By Kristin Hildreth
Continuing our previous blog, join us as we dive into a few of the major environmental deregulatory and regulatory actions—both headline and page 3—that have the potential to significantly impact state laws and policies. For more information on any of the items below, please contact NCSL's Kristen Hildreth or Ben Husch.
Waters of the United States (WOTUS)
From a Supreme Court ruling requiring challenges to the 2015 final rule be heard in federal district courts, to a district court finding that the EPA’s delay in the applicability date of the 2015 rule was in violation of the Administrative Procedures Act, to the publication of a new proposed WOTUS rewrite, it’s safe to say 2018 was a year of action for the WOTUS rule. For a full legal and regulatory walk-through of the rule, read NCSL’s timeline here.
As of now, the 2015 rule is in effect in 22 states, the District of Columbia and U.S. territories, while previous regulations, issued in the 1980s, are in effect in the remaining 28 states. If the proposed rewrite of the rule—the second step in a two-step process to repeal and replace the 2015 rule—is finalized, it would apply nationwide.
The agencies' proposal notes the important role of states in protecting their waters, and “recognizes and respects” the primary responsibilities and rights of states and tribes to regulate and manage their land and water resources, while protecting the nation’s navigable waters. For more information on the proposed rule, read NCSL’s Info Alert here.
Endangered Species Act (ESA) Implementation Revisions
ESA, which serves to “protect and recover imperiled species and the ecosystems on which they depend,” has not been without controversy. Since it was implemented in 1986, there have been several attempts to alter the way it functions. In July 2018, the administration announced a package of proposals which would affect listing, delisting, critical habitat designations, consultation, and prohibitions for listed species.
The proposed changes include revising the parameters under which federal agencies must consult with the Department of Interior to ensure their actions do not harm the existence of listed species, or alter critical habitat; measures to clarify and improve standards that guide how listings, delisting, reclassifications, and critical habitat designations are made; and a change which would remove a rule under ESA that “automatically conveys the same protection for threatened species as for endangered species.” ESA reform will continue to remain an issue watched by NCSL in 2019.
National Environmental Protection Act (NEPA)
NEPA requires federal agencies to assess the environmental impacts of their proposed actions prior to making decisions. Actions covered under NEPA include, but are not limited to, making decisions on permit applications; adopting federal land management actions; and constructing highways and other infrastructure. Under NEPA, agencies evaluate the environmental and related social and economic effects of their actions, and allow for public review and comment on such evaluations.
At the start of 2018, President Donald Trump called upon the White House Council on Environmental Quality (CEQ) to rewrite its NEPA regulations in the Legislative Outline for Rebuilding Infrastructure in America. The president’s plan envisions a “one agency, one decision” environmental review structure where there would be one lead agency for each review, rather than the current process which requires independent review from each relevant federal agency.
The president’s proposal also limits the allowable time for environmental review and decreases the period of time in which a lawsuit may be filed challenging a NEPA review. In addition, the proposal would limit the authority of the EPA to oppose projects based on expected increases in air pollution. In June 2018 the CEQ followed through and issued an Advanced Notice of Proposed Rulemaking to update its implementing regulations for the procedural provisions of NEPA. The comment period has since closed; we can expect a proposal come 2019.
Regional Haze and State Implementation Plans
Promulgated in 1999 and revised in 2017, the Regional Haze Rule requires states to implement pollution control plans with the intent of improving visibility and air quality in national parks. The first set of state plans was due in 2007 and revisions are required every decade, with a goal of returning the visibility and air quality in the affected areas to their natural conditions by 2064. As with most federal regulations, if a required state implementation plan (SIP) doesn’t result in sufficient improvement, the EPA would issue a federal implementation plan (FIP).
At the start of 2018, the EPA announced plans to revisit certain aspects of the 2017 rule to address issues raised in received petitions and, perhaps, other issues. This past fall, the agency announced a new Regional Haze Reform Roadmap “to enable efficient, timely, and effective implementation of the Regional Haze program today and in the future.” The roadmap sets a path to put states in charge, reduces planning burdens and leverages emission support reductions achieved through other Clean Air Act Programs. It builds upon an April 2018 presidential memorandum directing the EPA to review all FIPs under the Regional Haze program and work with those states to convert those into SIPs for the current and future planning periods.
Thanks for joining us for our 2018 wrap up and join us next week for a crystal ball reading into what we expect to see in the environmental space over the course of 2019!
Kristen Hildreth is a policy specialist with NCSL's National Resources and Infrastructure Committee.