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June 04, 2020

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EPA Initiates Reviews of Three Clean Air Act Regulations, Following President Trump’s “Promoting Energy Independence and Economic Growth” Executive Order

A week after President Trump signed an Executive Order directing agency review of various energy-related regulations (see March 28, 2017, B&D alert here), the Environmental Protection Agency (EPA) announced that it is initiating review of three such regulations under Clean Air Act.  The announcements were published on the Federal Register on April 4, 2017.

The three regulations to be reviewed by EPA are the Clean Power Plan limiting carbon dioxide emissions from existing utilities; the Clean Air Act section 111(b) new source performance standard (NSPS) limiting carbon dioxide emissions from new electric generating units (the companion “New Source Rule” to the Clean Power Plan); and the 111(b) NSPS limiting methane and VOC emissions from new oil and gas operations.  President Trump in his Executive Order specifically directed EPA to review these three regulations and, if appropriate, “suspend, revise, or rescind” them.

In all three announcements, EPA stated that it has “well-grounded” legal authority to revisit past regulations in the context of administrative change and policy reevaluation. EPA also indicated that any potential suspension, revision, or rescission of the subject regulations would be implemented through a rulemaking process that is transparent, follows the appropriate procedures, employs sound science, and is consistent with the law and the Executive Order.

EPA’s announcements show that the Agency’s leadership intends to follow the President’s directive. That regulatory path forward is complicated by ongoing litigation on the existing rules, particularly on the Clean Power Plan, and subsequent judicial developments may constrain EPA’s options.  Stakeholders should closely monitor EPA’s progress in reviewing these rules and participate in any future rulemakings to build a robust administrative record.

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About this Author

James M. Auslander Natural Resources & Project Development Attorney Beveridge & Diamond Washington, DC
Principal

James (Jamie) M. Auslander's legal practice focuses on project development, natural resources, and administrative law and litigation.

Mr. Auslander co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group, including its Energy Practice. He focuses on complex legal issues surrounding the development of oil and gas, hard rock minerals, renewable energy, and other natural resources on public lands onshore and on the Outer Continental Shelf. He frequently litigates appeals before federal courts and administrative bodies regarding rulemakings, permits...

202-789-6009
David M. Friedland Air Pollution Attorney Beveridge & Diamond Washington, DC
Principal

David’s practice touches every aspect of the regulation of air pollution under the Clean Air Act and state and local air pollution statutes and regulations.

On the regulatory side, he has helped companies and trade associations prepare comments on scores of proposed rules including revisions to the ozone and particulate matter NAAQS, several rounds of PSD/NSR regulations (e.g., the WEPCO rule in 1992, the NSR Reform rule in 2002, the equipment replacement rule in 2003, and the Duke hourly rate rule in 2006), numerous MACT standards (e.g., the boiler, commercial and industrial solid waste incinerator, aerospace, coil coating, site remediation, medical waste incinerator, off-site waste and recovery (OSWRO), wool fiberglass, hazardous waste combustors, and MON rules), the credible evidence rule, federal and state Title V rules, and state and local rules (e.g., CARB rules for off-road diesel engines and large spark-ignition engines). He has litigated many of these rules in the D.C. Circuit and elsewhere either as an industry petitioner or as an intervenor in suits brought by environmental groups. Most of these cases have resulted in favorable settlements (e.g., litigation relating to the MON, the OSWRO residual risk and technology (RTR) rule, the reciprocating internal combustion engine (RICE) NESHAP, the organic liquids distribution MACT, the aerospace MACT), while others have resulted in published opinions. See, e.g. U.S. Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 2016), Sierra Club v. EPA, 167 F.3d 658 (D.C. Cir. 1999); Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (D.C. Cir. 2001).

Once the rules are in place, he counsels a wide range of companies on compliance. His clients include petroleum refineries, chemical manufacturers, cement and glass manufacturers, pharmaceutical producers, consumer products manufacturers, waste management entities such as landfills and waste to energy facilities, can manufacturers, wastewater treatment plants, real estate developers, communications companies, and trade associations representing numerous industries such as lime manufacturers, the airlines, road and home building, and chemical companies. Day to day counseling issues include compliance with the complicated preconstruction permitting requirements of the federal and state PSD/NSR programs; compliance with the plethora of MACT/NESHAP and NSPS standards; responses to over fifty Section 114 requests for a diverse group of companies; and counseling on a wide range of Title V questions, including the application for, amendment and appeal of, and certification of compliance with, these permits that are often hundreds of pages long.

David has chaired the firm’s Air & Climate Change Practice Group and the firm’s Environmental Practice Group. He formerly served as chair of the Air Quality Committee of the ABA’s Section on Environment, Energy and Resources.

202-789-6047
Shengzi Wang, Beveridge Diamond Law Firm, Environmental Law Attorney
Associate

Shengzhi Wang maintains a general environmental litigation and regulatory practice, working with clients nationwide across industrial sectors. Shengzhi joined the Firm following his graduation from Vermont Law School. 

While at Vermont Law School, Shengzhi served as Technology Editor of Vermont Law Review and as student clinician in the law school’s Environmental and Natural Resources Law Clinic.  In his final semester at law school, Shengzhi worked as a full-time judicial intern to Judge Paul L. Friedman at the United States...

202-789-6001