RESISTING DEREGULATION: HOW PROGRESSIVE STATES CAN LIMIT THE IMPACT OF EPA'S DEREGULATORY EFFORTS.

• Author: Johnston, Craig N.

1. INTRODUCTION 875 II. ANTIBACKSLIDING 880 III. COOPERATIVE FEDERALISM: THE BASICS 883 IV. WILL THE OLD LIMITS REMAIN FEDERALLY ENFORCEABLE? 885 V. CONCLUSION 890 I. INTRODUCTION

   These are dark times for those who care about our environment. In the pollution-control context, we have long been accustomed to the idea that, in general, our environmental laws get stricter over time; or at the very worst, that they would at least stay the same. In the Clean Water Act (1) (CWA) context, for example, since 1972, the statute's first-stated goal has been "that the discharge of pollutants into the navigable waters be eliminated by 1985." (2) In that vein, it is hardly surprising that the United States Court of Appeals for the D.C. Circuit intoned, in 1988, that "non-experts such as ourselves may picture water pollution controls becoming steadily more stringent over time." (3) But alas, as the court noted in concluding that sentence--and as will be seen below--"this is apparently not the case." (4)

   It goes without saying, of course, that Congress could relax, or perhaps even eliminate, our federal environmental standards if it so chose. But this Essay deals with a different and more imminent threat: that of a United States Environmental Protection Agency (EPA) that, in the current Administration, seems hell-bent on implementing an aggressive deregulatory agenda At the 2018 Ronald Reagan Dinner, the Conservative Political Action Conference's annual showcase, then-Administrator Scott Pruitt referred to EPA as an agency that has been "weaponized against certain sectors of the economy." (5) In response to that perception, in his relatively short time in office, Administrator Pruitt demonstrated his inclination to disarm the agency in significant ways. In July of 2018, the New York Times documented seventy-six environmental regulations that the Trump Administration had overturned or was in the process of rolling back. (6) EPA was either solely or jointly responsible for at least twenty-three of them. (7) In the following month, EPA issued a "Notice of Proposed Rulemaking," heralding its intent to water down fuel economy standards for new cars and light duty trucks. (8) By all accounts, Acting Administrator Wheeler will pursue a similar agenda. (9)

   Thus far, the Trump-era EPA seems to have concentrated its efforts on with Irawing or narrowing initiatives that EPA advanced during the last two years of the Obama Administration. These include, for example, the "Clean Power Plan," addressing climate change under the Clean Air Act (10) (CAA), (11) EPA and the United States Army Corps of Engineers' joint "Clean Water Rule" (sometimes known as the "WOTUS Rule," for "waters of the United States"), which redefined the scope of the "navigable waters" protected under the CWA, (12) and EPA's recent effluent limitation guidelines for toxic discharges from steam electric power plants. (13) This focus on recently-promulgated regulations makes sense, of course, given that in these contexts regulated entities faced significant capital costs, as opposed to just ongoing implementation measures. (14)

   More recently, however, EPA has begun to take action on initiatives designed to reduce compliance costs, even in situations in which regulated entities have already invested in the necessary equipment to meet the pre-existing standards. In January of 2018, for example, EPA withdrew the "once in, always in" policy under the CAA's National Emission Standards for Hazardous Air Pollutants (NESHAPs) program. (15) Under EPA's new interpretation, major emitters of toxic pollutants (16) will now be able to use the very equipment they were required to install under that program--referred to as the "maximum achievable control technology" (MACT) (17)--to avoid the very standards the equipment was designed to achieve and--if a given source has been complying--has been achieving. In effect, they will be able to use this equipment at less than full capacity, so long as their emissions stay below the threshold levels that required them to install that equipment in the first place.

