The NCSL Blog


By Kristen Hildreth

Since taking office, President Donald Trump has been adamant about regulatory reform, and 2018 has been no exception, with the administration hard at work with numerous deregulatory and regulatory actions.

Here is the first of our two-part summary of a few of the major actions—both headline and page 3— that have the potential to significantly impact state laws and policies. For more information on any of the below please contact NCSL's Kristen Hildreth or Ben Husch.

Affordable Clean Energy (ACE) and New Source Review (NSR) Permitting

This summer, the EPA unveiled the Affordable Clean Energy proposed rule to replace the 2015 Clean Power Plan (CPP) final rule. ACE would establish emission guidelines for states to develop plans to address greenhouse gas (GHG) emissions from existing coal-fired power plants, without setting individual state GHG emission limits.

Like the CPP, ACE would provide states the flexibility to determine how to reduce GHG emissions. However, the CPP allowed states to meet their goals by implementing measures that occur both “inside” and “outside” the fence, meaning by adding more “renewable” energy or establishing emissions trading schemes (outside), or by improving a plant’s heat-rate efficiency (inside). ACE proposes that states only be allowed to require actions “inside” the fence by improving a plant’s heat-rate efficiency, rather than establishing emissions trading schemes. As the proposal would not impose a total allowable GHG limit for states, the range of benefit and cost estimates vary significantly. For more information on the proposed rule and its potential impacts, read NCSL’s Info Alert here.

Additionally, the NSR permitting program that requires industrial facilities to install modern pollution control equipment when constructed, or when existing facilities choose to make a change that would increase emissions significantly, faces revisions as part of the agency’s ACE proposal.

The proposal would allow states the option to only require an NSR when a physical or operational change made to an existing generating unit increases a unit’s hourly rate of pollutant emissions, meaning that fewer sources would trigger major NSR under an hourly emissions increase. For more information, see the EPA’s fact sheet here.

Coal Ash, or Coal Combustion Residuals (CCR)
CCR is produced whenever coal is burned at coal-fired power plants, is one of the largest forms of industrial waste, and can pose significant environmental and health risks if not disposed of properly.

Joint state-federal regulation of CCR has been in the works since a 2008 spill in Tennessee forced the area to be designated as a Superfund site the following year. In 2015, the EPA finalized a rule authorizing the agency to regulate coal ash disposal under the Resource Conservation and Recovery Act, and in 2016 the Water Infrastructure for Improvements to the Nation Act was signed into law which allows states to develop and operate their own CCR permitting programs that are more stringent than, or as stringent as, federal standards.

In 2018, the administration not only approved Oklahoma to be the first state to regulate coal ash in lieu of the federal program, but also finalized one of two proposals to amend coal ash disposal regulations which will “incorporate flexibilities” to utilities and states.

The “phase one” rule reduces some of the requirements for managing coal ash storage areas. It delays closure deadlines, allowing some existing coal ash ponds to continue accepting more coal ash and stay open longer, and allows the EPA or state authority to suspend groundwater monitoring if the state determines there is no potential for hazardous material to contaminate nearby aquifers. Several lawsuits have been challenged regarding the 2015 final rule, and challenging the EPA’s approval of Oklahoma—we anticipate further federal action on coal ash in 2019.

Corporate Average Fuel Economy (CAFE) Standards and GHG Emission Requirements

In spring 2018, the EPA announced it had completed its Midterm Evaluation (MTE) for GHG emission standards for cars and light-duty trucks for model years 2022-2025 and found that current standards are not appropriate and in need of revision. For more information on the MTE, read NCSL’s Info Alert here. A few months later, on Aug. 2, the EPA and the National Highway Safety Administration issued a proposed rulemaking, the “Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years (MY) 2021-2026 Passenger Cars and Light Truck,” to amend existing SAFE standards and GHG emission requirements. The proposal would freeze fuel economy standards at 2020 levels for vehicle model years 2021-2026, as well as a withdrawal of California’s Clean Air Act (CAA) emissions waiver.

The Clean Air Act emissions waiver granted to California, which is proposed for revocation, allows the state to request and be granted a waiver from the EPA in order to implement emissions standards which are as stringent as, or more stringent than, federal regulations for most moving sources of pollution.

Revoking the waiver has the potential to create significant issues in other states that choose to adopt Californian standards, in lieu of federal requirements. For more information on the SAFE proposal, read NCSL’s Info Alert here.

Kristen Hildreth is a policy specialist with NCSL's National Resources and Infrastructure Committee.

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About the NCSL Blog

This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.