By Ethan Shenkman, Jonathan Martel and Allie Conn

Law360 (December 3, 2020, 5:34 PM EST) --

Ethan Shenkman

Jonathan Martel

Allie Conn

In 2017, President Donald Trump set out an ambitious environmental deregulatory agenda that continued to accelerate in 2020, even in the face of COVID-19.

Indeed, the U.S. Environmental Protection Agency was already in the process of a wide range of deregulatory actions when Trump declared the pandemic a national emergency in March of this year. In May, Trump issued an executive order further encouraging federal agencies to provide regulatory relief in support of economic recovery.[1]

How will the election of Joe Biden as president on Nov. 3 affect this environmental deregulatory agenda? The Biden administration will enter office with a long list of measures that they will seek to suspend, reconsider, revoke and, in some cases, replace with new and more stringent proposals.

In some situations, the new administration may decide not to act immediately, but to wait instead for ongoing judicial review procedures to play out. In other situations, it may decide to retain certain aspects of regulations enacted by the previous administration. But it is not premature to say that there will be a massive pendulum swing.

Although such a swing can be anticipated, the election's impacts in specific regulatory areas where the Trump administration has sought to leave its mark depends on the status of the regulations in question. This two-part article considers rules and important guidance that fall within three categories: proposed rules that have yet to be finalized; actions that the Trump administration has yet to propose; and final rules that have been or may be challenged in court

First, we highlight 19 important environmental regulations that have been proposed but not yet finalized. With less than two months left until inauguration day, the race is on to see whether the agencies and the U.S. Office of Management and Budget can complete their work and publish final versions of these rules in the Federal Register before the new administration takes over and hits the pause button.

The stakes are high, as a new administration can simply allow proposed rules, which are not yet finalized, to wither and die on the vine. Indeed, a new regulation does not have the force of law until it is published in the Federal Register. And at any point before a regulation is published in the Federal Register, the agency in most cases can rescind the rule.[2]

As with previous administrations, we can expect the Biden administration on day one to issue an executive order imposing a moratorium on so-called midnight regulations, calling for withdrawal or suspension of any rules not yet published in the Federal Register and temporarily prohibiting agencies from issuing any major new rules.[3]

By contrast, once published in the Federal Register, a final rule cannot be modified or rescinded without going through a new rulemaking process with public notice and comment. This is so even if the rule's effective date stretches into the new administration. A new administration has only limited ability to delay a rule's effective date without undergoing a new rulemaking. Furthermore, a published rule that has the force and effect of law cannot be modified or revoked by executive order.

The timing of a rule's finalization depends, in part, on where it is in the OMB review process. Pursuant to Executive Order No. 12866, OMB review can take up to 90 days — which can be extended — to allow for adequate interagency consideration. At some point, the OMB will likely order "pens down" and stop processing new rule packages.

The ability to finalize these rules in the limited time remaining will be challenged by resource constraints at the agencies and the OMB, the worsening effects of the pandemic, a workforce that will have to focus on the transition to a new administration, and competition from other rules waiting in the queue from all corners of the government.

In addition, many of Trump's proposals have received thousands of comments on particularly controversial issues, and agencies are required to consider and respond to those that are "significant." Doing so adequately before issuance of a final rule is time- and resource-intensive.

The current strain on resources could cause further delays in finalization, or a rush job that could be more susceptible to challenges in court. Although judicial challenges can themselves take time, vulnerable rules are subject to a stay — stopping implementation of the rule pending resolution of the litigation — and that may be more likely where the issuing agency abandons defense of the rule.

Second, we highlight seven environmental regulatory initiatives that the Trump administration has promised but not yet proposed. Time is quickly running out for the regulatory measures in this last category.

It would be difficult, if not impossible, to propose and finalize any new rules in the last two months of the administration. For some issues, the administration may see benefit to getting its proposal down on paper. Other issues will be left for the next administration to address.