   It remains to be seen exactly how aggressive the Trump EPA will be in trying to undermine longstanding pollution-control requirements. Sadly, as we will be see below, the major pollution-control regulatory statutes--by which I mean the CAA, the CWA, and the Resource Conservation and Recovery Act (RCRA) (18)--do not have strict and comprehensive prohibitions on what is referred to as "backsliding"--that is, the relaxation of existing regulatory requirements--even in situations in which regulated entities are having no trouble meeting the preexisting standards. (19) Instead, the relevant "antibacksliding" provisions are limited in either context or scope. (20) Given this limited applicability and the deference to which EPA is due on both legal and scientific matters, (21) there is probably much that EPA can do, if it proceeds carefully, to provide what the current Administration may perceive to be "regulatory reform." (22)

   This Essay will begin with a brief discussion of how antibacksliding requirements may limit EPA's ability to relax regulatory requirements under both the CWA and the CAA. (23) Next, I will provide a very basic overview of the most pertinent principles of "cooperative federalism," as they apply in the pollution-control context. And that accomplished, I will then move to the major point of this piece: how states can blunt the force of any impending deregulatory efforts by maintaining their existing programs, if they so choose. In this regard, I will argue that in most contexts the states not only will be able to preserve their favored regulatory requirements, but that--if they do so--the relevant requirements will remain enforceable as a matter of federal law. As a practical matter, this would typically be through citizen suits, as, at least during the Trump Administration, EPA is probably quite unlikely to enforce state standards that are stricter than required as a matter of federal law.

   Of course, some states no doubt will be eager to relax their standards accordingly. (24) Other states, however, may resist any impending deregulatory thrust. It is noteworthy, for example, that New York has been leading a coalition of ten states in challenging the Trump Administration's new rule seeking to put the Obama Administration's 2015 WOTUS rule on ice until 2020. (25) Similarly, Massachusetts led a coalition of twelve states in successfully challenging EPA's refusal to even make a finding whether greenhouse gases posed an "endangerment" within the meaning of [section] 202 of the CAA. (26)

   The key operative principle of this Essay is that, as will be discussed further below, under the "cooperative federalism" framework embodied in most of our pollution control laws, the states are free in most contexts to establish or maintain standards that are either stricter or broader in scope than the relevant federal requirements. As such, those states that do not embrace the Trump Administration's deregulatory agenda can effectively stymie that agenda within their borders. If the ten states that challenged the stay of the WOTUS rule were to band together to even passively resist any deregulatory efforts--by simply refusing to make any corresponding changes--they will be able to limit the damage in states that bear a disproportionate number of both our citizenry and our economic activity. (27) Moreover, this form of resistance may serve to discourage EPA from pursuing these relaxations, if--as some theorize--regulated entities may sometimes value uniformity more than laxity. (28) This latter prospect may especially be so, of course, if regulated entities perceive that the relevant relaxations may be short-lived.

2. ANTIBACKSLIDING

   As mentioned above, many states likely will be inclined to relax their pollution standards to track whatever deregulatory measures EPA may implement. Sadly, for the most part they will be able to do so. Contrary to the D.C. Circuit's preliminary expectation, (29) there is no flat ban in any of our major pollution control statutes precluding either EPA from relaxing any of its regulatory requirements or the states from following suit. (30)

   EPA first introduced the concept of antibacksliding in its regulations in 1979, when--in the CWA context--it precluded those issuing permits under the National Pollutant Discharge Ehmination System (NPDES) program from relaxing prior technology-based permit limits when renewing or reissuing permits, except in limited circumstances. (31) While these circumstances varied depending on whether the relevant conditions had been established through national rulemaking or through the permit issuer's exercise of its "best professional judgment," (32) for our purposes the most salient point is that, in the former context, one of the exceptions encompassed situations in which EPA had "revised, withdrawn, or modified that portion of the effluent limitations guidelines on which the permit term or condition was based." (33) This basic dynamic carries through to this day. While the current (re-numbered) iteration of that regulation generally precludes backsliding from permit conditions that were established through the application of national effluent limitation guidelines, (34) it still includes an exception incorporating the grounds for modification in what is now 40 C.F.R. [section] 122.62. (35) In turn, this provision encompasses situations in which "[t]he standards or regulations on which the permit was based have been changed by promulgation of amended standard or regulations." (36)

   Thus, if EPA were now to weaken any of its nationally-applicable effluent limitation guidelines, the states would be free to follow suit. This would involve a two-step process. First, the given state would have to submit its proposed program revision to EPA, incorporating the new, relaxed requirement as a matter of state law. (37) And second, it...