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The Insider

EPA Rules Spur Patchwork Policies Despite Wheeler’s ‘Certainty’ Push

Despite EPA Administrator Andrew Wheeler’s public focus on providing “certainty” to regulated entities and states on environmental policy, the agency’s deregulatory agenda is increasingly creating nationwide “patchworks” where regulatory requirements vary between states -- a development critics say creates more uncertainty rather than reducing it.

On subjects from vehicle greenhouse gas and fuel economy rules to the scope of Clean Water Act (CWA) jurisdiction, pharmaceutical waste standards, and a host of toxic-substances regulations, state-by-state regulatory regimes are either already in place or could soon emerge depending on the outcome of court challenges to the Trump EPA’s policies.

Those complications continue to arise in spite of Wheeler’s calls for certainty, most recently in a speech he gave at this week’s CERAWeek energy industry conference in Houston.

“What is our formula for improving the environment and the economy at the same time? Providing greater regulatory certainty to the American public. A lack of certainty from the Agency hinders environmental protections and creates paralysis in the marketplace. On the other hand, greater certainty gives the American public the ability to do what they do best: innovate, create, and produce new technologies that transform the world for the better,” Wheeler said.

But the chemical sector is scrambling to avoid a state-by-state patchwork of chemicals policies, through a new campaign to counter sentiment that EPA’s regulations under the new Toxic Substances Control Act (TSCA) do not go far enough to control hazardous chemicals.

That sentiment has, in turn, spurred state lawmakers to set their own standards that go farther than federal rules, creating an uneven regulatory landscape across the country:

To Head Off State Patchwork, Industry Seeks To Tout EPA's TSCA 'Success'
Chemical industry officials are acknowledging that the revised Toxic Substances Control Act (TSCA) does not go as far as they had hoped in preempting state rules and are seeking to assure local regulators and consumers that EPA's implementation of the new law will mitigate risks and the growing regulatory and retail patchwork.

Industry had hoped to rely on preemption provisions in the revised TSCA to avoid patchwork regulation of their products, but those provisions proved less effective than industry hoped when the law was passed in 2016. Instead, there is a growing array of varied state chemicals regulations with only limited instances where those policies can be set aside by EPA action.

But perhaps the most prominent patchwork on chemical policy is outside TSCA -- on per- and polyfluoroalkyl substances (PFAS) that have become a major concern as drinking-water contaminants.

Since EPA unveiled its long-awaited PFAS action plan Feb. 14, officials in several states facing contamination have expressed disappointment that the agency is not moving more quickly to craft an enforceable drinking water limit, with many pressing ahead on their own such standards:

Finding EPA Plan Disappointing, States Plow Ahead On Strict PFAS Limits
State officials say that EPA's recently unveiled action plan to address per- and polyfluoroalkyl substances (PFAS) is disappointing and too slow, and are plowing ahead with developing their own strict standards to address heightened public concerns over the spread of chemicals in drinking water systems.

Meanwhile, signs are emerging that some states will choose not to adopt the Resource Conservation & Recovery Act standards for waste pharmaceuticals that EPA enacted in late 2018 and instead keep their own more stringent-policies in place.

Alston and Bird attorney Elise Paeffgen said on a recent webinar that a patchwork of pharmaceutical waste rules across states seems all but certain:

Industry Fears 'Patchwork Quilt' For EPA Pharmaceutical Rule Implementation
Some states will opt to retain their existing requirements for waste pharmaceuticals that are broader or more stringent than the approach EPA took in its recently finalized rule it finalized late last year, an industry attorney says, making it more challenging for large health sector companies that do business in multiple states.

“A patchwork quilt is coming,” she said, warning that industry groups should lobby state governments to call for consistent approaches to the waste.

Under the CWA, a patchwork jurisdiction policy is already in place thanks to a web of conflicting district court decisions regarding the Obama administration’s rule that governs the water law’s reach. Two judges have struck down the 2018 delay on enforcing that standard, while three other orders blocked the Obama-era rule itself as likely illegal -- but only within 28 states, meaning that the contested standard is back in force for the other 22 states.

EPA was poised to appeal the adverse decisions on its delay, which if successful would have ended the patchwork and reinstated a uniform nationwide policy. But it dropped those appeals late last week. Thus, the patchwork will continue until the expected repeal of the 2015 rule, either through administrative action or yet another court order:

DOJ Asks Courts To Avoid CWA Jurisdiction Suits Amid Policy ‘Patchwork’
The Department of Justice is urging federal courts to avoid taking up cases on the scope of the Clean Water Act (CWA) until it finalizes a rule to narrow an Obama-era policy on the law’s reach, even as the Trump administration continues to issue jurisdictional findings for waterbodies using a “patchwork” of varying standards.

And another court battle over patchwork policy is imminent after Wheeler confirmed that EPA’s upcoming final rule on vehicle efficiency standards will preempt California’s more-stringent policies for the sector. That move will prompt a legal challenge from the Golden State and its allies with the potential for a two-tier emissions policy should they prevail:

Wheeler Confirms EPA Will Preempt California Vehicle Rules
EPA chief Andrew Wheeler is confirming that the agency will preempt California and other states from regulating vehicle greenhouse gases when the agency and the Transportation Department (DOT) finalize a joint rollback of Obama-era GHG and fuel economy standards.