Air & Waste Management Association (Southwest Ohio) May 2, 2017 The Winds of Change Air & Waste Management Association (Southwest Ohio) May 2, 2017 J. Wray Blattner Thompson Hine LLP

Guidance or Executive Orders Revise or Rescind The administration must conduct rulemaking, and survive judicial challenge. This may take years to complete Final Rule Enforcement Discretion This can be done immediately as courts have been very deferential to agency implementation Modify Legal Defense Courts have been critical of agencies that modify legal strategies for political reasons. However, an agency may choose not to appeal a decision Executive Option Set Recall Proposed Rule Proposed rules not finalized and published in the Federal Register may be voluntarily withdrawn Re-Propose Agencies that are required to re-propose rules by statute or judicial order may re-propose with significant changes Revise or Rescind This can be done almost immediately Guidance or Executive Orders Enforcement Discretion This can be done almost immediately Budget

Legislative Branch Options Set This applies to all rules, finalized within the last 60 “legislative days.” Joint Resolution requires only a simple majority to pass and Presidential approval. Final Rule Congressional Review Act (CRA) A new law may override or amend the legal basis for a regulation. This action requires 60 votes in the Senate. New Law Final Rule, Proposed Rule, Guidance or Executive Order Appropriations Rider Congress may block an agency from finalizing a regulation by restricting funds. Reconciliation Policies that impact the federal budget may be amended in a budget “reconciliation” package. Such a package requires only a simple majority to pass

Executive Orders E.O. 13771 January 30, 2017 E.O. 13777 March 1, 2017: “2 for 1”: Two rules to be repealed for every new rule issued E.O. 13777 March 1, 2017: Agencies must establish “Regulatory Reform Task Forces”; identify regulations for reconsideration E.O. 13778 March 3, 2017: Directs EPA and Army Corps of Engineers to repeal the 2015 “Waters of the United States” rule

Executive Orders E.O. 13783 March 28, 2017: “Promoting Energy Independence and Economic Growth” Instructs agencies to immediately review, suspend, revise, or rescind any regulations that “unduly burden” development of domestic energy resources Clean Power Plan (existing electric generating units) GHG NSPS for new, modified electric generating units Model GHG trading rules Methane and VOC NSPS for oil and gas sector

Executive Orders E.O. 13783 March 28, 2017 (continued) Silent on: Revokes Obama’s June 2013 Climate Action Plan Lifts moratorium on new coal leases on federal lands Ends use of “social cost of carbon” in economic analysis of rulemakings Silent on: 2009 Endangerment Finding 2015 Paris Agreement (26-28% reduction in GHG emissions)

The Trump Administration Has Slashed EPA’s Budget $2.6 Billion reduction to $5.7B Lowest level since 1990 Elimination of 3,200 jobs Prioritized funding for drinking water and wastewater infrastructure $2.3B for State Revolving Fund ($4 million increase over 2017)

Budget Taking a Hit: Office of Enforcement & Compliance Assurance: $129M cut to $419M Office of R&D: $233M cut to $250M State “Categorical Grants”: $482M cut to $597M Hazardous Substance Superfund Account: $330M cut to $762M Eliminates funding for certain regional efforts such as Great Lakes Restoration Initiative and Chesapeake Bay ($427M) Eliminates 50 programs, including Endocrine Disruptor Screening program

Congressional Review Act 5 U.S.C. §§801 et seq. Product of Newt Gingrich’s “Contract with America” (1996) Empowers Congress, through Joint Resolution of both houses, to reject agency regulations

Congressional Review Act Agencies must submit report on rulemakings to Senate and House of Representatives Congress has 60 “legislative” days to issue Joint Resolution President then approves or veto’s JR Simple majorities required in each House; filibuster not permitted Following successful JR, CRA prohibits issuance of a rule in substantially same form as the repealed regulation (unless the rule has been specifically authorized by subsequent legislation).

Congressional Review Act Pre-2017: CRA used only once to overturn a regulation President Obama vetoed all five JRs Congress produced As of April 24, Congress has issued and President Trump has approved 14 Joint Resolutions Rules issued after May 30, 2016 are at risk (for 60 legislative days post-issuance) In the cross-hairs: June 3, 2016 NSPS for methane and VOC emissions at Oil & Gas operations Revised Risk Management Plan rule

Clean Power Plan GHG emissions regulations for existing electric generating units Industry & States (including Ohio) challenged October 2015 rules in federal Court of Appeals for District of Columbia Court of Appeals rejected request for stay of implementation of CPP pending decision on merits U.S. Supreme Court granted stay April 28: Court of Appeals grants EPA request to pause litigation (60 days); parties to file briefs on whether rules should be remanded to EPA What next?

Ozone NAAQS Industry and public health and environmental groups appealed the October 2015 rule lowering the revised ozone NAAQS from 75 ppg to 70 ppb D.C. Court of Appeals acceded to EPA’s request and canceled April 19 oral arguments (Murray Energy Corp. v. EPA, D.C. Cir. No. 15-1385) EPA to re-evalute the standard What next?

Methane and VOC NSPS for Oil & Gas (June 2016 Rulemaking) EPA has requested stay of litigation (American Petroleum Institute v. EPA, D.C. Cir. No. 13-1108) April 18, EPA announced it will reconsider the fugitive emissions monitoring requirements and will stay the June 3 monitoring compliance date What next?

Startup, Shutdown and Malfunctions EPA SIP call in May 2015 requiring 36 states (including Ohio) to revise their SSM rules Several states and industry groups filed suit April 24 D.C. Circuit Court of Appeals grants EPA’s request to postpone May 8 oral arguments EPA to re-evaluate SIP call What next?

Mercury Air Toxics MACT EPA MATS rulemaking finalized March 2013 D.C. Circuit upholds the rules, but Supreme Court holds that EPA failed to conduct required cost-benefit analysis EPA conducts cost analysis, concludes benefits sufficiently outweigh costs Litigation resumes at Court of Appeals April 27: Court grants EPA’s request to delay May 18 oral arguments to allow agency to re-evaluate rules What next?

Risk Management Program January 13, 2017: EPA issues rule amending RMP, expanding requirements and making response program information potentially available to the public through LEPC’s (40 CFR Part 68; 82 Fed. Reg. 4594) February and March: Joint Resolution introduced under CRA in both the House and Senate (but not passed….yet) March 13: Following industry’s February 28 petition, Administrator Pruitt announces reconsideration of the rule and stays compliance date to June 19, 2017 March 14: 11 states petition for reconsideration of rule, seek extension of stay April 3: EPA proposes to delay the effective date to February 19, 2019 (82 Fed. Reg. 16146); NPRM to follow

EPA Request for Comment E.O. 13777 “Enforcing the Regulatory Reform Agenda” Directs agencies to create “Task Forces” to evaluate existing regulations April 13 EPA Request for Comment (82 Fed. Reg. 17793) Seeks input on regulations “that may be appropriate for repeal, replacement, or modification” Comments due May 15