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The Insider

The Biden administration is releasing key details on how it plans to reverse important portions of the Trump EPA’s deregulatory agenda, including efforts to overhaul high-profile actions addressing the reach of the Clean Water Act (CWA) and the stringency of particulate matter standards.

But such efforts are facing stiff criticism, raising doubts that Administrator Michael Regan can achieve his goal of consensus approaches.

A case in point is the Biden administration’s plan to overhaul the regulatory definition of the “waters of the United States” governed by the CWA, the latest game of regulatory ping-pong as EPA and the Army Corps of Engineers launch their third consecutive attempt to develop a durable regulatory definition.

But within moments of officials announcing their plans, environmentalists slammed officials for not moving quickly enough to repeal the Trump administration’s definition.

Environmentalists Decry Biden Plan To Delay Repealing Trump WOTUS Rule
Environmental groups are decrying the Biden administration’s decision to leave the Trump-era definition of “waters of the United States” (WOTUS) in place while EPA and the Army Corps of Engineers craft a new definition and are calling on the administration to repeal the 2020 rule as soon as possible to protect vulnerable communities.

“Every day the ‘Dirty Water Rule’ stays in effect, America’s waterways remain at risk,” Jon Devine, director of federal water policy for the Natural Resources Defense Council, said in a June 9 statement. “The Biden Administration’s planned proposal to repeal the rule is a step in the right direction, but lacks the urgency required to restore full legal protections for the lakes and rivers that supply drinking water to millions of people."

The criticism was similarly severe on the other side, with supporters of the Trump rule hinting they will sue if the Biden administration goes too far.

“Fortunately, North Dakota is well-positioned in the event of overreach thanks to the leadership of our Attorney General, Wayne Stenehjem,” Sen. Kevin Cramer (R-ND) said in a statement.

Such competing criticisms raise doubts about how or whether Regan will be able to achieve his goal of crafting a “middle ground” approach as the agency revises the regulation.

Regan’s Pledge For WOTUS ‘Middle Ground’ Faces Doubts Amid Criticisms
EPA Administrator Michael Regan’s pledge to craft a new “middle ground” policy defining “waters of the United States” (WOTUS) is facing significant doubts as supporters of the Trump-era definition threaten legal action over Biden administration overhaul plans while environmentalists slam the officials over the pace of any changes.

“The question up to now has not been whether the Biden Administration would do something to redefine Waters of the United States but what would they do? Now, the question becomes, ‘Can they write a definition that will last beyond their time in office?’” Kevin Minoli, formerly a senior official in EPA’s Office of General Counsel and now a partner at Alston & Bird, said in a statement.

Other former EPA officials have also previously questioned whether the agency can ever develop a durable, middle-ground compromise because key stakeholders have such deeply entrenched positions.

“I’m not sure there is a middle ground,” Ken Kopocis, de facto EPA water chief at the end of the Obama administration, said recently.

Other planned actions to reverse Trump-era deregulatory measures are not receiving the same level of criticism though they are also contested.

For example, EPA efforts to roll back a controversial rule constraining cost-benefit procedures under the Clean Air Act drew critiques, from both industry and free-market supporters of the Trump measure.

Industry Urges EPA To Amend, Not Rescind, Trump Cost-Benefit Rule
Industry groups are urging EPA to amend rather than rescind a Trump-era cost-benefit rule to require consistent analysis throughout Clean Air Act rulemaking, rather than return to prior practice they say can be manipulated to overstate benefits.

The U.S. Chamber of Commerce “believes, rather than repeal the rule, the agency should seek to revise it through thoughtful consideration of individual provisions” to land at “a better path for systematic and consistent agency applications of accounting benefits and costs and associated uncertainties,” Dan Byers, vice president for policy at the Chamber’s Global Energy Institute, said in his testimony.

One supporter of the Trump rule says the agency should expect applied legal challenges when officials revert back to the old cost-benefit approaches.

Critics Eye Applied Challenges As EPA Rescinds Trump Cost-Benefit Rule
Free-market and other EPA critics are unlikely to challenge directly the agency’s plan to revoke a Trump-era rule significantly narrowing how it calculates the costs and benefits of Clean Air Act regulations but instead will wait to bring an applied challenge when the agency issues a rule that revives the broader analytical approach that had been used for decades.

The rescission rule is unlikely to face legal action because it would be difficult for parties to demonstrate they have standing to sue, says Steve Milloy, who served on the EPA transition team at the start of the Trump administration. “But when they start issuing rules” under the old cost-benefit approach, which treated equally the “co-benefits” from reduced pollutants not directly targeted by the rule, that is when opponents will go to court, he says.

Milloy is focused on an expected rule to tighten the national ambient air quality standard (NAAQS) for fine particulate matter (PM2.5), what he calls EPA’s “most potent regulatory weapon.”

Speaking of PM2.5, EPA rolled out plans to overhaul the Trump administration’s rule that retained air standards for PM2.5, using an expedited scientific review process.

EPA Will Reconsider PM2.5 Air Limits Using ‘Supplemental’ Science
EPA will reconsider the Trump EPA’s controversial decision to leave federal standards for particulate matter (PM) unchanged from their 2012 levels and will use an accelerated review process using supplemental scientific data to issue a final rule likely tightening the limits in “Spring 2023,” the agency announced June 10.

However, the strategy is not without legal risk, given the heavy focus of environmentalists and states in lawsuits against the Trump PM NAAQS rule on flawed procedure. Litigants opposed to tougher NAAQS might also argue EPA must reconsider the standards using the original scientific record, not an updated record.

The agency also took several new actions to reverse Trump-era policies, including a rule that narrowed the role of the Environmental Appeals Board, which adjudicates permit and penalty disputes, as well as a controversial guidance under the Toxic Substances Control Act governing significant new use rules for certain per- and polyfluoroalkyl substances (PFAS).

EPA Repeals Most Of Trump-Era Rule Curbing EAB’s Procedures
EPA has rescinded nearly all provisions in a controversial Trump-era rule that curbed the authorities of its Environmental Appeals Board (EAB), the body that adjudicates challenges to permits and administrative penalties, with the Biden administration saying the reversal restores the board’s impartiality and independence.

EPA Withdraws PFAS SNUR Guide, Advances New Reporting Mandate
EPA is scrapping its controversial Trump-era guidance that environmentalists said unlawfully narrowed a significant new use rule (SNUR) for per- and polyfluoroalkyl substances (PFAS), alongside issuing a legally mandated TSCA proposal setting new reporting requirements for PFAS manufactured or imported since 2011.