Environmental Protections on the Chopping Block
The Trump Administration is rolling back a wide variety of regulations that protect our water, air, land, and public health in order to benefit high-pollution industries that donate heavily to political campaigns.
Although the numbers show that environmental regulations on the whole are good for the economy and have benefits that far exceed costs by preventing illness and death from dangerous pollution, Trump’s war on environmental protections has been relentless. The administration has targeted more than 60 environmental rules, including those meant to control greenhouse gases, coal ash waste, water pollution, mercury, and smog.
Trump’s “Presidential Executive Order on Promoting Energy Independence and Economic Growth,” directs that “[t]he heads of agencies shall review all existing regulations… that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources.”
Many of EPA’s statements regarding its decision to review rules reference this executive order. The list below summarizes some of the key regulations on EPA’s chopping block and why the safeguards at stake are so critical.
Clean Water Regulations
Streams and Wetlands:
President Trump signed an executive order on February 28, 2017 directing EPA and the Army Corps of Engineers to review and rescind or replace the 2015 Waters of the U.S. Rule (also known as the “Clean Water Rule”), which is meant to protect wetlands and streams. EPA has been holding listening sessions to gather recommendations on how to redefine “waters of the U.S.” that are protected by the federal Clean Water Act. On February 6, 2018, EPA finalized a rule postponing the implementation date for the rule two years until February 6, 2020. The Clean Water Rule’s primary purpose was to define wetlands and waterways that need protection from pollution under the Clean Water Act because they have a significant impact on the health of navigable waters. These vulnerable waters also serve as drinking water sources for one in three Americans (117 million people). New York and several other states sued EPA challenging the two-year delay on the same day the delay was finalized. In addition, thirty-two states, mostly Republican, had previously sued to challenge the 2015 Waters of the U.S. Rule, and the U.S. Supreme Court ruled in January 22, 2018 that these challenges must be brought in federal district courts rather than appeals courts, which invalidated the 6th Circuit Court of Appeals’ October 2015 decision to stay the 2015 rule. However, the EPA’s 2018 decision to delay the rule for two years is still in force.
Water Pollution from Coal Plants:
On April 25, 2017, the Trump Administration halted, indefinitely, certain compliance deadlines in the 2015 Steam Electric Effluent Limitations Guidelines (“ELG”) Rule, which set, for the first time, limits on toxic water pollution from coal-fired power plants. EPA issued the regulations on September 30, 2015 in response to a lawsuit by the Environmental Integrity Project and other environmental groups, and the rule went into effect on January 4, 2016. Power plants are the largest industrial discharger of toxic water pollution, yet prior to the ELG rule there were no federal limits on any toxic pollutants from this industry. The ELG rule sets limits on discharges, requiring zero discharge from certain coal ash wastewaters and requiring limits on toxic pollutants including arsenic and selenium in the wastewater from air pollution control devices called “scrubbers.” The rule required that discharge permits incorporate the new requirements “as soon as possible beginning November 1, 2018” and “no later than December 31, 2023.” However, on September 18, 2017, EPA Administrator Pruitt finalized a rule postponing the earliest compliance dates for the ELG rule from 2018 to November 2020. This postponement creates uncertainty for regulatory agencies that have to issue new permits, as many plants have already received permits and taken steps that incorporate the rule’s pollution-reducing requirements and deadlines. EPA accepted public comments until July 6, 2017; you can read EIP’s comments here. EPA also announced, on August 14, 2017, in a filing with the U.S. Court of Appeals for the Fifth Circuit, that it was planning to re-write the limits on wastewater from bottom ash, scrubbers, and coal gasification plants, further signaling its intention to gut the limits on these waste streams.
Coal Plant Waste Regulation
Toxic Coal Ash Pollution:
On September 14, 2017, the Pruitt EPA announced that it would be reconsidering its Coal Ash Disposal Rule, the first federal rule governing disposal of coal ash, the by-product created from burning coal. Coal ash (also called coal combustion residuals) contains toxic pollutants including arsenic, cadmium, and hexavalent chromium that can leach into groundwater, surface water, or air and threaten health and the environment without proper disposal controls. EPA’s final coal ash disposal rule was promulgated on April 17, 2015 and has been in effect since October 2015, imposing disposal requirements upon regulated coal ash landfills and surface impoundments and exempting from the rule’s disposal requirements applications that meet EPA’s definition of beneficial use. The Environmental Integrity Project and partner groups are currently suing Trump’s EPA to ensure the 2015 rule’s provisions provide the required level of protections for human health or the environment. EPA’s reconsideration announcement grants the requests of industry group the Utility Solid Waste Group (USWAG), which petitioned EPA on May 12, 2017 to reconsider 11 aspects of the rule, and utility AES Puerto Rico LLP, who submitted a reconsideration petition on May 31, 2017.
