CHAPTER 6 RECENT EVENTS AND TRENDS FROM THE STATE PERSPECTIVE
| Jurisdiction | United States |
RECENT EVENTS AND TRENDS FROM THE STATE PERSPECTIVE
Deputy Director, Air Pollution Control Division
Colorado Department of Public Health and Environment
Denver, CO
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CHRIS COLCLASURE is the Deputy Director of the Colorado Department of Public Health and Environment, Air Pollution Control Division. Chris leads a team that develops statewide policies for reducing emissions and improving air quality in a cost-effective manner through a combination of regulatory and non-regulatory measures. Chris manages initiatives to attain federal ozone standards in the Denver Metro/North Front Range nonattainment area, improve visibility in federal Class I areas, decrease nitrogen deposition in Rocky Mountain National Park, and reduce emissions of greenhouse gases and other pollutants. He directs Colorado's implementation of the Volkswagen emissions settlement and recently published the state's plan to spend $68 million of environmental mitigation trust funds to lower emissions of nitrogen oxides while promoting the adoption of alternative fuel and zero emission vehicles. Chris oversaw the 2017 revisions to Colorado's leak detection rules for oil and natural gas facilities and is leading a stakeholder process to evaluate potential statewide hydrocarbon emission reduction strategies. Before moving to his current position, Chris practiced air quality and environmental law at a Denver-based law firm. He continues to practice law as a member of the United States Air Force Reserves.
I. Introduction
The Environmental Protection Agency (EPA) has embarked on a regulatory reform agenda, signaling the potential for significant changes to federal air quality regulations. The proposed and foreseeable changes impact state air agencies as well as the regulated community. States may enjoy increased flexibility while facing substantial uncertainty regarding federal regulations, policies and funding. In response, states like Colorado are asserting stronger leadership to fulfill their missions of protecting public health and the environment. This paper examines proposed and potential changes to federal ozone regulations as a case study in federal regulatory reform. The paper analyzes the substantive impacts of these changes in Colorado, with a focus on how regulatory reform causes uncertainty and Colorado's response.
II. EPA Seeks to Reduce Regulatory Burdens and Shift Authority to the States
EPA and the Trump administration have clearly stated their desire to reduce regulatory burdens. The White House asserts that unnecessary regulations hamper economic development and should be relaxed.1 Three Executive Orders formalize the administration's goals of reducing regulatory burdens and promoting the development of fossil fuels.
A. Executive Order 13,771
The "Two for One" order directs that "[u]nless prohibited by law, whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed."2 To reduce implementation and compliance costs, the order directs that "any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations."3
The Two for One order is likely to delay the promulgation of new regulations more often than it leads to the repeal of existing rules. Agencies must follow normal rulemaking procedures when revising or reversing a regulation.4 The order recognizes this by requiring agencies repealing regulations to "do so in accordance with the Administrative Procedure Act and other applicable law."5 The rulemaking process is often lengthy or contentious. The added workload of repealing
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existing rules will likely deter or delay the promulgation of new ones, generating additional uncertainty for states and the regulated community.
B. Executive Order 13,777
The second order states "[i]t is the policy of the United States to alleviate unnecessary regulatory burdens placed on the American people" and establishes a process to implement the Two for One order.6 E.O. 13,777 directs each agency to establish a Regulatory Reform Task Force and designate a Regulatory Reform Officer.7 The task force must evaluate existing regulations, identify burdensome rules, and make recommendations regarding their repeal, replacement or modification to make them less burdensome.8
EPA solicited public comment on burdensome regulations and conducted several outreach meetings and conference calls, including one nationwide conference call regarding air quality rules.9 The Regulatory Reform Task Force was due to submit a report to Administrator Pruitt by May 25, 2017, "identifying regulations for repeal, replacement, or modification."10 No report on Executive Order 13,777 has been posted in the regulatory docket or EPA's Regulatory Reform page, but EPA has published a related report on energy regulations pursuant to the third Executive Order.
C. Executive Order 13,783
The third Executive Order directs a review of "all existing regulations, orders, guidance documents, policies, and any other similar agency actions" that may burden domestic energy production and use, particularly oil, natural gas, coal, and nuclear energy resources.11 EPA complied and published a report on potential regulatory reforms.12 EPA's report recommends reforming the New Source Review (NSR) program and National Ambient Air Quality Standards (NAAQS), among other key initiatives.13
NSR reform would significantly affect the air quality permitting process. This initiative is consistent with a January 24, 2017, White House Memorandum on "Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing."14 The topic has generated public
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interest15 and the impacts of NSR reform or a broader review of agency actions that burden domestic energy are difficult to predict. Simplifying the permitting process would be welcome, but the effects in Colorado may be small if reform is limited to major source permitting. Colorado has never received an application for a major source NSR permit in the nonattainment area. The contours of NSR reform should become clearer after Administrator Pruitt convenes an NSR Reform Task Force.16
D. EPA Intends to Shift Authority to States
The roles of federal and state governments are defined by the Constitution and statute. Under the Constitution's Tenth Amendment, "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.17 Congress cannot "compel" the States to require or prohibit anything, and it cannot "commandeer" the States' legislative processes by ordering them to enact and enforce a federal program.18 Congress can only encourage the States to regulate in a particular way, or hold out incentives to the States to influence their policy choices.19 The major federal environmental statutes therefore rely on "cooperative federalism" to allocate authority and responsibility between the federal government and the States for regulating environmental issues.20 Accordingly, the Clean Air Act specifies that states have the "primary responsibility for assuring air quality" within their borders by submitting implementation plans to achieve and maintain national ambient air quality standards.21
Administrator Pruitt has been clear that he believes the EPA has overstepped its proper role. In litigation regarding the Clean Power Plan, then-Oklahoma Attorney General Pruitt argued that EPA ran afoul of the Constitution and the Clean Air Act by unlawfully coercing states to regulate the transmission, distribution, and consumption of energy "beyond the fence lines" of power plants, instead of regulating the plants' direct emissions.22 Early in his tenure, Administrator Pruitt advised that the Supreme Court's stay of the Clean Power Plan relieved states of any obligation to comply, and declared that "[t]he days of coercive federalism are over."23 Regulatory reform advances Administrator Pruitt's goal of returning authority to the states.24
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III. Overview of National Ambient Air Quality Standards, Nonattainment Area Designations, and State Implementation Plans
Ozone is one of six criteria pollutants regulated under the federal Clean Air Act.25 EPA promulgates primary and secondary National Ambient Air Quality Standards (NAAQS) for these pollutants to protect public health and welfare. The primary standards "shall be ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health."26 The Administrator must consider only factors related to health and not economic factors when setting the primary standard.27 EPA is required to review each NAAQS standard every five years,28 although the review is often delayed.29
States determine strategies for attaining the NAAQS and prepare State Implementation Plans (SIPs). Once approved by EPA, SIPs are federally enforceable. The Clean Air Act establishes requirements and deadlines for several types of ozone SIPs in Sections 110, 172 and 182.
Section 110 requires every state to develop and submit an "infrastructure" SIP within three years after EPA promulgates or revises a NAAQS for any criteria pollutant, whether or not the state contains a nonattainment area.30 Infrastructure SIPs contain emission limitations and control measures, air quality monitoring procedures, enforcement mechanisms, a minor source permitting program, and certain other elements.31 Infrastructure SIPs also contain "good neighbor" provisions...
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