This blog post reflects on the regulatory and deregulatory actions that have taken place in the United States in 2018 and provides an opinion on the most impactful of the year.
The close of every year elicits reflection on the months past and anticipation of new adventures ahead. As we conclude 2018, we reflect on the regulatory and deregulatory actions that have taken place in the United States and we anticipate new challenges, new adventures, and new opportunities to evolve in the future.
I started thinking about the most impactful environmental regulatory and deregulatory actions from this past year; a tough year for environmentalists and regulated industry alike. Environmental groups were busy fighting regulatory rollbacks and regulated industry had to content with unstable regulatory targets. With this in mind, here are my Top 3 most impactful actions and why I chose them.
The Affordable Clean Energy (ACE) Proposed Rule (August 21, 2018)
The ACE Rule is the Environmental Protection Agency (EPA)’s Clean Power Plan (CPP) replacement. After repealing the CPP, reasoning that EPA (under Obama) exceeded its statutory authority under the Clean Air Act Section 111, the EPA proposed the ACE rule to establish a new regulatory framework for carbon dioxide emissions from existing power plants.
Without going into the legal analysis of how Section 111 of the Clean Air Act is designed to function, this proposed ACE rule includes significant changes in how existing coal fired power plants will be regulated. In general, there are less stringent regulations for existing plants than for new or modified plants (111(b) and 111(d)).
When I say “regulated” I mean requirements such as the installation of emission reducing technology according to the “best system of emission reduction (BSER).” Power plants that are newly built, or that are modified, must also comply with permit requirements under New Source Review (NSR). The ACE rule redefines BSER for existing power plants such that power plants are looked at individually, instead of as part of a larger energy grid, thereby reducing applicable technologies that plants may employ to decrease emissions. In addition, the ACE Rule changes the threshold for what “triggers” NSR. This is not a comprehensive summary of the ACE Rule, but it is representative of the types of change in both regulatory action and overall policy that is at issue here.
So, why is this impactful?
1. The ACE Rule represents a major policy shift. It is no surprise that the Trump Administration and Obama Administration would differ in environmental policy. The ACE Rule and the repeal of the CPP exemplify the difference in regulatory interpretation and in the approach to US policy obligations.
2. This issue isn’t going away. There are a lot of existing power plants still out there. The U.S. Energy Information Administration provides information on the 8,652 power plants on record (by varied fuel type). This problem isn’t going away and the necessity in regulating a predominant source of energy generation in the US will be an ongoing point of contention between environmentalists and the coal lobby.
The comment period for the ACE Rule ended October 30th 2018. My prediction – this fight isn’t over. Regulated industry should continue to follow this rulemaking into the new year.
For more information:
Litigation over the Keystone XL Pipeline
There has been much consternation over this highly disputed pipeline designed to bring oil from Alberta, Canada all the way to Nebraska, USA. Most recently, a judge in Montana effectively pressed the pause button on moving forward with the international pipeline. The litigation centered on the State Department’s approval of the Presidential Permit, following the 2014 Final Supplemental Environmental Impact Statement (EIS) required under the National Environmental Policy Act. This is a significant ruling because, not only does it stop the pipeline right now, it will likely impact future progress as the issue (most likely) enters the appeals process. The LA Times presents a nice summary of the findings in the Judge’s order.
So, why is this impactful?
Although this isn’t a regulatory action, this pipeline would affect multiple provinces and states, impact different environmental ecosystems, and transport a truly significant amount of oil. In addition, Keystone has become a highly politicized issue that has the potential to cause deep riffs among those who support and those who contest the pipeline. Finally, the fight over Keystone XL is more than just about this particular project. The fight highlights the tension between stakeholders of traditional verses renewable forms of energy.
The Bureau of Land Management’s Waste Prevention, Production Subject to Royalties, and Resource Conservation; Rescission or Revision of Certain Requirements
I first wrote about the original Waste Prevention Rule in Compliance Strategies – Like an uncharted race to a finish line back in April. In that post, I emphasized how difficult it is for industry to track changes to specific provisions of a rule. The Rescission/Revision of the Waste Prevention Rule is now final, with an effective date of November 27, 2018. With it are rescissions pertaining to leak detection and repair (LDAR) among other requirements (see the Summary).
So, why is this impactful?
The history of this rulemaking emphasizes the point that complying with environmental regulations requires preparation, situational awareness, and the ability to pivot at, what seems like, a moment’s notice. The rule also reminds us that environmental regulation is not just about the EPA. Other agencies play a vital role in business operational requirements. The action item for the remainder of 2018 and for 2019 for regulated industry will be to figure out what this new final rule means for you and your business.
I would be remiss to not point out some honorable mentions of 2018 issues of importance, that, while they didn’t make my top 3, might make yours based on your industry.
In list form, here they are:
- Quad Oa Revisions
- Waters of the United States definition (WOTUS)
- Fracking on Federal Lands
- Sage Grouse Protection
- Continued withdrawal from Paris Agreement
One excellent resource that helped remind me of everything that went on this year for the environment is Harvard’s regulatory rollback tracker.
This past year was, despite deregulatory activity, an active year. I would describe it as a bit of a tug of war in both directions. From national policy shifts to regulatory shifts, industry had a lot to keep up with in 2018. As we turn the page to 2019, this will likely continue.
So, tell me…what does your Top 3 list look like?
On Environment is a twice monthly post by Jessica Sarnowski, Intelex’s Global Compliance Content Lead.
As Intelex’s Global Compliance Content Lead, EHSQ Content Strategy, Jessica drives overall content strategy, with a particular focus on overseeing the delivery of high-quality compliance content within the EHSQ Alliance.
Responsible for identifying and cultivating valuable compliance content for EHSQ professionals, Jessica fosters engagement in the EHSQ Alliance by working with experts in the field.
Jessica has over 10 years of public and private sector experience in environmental policy and law. Jessica received her Juris Doctor from Vermont Law School and Master of Laws degree in Environmental Law from The George Washington University Law School. You can follow Jessica on LinkedIn by clicking HERE.
This material provided by the Intelex Community and EHSQ Alliance is for informational purposes only. The material may include notification of regulatory activity, regulatory explanation and interpretation, policies and procedures, and best practices and guidelines that are intended to educate and inform you with regard to EHSQ topics of general interest. Opinions are those of the authors, and do not necessarily reflect the opinion of Intelex. The material is intended solely as guidance and you are responsible for any determination of whether the material meets your needs. Furthermore, you are responsible for complying with all relevant and applicable regulations. We are not responsible for any damage or loss, direct or indirect, arising out of or resulting from your selection or use of the materials.