EPA released its Phase I Proposed Rule on March 1, 2018, proposing to gut the protections contained in the Coal Ash Disposal Rule by allowing sites to apply “flexibilities” and deviate from the rule’s clear standards such as those for cleanup, groundwater monitoring, closure, and more. The Proposed Rule would allow states to ignore increased risks to children. EIP and its partners submitted extensive comments on April 30, 2018, which you can find here (not including the voluminous attachments). Environmental groups including EIP had requested an extension of the brief 45-day comment window given that EPA had told the Court in our ongoing challenge of the 2015 rule that we would be given a 90-day public comment window, but EPA flatly denied this request. The Phase I rule was released the day after the first wave of annual groundwater monitoring data was posted by utilities as required by the 2015 rule, and the data show extensive groundwater contamination. Yet more rollbacks are anticipated as EPA announced its intent to proposed Phase II of its proposed rule later this year.
Clean Air Regulations
On October 10, 2017, former EPA Administrator Scott Pruitt issued a notice proposing a repeal of the Clean Power Plan, which requires utilities to reduce carbon dioxide emissions from existing power plants by 32 percent from 2005 levels by 2030. On December 28, 2017, EPA published an Advance Notice of Proposed Rulemaking to requesting comments on considerations for a potential replacement rule establishing greenhouse gas emissions guidelines for individual power plants, but no new rule has yet been proposed. The Clean Power Plan, finalized August 3, 2015, is a central regulatory effort to curb climate change and the first federal regulatory attempt to curb carbon emissions from power plants, the largest source of such emissions. This regulation was projected to add tens of thousands of renewable energy jobs by 2040 in addition to generating up to $54 billion in health and climate benefits, avoiding 90,000 childhood asthma attacks, and avoiding 3,600 premature deaths in 2030 due to reduced air pollution. EPA Administrator Pruitt had challenged the Clean Power Plan in four separate actions as Oklahoma Attorney General. On the very same day Trump issued his executive order targeting certain environmental rules such as the Clean Power Plan for rollback or repeal, EPA announced that it would be reviewing the rule and would, if appropriate, initiate proceedings to suspend, revise, or rescind the rule and also moved to put pending litigation on the rule on hold. The U.S. Court of Appeals for the D.C. Circuit granted a 60 day hold on April 28. Also, on April 3, 2017, the Trump Administration flatly eliminated two associated Obama-era rules that were issued to implement the Clean Power Plan.
The public comment window on EPA’s proposal to repeal the Clean Power Plan closed on April 26, 2018.
Toxic Air Pollution:
On April 18, 2017, EPA announced that it would be reviewing EPA’s April 14, 2016 finding (the Mercury and Air Toxics Standards Rule) that the benefits of eliminating mercury and other toxic air pollutants greatly exceeded the costs of complying with regulations to reduce those emissions. EPA’s 2016 finding, published in response to a June 29, 2015 Supreme Court decision, was based on thousands of pages of scientific and economic data. EPA found that every dollar spent to comply with the MATS rule would result in $9 in health benefits for the public (totaling in tens of billions of dollars in benefits), and that the standards would prevent up to 11,000 premature deaths, 4,700 heart attacks, and 130,000 asthma attacks every year. The Administration’s decision to reopen that review offered no new information that would justify a reversal. The announcement was made with EPA’s request to delay litigation over the 2016 finding, which was granted by the court on April 27, 2017, and is ongoing. The Mercury and Air Toxics rule will remain in effect while the EPA reconsiders its findings – in fact, power plants had to comply with the new emission limits no later than April 2017. If the Agency somehow reverses itself and decides the rule’s costs outweigh the obvious benefits to public health, that could theoretically set up a rollback of emission limits that power plants are already meeting. Any new EPA finding seems unlikely to be approved by courts, which means this favor to the coal industry is simply a waste of tax dollars.