List of Key Proposed Rulemakings at Risk During the Lame Duck Period

Many of the Trump administration's key regulatory efforts are currently in rulemaking limbo: The agency has proposed a rule, but has not completed review of public comments and/or interagency review. Finalizing all of these regulatory actions will be difficult to achieve during the lame duck period, but the administration may still try.

These are some of the key proposals on Trump's agenda that are not yet final, in reverse chronological order, beginning with those whose comment periods will close last.

• FIFRA — Human Health and Ecological Risk Assessments for Chlorpyrifos: Draft risk assessments released for public review on Sept. 22; there will be a 60-day comment period after the EPA issues its proposed interim decision.[4]

• Clean Air Act — National Emission Standards for Hazardous Air Pollutants — Polyvinyl Chloride and Copolymers Production: Comment period closes on Jan. 8, 2021, but the EPA recommended submission to the OMB by Dec. 9 of comments on information collection provisions; proposal would revise emission limits set in a 2012 emission standard, to make them less stringent.[5]

• Clean Air Act — Cross-State Air Pollution Rule Update Remand for the 2008 Ozone NAAQS: Comment period closes on Dec. 14; proposed rule addresses remand by the U.S. Court of Appeals for the D.C. Circuit of the 2016 Cross-State Air Pollution Rule update.[6]

• Clean Water Act — Reissuance and Modification of Clean Water Act Section 404 Nationwide Permits: Comment period closed Nov. 16; the proposal reissues and modifies the Nationwide Permits for utility infrastructure, including NWP 12, among others; a district court had vacated NWP 12 as applied to the construction of the Keystone XL Pipeline, due to the U.S. Army Corps of Engineers' failure to consult under Section 7 of the Endangered Species Act when promulgating the NWPs in 2017; the Corps is not consulting under Section 7 of the ESA on the proposed NWPs.[7]

• Clean Air Act — Aircraft Greenhouse Gas Emission Standards: Comment period closed Oct. 19; proposes to use fuel efficiency-based metric established by the International Civil Aviation Organization to control carbon dioxide and nitrous oxide emissions from airplane engines.[8]

• Endangered Species Act — Regulations for Critical Habitat Designation: Comment period closed Oct. 8; proposes process for excluding areas from critical habitat designation; final rule sent to the OMB on Nov. 12.[9]

• Clean Air Act — National Ambient Air Quality Standards for Ozone: Comment period closed Oct. 1; proposal would retain the existing standards; the most recent regulatory agenda set a target date of January 2021 for issuance of a final rule.[10]

• Endangered Species Act — Definition of "Habitat": Comment period closed Sept. 4; proposes to add definition of "habitat" to the U.S. Fish and Wildlife Service and U.S. National Marine Fisheries Service regulations in response to the U.S. Supreme Court's 2018 Weyerhauser decision.[11]

• TSCA — Dust-Lead Post-Abatement Clearance Levels: Comment period closed Aug. 24; proposes to lower clearance levels for amount of lead permitted in dust on a surface following completion of an abatement activity, but environmental and public health groups contend limits should be stricter; final rule sent to OMB on Oct. 27.[12]

• RCRA — Federal Coal Combustion Residuals Permit Program: In response to public interest groups' request for a 120-day extension of the comment period due to the COVID-19 pandemic, the EPA extended the comment period by 30 days, to May 20;[13] the comment period was then extended a second time until Aug. 7.

• Clean Air Act — Cost-Benefit Rule: Comment period closed Aug. 3; the proposal addresses methodology for cost-benefit analysis in air regulations;[14] the EPA sent its final rule to the OMB for prepublication review on Oct. 21.[15]

• Clean Air Act — National Ambient Air Quality Standards for Particulate Matter: Comment period closed June 29; final rule sent to the OMB Nov. 4; the proposal retains the current standards, initially set in 2013; a group of U.S. senators sent a letter to EPA Administrator Andrew Wheeler, expressing concerns that the proposal weakens public health protections during the pandemic, linking air pollution to higher death rates due to COVID-19; the EPA previously announced this month as the target date to finalize these standards.[16]

