I’m back! I’ve resurrected my blog now that we are back in the classroom. I hope that you find my posts useful to your environmental compliance efforts.
Way back in the 1970s (when dinosaurs walked the earth), federal environmental regulatory programs enjoyed bipartisan support in the United States. For example, the Federal Water Pollution Control Act Amendments of 1972 aka the modern Clean Water Act passed the House by a vote of 366-11 and the Act received unanimous support in the Senate, with 74 Senators voting yes. Oh my, how times have changed. Since 1980, the norm has been that each new Presidential Administration significantly changes federal environmental regulatory program priorities and goals as well as the intensity of federal environmental enforcement. The Trump and Biden Administrations are no exceptions to this phenomenon.
The Trump Administration advanced its environmental deregulatory agenda by, inter alia, (i) overturning recently promulgated regulations via the Congressional Review Act, (ii) issuing Executive Orders directing the adoption of deregulatory activities by federal agencies, (iii) promulgating rules that delayed and rolled back environmental regulations via Administrative Procedure Act rulemaking, (iv) withdrawing or significantly modifying agency guidance and policy, and (v) deferring environmental enforcement to state and local governments.
Not surprisingly, the Biden Administration is utilizing the very same tools to address its climate change and environmental justice priorities and goals. For example, the Congressional Review Act recently was used to overturn the Trump Administration’s rollback of the 2012 and 2016 Oil and Natural Gas New Source Performance Standards set by the Obama Administration that imposed limits on methane leaks from oil and gas operations aka “the Methane Rule.” As noted by the Washington Post (https://www.washingtonpost.com/climate-environment/2021/04/28/methane-congressional-review-act/): “[t]he Congressional Review Act gives lawmakers the power to nullify any regulation within 60 days of enactment and dictates that once a regulation has been revoked, no new ‘substantially the same’ regulation can be adopted. Requiring only a simple majority vote, it is the swiftest way to overturn an existing federal rule. Otherwise, it would take at least a year, if not longer, for an agency to rewrite it.” Interestingly, repeal of the Methane Rule rollback was the first time that the Democrats used the Congressional Review Act to repeal a regulation promulgated by the prior Presidential Administration. Word on the street is that it may be the only time this year. We shall see.
President Biden also has relied upon Executive Orders to advance his Administration’s priorities including issuance of (i) “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” with numerous specific directives to federal agencies to take certain regulatory actions (https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-protecting-public-health-and-environment-and-restoring-science-to-tackle-climate-crisis/), and (ii) “Executive Order on Revocation of Certain Executive Orders Concerning Federal Regulation,” which revokes Trump Administration deregulatory executive orders and directs rulemaking to overturn regulations that limit a federal agency’s “flexibility to use robust regulatory action to address national priorities actions” (https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-revocation-of-certain-executive-orders-concerning-federal-regulation/).
In response to these Executive Orders, EPA has begun to take steps to undo the prior Administration’s deregulatory efforts. For example, just today (May 19, 2021), EPA issued a proposed rule to address the climate crisis entitled “Phasedown of Hydrofluorocarbons: Establishing the Allowance Allocation and Trading Program under the American Innovation and Manufacturing Act,” (https://www.govinfo.gov/content/pkg/FR-2021-05-19/pdf/2021-09545.pdf), and, yesterday, EPA issued a proposed rule to undo Trump Administration procedural requirements and further agency flexibility entitled “EPA Guidance, Administrative Procedures for Issuance and Public Petitions; Rescission,” (https://www.govinfo.gov/content/pkg/FR-2021-05-18/pdf/2021-10269.pdf).
Whew, the pendulum is swinging back hard and “stuff” is happening fast! In my next blog, I will highlight other recent environmental regulatory actions and share resources that you may use to track these environmental regulatory changes. In the meantime, stay safe and strong. We are making great progress in overcoming the COVID pandemic.