Air Pollution Released During Industrial Malfunctions, Startups, and Shutdowns:
On April 18, 2017, the Trump Administration moved to delay litigation over EPA’s rule to require states to curb harmful air pollution emissions during power plant startups, shutdowns, and malfunctions. The D.C. Circuit Court of Appeals granted the administration’s request to indefinitely postpone oral argument on the case. On May 22, 2015, EPA, responding to a petition from EIP and other groups, had issued the “Startup, Shutdown, and Malfunction SIP Call,” requiring 36 states to revise their Clean Air Act State Implementation Plans (“SIPs”) to remove unlawful provisions such as exemptions for emissions during periods of plant startup, shutdown, and malfunction. Air pollution emitted during these events can adversely impact nearby and downwind communities. Reopening this rule, which was first proposed in 2013, underwent two public comment periods, and required states to propose revisions to their plans by November 22, 2016, creates significant regulatory uncertainty and should not be upheld in court.
Greenhouse Gases from Power Plants:
On April 4, 2017, EPA announced it was reviewing the Greenhouse Gas Rule and that, if appropriate, it would initiate proceedings to suspend, revise, or rescind the rule. EPA issued this rule, officially titled “Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units (‘Greenhouse Gas Rule’),” on October 23, 2015. The rule sets forth final standards to limit carbon dioxide emissions from new, modified, or reconstructed fossil fuel-fired steam electric power plants. The regulations address a major problem: the electric power generating industry contributes 40 percent of U.S. emissions of carbon dioxide, a primary greenhouse gas pollutant. A March 28, 2017 executive order issued by President Trump had directed EPA to immediately review the 2014 Clean Power Plan and its associated rules, including this rule, and to, if appropriate, revise, rescind, or replace them and any implementing regulations or guidance. On August 10, 2017, the D.C. Circuit Court suspended litigation indefinitely and ordered EPA to file 90-day status reports. The rule remains in effect in the meantime.
Air Pollution from Oil and Gas Facilities:
On June 5, 2017, the Trump Administration announced that it had halted the implementation of the rule requiring oil and gas facilities to find and repair leaks of methane from new facilities such as wells, compressor stations, and tanks. That same day, EIP, alongside the Natural Resources Defense Council, Sierra Club, Clean Air Council, Earthworks, and the Environmental Defense Fund filed a federal lawsuit and an emergency motion to stop the “stay” of the regulation. On July 3, 2017, the Court, in a big victory for environmental groups, granted the emergency motion, meaning the rule remains in effect, along with its central requirements for operators to find, repair, and report on leaks. EPA promulgated the Oil and Gas Methane Rule on June 3, 2016 to reduce emissions of volatile organic chemicals (“VOCs”) and methane from new and modified oil and gas facilities, and is expected to reduce 510,000 tons of methane in 2025, the 20-year climate equivalent of reducing 40 million metric tons of carbon dioxide, which would have the same 20-year climate benefit as closing 11 coal-fired power plants or taking 8.5 million cars off the road. The final rule is also expected to reduce other pollutants, including 210,000 tons of VOCs and 3,900 tons of air toxics, in 2025, and the benefits of the rule will outweigh costs by $170 million. In an attempt to secure a longer delay of the rule — with the ultimate goal of repealing it — Trump’s EPA also proposed a 2-year stay and a 3-month stay of the rule’s requirements. Groups (including EIP) and individuals submitted written comments and oral testimony opposing any delay of implementation of the rule’s requirements and far outnumbering proponents of the rollbacks. EPA subsequently responded in November 2017 with a “Notice of Data Availability,” in which it attempted to shore up its legal authority with new arguments for the delay. Groups and individuals again filed comments. While the rule remains in effect, on March 12, 2018, EPA finalized an amendment to the rule allowing leaks to go unrepaired during unscheduled or emergency events.
In relation to this rule, EPA took action on March 2, 2017, to withdraw an “information collection request,” which it had previously sent to the oil and gas industry during the Obama Administration. This withdrawal came exactly one day after state officials opposing regulation of the oil and gas industry — including Scott Pruitt’s successor as Oklahoma Attorney General — sent a letter to Pruitt requesting the withdrawal. The information collection request was EPA’s first step in following on the 2016 rule — which applied only to new and modified sources — to set emissions guidelines for existing oil and gas sources. Existing sources are by far the largest proportion of the oil and gas industry and are central to any attempt to curtail the industry’s emissions of greenhouse gases and toxic pollutants. Even without the information collection request, EPA’s duty to set guidelines for existing sources remains in effect.
