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The Insider

Uncertainty Reigns Over Major EPA Regulations, Enforcement Agreements

Developments in court and within the Trump administration are underscoring major uncertainty regarding future climate policy, the scope of rules for groundwater and coal plants, and the ability of regulated parties to reach “supplemental” agreements to help resolve environmental claims.

While Trump officials are generally pushing for eased requirements in all areas, courts in some cases might order the agency to issue stricter rules, and environmentalists and others are seeking relief from Congress, states and potentially a future administration.

In the climate arena, President Donald Trump is re-affirming his pledge to leave the Paris climate agreement at his earliest possible opportunity in November 2020:

As Trump Begins Paris Exit, Environmentalists Look To New President
As President Donald Trump is kick-starting the year-long process to remove the United States from the Paris climate agreement, which is slated to take effect one day after the November 2020 elections, environmentalists are increasingly looking to the next administration to re-engage on international climate matters.

But environmental groups are already outlining a path for Trump’s Democratic successor -- if he fails to win re-election next November -- to quickly re-join the Paris deal and use a range of tools to advance climate policy internationally.

“As a first step, the next administration should immediately rejoin the Paris agreement, which continues to provide the appropriate framework for coordinating international steps to strengthen individual nation’s climate policies,” Center for American Progress senior fellow Alan Yu writes in a Nov. 1 paper. “But diplomatic efforts through Paris alone will not be enough. The United States must use all of its diplomatic, trade, and financial influence over allies, rivals, international corporations, and institutions to catalyze global action.”

He argues that the next administration should “promptly” issue a “credible” nationally determined contribution -- the Paris Agreement’s term for national greenhouse gas goals -- that includes a 2030 target.

In addition, the incoming administration should take a number of steps to infuse climate change in international diplomacy, Yu argues, including through bilateral partnerships with major emitters, multilateral forums such as the Group of Seven industrialized countries, and new global initiatives such as an effort to “decarbonize power systems worldwide in 30 years.”

Supporters of affirmative climate policy are also looking to states to counter disengagement at the federal level, though there are questions about whether such state and local action can completely pick up the slack:

Experts See State GHG Efforts As Incomplete Fix For Trump’s Paris Exit
Climate policy experts are touting states’ ramped-up action on climate as a way to partially counter the Trump administration’s looming withdrawal from the Paris climate deal, though they acknowledge it is a second-best stand-in for federal climate policies including rules EPA and other agencies are rolling back.

The Trump administration’s deregulatory agenda “is galvanizing state and local and other actors as it always has,” Georgetown Climate Center Director Vicki Arroyo tells Inside EPA.

She adds: “But we all know that activity doesn’t add up to an answer. We need a federal government that is actually trying to reduce emissions,” in contrast to current federal policies aimed at increasing oil and coal consumption and emissions from the power, transportation and other sectors, she said.

Meanwhile, the Supreme Court is considering a potentially landmark case that could determine the scope of Clean Water Act (CWA) rules affecting pollution that travels through groundwater, with the justices appearing to seek a compromise on the issue:

Justices Appear To Grapple With Compromise On CWA Groundwater Issue
Supreme Court justices at oral argument Nov. 6 over whether the Clean Water Act (CWA) applies to pollutants that travel through groundwater to surface water appeared to be searching for a compromise that would acknowledge discharge permits may be required in some cases but would limit those circumstances.

Both sides in the case, County of Maui v. Hawaii Wildlife Fund, are warning of dire consequences if their opponents’ arguments prevail. The county, backed by the Trump EPA, argues a win for environmentalists could subject millions of potential pollution sources, including septic tanks, to National Pollutant Discharge Elimination System permits, while environmentalists counter that backing the county’s position would create a huge loophole allowing polluters to avoid regulation.

“I wonder if you have any sort of fall-back position there that would cure my worry [about expanding the universe of permitted entities] without getting into the evasion problems,” Justice Stephen Breyer asked environmentalists’ attorney at one point during Nov. 6 oral argument.

Even so, Inside EPA is reporting that it is unclear whether the high court will issue a definitive ruling in the case:

High Court Case May Fail To Answer CWA Groundwater Liability Question
Legal experts say it is uncertain whether the Supreme Court will issue a definitive ruling on when, if ever, a Clean Water Act (CWA) permit is needed for pollutants that travel from a point source through groundwater to surface water, due to the justices’ questions about pending related litigation and the possibility they may not be able to find a compromise that will win broad support.

Despite some expectations ahead of oral argument that the county will prevail, a majority of justices did not appear to fully back the county’s position that the CWA does not impose liability for groundwater discharges.

“There’s a chance they could lose,” Richard Lazarus, a professor at Harvard Law School, said about the county. He added that if he was the attorney representing the county, “I’d owe my client a phone call” to raise the question of settling the case before a potential ruling in favor of environmentalists, which would place the county on the hook for “a lot of attorneys’ fees” to be paid to environmentalists.

Meanwhile, EPA is issuing new proposed rules governing coal plants’ waste and water pollution, with critics charging that the agency is ignoring court mandates to strengthen Obama-era standards:

Despite Court Losses, EPA Seeks To Ease Coal Plant Rules, Irking Critics
EPA critics are casting newly unveiled revisions to water and waste rules for coal-fired power plants as part of a broad agenda to prioritize the coal industry over protecting human health and the environment, arguing that the agency is fast-tracking deregulatory policies for the sectors despite court orders to strengthen other elements of the regulations.

Environmentalists and former EPA officials have noted that the new proposals extend compliance deadlines for power plants as far as 2028, while avoiding some or all aspects of appellate court decisions that found the original versions of the coal ash and utility effluent rules to be unlawfully weak.

“Apparently they’re going to handle that with later rulemaking -- as usual, all of their efforts are focused on deregulation,” Betsy Southerland, who led EPA’s Office of Science and Technology within the Office of Water during the Obama administration, said of the ash proposal.

Speaking of the courts, municipalities and industry lawyers continue to oppose a forthcoming Justice Department (DOJ) ban on “supplemental environmental projects” (SEPs) in environmental enforcement settlements:

As Defendants Brace For SEP Ban, Water Agencies Eye Legislative Fix
Lawyers representing municipal and industrial entities are bracing for the Justice Department (DOJ) to largely ban the use of supplemental environmental projects (SEPs) in enforcement settlements, with some municipal water agencies now turning to Congress to authorize the popular projects that defendants often seek in settlements to ease penalties.

SEPs generally offset penalty amounts paid to the Treasury. As a result, they are popular with settling defendants, who would rather put the funds to local use than pay penalties.

But Jeffrey Clark, chief of DOJ’s environment division, believes they are unlawful because they divert revenue that would otherwise flow to the Treasury in the form of penalties, one municipal source says.

In Clark’s view, only Congress has the authority to appropriate money, so any settlement money must go to the Treasury and may not be diverted to a special project, even if they are popular and have immense local benefits.

As such, some water agencies are turning to Congress to authorize the projects. The municipal source says general discussions with relevant committees show strong bipartisan support for SEPs, but acknowledges the “bandwidth” needed to move the policy may be lacking.

One possible vehicle for the policy may be the Water Resources Development Act, if Congress moves forward with such a law next year.