Reconsideration and Rollback of Environmental Regs

By Robert T. Vogler, Valley Proteins Inc.

Editor’s note – Robert T. Vogler is director of environmental affairs at Valley Proteins Inc. and chairman of the National Renderers Association’s Environmental Committee. He holds a juris doctor degree from Duquesne University and bachelor of science degrees in agricultural engineering and agricultural science from Rutgers University.

The volume of United States (US) Environmental Protection Agency (EPA) regulations nearly occupies 90 percent of the 30,000 pages of federal regulation, dwarfing the scope of other agencies. Under President Donald Trump and EPA Administrator Scott Pruitt, it appears the ever-expanding scope of EPA’s regulatory reach has, in large part, been stopped cold.

Early in his administration, Trump issued a number of executive orders to reduce regulations, including a “one-in-two-out” order requiring each agency to choose two regulations it will cut for every new rule it introduces. In addition, he ordered federal agencies to identify ineffective and burdensome regulations that should be repealed, replaced, or modified. Trump also issued orders specifically directing EPA to review its 2015 clean water rule, or “waters of the US” (WOTUS) rule, and the Clean Power Plan for possible repeal or revision.

This article will revisit environmental issues familiar to the rendering industry and largely discuss the efforts to reconsider and rollback recent regulatory pushes in those areas.

Waters of the US
In 2015, EPA put into effect a rule revising the definition of waters in the United States, greatly expanding the agency’s jurisdiction over activities in wetlands, intermittent streams, drainage ditches, and upland areas. This was purported to clarify the scope of federal jurisdiction over upland and isolated waterways but was widely seen as a huge power grab by EPA and the Army Corps of Engineers. A nationwide stay on enforcement was issued in October 2015 and the case is now pending in the US Supreme Court to determine the procedural question of whether challenges such as this should be brought in federal district courts or federal courts of appeal.

Under Trump’s executive order, EPA undertook a review of the WOTUS rule and has proposed a repeal in order to retain a more narrow definition of “navigable waters” consistent with court decisions on what constitutes federal jurisdictional over waters of the United States. In November 2017, EPA proposed delaying the effective date of the rule to provide regulatory certainty while it reconsiders the matter.

Ozone Rule
Also in 2015, EPA adopted a new National Ambient Air Quality Standard (NAAQS) for ground-level ozone, lowering the standard from 75 parts per billion (ppb) to 70 ppb, a level that will place a large portion of the expanding, robust economic areas of the country into non-attainment. Under the rule, states were required to submit to EPA the designations of areas in their states as nonattainment by October 2017. Nonattainment areas likely will include metro areas in Arizona, California, Louisiana, Michigan, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Texas, and Virginia, among others. Nonattainment generally would result in further stack controls of volatile organic compounds and nitrous oxide emissions.

In June 2017, EPA announced plans to delay implementation of the rule by a year while it evaluated issues such as background ozone levels and the effect of international transport of ozone. In August, after 16 states sued over the delay, EPA reversed course and announced it would proceed with designating the nonattainment areas under the new rule. Meanwhile, the US House of Representatives passed a bill (H.R. 808) to extend implementation deadlines, including nonattainment designations, to 2025 and extend the review cycle from 5 to 10 years. The same bill is under consideration in the Senate (S. 263).

Emissions of ozone-forming compounds have been cut in half since 1980 resulting in a 33 percent drop in ozone levels, despite the fact that the previous ozone standard adopted in 2008 had not yet been fully implemented when the stricter 2015 standard was imposed.

Clean Power Plan
EPA’s Clean Power Plan was put in place under President Barack Obama’s administration and targets reduction of carbon dioxide (CO2) emissions from existing coal-fired power plants by 32 percent and essentially bans the building of new coal-fired power plants. In 2016, the US Supreme Court granted a nationwide stay of implementation of the plan pending judicial review of its validity. In April 2017, the District of Columbia Circuit court temporarily suspended the pending lawsuit over the validity of the plan while EPA conducted a review. On October 16, 2017, EPA issued rulemaking to formally rescind the Clean Power Plan.

In August, the Trump administration took steps to formally pull out of the commitments to reductions in CO2 that were made in the 2015 Paris climate agreement. These commitments were used by the Obama administration to justify the Clean Power Plan.

Despite these efforts to “end the war on coal,” technological changes and the economic forces favoring the production of natural gas are likely to limit the recovery of coal production for power generation in the United States.

Endangered Species
In October, the House Natural Resources Committee approved five bills to modernize the Endangered Species Act. The act is seen by many as a tool used by wildlife advocates to block economic development, including logging, ranching, mining, and oil and gas development, as well as allocation of water in the west. Changes would likely make it more difficult to list new species and allow greater input by the states.

With over 1,600 plants and animals protected under the act, less than 70 have recovered to the point of having protections lifted. The listing of hundreds of new species remains pending.

The potential for the presence of endangered species or their habitats complicates the ability to obtain federal permits for disturbance of wetlands or waterways, or to develop certain road, water, sewer, energy, and other infrastructure projects. It also may restrict the ability to disturb or develop in private projects involving an affected area.

Startup, Shutdown, and Malfunction
In 2015, EPA ordered 36 states to rewrite certain rules that allowed for waiving of emission penalties for excess emissions during startups, shutdowns, and malfunctions. EPA is revisiting this matter and has asked for postponement of the federal court case challenging this rule, pending completion of EPA’s review.

Sue and Settle
On October 16, 2017, Pruitt issued a directive intended to shut down the Obama-era “sue and settle” practices. The directive states that “the days of regulations through litigation, or ‘sue and settle,’ are terminated. EPA will not resolve litigation through backroom deals with any type of special interest group.”

It is contended that under “sue and settle” EPA would seek to resolve litigation filed against it through settlements in the courts by way of a secretive process that excluded the states and other interested stakeholders. This process was seen as a way to circumvent the public rulemaking process and bind EPA to de facto regulations and certain commitments without input from the affected stakeholders.

The new directive provides for, among other things, public notice regarding suits filed against EPA, involvement of the states and other stakeholders in any settlement process, and certain constraints on the terms of any settlements made. On October 5, 2017, the House of Representatives passed a bill (H.R. 469) that, if enacted into law, would require more transparency and accountability by all federal agencies in court settlements of this nature.

December 2017 RENDER | back