The following is part one of three in a series looking at EPA rules that might not be as well known as the Clean Power Plan or the Clean Water Rule — commonly referred to as the Waters of the U.S., or WOTUS — but still could be altered significantly under the new Trump administration. This story covers the National Ambient Air Quality Standards. The second article in the series will focus on the effluent standards, and the third will review President Barack Obama's environmental legacy more broadly and the potential impact of reversing eight years of his policies.
Much has been said about President Donald Trump's plans for the Clean Power Plan and WOTUS, but the new commander-in-chief's EPA will be in charge of much more than just those two regulations.
The Clean Air Act and Clean Water Act are the cornerstones of the EPA's authority and mandate to protect public health and the environment. And the Clean Air Act is much more expansive than the Clean Power Plan for regulating carbon emissions from existing power plants, as it consists of seven titles addressing numerous pollutants and sources.
One of the most consequential regulations Trump's team will now be in charge of may be the National Ambient Air Quality Standards, or NAAQS, which regulate pollutants such as ozone, nitrogen dioxide, sulfur dioxide and particulate matter and must be reviewed every five years.
The clock is ticking on the ozone standard in particular, as the Obama administration tightened it from 75 parts per billion to 70 ppb in October 2015. The EPA now will be required to designate by 2018 the areas that will need to make efforts to reduce ozone pollution, according to Megan Berge, an attorney for Baker Botts who has represented power companies in litigation over environmental issues, including the Clean Power Plan and the ozone standard.
The agency also is preparing an implementation rule associated with the ozone standard that just went through a public comment period. At the same time, litigation is ongoing in the U.S. Court of Appeals for the District of Columbia Circuit, where both industry and environmental groups are challenging different aspects of the ozone standard.
Berge does not know exactly what the EPA will do to the ozone NAAQS, but the implementation rule provides an opening for the new administration to make changes if it wishes to do so. That rule specifically addresses how wildfires and other exceptional events are accounted for and lays out a plan for the overall finalization of the new standard.
"All agencies have the authority to change their minds, they just have to do it through the procedures of notice and comment rulemaking, which takes a substantial amount of time," Berge said. And if the new administration makes changes, they would be subject to court challenges the same as any other rulemaking.
The new administration could attempt to weaken the 70 ppb standard; however, re-starting the rulemaking would not automatically rescind the 2015 standard, which would remain in effect, Berge explained. States therefore would have to continue making strides toward meeting the standard set by the Obama administration in the interim.
"The real question is whether or not they could get a rulemaking complete that raised it back to the 75 ppb before states and industry had to take real meaningful action," Berge said. Those actions could include installing or running emissions scrubbers at those power plants found to be responsible for producing ozone pollution.
The EPA also could not change any of the deadlines associated with NAAQS, according to Berge. She said the Obama administration attempted to do just that at one point with respect to the sulfur dioxide NAAQS and was rebuffed by the D.C. Circuit.
But the new administration could delay its obligations under NAAQS and be subject to lawsuits from environmental groups hoping to see action. Again, such a case would take time to work its way through the courts.
"The pace at which they operate and they act is at their discretion," Berge said. "While they may have obligations, without a court order holding their feet to the fire I'm not sure what other mechanism there would be available to force them to meet the deadlines."
The Obama administration was successfully sued on numerous occasions by environmental groups challenging a missed deadline under NAAQS, so the courts typically appear willing to uphold the statute and direct the EPA to get to work on the standards.
Paul Billings, national senior vice president for advocacy at the American Lung Association, said one other path the EPA could take is to be lax on enforcement or cut funding to the extent it would cripple the agency's abilities. He pointed to the Volkswagen emissions scandal as a display of the EPA's enforcement in action. The agency on Jan. 11 announced that it had a $4.3 billion settlement with Volkswagen after the carmaker was found to have cheated on emissions tests.
"If enforcement is cut, then lawbreakers will be allowed to pollute with impunity," Billings said. "If the environmental cop is taken off the beat because funding is slashed at ... the federal, state and local level ... we will see more air pollution and more adverse health consequences."
As for the ongoing legal action against the 2015 ozone standard, oral arguments in the case are scheduled for April 19. If the Trump administration plans to shift direction on the standard, it may have just weeks to do so once the EPA administrator is in place — weeks that also will be filled with confirmation hearings for other staff. Trump has nominated Oklahoma Attorney General Scott Pruitt to lead the agency; the matter was advanced to the full Senate on Feb. 2.
Regardless of the path Trump takes, Berge said the agency must make sure to dot the Is and cross the Ts in any new rulemakings and ensure that "a robust record" is created.