No Honeymoon for Trump EPA as Court Dates, Deadlines Loom

The Environmental Protection Agency will not enjoy an extended honeymoon period as President-elect Donald Trump assumes the presidency, with a slew of court dates and regulatory deadlines facing the incoming administration in its first six months.

Though key administration appointees are not yet in place, the EPA must still make decisions required by the amended toxic substances law, respond to disputes between states over air pollution crossing borders and gear up for lawsuits challenging Obama administration regulations that are still pending before the courts.

The clock starts ticking in the new administration’s first week, as the EPA faces a Jan. 25 deadline to make a decision on whether to grant a petition from Connecticut seeking new air pollution limits at a Pennsylvania power plant that the northeastern state claims impedes its ability to meet federal air quality requirements, one of several similar petitions pending before the agency.

Arrayed against the new administration will be an army of environmental advocates ready to sue the Trump team should it fail to meet its obligations on time.

“The thing I would tell everybody coming in is to look at your inbox. You think it will be empty; it’s not,” John Cruden, the outgoing head of the Justice Department’s environmental division, said at a recent D.C. Bar event. “Last year we had 878 new filings in my division, three-fourths of that were defensive. Every business day, including Jan. 23, will have three new cases suing us. Some of these cases will be filed intentionally because it’s a new administration.”

Mr. Trump Heads to Court

Trump has vowed to roll back several of the Obama administration’s top environmental efforts, particularly regulations determining which waters are subject to Clean Water Act jurisdiction or setting carbon dioxide limits on power plants, and his administration now takes ownership of ongoing challenges to those rules.

Richard Stoll, a partner in the Milwaukee and Washington, D.C., offices of Foley & Lardner LLP, said the deadlines to submit various briefs to courts are “almost always extendable” as long as a party has a good reason. “And a change in administration is usually recognized as a pretty good reason,” Stoll said.

While it is likely the Trump administration will ask the courts to halt various lawsuits or even send some challenged regulations back to the EPA for reconsideration, the agency must rapidly prepare for argument dates that have already been scheduled.

The U.S. Court of Appeals for the District of Columbia Circuit is set to hear argument Feb. 10 on the EPA’s contention that it has met its Clean Air Act obligation to regulate emissions of mercury and other toxic pollutants from various industries, which is being challenged by environmental groups. Then, on Feb. 17, the court will hear industry challenges to an EPA rule phasing down use of hydrofluorocarbons, refrigerants that are also extremely potent greenhouse gases. Carbon dioxide limits for new power plants will face similar scrutiny at argument scheduled for April 17.

Oklahoma Attorney General Scott Pruitt, Trump’s pick to head the agency, has been a leading figure in many of the challenges to EPA regulations, including the Clean Water Rule, power plant carbon dioxide standards and new ozone air quality standards. Pruitt during his Jan. 18 confirmation hearing did not commit to sitting out participation in the lawsuits as administrator, instead saying he would defer to advice from the EPA’s ethics officials.

Supreme Court Briefing Looms

The agency also faces a U.S. Supreme Court deadline after the high court agreed to review which court should have jurisdiction in challenges to the Clean Water Rule. The EPA’s brief in that case is due March 29.

Ellen Steen, general counsel for the American Farm Bureau Federation, said she doesn’t expect the EPA’s position, which favors review in an appellate court, to change under the new administration.

“EPA has consistently argued for a broad interpretation of the appellate courts’ jurisdiction to review its [Clean Water Act] rules, because that is a more efficient process for the government,” Steen said.

Continuity Predicted on Chemicals

The EPA also faces significant decisions in the coming months on implementing the Toxic Substances Control Act, which was amended in 2016. By June, the agency must develop a process to identify chemicals that are low or high priorities for risk evaluations, identify the risk evaluation process and publish the scope of its first 10 risk evaluations.

“I think we can expect uniformity between administrations,” said Daniel Newton, senior government relations manager at Society of Chemical Manufacturers & Affiliates.

Pruitt told the Senate Environment and Public Works Committee Jan. 18 that he understands meeting the statutory deadlines of TSCA is a priority. He also highlighted provisions of the law that gave the EPA authority to order chemical manufacturers and processors to provide toxicity and exposure information about the chemicals they make or use.

Newton said he expects the Trump administration will work to meet the June 2017 statutory deadlines for the core regulations required by the amended chemicals law.

Newton said he hopes the Trump administration also will make it a priority to boost the speed of the EPA’s new chemical reviews. Those reviews, which under amended TSCA determine whether a new chemical can be made or sold in the U.S., have dragged on for months since June, when the TSCA amendments became law.

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