Regulatory Reform: Where Are We Now?
Several departments have released the regulatory reform reports requested by the Trump Administration’s Executive Order 13783, which is intended to speed the progress of and lower the costs of infrastructure and energy projects.
Reports are in from the Environmental Protection Agency (EPA), Department of the Interior (DOI), Department of Energy (DOE), and Department of Commerce, and several themes are clear: Long project approval and lengthy permitting timelines must end. The executive branch must coordinate efforts among agencies. Departments must consider how their regulatory role impacts the national and local economies.
In today’s post, we will cover the EPA and DOI reports in further depth. Stay tuned for our next post outlining the DOE and Commerce reports.
The EPA report cites four areas for significant reform:
New Source Review (NSR): To lessen the oft-cited issues with NSR, the EPA aims to simplify the application and processing of permits; review the emission offsets structure; improve relationships with the states; and clarify when a source should be considered a major source. A task force will be announced in the future.
National Ambient Air Quality Standards (NAAQS): The report recites the litany of ills associated with the workload and regulatory uncertainty created by frequent NAAQS reviews and delays in the approval of state implementation plans. It decries the difficulty of meeting ever lower ozone standards. However, the report addresses only the formation of an Ozone Cooperative Compliance Task Force, which would will review administrative options for cooperative agreements with states to achieve meaningful ozone reductions while providing regulatory relief. The report also commits that the EPA will set better state performance targets and better monitor completion of state implementation plan reviews.
Employment Impact Evaluations: The EPA will conduct evaluations to determine the potential losses or shifts in employment caused by the cumulative effects of environmental rules on specific sectors.
Smart Sectors: The EPA will continue to hone its engagement with the regulated community by appointing staff-level process or industry liaisons. These liaisons are directed to address agency-wide issues with developing and implementing sector rules. They should take into account the specific operations, issues, and environmental impact facing the industry and the environment. By better understanding technology and the time it takes to make changes or adopt new technology and by forming solid relationships with the regulated community, the new liaisons hopefully can spot issues, improve service, and inform future agency policy.
The DOI report, which is the most complex of the four reports, is outlined below:
Secretary Zinke has issued seven secretarial orders to improve domestic onshore and offshore energy production. Because the department oversees so many agencies and bureaus with disparate missions, the first order creates a new counselor to the Secretary position to ensure that the department coordinates project reviews and policy. Four of the remaining orders address resource mining and recovery issues, such as coal and oil and gas leasing. The remaining two address barriers created by environmental and natural resource protection laws and regulations.
The report also covers policy, regulations, and implementation issues in the DOI’s many bureaus and agencies, a few of which are discussed below:
Deregulatory Actions of Environmental Significance: The following rules are proposed for rescission or modification: oil and gas flaring on public lands; revisions to oil and gas leasing plans and applications; hydraulic fracturing, which is covered by state rules; modifications to rules affecting sage grouse protections; certain changes to drilling rules like the blowout protection rules; the Stream Protection Act nullification; and reviews of numerous recent compensatory mitigation policies.
Program Review: The DOI will review how it implements the National Environment Protection Act (NEPA), focusing on timelines, duplication, and coordination. One of the secretarial orders limits NEPA reviews to 150 pages, or 300 pages for extremely complicated actions, and requires the elimination of unnecessary repetition of information.
The land use designation policies and procedures will be reviewed. These impact virtually all of the DOI’s decisions concerning public lands. Among the reforms likely to be controversial are certain program reviews. For example, oceanic seismic surveys are necessary to locate mineral reserves, but the vibrations can harm fish and mammals. Authority to approve the surveys involves other executive departments. Seismic surveys are governed through the DOI, but marine mammal protection is governed by the Department of Commerce, and the Endangered Species Act is implemented through numerous bureaus in the DOI as well as Commerce and the EPA.
Thus, a component necessary to speed oceanic drilling – the seismic survey – simply cannot be quickly negotiated. The same holds true for strict liability statutes like the Migratory Bird Treaty Act, the Marine Mammal Protection Act, the Bald and Golden Eagle Protection Act, and the Endangered Species Act, where meshing the goals of protection and energy and infrastructure development are difficult.
On the other hand, some of the recommendations are clearly welcomed. The newly established Royalty Policy Committee, to be made up of local, state, tribal, and federal officials as well as other stakeholders, is intended to help determine fair market value for the DOI’s sales or leases of natural resources. The report indicates that DOI is preparing an Air Resources Toolkit that can be used across programs to “consistently calculate, as needed and appropriate, relevant air emissions for a variety of BLM resource management functions. Once available, this toolkit will expedite analysis of reasonably foreseeable GHG emissions associated with energy and mineral development.”