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US EPA aims to introduce, finalize slew of energy-related rules in 2019

The U.S. Environmental Protection Agency intends to introduce or finalize a host of energy-related rules in the second half of 2019, according to its midyear regulatory agenda. The EPA's regulatory calendar, released on a biannual basis by the White House's Office of Information and Regulatory Affairs, offers a preview of the short- and long-term actions the agency plans to take in the future.

SAFE rule

At the top of the agency's list is the Trump administration's proposal to weaken Obama-era fuel economy and greenhouse gas standards for cars and light-duty trucks. The EPA and National Highway Traffic Safety Administration unveiled the proposal — dubbed the Safer Affordable Fuel-Efficient Vehicles, or SAFE, rule — in August 2018 after former EPA Administrator Scott Pruitt determined the Obama-era standards were inappropriate.

Instead of ratcheting up fuel economy standards to 54.5 miles per gallon by 2025, the EPA and NHTSA proposed to freeze the standards at 37 miles per gallon for vehicle model years 2020 through 2026. At the same time, the EPA and NHTSA proposed revoking California's waiver under the Clean Air Act to set its own tougher standards. The agencies, which together regulate vehicle standards, expect to issue a final rule in June.

Mercury finding

After proposing in December 2018 to revoke the legal basis for the Obama-era Mercury and Air Toxics Standards, or MATS, rule, the EPA plans to issue a final rule in November. The EPA has proposed to find the legal underpinning for the rule — a 2016 supplementary "appropriate and necessary" finding made by the Obama administration — was flawed because it largely relied on public health co-benefits related to a reduction of soot-forming emissions from coal-fired power plants.

Environmental and public health groups have argued the EPA's proposal to discount the value of those co-benefits ignores the real benefits of the MATS rule, which has helped to dramatically reduce harmful mercury emissions and other air toxins since it was introduced.

Coal ash

The EPA plans to issue a notice of proposed rulemaking for a second round of changes to its Coal Combustion Residuals, or CCR, rule in July. Finalized in 2015, the CCR rule set the first minimum federal standards for the safe handling and storage of coal ash and other residuals produced by burning the fuel for electricity.

After hearing concerns about the compliance timeline from power companies, the Trump administration in July 2018 finalized what it said would be the first of two phases of changes to the CCR rule by initially giving utilities more time to close leaking coal ash impoundments. Meanwhile, the U.S. Court of Appeals for the District of Columbia Circuit in August 2018 struck down several provisions of the Obama-era rule as too weak and remanded them back to the EPA for further rulemaking.

The EPA said in its regulatory agenda that its second phase of CCR changes will also address the D.C. Circuit's August 2018 ruling that all unlined coal ash impoundments must close. The agency plans to finalize the changes in December.

The EPA will address additional elements of the D.C. Circuit's August 2018 decision in a separate rulemaking it plans to introduce in July and finalize in December. That rulemaking stems from a legal challenge launched by environmental groups to the EPA's July 2018 move to extend compliance deadlines for leaking coal ash impoundments.

In addition, the EPA plans to introduce a proposed federal coal combustion residuals permitting program in July. The program would apply to facilities with CCR sites located on tribal lands and in states that opt against developing their own coal ash management programs.

After receiving petitions from the Utility Water Act Group and the U.S. Small Business Administration, the EPA said it plans to conduct a rulemaking "that may result" in revisions to Obama-era effluent limitation guidelines for steam electric power generators. The agency will specifically consider the EPA's standards for bottom ash transport water and flue gas desulfurization wastewater at existing sources, with a proposed rule planned for June and a final rule expected in August 2020.

In April, the U.S. Court of Appeals for the 5th Circuit ruled that several provisions of the Obama-era effluent illegally relied on outdated technology. The EPA did not respond to a May 22 request for comment on whether it plans to address that court's decision through its new effluent limitation guidelines rulemaking.

Revised WOTUS definition

The EPA aims to finalize a revised definition of what constitutes a "water of the United States," or WOTUS, under the Clean Water Act in August.

The Trump administration in December 2018 proposed a more limited meaning of the term than the definition in the Obama administration's 2015 Clean Water Rule, which is still subject to ongoing litigation in various federal district courts throughout the country. At least 51% of all wetlands and at least 18% of streams could lose federal protection under the EPA's revised definition, according to agency documents obtained through the Freedom of Information Act.

Science transparency, Clean Air Act cost-benefit analyses

After introducing a proposal titled "Strengthening Transparency in Regulatory Science" in April 2018, the EPA plans to finalize a version of that regulation in December. Proponents of the proposed rule argue it would improve the science used in EPA rulemakings, but critics contend it would exclude important studies that rely on confidential medical information or cannot be reproduced for ethical reasons.

As part of the EPA's effort to reform the way it accounts for the public health benefits tied to its actions, the agency also plans to propose changes in December to the way it conducts cost-benefit analyses under the Clean Air Act. In addition, the EPA plans to propose a rule related to its five-year review of the National Ambient Air Standards for ozone in March 2020.