On June 8, 2017, the Trump Administration had announced a one year delay on the deadline for states to implement EPA’s 2015 National Ambient Air Quality Standards for Ozone, or the “Smog Rule,” which lowered the ozone National Ambient Air Quality Standards (NAAQS) from 75 to 70 parts per billion. The rule was estimated by EPA to provide three dollars in health benefits for every dollar spent, including by avoiding asthma attacks, heart attacks, missed school days, and premature deaths. Benefits were valued at $6.4 billion to $13 billion annually in 2025 versus costs of $3.9 billion in 2025. Murray Energy, along with ten states, including Oklahoma with its then-Attorney General Scott Pruitt, challenged the rule in the federal court, and EPA, now headed by Pruitt, was granted a delay of the litigation by the courts on April 11, 2017 pending EPA review of the rule. Environmental groups filed a new suit on July 12, 2017, challenging Trump’s one-year delay. Fifteen states and the District of Columbia also filed a suit on August 1, 2017 arguing against the delay. On August 2, 2017, in a win for the environment, EPA reversed course and announced they would not delay implementation of the 2015 ozone standards after all.
Fuel Efficiency Standards for Future Cars and Light Trucks:
On April 2, 2018, EPA Administrator Scott Pruitt announced that his agency plans to eliminate new greenhouse gas reduction targets for cars and trucks intended to double their fuel efficiency by 2025. A coalition of states and D.C. on May 1, 2018, filed suit to challenge this regulatory rollback. The new standards, imposed by the Obama Administration in 2012, would have raised fuel efficiency to real-world average of 36 miles per gallon.
Other Environmental Rollbacks of Note
Methane Pollution on Federal Lands:
In March 2017, President Trump targeted the Bureau of Land Management (BLM) Methane Rule, which sought to reduce the wasteful release of methane at oil and gas drilling sites on federal lands, for potential elimination. On November 18, 2016, BLM had issued its rule, entitled “Waste Prevention, Production Subject to Royalties, and Resource Conservation,” to reduce emissions of methane, a greenhouse gas responsible for about 25 percent of manmade global warming, because companies had been wasting more than $330 million worth of natural gas every year, costing taxpayers tens of millions of dollars. The rule would cut methane emissions by as much as 35 percent by curbing venting and flaring of methane during drilling and storage operations, by setting new methane reduction and capture targets, and by requiring new and existing sources of the pollution to implement leak detection and repair programs. The Senate narrowly voted against the repeal of the BLM Methane rule under the Congressional Review Act (which allows Congress to overturn recent rules) on May 10, 2017. On December 7, 2017, BLM finalized a rule suspending the 2016 rule’s central requirements — which would have gone into effect on January 17, 2018 — by one year. A coalition of groups filed a lawsuit challenging this delay before the United States District Court for the Northern District of California. On February 22, 2018, the Northern District of California overturned the suspension of the rule, putting the rule into effect. However, on that same day, BLM published a proposal to replace the 2016 rule altogether and to return to pre-2016 standards. In April 2018, the U.S. District Court for the District of Wyoming, hearing a case brought by industry groups, agreed with industry to suspend key parts of the rule. That decision was appealed by California, New Mexico, and environmental groups and is now before the Tenth Circuit Court of Appeals.
Protections for Streams from Coal Mining Waste:
In an effort to boost the coal mining industry, President Trump, on February 16, 2017, repealed the Stream Protection Rule, which had restricted the dumping of mining waste into streams and waters. The action left waters unprotected from mining pollution. President Trump acted following Congress’ invoking of the Congressional Review Act to repeal regulations promulgated in the previous 60 working days. The Stream Protection Rule, issued on December 20, 2016, was meant to prevent toxic pollutants such as arsenic and selenium from contaminating waterways.
