Federal Government Takes Major Steps to Repeal Clean Power Plan, Rework Other Rules

The business community continues to fight an onslaught of federal rulemaking that aimed to regulate key sectors of the economy. Federal agencies singled out the broad energy sector and surface water with expansive regulations that threaten job creation. Nine months into the Trump administration, while there have been concrete steps taken in some areas to rein in the overreach, setbacks and delays continue to create uncertainty.

Clean Power Plan

The United States Environmental Protection Agency (U.S. EPA) took concrete action today to repeal the so-called Clean Power Plan adopted by the Obama administration in 2015. By the agency’s own calculations, the rule was expected to cost billions of dollars and make little impact on global carbon emissions.

In its notice of proposed rulemaking, the agency highlighted concerns shared by the Ohio Chamber of Commerce, including that U.S. EPA exceeded its legal authority under the Clean Air Act and embarked upon a sweeping campaign to transform the nation’s electric grid. The authority claimed by the agency to order the substitution of less carbon-intensive electric generation for more-intensive units took U.S. EPA well beyond its historical individual source regulation. The plan also interfered with the rightful role of the states to adopt an electric generation mix that best suits their needs.  By returning to a more faithful reading of the agency’s authority, the move restores the cooperative federalism framework that underpins environmental protection in the U.S.

The agency’s announcement also left open the door for new action under section 111(d) of the Clean Air Act to regulate greenhouse gas emissions from existing power plants at the individual source. Given the potential economic impact of any future rule, member companies are encouraged to provide the Ohio Chamber with feedback geared towards future greenhouse gas rulemaking by U.S. EPA.

Oil and Gas

In June, U.S. EPA published their intent to stay significant parts of New Source Performance Standards for the oil and natural gas sector. Most significantly, the agency committed to reviewing requirements for monitoring and repairing fugitive emissions at wells and compressor stations with the intent of reducing methane. The move was challenged by environmental groups in court, with the U.S. Court of Appeals for the D.C. Circuit ruling in July that the agency must enforce the rule.

Another regulation covering methane emissions on federal lands remains on the books after the U.S Senate failed to overturn it in May. Despite an attempt by U.S. EPA to delay the rule, a federal judge in California ruled that the compliance deadline of January 2018 remains in effect.

2015 Ozone Standards

In June, U.S. EPA announced their intent to delay until late 2018 the identification of areas not in attainment with tightened air quality standards. Non-attainment areas face significant obstacles to business investment if federal air quality standards are not met, with any facility that requires an air permit facing significant regulatory roadblocks to expand.

After the announcement, a group of 15 states sued U.S. EPA and ultimately forced the agency to backtrack and announced an early October designation deadline, which has now passed.

With U.S. EPA’s projections showing the possibility of 17 Ohio counties being designated in non-attainment, the need for Congress to scrap the duplicative 2015 standards continues.

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