final effect, which they claim effectively makes the finding a final agency action. But DOJ on EPA’s behalf rejects this claim.

“The cited NHTSA rule addresses a different regulatory program under a different statute,” DOJ says in an August 13 legal filing in the ongoing case.

The effort to soften the Obama-era vehicle standards is also drawing attention this week as a result of some automakers’ pledge to meet stricter California GHG limits for vehicles. The state has unique authority under the Clean Air Act to set vehicle standards stricter than the federal government, but EPA is now working to undo this power.

White House Presses Automakers To Spurn California Vehicle Deal
The White House has been meeting with auto companies that have not joined the voluntary agreement California signed with four manufacturers over vehicle greenhouse gas standards, defending its deregulatory plan and prodding the companies not to join the deal, according to several sources familiar with the issue.

Sources say that the White House has been in communication this month with at least three automakers -- General Motors, Toyota and Fiat Chrysler America (FCA) -- who did not sign onto California’s July agreement, including during an in-person meeting with automakers last week.

California and four automakers -- Ford, Honda, BMW North America and Volkswagen -- signed an agreement in July under which the companies agree to follow vehicle standards more stringent than the Trump plan though it does ease the Obama standards. Nevertheless, the move highlighted industry concerns with the regulatory, legal and political uncertainty with the still-pending Trump proposal. Since then, California regulators have been prodding automakers that have not joined the deal to begin formally following the state’s standards starting in model year 2020, a year earlier than when the state rules are slated to diverge from EPA’s requirements.

But sources say the White House has been pushing back, though they diverge on how hard officials have leaned on the three non-signing companies with which it has met to spurn the deal.

Once Congress returns, expect some of these EPA policies to gain lawmakers’ attention, including potential legislative efforts to either halt or accelerate the rule changes. Keep reading Inside EPA for full coverage of the rollback battles in the courts, at EPA, and beyond.