President Trump issued an executive order on March 28, 2017 ordering the Secretary of the Interior to “take all steps necessary and appropriate to amend or withdraw” the Obama administration’s 2016 moratorium on new coal mining leases on federal lands (Order 3338). The day after Trump’s order, Secretary Zinke re-opened up tens of thousands of acres of federal lands to new coal leases, according to Earthjustice, who filed suit challenging the lifted moratorium. Lawsuits filed separately by environmental groups and states challenging the Department of Interior’s lifting of the moratorium are still ongoing. In 2016, the Obama Administration announced a “pause” on holding new lease sales, issuing new coal leases, or issuing modifications to coal leases on federal land pending the completion of an environmental review to consider climate impacts, among other items. As of 2014, the federal government had issued 310 coal mining leases on 475,692 acres. Mining of federal lands produces 40 percent of the nation’s coal.
On March 30, 2017, EPA rejected a petition filed in 2015 by environmental groups to ban the agricultural use of chlorpyrifos, a pesticide linked to fetal development problems and brain damage that EPA had banned from residential use more than a decade ago. A federal judge had given EPA, which had been taking steps to ban the insecticide under the Obama Administration, until March 31, 2017 to make a regulatory determination. EPA previously determined that chlorpyrifos could cause nausea, dizziness, confusion, and even respiratory paralysis or death to humans in high doses. Dow Chemical, which manufactures chlorpyrifos, had asked EPA not to issue a ban. Following a December 29, 2017 Biological Opinion by the National Marine Fisheries Service finding that chlorpyrifos use jeopardizes dozens of threatened and endangered species, EPA, on March 23, 2018, announced it would be taking public comments on the effects of chlorpyrifos and two other pesticides, malathion and diazinon, in light of the Biological Opinion. You can submit comments here until the deadline of July 23, 2018.
Chemical Plant Safety Rule:
On June 12, 2017, the Trump Administration announced it would delay the compliance date of new safety regulations for chemical plants, called the “Chemical Disaster Rule,” until February 20, 2019. EPA had, on March 14, 2017, announced a delay until June 19, 2017 and received over 54,000 public comments. After a 2013 explosion at a chemical plant in West Texas killed 15, injured dozens, and destroyed more than 150 buildings EPA, in December 2016, made changes to its Risk Management Program to improve safety, including measures such as increasing coordination with local responders. The updated safety rules were badly needed, in part because more than 1,500 incidents at chemical plants had occurred in the preceding ten years. Environmental groups filed suit on June 22, 2017 opposing the delay of implementation of the safety rules; this suit is ongoing.
Reporting of Natural Gas Emissions to EPA Database:
In October 2015, EPA granted a rulemaking petition filed by EIP and partner groups announcing that it would commence rulemaking to add natural gas processing plants to a public pollution database called the Toxics Release Inventory (TRI). The TRI is a one-of-a-kind public resource, in which facilities from every major industry (except for the oil and gas extraction sector) annually report their releases of toxic chemicals to the land, air, and water. TRI information is freely available to the public in an online format. In January 2017, published a proposed rule to add natural gas processing plants to the TRI for the first time, and a number of groups and individuals filed comments in support. In July 2017, EPA (and other federal agencies) published its regulatory agenda, in which the TRI rule was listed in a separate document entitled “Inactive Actions—defined as items on which agencies will not take any action for the next calendar year. In December 2017, EPA published its fall regulatory agenda, in which the TRI rulemaking remained on the inactive action list. To date, EPA has taken no further action on this inexpensive and broadly supported transparency rule.
The New York Times published a list of 67 environmental actions that have been targeted by the administration, including 33 that already have been overturned, 24 with rollbacks in progress, and 10 regulations in limbo.*
The Harvard Law School Environmental and Energy Law Section also posted and regulatory updates regulatory rollbacks that includes rollbacks not on our list.
*Note: The EPA regulatory rollbacks discussed here are, unless otherwise noted, regulatory actions by EPA that the Trump Administration has taken some action or publicly targeted for rollback. Note that most of the rules that EPA is attempting to roll back have actually only been “stayed” by EPA, meaning EPA is attempting to freeze the rules or portions thereof for a period of time and is reconsidering all or portions of those rules. To actually overturn a rule, EPA needs to undertake a notice and comment process. Also, many of the actions that other sites list as environmental rollbacks are not actually rules or regulations (for example, approving the Keystone XL pipeline permit or rescinding guidance documents), or are not EPA actions (many are Department of the Interior Actions), so those lists may be broader than this one. In addition, not all of EPA’s regulatory rollbacks are discussed in detail here.