The Trump Administration rolled out its anticipated rules on fuel efficiency and emissions standards for model years 2021-2026 last week. The proposal, at over 900 pages of text, is still being analyzed and reviewed, but early indications are that there will be significant resistance from many affected parties. Here are five key questions rising to the surface in the wake of the proposal.
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Since the early days of the Trump Administration, our blog has regularly covered the Administration’s various attempts at regulatory reform. An appellate decision last week on a National Highway Traffic Safety Administration (NHTSA) rule signaled an end to administrative stays based on mere agency averments that it intends to reconsider a notice-and-comment rulemaking. Instead, the agency must use the notice-and-comment process to revisit the rule. Absent these processes, the regulation goes into effect.

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Administrative deference – in essence, that courts resolve close questions in favor of “expert” agencies – is a cornerstone of environmental practice and we’ve blogged frequently on this issue. Courts question agencies, however, when their decisions do not square with cited evidence. For regulatory challenges, courts also confine their review to the administrative record and agencies cannot interject new evidence during a judicial appeal of a regulation.
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The Trump Administration continues to prioritize guidance-driven revisions to federal regulatory programs to reduce the impact of administrative review and permitting on development. Last week’s highly-anticipated memorandum of understanding (MOU) released by the White House purporting to streamline the National Environmental Policy Act (NEPA) review process for “major infrastructure projects” could be a step toward a more efficient environmental permitting process. However, the impact may be limited.

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Two NGOs and a labor union recently filed an action in federal court to challenge the Trump Administration’s Executive Order 13771, officially entitled “Reducing Regulation and Controlling Regulatory Costs,” but commonly known as the “Two-for-One” order because it requires two regulations to be eliminated for every regulation added. In Public Citizen, Inc. et al. v. Donald J. Trump et al., plaintiffs allege that the “Two-for-One” order conflicts with various federal statutes, which require federal agencies to consider statute-specific factors when deciding whether to promulgate or repeal regulations, and that no statutory law requires agencies to consider as part of this process whether other, unrelated regulations should be repealed.

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In recent years, the Public Utility Regulatory Policies Act (PURPA) “one mile” rule has come under increased scrutiny for favoring small power producers over utilities and consumers. The “one mile” rule,  promulgated by the Federal Energy Regulatory Commission (FERC), is used to determine whether multiple facilities of a single power producer are part of the same “site” for the purpose of obtaining “qualifying facility” (QF) status under PURPA. Many utilities have argued that FERC’s application of the “one mile” rule has allowed small power producers to “game the system,” resulting in too many mandatory purchasing contracts and high energy costs being passed on to consumers. This concern is raised most frequently with wind farms, where turbines are located within relatively close proximity.
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The Ninth Circuit issued its long-anticipated decision in the Hawai’i Wildlife Fund v. County of Maui case yesterday. County of Maui affirmed a decision awarding summary judgment to environmental groups based on what the court viewed to be undisputed proof that four effluent disposal wells at a wastewater disposal facility were known to discharge into the Pacific Ocean and that the County of Maui had failed to secure an National Pollutant Discharge Elimination System (NPDES) permit for them.
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The Environmental Protection Agency (EPA) issued a new guidance memorandum on Thursday, January 25, 2018 that addresses the question of when – and whether – a major source of hazardous air pollutants (HAPs, such as lead, mercury, and benzene) can be reclassified as an “area source” under Section 112 of the Clean Air Act, and thereafter avoid major source permitting requirements. The new guidance allows major sources to become area sources at any time, by agreeing to federally enforceable limits on their potential to emit HAPs. This replaces the EPA’s previous “once in, always in” policy, whereby any major source of HAPs remained a major source regardless of later reductions in its potential to emit HAPs.

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As 2017 comes to a close, the specifics of the Trump Administration’s agenda for energy regulatory reform in 2018 are beginning to take shape. To implement President Trump’s Executive Order on “Promoting Energy Independence and Economic Growth” (No. 13783), federal agencies solicited public comment and have now issued reports identifying their priorities for reform. These energy independence reports, as well as the Trump Administration’s broader agenda for regulatory reduction and reform, describe steps the administration can take—largely without congressional involvement—to reduce the compliance burden associated with environmental regulations and permit requirements.
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Several departments have released the regulatory reform reports requested by the Trump Administration’s Executive Order 13783, which is intended to speed the progress of and lower the costs of infrastructure and energy projects.

Reports are in from the Environmental Protection Agency (EPA), Department of the Interior (DOI), Department of Energy (DOE), and Department of Commerce, and several themes are clear: Long project approval and lengthy permitting timelines must end. The executive branch must coordinate efforts among agencies. Departments must consider how their regulatory role impacts the national and local economies.
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