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The Insider

EPA Readies Legal Defense Of Major Water, Climate Regulation Rollbacks

The Trump EPA is readying its legal defense of several major rollbacks of Obama-era water and climate rules that it recently finalized or will soon complete, launching court reviews that could determine whether the deregulatory efforts will be durable.

One high-profile example of such a rule is EPA’s just-finalized repeal of the Obama-era Clean Water Act (CWA) jurisdiction rule. In addition, the agency is already engaged in early legal skirmishes over its Affordable Clean Energy (ACE) power plant climate rule.

Further, EPA and the Transportation Department are signaling that they will soon complete a rule to preempt California’s authority to regulate vehicle greenhouse gases and zero-emission vehicles (ZEVs), another measure that is sure to see quick action in court.

On the CWA rule, which the Obama EPA jointly crafted with the Army Corps of Engineers, the Trump administration is reverting to 1986 jurisdiction standards governing which wetlands and other marginal waters will receive federal protection. In addition, Trump officials hope to complete their own version of the CWA rule early next year.

However, one observer is not expecting the administration’s plans to end the decades-long fight over the scope of the water law:

Trump’s WOTUS Repeal And Replace Effort Unlikely To End CWA Debate
BOSTON -- The Trump administration’s efforts to repeal and replace the 2015 Clean Water Act (CWA) jurisdiction rule with a narrower policy is unlikely to end the nearly 20-year debate over the scope of the act and will spur fresh litigation unless Congress steps in to clarify the limits of the law, says a former EPA water office chief.

Those fights will continue until Congress acts to say that “not all waters and wetlands are created equal,” giving EPA more criteria to judge when a waterbody is “worth protecting,” argued Maryland environment secretary Ben Grumbles, who led EPA’s water office during the George W. Bush administration.

Grumbles was speaking during a Sept. 12 session of an American Bar Association conference in Boston.

Among other reasons, the agencies say they are scrapping the 2015 CWA rule because it failed to recognize limits from major Supreme Court cases on the issue, and that they want to “avoid interpretations of the CWA that push the envelope of their constitutional and statutory authority absent a clear statement from Congress.”

But the new repeal -- and the forthcoming replacement -- are certain to be challenged by environmentalists and Democratic-led states, raising questions about the regulatory certainty that supporters say they will bring.

Litigation is already underway over the ACE rule, which imposes narrow GHG requirements on existing power plants in place of the much more expansive framework in the Obama-era Clean Power Plan (CPP).

In that consolidated litigation -- American Lung Association (ALA), et al. v. EPA, et al. -- EPA is urging the U.S. Court of Appeals for the District of Columbia Circuit to expedite its consideration of the case, though rule opponents say such a step would preclude “fair” hearing of their claims:

State Critics Oppose EPA Bid To Speed Ace Litigation
States and cities that are pursuing a court challenge to EPA’s Affordable Clean Energy (ACE) rule to govern power plant greenhouse gases are opposing the agency’s request for an appellate court to expedite its consideration of the suit, arguing it would block a chance for a “fair” hearing of their claims.

EPA’s motion to expedite is important because Trump officials want to defend the rule at least in the initial phase of litigation during President Donald Trump’s current term.

But states and environmentalists say speedy court consideration is not warranted because the rule’s compliance deadlines are so far away, and they note that the Trump EPA for months urged the D.C. Circuit to avoid a merits ruling in litigation over the CPP, which included many similar issues.

Meanwhile, some of those same parties are floating new legal claims over ACE in formal petitions for EPA to reconsider aspects of the rule:

EPA Critics Float New Legal Claims In ACE Reconsideration Petitions
States and environmentalists opposed to EPA’s Affordable Clean Energy (ACE) power plant greenhouse gas rule are formally urging the agency to reconsider multiple aspects of the final regulation, arguing it relied on several legal claims and other provisions that were not subject to public comment.

Such petitions argue that key aspects of the agency’s legal interpretation -- as well as claims that it can disapprove state plans that are more stringent than what the rule requires -- were not floated for public comment.

The petitions could give ACE opponents a separate avenue to challenge parts of the rule in addition to the ALA case, or it might slow down the court’s review of that litigation to the extent that issues raised in the administrative petitions are ultimately folded into the case.

EPA appears unlikely to grant opponents’ administrative petitions, as doing so would re-open one of the Trump administration’s flagship climate policy rollbacks. However, it is not clear how long the agency would take to act on the petitions.

Assuming that the agency ultimately rejects the petitions, those petition denials would be subject to a fresh court challenge.

Meanwhile, President Donald Trump, EPA Administrator Andrew Wheeler and Transportation Secretary Elaine Chao have reportedly agreed on a strategy to accelerate a final rule preempting California’s auto GHG and ZEV rules:

Trump Said To Sign Off On California Auto Preemption
President Donald Trump, EPA chief Andrew Wheeler and Transportation Secretary Elaine Chao have reportedly agreed to accelerate moves to strip California’s authority to regulate auto greenhouse gases and zero emission vehicles (ZEVs), advancing the move ahead of the agencies’ broader rollback of federal vehicle standards.

A draft final rule to preempt the state standards could “soon” arrive at the White House for inter-agency review, according to one Bloomberg report, and there are indications that such a review could be speedy.

The report largely confirms a strategy that publicly emerged earlier this month:

White House Expected To Speed California Preemption Before Auto Rule
The Trump administration appears poised to split its proposal to revoke California’s authority to enforce vehicle greenhouse gas curbs from its broader rule rolling back federal standards, with the new strategy advancing the preemption provisions on a quicker timeline than any rollback.

Once the preemption rule goes final, California and its allies will be quick to file suit, sparking the next round in a heated and protracted fight over Trump’s efforts to scale back federal GHG rules.

States are already challenging EPA’s initial “determination” that the Obama-era rules are too stringent -- with a panel of D.C. Circuit judges appearing skeptical of the agency’s claims during Sept. 6 oral argument.

Additionally, once the main rollback rule is completed later this fall, that will begin yet another court challenge.