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2018 Energy Reform Priorities: Streamlining to Further Reduce Compliance Burden

As 2017 comes to a close, the specifics of the Trump Administration’s agenda for energy regulatory reform in 2018 are beginning to take shape. To implement President Trump’s Executive Order on “Promoting Energy Independence and Economic Growth” (No. 13783), federal agencies solicited public comment and have now issued reports identifying their priorities for reform. These energy independence reports, as well as the Trump Administration’s broader agenda for regulatory reduction and reform, describe steps the administration can take—largely without congressional involvement—to reduce the compliance burden associated with environmental regulations and permit requirements.

While the energy independence reports issued by EPA, DOI, Commerce, and DOE recommend specific opportunities for reform that appear largely disparate, taken as a whole, the reports reflect two common themes. First—adopting the recommendations of commenters, the agencies’ proposals largely focus on streamlining and expediting regulatory and permitting requirements, rather than eliminating rules altogether. Therefore, the agencies (and industry commenters) maintain that reducing the burden of environmental regulations can be accomplished with little or no effect on the environment or human health. Second— these reports show that efforts to streamline programs and create more certainty for regulated entities can often be accomplished by administrative rulemaking processes.

Businesses and industry groups should continue to follow—and participate in—the Trump Administration’s regulatory reduction and reform efforts. Below is a breakdown of the recent reports from the Department of Commerce (Commerce) and the Department of Energy (DOE). Read our previous post for further discussion of reports from the Environmental Protection Agency (EPA) and the Department of the Interior (DOI).

Department of Commerce Recommends NOAA Program Reforms:

The Department of Commerce’s recent report on Promoting Energy Independence and Economic Growth identifies several opportunities for regulatory reform to promote domestic energy production. The report describes the process the agency undertook—including creating a taskforce and soliciting public comment—and proposed potential regulatory reform. All of the reforms suggested by Commerce involve the regulatory authority of the National Oceanic and Atmospheric Administration (a division of Commerce).

The report identifies NOAA regulations that should be priorities for future reform efforts and makes only “initial proposals” regarding the shape and scope of those reforms. However, the specific actions that Commerce recommends track closely with one of the most common complaints in environmental permitting—uncertain and unnecessarily delayed permit review timelines. Specifically, Commerce recommends several steps to streamline permit timelines including designating a single officer to monitor all permit deadlines and expediting review under both the Endangered Species Act and the Marine Mammal Protection Act.

Commerce’s Broader Regulatory Review Focuses on Clean Air Act Reform:

The Department of Commerce’s report on Promoting Energy Independence and Economic Growth follows closely after a broader report issued by the agency titled “Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing” (the “Manufacturing Report”). The Manufacturing Report, published on October 6, 2017, was prepared in response to a January 24, 2017, Presidential Memorandum. After soliciting public comment and reviewing dozens of submissions from major American manufacturers and trade associations in a variety of industries, Commerce released an expansive report analyzing the diverse body of rules and permit requirements facing manufacturers. This report included programs overseen not just by Commerce, but also by EPA, DOI, the Securities and Exchange Commission, and the Department of Labor. Commerce describes the Manufacturing Report as a roadmap for the “monumental task” of broad-based regulatory reform by the Trump Administration.

Notably, the top priorities for reform identified by Commerce in the Manufacturing Report track closely with some of the regulatory reforms suggested by EPA in its Energy Independence Report—discussed in our previous post. Specifically, based on recommendations from manufacturers, Commerce described two elements of the Clean Air Act—New Source Review and National Ambient Air Quality Standards—as two of the programs most in need of reform. These two programs have now appeared in two separate regulatory reform reports, suggesting that they are a high priority for the Trump Administration moving forward.

Department of Energy Emphasizes Streamlining Opportunities:

Like the Commerce Energy Independence Report, the Department of Energy’s report on “Promoting Energy Independence and Economic Growth” emphasizes opportunities for streamlining review and reforming timelines for certain programs and permit requirements, rather than wholesale elimination of regulations. DOE’s recent report recommends four specific categories of reform:

  1. Streamlining Small-Scale Natural Gas Exports: The agency proposes expedited review and approval of natural gas exports (including liquid natural gas exports) of less than 0.14 billion cubic feet per day. This would include a categorical exclusion from review under National Environmental Policy Act (NEPA) regulations.
  2. Review National Laboratory Policies: DOE reviewed the operation of several national laboratories it operates, recommending unspecified measures to re-focus these labs and allow them to “operate more efficiently.”
  3. Revising DOE’s NEPA Review Process: In addition to a new categorical exclusion from NEPA review for certain natural gas exports, DOE recommends creating additional categorical exclusions and otherwise streamlining the NEPA review process.
  4. Reforming Appliance Energy Conservation Standards: DOE’s report focuses largely on reforms to its Appliance Standards Program. This program creates minimum energy conservation standards and testing procedures for more than 60 different categories of appliances. Notably, DOE recommends removing the requirement that standards be re-reviewed at least every six years. Further, the agency recommends revising the way it conducts cost-benefit analysis when setting new efficiency standards.
© 2017 Schiff Hardin LLP

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About this Author

Ryan Granholm, Schiff Hardin, clean air act attorney, pollution legal counsel, civil action lawyer
Associate

As a first-year associate, Ryan C. Granholm is working in several practice areas to learn and gain experience before choosing a practice group.

Education

  • University of Notre Dame Law School, J.D., 2015, magna cum laude
    Notre Dame Law Review, Articles Editor
    Student Bar Association, Career Development Committee, Chair
    University of Notre Dame, Office of General Counsel, Extern

  • Indiana University, B.A., 2012, with Distinction...

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Jane E. Montgomery, Schiff Hardin Law firm
Partner

Jane E. Montgomery concentrates her practice in a variety of matters at the local, state and federal levels. Ms. Montgomery regularly: Counsels many companies with day-to-day compliance issues, including air permitting, NSPS, MACT, and solid and hazardous waste issues. In her work, she often encounters difficult elemental mercury, manufactured gas plant, and PCB issues, and she recently has focused on Reform New Source Review (NSR) compliance for utilities. Counsels clients with respect to climate change issues. Such work has included work on carbon sequestration issues, greenhouse gas inventory issues, and offset projects. Advises clients concerning audit programs and other environmental management mechanisms. Represents clients in a variety of civil and criminal enforcement actions, including responses to notices of violation or lawsuits, and in pre-enforcement efforts, such as agency requests for information. Represents clients in other Superfund actions, generally at the cost recovery or allocation phases. Counsels clients on "brownfield" redevelopment issues. Successfully represents clients in water matters, including modification of Army Corps of Engineers permits. Experience as common counsel in Superfund matters has figured prominently in her practice. Ms. Montgomery has represented groups of parties alleged to be responsible for environmental remediation in different situations. For example: In Toledo, Ohio, Ms. Montgomery represented an individual client and, later, a group of parties at the Stickney and Tyler landfill sites. Ms. Montgomery represented the common interests of multiple parties in dealing with federal and state regulators and pressed those interests to successful resolution of complex issues. In another joint defense representation, Ms. Montgomery was part of a team defending a similarly situated industry group in a cost recovery action filed in federal court. The matter involved resolution of difficult factual allocation issues. Ms. Montgomery was selected judge for DaimlerChrysler's Environmental Leadership Award Competition in 2002.

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