It’s the Infrastructure, Stupid

Posted on June 7, 2017 by Gregory Bibler

On May 23, 2017, President Trump issued his Fiscal 2018 budget proposal.  EPA’s press release, issued the same day, declared:  “EPA Budget Returns Focus to Core Statutory Mission.” https://www.epa.gov/newsreleases/epa-budget-returns-focus-core-statutory-mission  EPA made clear that “returning” to the “mission” means reducing the size of the agency.  EPA’s budget would be cut by 31 percent, compared to the Fiscal 2017 enacted budget, and its current workforce would be cut by 25 percent.  The President proposes to cut 600 more positions than indicated in his March 16 budget proposal (which was abandoned with surprisingly little fanfare when the President signed the Fiscal 2017 enacted budget on May 5). 

But there is at least one bright spot in the President’s new budget proposal.  Funding is to be preserved for programs “supporting the President’s focus on the nation’s infrastructure.”  “Infrastructure,” according to EPA, includes improvements to drinking water systems.  Toward that end, the budget includes $2.3 billion for State Revolving Funds and $20 million in additional appropriations for the Water Infrastructure Finance and Innovation Act program.

The President is sticking by his campaign promise to help communities like Flint, Michigan finance improvements needed to reduce lead in drinking water, particularly in homes and schools.  Providing funding for these particular programs stands in contrast to the overall tenor of the budget, and the campaign’s promise to eliminate “wasteful” EPA grants. 

Revelations in Flint triggered widespread and, as it turns out, legitimate concerns about the effectiveness of existing regulatory programs to protect against lead contamination in drinking water. http://www.goodwinlaw.com/-/media/files/publications/attorney-articles/2017/eba-winter-journal-2017flint-inspires-renewed-vigi.pdf It has been more than 30 years since Congress enacted the Safe Drinking Water Act, and more than 25 years since EPA adopted the Lead and Copper Rule (“LCR”).  After Flint, increased lead testing in schools, and greater scrutiny of data already being collected by public water systems, revealed that elevated lead levels continue to be a pervasive problem in U.S. cities and school buildings (including more than half of the 300 public school buildings tested in 2016 in Massachusetts).

In October 2016, in the waning days of the Obama administration, EPA issued a white paper that announced that the LCR and its implementation are in urgent need of overhaul.  The LCR is a protocol for testing and treatment, not a set of numerical standards.  EPA stated that more prescriptive requirements that are more effective and readily enforceable need to be adopted.  Notwithstanding the Trump administration’s current war on environmental regulation, EPA has stated that it intends to formulate more stringent and clear requirements.  Meanwhile, in December 2016, Congress actually succeeded in amending the Safe Drinking Water Act to replace the moribund school drinking water provision, which was declared unconstitutional in 1996, with a new provision that, among other things, established a voluntary school lead testing grant program.

It is apparent that, on the issue of safe drinking water at least, the Trump administration has accurately measured the political mood.  Despite draconian cuts proposed to almost all of EPA’s budget and staffing, the administration has recognized that improving the regulation, testing and treatment of drinking water in schools and public water systems is politically expedient, and may do more good than harm.  It is good policy and good politics.

States Challenge Trump Administration’s Approach to Climate Change Through Energy Efficiency Rules

Posted on May 26, 2017 by Chester Babst

When President Trump issued his energy-related Executive Order in March directing further review by the EPA Administrator of, among other things, the Clean Power Plan, it signaled the death knell for what was arguably President Obama's centerpiece domestic action on climate change. But while the Order's likely intent to neutralize this and other rules would have appeared to pave the way for a flurry of lawsuits filed by environmental groups and States particularly concerned about global warming, the federal dockets have thus far been somewhat quiet with respect to the Trump Administration's handling of prior climate change-related rulemaking.

A group of 10 states have begun to push back, though, by filing a petition in the Second Circuit. The rule that is requested to be reviewed? It doesn't involve coal-fired power plants. Nor wellpads or compressors. Rather, the petition involves rulemaking aimed at the ominous ... ceiling fan. The rule, enacted by the Department of Energy in January, establishes minimum energy efficiency standards for fans manufactured after January 2020 pursuant to the Energy Policy and Conservation Act.  According to the DOE, the rule is projected to reduce carbon dioxide emissions by over 200 million tons and methane emissions by 17 million tons through 2049.  Some 12 days after the rule was finalized, DOE delayed the effective date by 60 days with the stated intent of conducting further review and consideration of new regulations, consistent with the Freeze Memo. In March, DOE subsequently pushed back the effective date even further until September, with the basis being that DOE Secretary Rick Perry was, perhaps unsurprisingly, unable to accomplish the review and consideration of the rule within the 60-day timeframe.  Additional energy efficiency rulemakings finalized but not published under the Obama Administration currently remain unpublished.

The significance of the lawsuit is not so much about its substantive impact on climate change. After all, the projected GHG reductions under the ceiling fan rule are only a small fraction of those projected as part of the Clean Power Plan, which itself left some wondering whether it could meaningfully affect climate change on a global level.  Further, the Clean Power Plan’s vitality was already in question following the Supreme Court’s stay.  Rather, the petition carries broader implications for the Trump Administration's apparent strategy of stalling, as opposed to directly revising or withdrawing, environmental rulemaking that it fundamentally opposes. The strategy is not a wholly illogical one, especially considering the possible legal and practical limitations that some commentators have expressed the Administration might initially face if it were forced to provide, on-the-record, a definitive basis for full-fledged withdrawal of notable climate change regulations.

One of the key figures for the petitioners, New York Attorney General Eric Schneiderman, has contended that the DOE's delays violate the Administrative Procedure Act in that they constitute a substantive revision to a final rule without going through proper notice and comment. He is joined by nine other states (California, Connecticut, Illinois, Maine, Massachusetts, Oregon, Pennsylvania, Vermont, and Washington) as well as New York City. If the petitioners prevail, it will likely force EPA and other agencies to confront existing rulemaking head-on, and would otherwise challenge the viability of President Trump's energy-related Executive Order, including associated OMB guidance for implementation of the rule review procedures.  Further pressure could also come as a result of a challenge to the so-called “2-for-1” Executive Order, which environmental groups have claimed also directs arbitrary repeal of rulemakings.  But until then, neither industry nor environmentalists should be surprised if climate change or other significant environmental regulations carried over from the Obama Administration remain in an infinite loop of administrative review.