New Administration Brakes Hard on New Regulations



On January 20, 2017, the President’s Chief of Staff issued a memorandum to the heads of all federal agencies implementing a freeze on all pending regulatory actions, with specified procedures for obtaining exceptions, including emergency-related actions.circle pic

  • No agency may send a regulation to the Office of the Federal Register (OFR) unless it has been reviewed and approved by an agency head (or designee) appointed after 12 noon on January 20, 2017.
  • Any regulations sent to OFR prior to issuance of this memorandum but not yet published must be withdrawn in a manner consistent with OFR procedures.
  • For any regulations that have been published in the Federal Register but have not yet taken effect, the effective date should be modified, if necessary, to the extent allowed by applicable law, to be no earlier than 60 days after January 20, or March 21, 2017.

In a Federal Register notice published on January 26 (82 FR 8499), EPA proposed to implement the third prong of this directive by delaying the effective date of 30 pending regulations that have already been published in the Federal Register. With respect to air quality, the following regulations were delayed:

  • 12 proposed approvals of amendments to State Implementation Plans (NY, KY, WI, LA, IL, CA, TX, TN, AL, MI, GA, AZ)
  • 3 proposed attainment designations (LA, PA, CA)
  • 1 proposed attainment plan disapproval (ID)
  • 3 regulatory proposals (biomass-based diesel volume requirements; proposed revisions to the NESHAP for radon emissions from operating mill tailings; and proposed updates to the Guideline on Air Quality Models (Appendix W))

An Executive Order on regulatory streamlining issued on January 30 complicates matters further, as it might suggest (for example) that approval of a State Implementation Plan provision cannot occur unless two other regulations are simultaneously repealed. The repeal of a regulation is, itself, a regulatory action that requires public notice and a comment period, and is subject to appeal.

In addition to the rules listed above, there are a number of pending rulemaking activities that have not yet reached the publication stage; how many of these pending activities would be affected by the regulatory freeze directive (which does not stop work on those regulations, but precludes FR publication of any actions) is unclear.

The implementation of such a freeze, and the disproportionate impact of the freeze on non-controversial, routine rulemakings, is not unusual during a change in Administration in Washington; however, there are clearly some important rulemaking activities that will be caught up as well. Anecdotal evidence suggests that EPA is withholding communications quite broadly, including communications related to pending permit applications in cases where EPA is the permitting authority.

 

In addition to the implications of this Federal Register notice, the new political landscape in Washington could lead to the disapproval, by Congress, under the Congressional Review Act, of recently adopted and published regulations. According to the Congressional Research Service, rules received by Congress on or after June 13, 2016, could be subject to review; others have suggested that rules adopted even earlier could also be at risk of Congressional disapproval. However, it should also be noted that unless a state government is inclined to follow the Administration’s lead and the governor takes some sort of executive action to match federal rules, or a state’s rules adopt federal rules by reference and the federal rules have actually changed (not simply by executive order) and the state seeks this regulatory relief, a state will not be immediately affected by federal changes, lacking a change to its own rules.

 


"...the environmental regulatory relief intended by the new Administration will provide relief to local facilities only if states also seek this relief, and are willing to take action to adjust their rules as needed in concert with federal changes."

In short, the environmental regulatory relief intended by the new Administration will provide relief to local facilities only if states also seek this relief, and are willing to take action to adjust their rules as needed in concert with federal changes. As federal and related state regulatory developments continue to evolve, potentially affected facilities should contact their regulatory authority for clarification as needed.