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EPA Plans to Repeal Clean Power Plan, Other Obama-Era Regulations, in 2018

The New Year promises to be a very busy one for the Environmental Protection Agency (EPA). It could also be very a litigious one.

According to a biannual plan released Thursday, the EPA plans to completely repeal the Clean Power Plan (CPP) by next October and roll back other Obama-era regulations throughout the year, including rules governing new sources of methane emissions and the definition of what constitutes Waters of the United States (WOTUS).

That said, many if not all of the EPA's proposed actions could be headed to court, if previous experience during the first year of the Trump administration is any guide.

The Semiannual Agenda of Regulatory and Deregulatory Actions and Regulatory Plan, aka the Unified Agenda, lists hundreds of rules in various stages of rulemaking at many federal agencies, including the EPA, which has 101.

"EPA's plan balances its statutory requirements to issue regulations and its commitment to providing regulatory certainty through improvements to existing regulations that were flawed, outdated, ineffective, or unnecessarily burdensome," said EPA Administrator Scott Pruitt.

Among those items, the EPA's plan to repeal the CPP was listed as being in the final rule stage. The agency issued a notice of proposed rulemaking (NPRM) announcing the repeal on Oct. 16, and it was accepting public comments until Friday (Dec. 15). The EPA said the final rule to repeal the CPP now is set for next October.

"The CPP as originally finalized raised concerns that it would necessitate changes to a state's energy policy, such as a grid-wide shift from coal-fired to natural gas-fired generation, and from fossil fuel-fired generation to renewable generation and that it exceeded the agency's statutory authority," the EPA said. It added that repealing the CPP could save power generators up to $33 billion in avoided compliance costs in the year 2030.

President Trump hinted at the upcoming repeal of the CPP during his remarks on deregulation from the White House on Thursday. "We're lifting restrictions on American energy and we've ended the war on coal," he said. "We have clean coal -- beautiful, clean coal, another source of energy."

Methane Rules Targeted

Another target of the Trump administration are proposed rules governing fugitive emissions, pneumatic pumps and professional engineer certification requirements as outlined in updates to the EPA's New Source Performance Standards (NSPS).

Last May, the EPA ordered a 90-day stay of the NSPS updates. Two weeks later, the agency announced that it was considering extending the stay by an additional two years. Both measures were taken to ensure the oil and gas industry was not beholden to the rules while the agency goes through the reconsideration process.

The Unified Agenda shows EPA plans to issue an NPRM on the reconsideration proposal in August 2018, and a final rule in September 2019. The agency also plans to issue final rules on the three-month and two-year stays next March.

EPA's stay of the NSPS updates was short-lived. A three-judge panel from the U.S. Court of Appeals for the District of Columbia lifted the 90-day stay in July. The next month, the full court rejected a request by the oil and gas industry and its allies to reconsider lifting the stay.

Water Rules In Crosshairs, Too

The controversial Clean Water Rule (CWR) is also on the chopping block.

EPA is moving forward with the two-step process of reviewing and revising the CWR, which the agency first outlined in July. Specifically, the EPA plans to initiate a public rulemaking to rescind the CWR and revert to laws governing water protection that were first enacted in 1986. The agency would then promulgate a revised definition of WOTUS, which defines what waterbodies deserve protection under the federal Clean Water Act (CWA).

According to the Unified Agenda, the EPA plans to issue a final rule next April to recodify the regulatory text that was in place prior to the CWR taking effect. EPA and the Army Corps of Engineers jointly promulgated the CWR and unveiled it in May 2015, during the Obama administration. But in October 2015 the Sixth District Court issued a stay and blocked it from being implemented.

"This rule would result in the recodification of what is in place under the court stay...so that the rules are clear and certain while agencies engage in a second rulemaking to reconsider the definition," the EPA said. "As a result, the agencies did not propose any alternatives for this proposed rule."

The Unified Agenda shows EPA plans to conduct "a substantive re-evaluation and revision of the definition of WOTUS," with an NPRM issued in May 2018 and a final rule expected in June 2019. EPA will also "provide greater certainty about the jurisdictional extent of the CWA by proposing to amend the effective date of the CWR while they continue to work to consider possible revisions to the rule." Final action on that issue is expected in February 2018.

The Trump administration first outlined its plans to repeal or scuttle hundreds of existing or planned rules across the federal government last July.

"For many decades, an ever-growing maze of regulations, rules, restrictions has cost our country trillions and trillions of dollars, millions of jobs, countless American factories, and devastated many industries," Trump said Thursday. "But all that has changed the day I took the oath of office, and it's changed rapidly."

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