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The EPA Show: Not Ready for Prime Time

If you are reading this to learn what the U.S. Environmental Protection Agency will do and when, you will probably be disappointed. But, if you want to understand a little bit about the dynamics buffeting the EPA, then read on.

There have been many recent headlines and rumors, as well as promises made by then-Republican Presidential Candidate Donald Trump during his campaign, about the EPA’s priorities and goals, but there has been precious little information actually coming out of the EPA. If the number of Federal Register notices (not all are proposed or final regulations) is a reasonable metric, the EPA has averaged about two notices per day since President Trump took office, with one in three days having no notices. In contrast, for the same period in 2015 under President Obama, the EPA averaged about seven notices per day, with one day per month having no notices. Much of what has been in the Federal Register is related to state programs, pesticides, or the Toxic Substances Control Act (TSCA) in the aftermath of the bipartisan Lautenberg Chemical Safety Act of the 21st Century (LCSA). However, something changes are likely to happen, even if their precise timing is not known.

First, the EPA has had an administrator for only about a month. The Senate confirmed E. Scott Pruitt as EPA Administrator on February 17, 2017 after heated party-line debates and voting. Before that, the incoming Trump Administration did very little groundwork with the outgoing Obama Administration. As a result, very few, if any, people have been confirmed or appointed (much less identified as potential) as EPA Assistant Administrators, their deputies, and other political positions in the EPA offices with regulatory responsibilities under the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act, and TSCA, to name a just few laws. It is those assistants or their counterparts in other agencies and departments who make their Agency or Department hum. These top-level vacancies mean that EPA staff from the Obama Administration are or were temporarily filing these positions until EPA deputies are nominated and confirmed by the Senate. A harbinger of potential resistance from these Obama Administration holdovers may be (former) acting Attorney General Sally Q. Yates’ defiance of President Trump’s first executive order to block entry of certain foreign nationals into the United States. President Trump promptly fired her.

On his first day in office, Administrator Pruitt articulated to EPA staff a series of working principles for his tenure, presumably intended to calm reluctant and likely adversarial career EPA staff: recognition that economic growth and environmental protection are not incompatible; recognition of environmental progress achieved; rule of law as Congress originally intended; devolving more programs to states and more federal-state partnerships; broader public participation in the regulatory process; and civility in developing and implementing policy and regulations. Despite his efforts to assuage, Administrator Pruitt will almost certainly encounter resistance from rank-and-file EPA staff as he directs them to carry out expected initiatives to reverse regulations that they implemented under Administrators Lisa Jackson and Gina McCarthy during the Obama Administration. It is likely that EPA staff will take advantage of Administrator Pruitt’s lack of administrative and executive government experience in their efforts to slow down or stymie the anticipated deregulatory agenda and priorities of Pruitt’s tenure. (EPA career staff are proud to say that they see presidents come and go and they are still there. It would seem that EPA’s career staff, virtually all motivated by protection of the environment, tend to act more cooperatively with Democratic than with Republican Administrations. At times of significant change in Washington as a consequence of a recent presidential election, it is not unusual to have lunch at downtown restaurants and hear people at neighboring tables talking about career staff knowing how to “slow walk” guidance, regulations or other important work. Such discussions appear to be at an all-time high with the election of Donald Trump as President.)   

Administrator Pruitt indicated in interviews that his priorities include cleaning up Superfund sites, attaining air quality standards, improving water infrastructure, and cleaning up the Hanford nuclear facility and the Hudson River. He also intends to fulfill President Trump’s campaign promises to withdraw the Waters of the United States (aka Clean Water) Rule and the Clean Power Plan. In fact, President Trump has already signed an executive order directing the EPA to rework and re-propose a Clean Water Rule based only on the late Supreme Court Justice Antonin Scalia’s “adjacency” opinion, abandoning the broader “significant nexus” opinion of Supreme Court Justice Anthony Kennedy that gave the current rule much of its (over)reach. EPA promptly issued a short Federal Register notice consisting basically of one sentence: “In accordance with a Presidential directive, the [EPA] and [Army] announces [sic] its [sic] intention to review and rescind or revise the Clean Water Rule.” The President is expected soon to order EPA to begin the process of repealing the Clean Power Plan. In addition to these specific orders, broader executive orders require that every new significant regulation (with exceptions) have a net cost of zero or less and be accompanied by the repeal of two significant regulations and that each agency (EPA included) designate a regulatory reform officer to “oversee the implementation of regulatory reform initiatives and policies” to eliminate regulations that inhibit job creation, are unnecessary or ineffective, impose more costs than benefits, were established under countermanded executive orders, or have other deficiencies.

At the same time, given the above anticipated priorities and activities, as well as the TSCA activities mandated by the bipartisan LCSA, preliminary information about EPA’s Fiscal Year 2018 budget (starting October 1, 2017) casts serious doubt on the EPA’s ability to carry out these activities, even with its top ranks filled and in the absence of resistance from EPA staff and Congress (if the repeal and replacement of the Affordable Care Act is a valid indicator). The Trump Administration seems poised to cut EPA’s budget next year by 25 percent including a 20 percent workforce reduction; a 30 percent cut to state programs; and consolidation of EPA’s 10 regional offices down to eight. More than 20 program budgets are expected to be zeroed out including Brownfield projects, Clean Power Plan, Climate Voluntary partnership programs, Diesel Emissions Reduction Act, Environmental Justice, and Global Change Research. These reductions are not restricted to Washington, DC, so they may upset some in Congress whose districts or states will suffer as a result.

The dynamics of so many executive orders, resistance from career EPA staff, a bare-bones EPA administration in the near term, looming budget, staff and program cuts for the foreseeable future, and potential resistance from Congress because of these cuts, as well as industry’s interest in retaining many EPA’s programs, make prediction of what the EPA will do and when nearly impossible. It seems certain that the Clean Water Rule and the Clean Power Plan will be revised or withdrawn at some point via a required regulatory process, but neither eventuality will likely have a significant impact on the recycling industry. Regulations that affect the industry most have a much-lower profile, and not much is known about their likely fate under Administrator Pruitt. These merit watching carefully as time goes on.

Amid all of this uncertainty and lack of information, one thing is certain. How all of this happens or not will be interesting. Come back to SPAN to stay on top of these matters.

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