Trump Track: EPA Moves on its Plan to Repeal [and Eventually Replace?] the Clean Power Plan

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Davis Wright Tremaine, LLP
Kerry Shea

Reprinted with permission. © 2017 Davis Wright Tremaine, LLP
Article was originally posted to DWT’s Energy & Environmental Law Blog

October 11, 2017

On October 10, 2017, EPA announced it is taking steps to repeal the Clean Power Plan (CPP), regulations put in place in 2015 which requires existing power plants to roll back their CO2 emissions by 2030. EPA is taking the unusual position that the agency exceeded its powers under the Clean Air Act when it created the CPP. The new EPA intends to look into its own powers and reconsider whether, when and how to issue a rule regulating greenhouse gases from existing facilities.

The process launched today begins a procedure which can, and likely will, take years to complete. The end result is unclear and likely will be determined by a court.

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Pruitt Directive Puts a Stop to EPA’s Sue and Settle Practice

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Husch Blackwell LLP
Megan P. Caldwell

October 17, 2017

This week, United States Environmental Protection Agency (“EPA”) Administrator Scott Pruitt issued a directive to end the Obama-era “sue and settle” practice of the agency. Under the existing practice, environmental and special interest groups sue EPA to try to force the agency to take certain actions, and the agency typically settles those lawsuits by entering into private settlement agreements and public consent decrees. Those settlements often lead to the promulgation of environmental regulations, what Pruitt calls “the results of collusion with outside groups” that, according to him, takes place behind closed doors and excludes intervenors, interested stakeholders, and affected states from the process. Pruitt wants to put a stop to the “sue and settle” tactic, and his two October 16, 2017 memoranda, entitled “Adhering to the Fundamental Principles of Due Process, Rule of Law, and Cooperative Federalism in Consent Decrees and Settlement Agreements” and “Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements,” work to do just that.

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USDOT Proposes Rules to Eliminate Duplication of Environmental Reviews

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Harris Beach PLLC
Lauren Baron, Gene Kelly, John A. Mancuso, Robert G. Murray, Frank C. Pavia and Joseph D. Picciotti

October 3, 2017

On September 28 and 29, 2017, the U.S. Department of Transportation (“DOT”) published  Notices of Proposed Rulemaking to commence a public comment period on proposed regulations governing DOT’s Program for Eliminating Duplication of Environmental Reviews, established by Section 1309 of the Fixing America’s Surface Transportation Act (“FAST Act”).  Section 1309 directed the U.S. Secretary of Transportation to establish a pilot program authorizing up to five states to conduct environmental reviews and provide approvals for projects utilizing state environmental laws and regulations, rather than subjecting such projects to the review process of the National Environmental Policy Act (“NEPA”).

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The Coal Ash Rule: Looming Battles Over Enforcement and Rollback

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Steptoe & Johnson LLP
Anthony G. Hopp, Libretta Stennes and Christopher W. Smith

October 4, 2017

This October marks the deadline for the implementation of groundwater monitoring and corrective action under the Disposal of Coal Combustion Residuals from Electric Utilities Final Rule – the Coal Ash Rule – or does it?

Recent legal activity has not only called into question when the final rule will be implemented, but also has opened the possibility of further Environmental Protection Agency (EPA) rulemaking. Interested parties on both sides are closely watching the administration, the regulated community, and various non-governmental organizations (NGOs) as they support, challenge, and work to implement the Coal Ash Rule (the Rule).

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