A Sea Change? Energy and Environmental Policy Under the Trump

A Sea Change? Energy and Environmental Policy Under the Trump

TRUMP ADMINISTRATION RESPONSE TO KEY OBAMA ENVIRONMENTAL RULES BEING CHALLENGED IN COURT October 6, 2017 TRUMP ADMINISTRATION RESPONSE TO KEY OBAMA ...

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TRUMP ADMINISTRATION RESPONSE TO KEY OBAMA ENVIRONMENTAL RULES BEING CHALLENGED IN COURT October 6, 2017

TRUMP ADMINISTRATION RESPONSE TO KEY OBAMA ENVIRONMENTAL RULES BEING CHALLENGED IN COURT Rule EPA Methane Rule for New Oil and Gas Operations

BLM Rule on Hydraulic Fracturing on Federal and Indian Lands BLM Rule to Regulate Venting and Flaring on Federal and Indian lands

2

Trump Administration Response Rulemaking activities • 4/18/17 – EPA announced reconsideration of fugitive emission req’ts. • 6/5/17 – EPA proposed to stay req’ts for 90 days. • 6/16/17 – EPA proposed to stay req’ts 2 add’l years and 90 days as stop gap. API v. EPA, 13-1108 (D.C. Cir.) (challenge to merits) • 5/18/17 – Merits case held in abeyance. • 9/19/17 – Status reports indicates agency review ongoing. Clean Air Council v. Pruitt, 17-1145 (D.C. Cir.) (challenge to 90-day stay) • 7/3/17 – Per curiam order vacated 90-day stay. • 8/10/17 – Petitions for rehearing en banc denied. Wyoming, et. al v. Zinke, et. al, 16-8068 (10th Cir.) (challenge to merits) • 7/25/17 – BLM proposed rescinding rule in its entirety. • 9/21/17 – Case dismissed because of proposed rescission. Rulemaking activities • 6/15/17 – BLM postponed 1/17/18 compliance req’ts through court review. • 10/5/17 – BLM proposed to postpone 1/17/18 compliance req’ts until 1/17/19. Wyoming v. DOI, No. 2:16-cv-00285–SWS (D. Wyo.) (challenge to merits) • 6/23/17 – Order setting briefing schedule. California, et al. v. BLM, No. 3:17-cv-03804 (N.D. Cal.) (challenge to initial stay) • 7/27/17 – CBD, et al. filed motion for SJ. • 10/4/17 – Opinion rejecting initial stay.

Next steps Comment period on 2-year stay closed 8/9/17.

Case remains in abeyance.

Case concluded. Challenged provisions in effect as of 7/31/17. Case concluded. Comment period on proposed rescission closed 9/25/17. Comments on postponement due 11/3/17.

Briefing through 11/22/17. Court rejected initial stay and delayed portions of rule in effect as of 10/4/17.

TRUMP ADMINISTRATION RESPONSE TO KEY OBAMA ENVIRONMENTAL RULES BEING CHALLENGED IN COURT Rule

Trump Administration Response

Next steps

BLM Land-Use Rule

3/27/17 – Repealed by CRA resolution

None.

ICR on Methane Emissions National Wildlife Refuges Rule

3/2/17 – Withdrawn by EPA

None.

4/3/17 – Repealed by CRA resolution CBD v. Zinke, No. 3:17-cv-00091-JWS (D. Alaska) • 4/20/17 – CBD filed complaint challenging CRA repeal. • 6/26/17 – DOI filed motion to dismiss (denied on 8/31). West Virginia v. EPA, 15-1363 (D.C. Cir.) • 4/28/17 – Case held in abeyance (ongoing). • 6/8/17 – EPA sent OMB proposed rule regarding rollback. • 8/2/17 – Press reports EPA will repeal CPP first, then propose replacement. North Dakota v. EPA, 15-1381 (D.C. Cir.) • 3/28/17 – Abeyance motion filed by EPA (granted, and ongoing). • 4/28/17 – Case held in abeyance. Murray Energy Corp. v. EPA, No. 15-1385 (D.C. Cir.) • 4/11/17 – Oral argument postponed and case placed in abeyance. • 7/12/17 – New petition: Am. Lung Ass’n v. EPA, 17-1172 (D.C. Cir.)

Briefing through 12/15/17.

Clean Power Plan

NSPS for CO2 from New Power Plants 2015 Ozone NAAQS (70 ppb)

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EPA to provide 90-day status reports beginning 9/7/17; proposed plan to repeal CPP expected Fall 2017. EPA to provide 90-day status reports beginning 10/27/17. EPA to provide 90-day status reports.

TRUMP ADMINISTRATION RESPONSE TO KEY OBAMA ENVIRONMENTAL RULES BEING CHALLENGED IN COURT Rule Electric Generating Unit Effluent Limitation Guidelines (EGU ELGs) for Coal-fired Power Plants

Moratorium on New Coal Leases EPA SIP Call on Startup, Shutdown, and Malfunction (SSM) MATS Supplemental Finding

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Trump Administration Response Rulemaking activities • 6/6/17 – EPA proposed to postpone compliance dates. • 9/13/17 – EPA issued rule staying compliance with 2015 Rule deadlines. Southwestern Elec. v. EPA, 15-60821 (5th Cir.) (challenge to merits) • 8/22/17 – Mot to sever and hold in abeyance aspects of 2015 Rule related to more stringent BAT limitations and PSES granted. • 9/27/17 – Briefing schedule established for remaining issues. Clean Water Action v. EPA, 17-cv-00817 (D.D.C.) (challenge to stay) • 8/8/17 – UWAG re-filed earlier MTD/cross-motion for SJ; mot to transfer case. • 9/21/17 – EPA filed second motion to dismiss for lack of jurisdiction. 3/28/17 – Revoked by Executive Order. Cit. for Clean Energy v. DOI, 4:17-cv-00030 (D. Montana) (challenge to revocation) • 3/29/17 – Complaint filed to challenge revocation. Envtl. Comm., et al. v. EPA, 15-1239 (D.C. Cir.) • 4/24/17 – Removed from oral argument, placed in abeyance. • 7/24/17 – EPA still considering whether to reconsider. Murray Energy Corp. v. EPA, 16-1127 (D.C. Cir.) • 4/18/17 – Abeyance motion filed by EPA (later granted). • 7/26/17 – EPA review ongoing.