• Science — Rule Restricting Scientific Studies Relied Upon in Rulemakings: The EPA extended the comment period by 30 days, to May 18, due to the COVID-19 crisis; the EPA sent the final rule to the OMB for regulatory review on Sept. 14; scientists and physicians have opposed the proposal.[17]

• Migratory Bird Treaty Act — Rollback of Penalties for Companies That Incidentally Kill Birds: The Fish and Wildlife Service comment period on the draft environmental impact statement for the proposed rule closed July 20; the FWS comment period on the proposed rule closed on March 19; the proposal codifies a December 2017 U.S. Department of the Interior Office of the Solicitor legal opinion, which was ruled unlawful and vacated by the U.S. District Court for the Southern District of New York in August;[18] the final environmental impact statement for the rule was published on Nov. 27 and is subject to a 30-day comment period.[19]

• Safe Drinking Water Act — Lead and Copper Revisions: Comment period closed Feb. 12; the EPA sent the final rule to the OMB for regulatory review on July 31; state drinking water regulators, drinking water utilities and former EPA officials have raised concerns over the revisions.[20]

• Toxic Substances Control Act — Regulation of Persistent, Bioaccumulative, and Toxic Substances: Comment period closed Oct. 28, 2019; the TSCA requires finalization of the rule by January 2021; comments reveal concerns over whether the EPA should conduct a risk analysis of PBT chemicals before regulating; the EPA has submitted five separate rules — one for each chemical — to the OMB for regulatory review.[21]

• Clean Air Act — Revision of 2015 New Source Performance Standards for Power Plants: Comment period closed March 18, 2019; environmental groups have opposed the proposal's revocation of certain pollution control technology requirements; due to delays related to COVID-19, the EPA does not expect to finalize until late this year.[22]

• TSCA — Risk Evaluations of Initial 10 Existing Chemical Substances: Beginning in November 2018, the EPA began releasing draft risk evaluations for 10 chemicals, including perchloroethylene, trichloroethylene and asbestos; the 10th draft was released in April; the amended TSCA required these initial 10 evaluations to be completed by June; the EPA's draft risk evaluations faced some criticism from the Science Advisory Committee on Chemicals and commenters; the EPA has issued four final risk evaluations — for methylene chloride (MeC1), i-bromopropane, cyclic aliphatic bromide cluster (HBCD) and carbon tetrachloride — and one revised draft evaluation; cases challenging the MeC1 and HBCD evaluations are pending in the U.S. Court of Appeals for the Ninth Circuit.[23] Although the current administration has pledged to release all remaining risk evaluations in final form before the end of the calendar year, a new administration might seek to expand or amend the EPA's findings in one or more of these risk evaluations. The risk evaluations are important because the EPA's findings are determinative of what uses of a chemical substance will be regulated if the risk evaluation finds them to present unreasonable risks to human health or the environment.

• Clean Air Act — Repeal of Emission Requirements for Glider Vehicles and Engines: Comment period closed Jan. 5, 2018; initially proposed in 2017, interested industry groups urged the EPA to revive the proposal to scrap Obama-era limits.[24]

List of Key Regulatory Initiatives Not Yet Proposed

As time, attention and resources are diverted to the Biden administration's transition, and the second wave of the COVID-19 pandemic grows in intensity, there will be less room for new regulatory proposals before January 2021. The clock will likely run out for any new proposals to be finalized before the inauguration. Nevertheless, there are some promised initiatives that are worth watching to see if they materialize.

• Clean Air Act — Renewable Fuel Standards for 2021, Biomass-Based Diesel Volumes for 2022: A proposal setting forth the renewable fuel volume obligations was submitted to the OMB for review on May 13.[25]

• TSCA — Exceptions to Toxic Substances Control Act Fees Rule: On March 25, the EPA announced its plan to consider exemptions to the rule's self-identification requirements associated with fee obligations for EPA-initiated risk evaluations.[26]

• Clean Air Act — Renewable Fuel Standards Reset of Statutory Blending Volumes for 2021 and 2022: A proposal was under review at the OMB in Oct. 2019, but the EPA formally withdrew its draft two months later; stakeholders are also looking forward to how the EPA will approach renewable fuel volumes for 2023, which is the first year after the statutory table of volumes ends.[27]

