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Obama Administration Releases Spring Regulatory Agenda

On May 21, 2015, the Office of Management and Budget (OMB) released the Obama Administration’s Spring Unified Agenda, providing greater details about the President’s strategy to rely on executive actions for carrying out his energy and environmental initiatives. The agenda’s release—specifying the upcoming actions that the Administration will be taking by regulation—comes at a time when Congress is pushing back against the Administration’s activities on other hot button topics, such as immigration and the Iran nuclear talks. The President’s green energy and environmental initiatives provide yet another target for Republican lawmakers. Indeed, the spring agenda includes a host of politically controversial regulations to be finalized in the summer and fall, pending any changes that may arise from the political process or judicial challenges.

One closely-watched regulation is the EPA’s carbon pollution emission guidelines for existing fossil fuel-fired power plants. The regulation sets state-specific carbon dioxide (CO2) emission goals and guidelines for state compliance. The EPA predicts that by 2030, state reforms adopted under the regulation will result in a 30 percent nationwide drop in CO2 from 2005 levels. 79 Fed. Reg. 34,829, 34,832 (June 18, 2014). A 2013 presidential memorandum initially called for a June 2015 release date, but, according to the agenda, the rule will now be finalized sometime in August. The rule’s final release is scheduled for the same month as the finalization of greenhouse gas standards for new, modified, and reconstructed fossil fuel-fired power plants. An August finalization for the combined regulation would coincide with Congress’s summer recess.

Also on the air and radiation front, the EPA is on track to issue revised ozone standards for public health and welfare by a court-imposed October deadline. The EPA has steadily been revising its standards down from 0.800 parts per million (ppm) since the mid-2000s. In 2008, the Court of Appeals for the District of Columbia Circuit upheld a revised public health (“primary”) standard of 0.075 ppm, but remanded for the EPA to undertake further review of its identical revised welfare (“secondary”) standard. The EPA is now revising both its primary and secondary standards to new lows, 0.065-0.070 ppm, with an eye towards “at-risk” populations such as children, older adults, and people with asthma and other lung diseases. 79 Fed. Reg. 75,233, 75,236 (Dec. 17, 2014). The new standards, which will increase the number of non-attainment areas in the near term, have already generated the attention of lawmakers. Senator Jim Inhofe (R) of Oklahoma, chairman of the Senate Environment and Public Works Committee, has singled out the ozone rule for “rigorous oversight” in Congress.

The EPA is not the only agency with big plans for October. That month, the Bureau of Land Management (BLM) is scheduled to finalize a rule that will provide a competitive process for offering lands for solar and wind energy development. The rule, first proposed back in 2011, encourages right-of-way applications in “designated leasing areas” by establishing a $15 per-acre application filing fee in non-designated areas, as well as various financial incentives for applications in the designated areas. 79 Fed. Reg. 59,022, 59,023 (Sep. 30, 2014). In contrast to the carbon dioxide and ozone regulations, the leasing program has so far stayed largely above the political fray. The BLM hopes that the rule will enable the agency to “facilitate responsible solar and wind energy development and to receive fair market value for such development.”

The coming months, however, will bring more than just rule finalization. According to the agenda, July will herald a proposal to update decades-old standards to reduce venting, flaring, and leaks of natural gas from onshore wells. The proposed rule is expected to “establish requirements and incentives to reduce waste of gas and clarify when royalties apply to lost gas.” The final action date is currently set for June 2016.

Other agency actions set for this summer include:

  • A June final rule revising 1983 water quality standards

  • A June notice of proposed rulemaking determining whether greenhouse gas emissions from aircraft contribute to dangerous air pollution

  • A June advanced notice of proposed rulemaking, concurrent with the proposed determination on greenhouse gas emissions from aircraft, which provides an overview of the International Civil Aviation Organization’s efforts to establish greenhouse gas emission standards and, if necessitated by a concurrent finding that aircraft emissions contribute to dangerous air pollution, ways in which those standards can be implemented domestically

  • A June notice of proposed rulemaking establishing a second set of greenhouse gas emission standards for post-2018 model medium and heavy-duty vehicles

  • A July final rule establishing new source performance standards and reviewing risk and technology in the petroleum refinery sector

  • July notices of proposed rulemaking regulating hazardous material transportation by rail and pipeline

  • An August notice of proposed rulemaking regulating oil and gas operations within a National Wildlife Refuge System.

  • A September final rule providing new national emission standards for aluminum reduction plants

The flurry of upcoming activity comes on the heels of the finalization of the “Waters of the United States” rule on May 27, 2015. Proposed in 2014, the rule defines the scope of “waters” under the Clean Water Act. Opponents of the rule argue that it is contrary to limits set by Congress and the Supreme Court. While the rule’s finalization may be the first politically controversial action in the spring agenda, it will not be the last.

is a summer associate in Covington’s Washington D.C. office and a student at Yale Law School.

© 2019 Covington & Burling LLP

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About this Author

Gary Guzy, Environmental lawyer, Covington
Senior of Counsel

Gary Guzy brings thirty five years of experience in environmental law, regulation, and public policy. He provides counsel to industry leaders in the transportation, technology, and consumer sectors on emerging environmental and clean energy issues. He is skilled at creating strategic partnerships that bring together diverse groups to resolve challenging public policy controversies through close work with industry and environmental community leaders. Mr. Guzy co-chairs the firm’s Climate and Clean Energy Industry Group.

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