On October 17, 2018, the Trump Administration updated its progress on the President’s deregulatory agenda. The Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions projects $18 billion in net regulatory savings for fiscal year 2019, following $23 billion in net savings during FY 2018. The White House is using these numbers to highlight that it has surpassed the goals set forth in Executive Order 13771 to eliminate the cost of two regulations for every new one that is written. The President signed that order just 10 days after his inauguration and the deregulatory push has been one of the most consistent aspects of the Trump Administration.
For energy and environment stakeholders with interests before the federal government, these changes to the federal government’s regulatory framework provide opportunities to advance priorities that impact their bottom line. Regardless of the outcome of the November election, we expect the Trump Administration to continue acting on its stated ambition to relieve the regulatory burden on American business.
The Unified Agenda is a semiannual list of rules that agencies are processing that provides an opportunity for impacted parties to better understand both the underlying priorities of each action item and the timing of future regulatory actions. The Office of Management and Budget compiles the document through engagement across the bureaucracy and provides a helpful one-stop shop for better understanding what is happening within a large and complex government. Below is a collection of important energy and environment issues that the Unified Agenda highlights for action as we enter the second half of the President’s term:
- Waters of the U.S. (WOTUS) – The planned re-write of the Obama-era rule that vastly expanded the Environmental Protection Agency’s (EPA) authority under the Clean Water Act has been further delayed. The previous Unified Agenda showed the rule on schedule to be repealed this November, and Acting EPA Administrator Andrew Wheeler even referenced this timeframe in recent public statements. However, the Unified Agenda pushes back this date by four months to March of 2019, a major concern for agriculture, energy production and other key industries working to manage the fractured implementation of a rule likely to be undone. A recent court decision overturned the Trump Administration’s attempt to stall implementation of the original WOTUS rule, putting it back into effect in 26 states. There is speculation that the expanded timeframe may allow the courts to take further clarifying action and that the EPA is working to make the new rule as legally defensible as possible with the expectation of continued litigation.
- Affordable Clean Energy Rule (ACE) — The Clean Power Plan replacement is scheduled to be released as a final rule in March 2019. EPA released the proposed rule on August 31 and has been accepting written comments since — it also held a lengthy meeting in Chicago to receive oral testimony on October 1. The proposed rule is meant to improve efficiency at individual power plants and gives broad discretion to state regulators to determine requirements.
- Endangered Species Act — The Fish and Wildlife Service is expected to progress several rulemakings of note. Those include an October 2018 notice of proposed rulemaking on a listing determination for the Lesser Prairie Chicken and a November 2018 release of final rules on revisions to the process for listing species/designating critical habitat and interagency consultation.
- New Source Review — NSR is a permitting program designed to address potential increases in air emissions from new or modified sources of emissions. The Administration has pledged to simplify and streamline the NSR program, utilizing additional tools and resources (such as guidance memos and potential rulemakings) to encourage further development and job creation. EPA indicates that in FY19 it will look to formalize in regulation many of the policy changes it has laid out in recent guidance memos.
- PFAS — We anticipate more action on the designation of Per-and Polyfluoroalkyl Substances as Hazardous Substances, referred to as “PFAS.” This group of chemicals has garnered national attention for their implication in ground and drinking water contamination. While the EPA remains unsure of the mechanism to regulate these chemicals, it has conducted several field hearings where concentrations of the chemicals have been found. Congress, too, has been engaged on this issue, because of various constituent and business implications. Both the House and Senate have held hearings on the subject and pledged to continue to be engaged as the Trump Administration works through this issue. We should expect more activity in both the legislative and executive branches in 2019.
- Oil and Gas Air Emissions — EPA expects to finalize amendments to the 2016 rule addressing methane emissions from new and modified oil and gas sources by June 2019. The agency also plans to finalize withdrawal of control technique guidelines for volatile organic compound emissions via a final rule in December. These rules are meant to complement the final “waste prevention” rule published by the Department of Interior in September.
- “Secret Science” Rule – In April, the EPA proposed a rule, Strengthening Transparency in Regulatory Science, that would limit the type of science used in the rulemaking process. The Administration is now signaling that this rule has slipped down the priority list behind those items that more directly scale back regulations on U.S. business. Projected finalization of the rule has been pushed back to January of 2020.
The Trump Administration’s intense focus on regulatory change provides opportunities for businesses to strategically engage government stakeholders in the rulemaking process. Opportunities to continue engagement on rules that impact their bottom line will persist into 2019.