Next steps Awaiting further action, if any, following 9/13 final rule postponing compliance dates. Briefing on remaining issues through 2/22/18.

Awaiting ruling on UWAG motions; briefing in progress on EPA motion to dismiss. Briefing on contents of administrative record through 11/2/17. EPA to provide 90-day status reports beginning 7/24/17.

EPA review of April 2016 Supp’l Finding is ongoing.

TRUMP ADMINISTRATION RESPONSE TO KEY OBAMA ENVIRONMENTAL RULES BEING CHALLENGED IN COURT Rule

Trump Administration Response

CSAPR Update

Next steps

Wisconsin v. EPA, 16-1406 (D.C. Cir.) • 5/15/17 – Order setting briefing schedule. • 8/21/17 – Cedar Falls Utilities motion to stay its petition for review. • 9/6/17 – Per curiam order denying motion to extend briefing schedule and motion to sever. Util. Solid Waste Activities Group v. EPA, 15-1219 (D.C. Cir.) • 5/15/17 – USWAG petition to reconsider portions of rule. • 9/13/17 – EPA granted recon of portions of CCR Rule. • 9/27/17 – Oral argument rescheduled for 11/20/17

Briefing through 2/16/18; awaiting ruling on motion to stay.

Regional Haze Rule

Texas v. EPA, 17-1021 (D.C. Cir.) • 9/27/17 – EPA mot to extend briefing format deadline granted.

Proposed formats for briefing due 12/21/17.

Arkansas Regional Haze FIP

State of Arkansas v. EPA, 16-4270 (8th Cir.) • 4/25/17 – EPA stayed effectiveness for 90 days. • 10/2/17 – Order continuing to hold in abeyance until 10/31/17. • 2/16/17 – Repealed by CRA resolution.

New effective date expected to be 1/25/18 (old effective date was 10/27/17). None.

CCR Rule (Coal Ash Rule)

Stream Protection Rule 5

Oral argument set for 11/20/17.

TRUMP ADMINISTRATION RESPONSE TO KEY OBAMA ENVIRONMENTAL RULES BEING CHALLENGED IN COURT Rule

Trump Administration Response

Waters of the United States (WOTUS)

Reconsideration of MATS and Utility NSPS

2008 NAAQS SIPs Regional Haze FIPs for TX and OK

6

Next steps

Nat’l Ass’n of Manufacturers v. DOD, 16-299 (SCOTUS) • 2/28/17 – E.O. directs EPA and USACE to rescind and revise. • 6/27/17 – EPA released a pre-pub proposal. • 7/27/17 – EPA and USACE published proposed WOTUS rule. ARIPPA v. EPA, 15-1180 (D.C. Cir.) • 4/27/17 – Removed from oral argument, placed in abeyance. • 7/26/17 – EPA status report indicates agency review ongoing.

Comments on proposed rule were due 8/28/17; oral argument set for 10/11/17.

S. Coast Air Quality Management Dist. v. EPA, 15-1115 (D.C. Cir.) • 9/14/17 – Oral argument held. Texas v. EPA, 16-60118 (5th Cir.) • 3/22/17 – EPA motion to remand for reconsideration granted. • 9/29/17 – EPA signed notice of proposed rulemaking on BART req’ts.

Awaiting court decision.

EPA to provide 90-day status reports beginning 7/26/17.

EPA to provide 60-day status reports beginning 6/5/17; awaiting publication of BART proposal in Federal Register.

TRUMP ADMINISTRATION RESPONSE TO KEY OBAMA ENVIRONMENTAL RULES BEING CHALLENGED IN COURT Rule

Trump Administration Response

Next steps

CAA Risk Management Programs

ACC v. EPA, 17-1085 (D.C. Cir.) (challenge to merits) • 4/3/17 – Case held in abeyance until 6/19/17.

Petitioners to provide 90-day status reports beginning 6/19/17; EPA reconsideration is ongoing. Briefing scheduled through 1/31/18.

Cooling Water Intake Requirements

Air Alliance Houston v. EPA, 17-1155 (D.C. Cir.) (challenge to stay) • 6/9/17 – EPA signed rule delaying effective date until 2/19/19. • 7/24/17 – Petitioners and pet-intervenors’ motion for stay denied. • 8/30/17 – Order denying mot to stay, mot for SJ, and mot for add’l time for briefing; granting mot for expedition and consolidating. • 9/26/17 – Order establishing briefing schedule. Cooling Water Intake Structure Coalition v. EPA, 14-4645 (2d Cir.) • 9/14/17 – Oral argument held. Truck Trailer Manufacturers v. EPA, 16-1430 (D.C. Cir.) • 5/8/17 – Case held in abeyance for 90 days. • 8/21/17 – Cases remain in abeyance through 9/18/17. • 9/18/17 – EPA motion to continue abeyance through completion of administrative proceedings.

Briefing on motion to continue abeyance through 10/12/17.

Truck GHG Emissions Standards

7

Awaiting court decision.

CONTACTS

JEFF HOLMSTEAD

BRITTANY PEMBERTON

RYAN ELETTO

[email protected] +1.202.828.5852

[email protected] +1.202.828.1708

[email protected] +1.202.828.5807

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