We write to follow up on last month’s blog post, GT Alert, and webinar on the April 13 issuance of a federal register notice by the U.S. Environmental Protection Agency (EPA) calling for submissions to identify regulations for repeal, replacement, or modification. The agency set a 30-day timeframe for response.
Despite that tight timeframe, the agency received about 35,000 written comments by the deadline, not including comments received in response to public meetings that were held. From a review of the comments, it appears that an overwhelming majority of commenters asked that the agency leave regulations in place, with only a smaller number of comments from industry and trade associations that generally requested fairly modest, technical changes.
How the EPA will prioritize the relatively small number of comments requesting regulatory changes remains to be seen. Via a number of executive orders, the president has called on the agency to undertake a number of sizeable regulatory reforms, including to the Waters of the United States (WOTUS) Rule, which sought to define which waters are jurisdictional under the Clean Water Act, and to the Clean Power Plan (CPP), which imposed greenhouse gas budgets on existing power plants.
Given the protracted process and extensive public comment that presaged WOTUS and the CPP, it is difficult to imagine that the EPA will be issuing proposed replacement rules any time soon. Meanwhile, a separate executive order (E.O. 13771) requires agencies to repeal two regulations for each new regulation issued – and to insure that the net compliance costs associated with new regulations are zeroed out by compliance cost reductions coming from changes to existing rules. This requirement necessarily complicates the EPA’s rulemaking task, at a time when significant budget cuts and staff reductions have been proposed.
The EPA regulatory landscape is changing, but how fast remains to be seen.