With just a few weeks before President-elect Trump's inauguration, and his recent nomination of Oklahoma Attorney General Scott Pruitt—a leading critic and challenger of the Waters of the United States Rule (WOTUS Rule) and the Clean Power Plan (CPP)—as EPA Administrator, the era of the Trump EPA is set to begin. Much has already been written on some of the expected environmental policy changes under the Trump era EPA, such as attempting to dismantle the CCP, modifying the WOTUS Rule, and approving the Keystone XL pipeline.
Beyond these headline grabbing policy changes, however, are some other significant implications for the regulated community. Three areas of particular interest are the role of EPA initiated enforcement actions and citizen suits, opportunities to drive and shape EPA's environmental priorities, and the future pace and substance of EPA's implementation of the recent amendments to the Toxic Substances Control Act (TSCA).
Less EPA Enforcement and More Citizen Suits
Attorney General Pruitt is a long-time federalism advocate, and is well known for challenging federal environmental programs during his tenure as Oklahoma Attorney General, arguing that they represented an overextension of federal power. As a result, it is expected that a Pruitt-led EPA will grant more autonomy to the States to implement and enforce federally delegated environmental laws, and that there will be a commensurate downtick in EPA initiated enforcement actions as more federal regulatory and enforcement authority is delegated to State and local authorities. This will be a significant change from the Obama Administration EPA, which, because of its skepticism of the adequacy of State implementation and enforcement of federally delegated environmental programs, has played an active oversight role in the States' implementation of these federal programs.
With an increased deference to State authorities and a decrease in federal enforcement, we expect to see a commensurate uptick in non-governmental organizations (NGOs) stepping in as "private attorney generals" in enforcing the nation's federal environmental laws through the use of the citizen suits provisions in these laws. Since the election, it has been widely reported that environmental NGOs have been actively organizing and preparing to play a much more assertive role in defending the environmental regulations and policies they expect the Trump era EPA to attempt to roll back or modify. The regulated community, therefore, should expect more activity and surveillance by NGOs in monitoring their compliance with environmental laws and a likely increase in NGO citizen suit activity to enforce these laws.
Advocating Targeted Regulatory Changes
Outside the policy shifts already identified by President-elect Trump, the incoming administration provides important opportunities for interested parties to pursue policy and regulatory changes to existing environmental regulations and initiatives. With that said, be forewarned that the line of interested parties seeking change will be long and the process may be slow, as least initially. The process for identifying and confirming the key political appointees, including the EPA Assistant Administrator slots, is not complete so it may take some time before the new EPA management team is in place and ready to bring about much of the anticipated change. In the meantime, career EPA staff can be expected to continue to implement existing environmental policies and agendas until directions otherwise are provided from the new senior EPA management.
Nonetheless, opportunities for advocating for significant policy and regulatory changes, especially with regard to energy related interests, clearly will exist with the new EPA. Since the incoming administration is still in the process of fleshing out its environmental plan of action and filling in key EPA political appointees, interested parties should already be developing their policy positions and arguments to present to the new EPA management once it is in place.
While President-elect Trump appears poised to reshape major pieces of the federal environmental regulatory scheme, a topic that has garnered less attention but is vitally important to the regulated community is the how the Trump EPA will proceed with implementing the recent amendments to TSCA (known as the "Frank R. Lautenberg Chemical Safety for the 21st Century Act"). The TSCA reform law passed Congress with strong bipartisan support and establishes a series of upcoming statutory deadlines for EPA to promulgate a number of rules, including those establishing the process for undertaking risk evaluations of existing chemical substances, one of the central features of the amended statute. After the election, a bipartisan group of congressional and industry leaders, including Senate Environment and Publics Works Committee Chairman Senator Inhofe (R-OK) and the American Chemistry Council, expressed confidence that the new administration will continue with the steady implementation of these new and important features of the amended TSCA.
With that said, EPA's recent implementation of certain provisions of the amended TSCA–including the more scrutinizing process for evaluating and approving the manufacture of new chemical substances and the implementation of EPA's new rulemaking authorities for regulating those chemicals it determines pose an unreasonable risk to health or the environment–have already drawn criticism from affected industry groups. Therefore, while EPA's issuance of the new TSCA regulations may generally continue on pace, it is likely that the final content of those regulations under the Trump EPA will reflect more input from the regulated community and materially differ in certain key respects from the proposals being developed by the current Administration.