• Clean Air Act — Heavy Duty Truck Nitrogen Oxide Emission Cuts: The EPA is considering reductions in NOx emissions as part of its Cleaner Trucks Initiative to tighten standards for air emissions from heavy-duty trucks; interested industry groups called for the EPA to delay developments on this initiative due to COVID-19; in July it was reported that the EPA was likely to wait until after the election to issue a proposed rule.[28]

• Clean Air Act — Guidance Implementing the Significant New Alternatives Policy: The EPA must respond to the D.C. Circuit's remand of a 2018 rule that suspended the EPA's identification of hydrofluorocarbons as unacceptable substitutes for ozone-depleting substances.[29]

• TSCA — New Chemicals Procedural Regulations: The EPA intends to revise its procedures for reviewing new chemicals, to align them with the 2016 amendments to TSCA and to improve the review process's efficiency; the spring regulatory agenda set a September target date for a proposed rule.[30]

• TSCA — Reporting and Recordkeeping for Work Plan Chemicals: The EPA intends to collect potential hazard and exposure pathway information related to chemicals on the TSCA Work Plan for use in prioritization and risk evaluation; the spring regulatory agenda set a November target date for a proposed rule.[31]

The second installment of this article will discuss a final category of actions: rules that are final, but for which litigation is not yet exhausted.

---

Ethan Shenkman and Jonathan Martel are partners, and Allie Conn is an associate, at Arnold & Porter.

Arnold & Porter partners Brian Israel and Lawrence Culleen, associate Emily Orler and environmental law writer Margaret Barry contributed to this article.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Executive Order on Regulatory Relief to Support Economic Recovery, The White House (May 19, 2020).

[2] See Jerry Brito and Veronique de Rugy, Midnight Regulations and Regulatory Review, 61 Admin. L. Rev. 163 (2009).

[3] See, e.g., Memorandum from Rahm Emanuel, White House Chief of Staff, to Heads of Executive Departments and Agencies (Jan. 20, 2009).

[4] Pesticide Registration Review; Draft Human Health and/or Ecological Risk Assessments for Chlorpyrifos; Notice of Availability, 85 Fed. Reg. 60,455 (Sept. 25, 2020).

[5] National Emission Standards for Hazardous Air Pollutants: Polyvinyl Chloride and Copolymers Production Reconsideration, 85 Fed. Reg. 71,490 (Nov. 9, 2020).

[6] Revised Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS, 85 Fed. Reg. 68,964 (Oct. 30, 2020).

[7] Reissuance and Modification of Nationwide Permits, 85 Fed. Reg. 57,298 (Jan. 29, 2020); N. Plains Res. Council v. U.S. Army Corps of Engineers , 454 F. Supp. 3d 985 (D. Mont. 2020), amended, 46o F. Supp. 3d 1030 (D. Mont. 2020).

[8] Control of Air Pollution from Airplanes and Airplane Engines: GHG Emission Standards and Test Procedures, 85 Fed. Reg. 51,556 (Aug. 20, 2020).

[9] Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat, 85 Fed. Reg. 55,398 (Sept. 8, 2020).

[10] Review of the Ozone National Ambient Air Quality Standards, 85 Fed. Reg. 49,830 (Aug. 14, 2020); Clean Air Scientific Advisory Committee (CASAC) Draft Report, EPA CASAC (Jan. 21, 2020); Letter from Andrew R. Wheeler, Administrator, EPA, to Louis Anthony Cox, Jr., Chair, Clean Air Scientific Advisory Committee (April 1, 2020).

[11] Endangered and Threatened Wildlife and Plants; Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat, 85 Fed. Reg. 47,333 (Aug. 5, 2020).

[12] Review of Dust-Lead Post-Abatement Clearance Levels, 85 Fed. Reg. 37,810 (June 24, 2020).

[13] Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Federal CCR Permit Program, 85 Fed. Reg. 9940 (Feb. 20, 2020).

