By Kristen Hildreth and Ben Husch
Environmental issues including clean energy, pesticides and permitting for infrastructure projects are included in the Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions released last week.
More commonly known as the “Unified Agenda,” the report is a semiannual update on the administration’s past, present and anticipated regulatory actions across the federal government.
The Unified Agenda keeps in line with the president’s executive order (EO) 13771 from Jan. 30, 2017, which directed that for every new significant federal regulation implemented, two must be rescinded, and for agencies to offset any new regulatory costs.
Under EO 12866, significant regulatory actions are most commonly defined as those that have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities.
Per the Unified Agenda, in fiscal year (FY) 2018, agencies achieved $23 billion in net regulatory cost savings, issued 176 deregulatory actions—57 of which were significant deregulatory actions—and issued 14 significant regulatory actions. The administration estimates it has reduced regulatory costs by $33 billion since it came into office.
Below is a breakdown of anticipated actions within the agriculture and energy sector broken down by the governing federal agency. The next Unified Agenda is anticipated to be released mid-2019.
Department of the Interior (DOI)
In FY 2019, the DOI expects to complete deregulatory actions that provide $50 million in annualized cost savings, and does not, at this time, expect to promulgate any significant regulatory actions that would be subject to the requirements of EO 13771.
The DOI indicates that it will pursue an agenda in line with EO 13807, Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects, which directs federal agencies to undertake actions to improve the effectiveness, efficiency, transparency, and accountability of their environmental review and permitting processes for infrastructure projects. As such, regulatory actions for FY 2019 not only include a rule to update and streamline the department’s National Environmental Policy Act implementation processes, but also several regulations revising the listing of species under the Endangered Species Act.
Department of Transportation (DOT)
The DOT indicates that even with the cost of significant regulatory actions, the department’s deregulatory actions in FY 2018 will result in over $500 million in net cost savings. It is currently pursuing more than 120 deregulatory rulemakings.
The National Highway Transportation Safety Administration has pending rules surrounding updating regulations on fuel efficiency for light vehicles model years 2021-2026 (The Safer Affordable Fuel-Efficient Vehicles Rule for Model Years 2021-2126 Passenger Cars and Light Trucks), and the Federal Transit Administration will focus on streamlining the environmental review process for transit projects.
Environmental Protection Agency (EPA)
The agency will continue work surrounding its replacement to the 2015 Waters of the United States (WOTUS) final rulemaking, which aimed to determine the scope of federal authority to regulate WOTUS and when states, local governments and others must seek federal permits to develop land because it contains WOTUS. A two-step process, the recodification of the definition of “waters of the United States,” that existed prior to the 2015 rule is anticipated to be finalized in March of 2019, while a notice of proposed rulemaking for step two, the revised definition of “waters of the United States,” in accordance with EO 13778, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule,” should be expected prior to the end of CY 2018, with a final rule expected in the fall of 2019. For more information on WOTUS, please read NCSL’s Info Alerts or blogs.
The agency anticipates that the Affordable Clean Energy proposed rule, its replacement to the 2015 Clean Power Plan final rule, will be finalized by March 2019. For more information on the proposed rule, please read NCSL’s Info Alert.
Delayed again, proposed changes to the Lead and Copper Rule are expected to be unveiled in February 2019; they were initially expected in January 2018. Also in the pipeline since 2017, the agency plans to repeal, issue a proposed rule and take final action on amendments to the certification of pesticide applicators rule and established agricultural worker protection standards.
The EPA will also continue to work with DOT to finalize its regulations on fuel efficiency for light vehicles model years 2021-2026 (The Safer Affordable Fuel-Efficient Vehicles Rule for Model Years 2021-2126 Passenger Cars and Light Trucks) by spring of 2020. For more information on the proposed rule, please read NCSL’s Info Alert.
The EPA’s science transparency proposal was included on the agency’s long-term action agenda, which lists the items the EPA does not plan to act on in the upcoming year—the agency now predicts it will finalize the rule in 2020, although press reports following the report’s publication indicated that additional work on this rule may occur in CY 2019.
Other items without set timelines include the review of the National Ambient Air Quality Standard (NAAQS) for particulate matter, which did not include a projected date for the agency to propose action on the standard despite former EPA Administrator Scott Pruitt’s memo directing the agency to make preparations to complete the review of the current NAAQS and potentially update the standard by the end of 2020.
Additionally, while the Unified Agenda does not list a date for any actions, the agency indicates that it will begin the process of designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), more commonly referred to as PFAS, as “hazardous substances,” within its Fall 2018 Statement of Priorities accompanying the Unified Agenda. NCSL staff attended a two-day National Leadership Summit at EPA on the issue earlier this year.
Other long-term items to watch include: the Clean Water Act 404 Assumption Update Regulation; the Clarification of State Certification Procedures Under Section 401 of the Clean Water Act; a repeal of the Obama-era carbon dioxide rules for “glider” trucks; the proposal of emissions rules for aircraft following the agency’s 2016 endangerment finding and the issuance of two proposed bans on the uses of trichlorethylene under the Toxic Substances Control Act.
Ben Husch is senior committee director of NCSL's Natural Resources and Infrastructure committee. Kristen Hildreth is a policy specialist with NCSL's National Resources and Infrastructure Committee.