[14] Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process, 85 Fed. Reg. 35,612 (June 11, 2020).

[15] Jonathan Martel et al., Implications of EPA Clean Air Act Cost-Benefit Rule: Part 1, Law360 (Nov. 16, 2020); Jonathan Martel et al., Implications of EPA Clean Air Act Cost-Benefit Rule: Part 2, Law360 (Nov. 17, 2020).

[16] Review of the National Ambient Air Quality Standards for Particulate Matter, EPA (April 30, 2020); Letter from Sens. Hassan, Bennet, Booker, Coons, Gillibrand, King, Merkley, Sanders, Warren, Carper, Blumenthal, Casey, Feinstein, Harris, Markey, Reed, Van Hollen and Whitehouse, U.S. Senate, to Andrew Wheeler, Administrator, EPA (April 14, 2020).

[17] Strengthening Transparency in Regulatory Science, 85 Fed. Reg. 15,396 (March 18, 2020); Letter from Andrew R. Wheeler, Administrator, EPA, to Eddie Bernice Johnson, Chairwoman, Committee on Science, Space and Technology, U.S. House of Representatives (April 2, 2020).

[18] Environmental Impact Statements; Notice of Availability, 85 Fed. Reg. 34,625 (June 5, 2020); Regulations Governing Take of Migratory Birds, 85 Fed. Reg. 5,915 (Feb. 3, 2020); Nat. Res. Def. Council Inc. v. U.S. Dep't of the Interior , No. 18-CV-4596 (VEC), 2020 WL 4605235 (S.D.N.Y. Aug. 11, 2020).

[19] Ethan Shenkman, Trump Rollbacks Hit a New Snag: Incidental Take of Migratory Birds, Envtl. F. (Nov./Dec. 2020).

[20] National Primary Drinking Water Regulations: Proposed Lead and Copper Revisions, 84 Fed. Reg. 61,684 (Nov. 13, 2019).

[21] Regulation of Persistent, Bioaccumulative, and Toxic Chemicals Under TSCA Section 6(h); Extension of Comment Period, 84 Fed. Reg. 50,809 (Sept. 26, 2019); Regulation of Persistent, Bioaccumulative, and Toxic Chemicals Under TSCA Section 6(h), 84 Fed. Reg. 36,728 (July 29, 2019).

[22] Review of Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units, 83 Fed. Reg. 65,424 (Dec. 20, 2018).

[23] Chemicals Undergoing Risk Evaluation under TSCA, EPA (last updated Oct. 26, 2020).

[24] Repeal of Emission Requirements for Glider Vehicles, Glider Engines, and Glider Kits, 82 Fed. Reg. 53,442 (Nov. 16, 2017).

[25] The Renewable Fuel Standard Program: Standards for 2021, Biomass-Based Diesel Volumes for 2022, OIRA (May 13, 2020).

[26] Information on Plan to Reduce TSCA Fees Burden and No Action Assurance, EPA (March 25, 2020). For more on the planned changes and their implications, see Lawrence E. Culleen, EPA Grants Near Term TSCA Relief; Commits to Propose Changes to Scope of Fees Rule, Arnold & Porter (April 1, 2020).

[27] Refiners Bummed RFS Reset Rule Withdrawn, Advanced Biofuels USA (Dec. 20, 2019).

[28] Cleaner Trucks Initiative, EPA (March 27, 2020); Control of Air Pollution from New Motor Vehicles: Heavy-Duty Engine Standards, 85 Fed. Reg. 3,306 (Jan. 21, 2020).

[29] Natural Res. Def. Council v. Wheeler, No. 18-1172 (D.C. Cir. April 7, 2020).

[30] Updates to New Chemicals Procedural Regulations to Reflect the 2016 Amendments to the Toxic Substances Control Act (TSCA), Reginfo.gov.

[31] Reporting and Recordkeeping for Certain Chemicals Under Section 8(a) of the Toxic Substances Control Act (TSCA), Reginfo.gov.

For a reprint of this article, please contact reprints@law360.com.