Obama Second Term Energy & Environmental Policies

Air

EPA’s rules requiring controls on greenhouse gases in air permits for the construction and operation of major sources were upheld last summer by the D.C. Circuit Court of Appeals. In the next few months, EPA is expected to finalize New Source Performance Standards limiting greenhouse gas emissions from power plants, and to propose similar regulations for refineries.

EPA has stayed enforcement of the Boiler MACT rule, which has widespread application to America’s industrial facilities, since its adoption in March, 2011, while the Agency reconsidered certain portions of the rule. EPA reportedly is preparing to finalize its changes to the Boiler MACT rule, setting up renewed court challenges to that regulation.

Also still pending in the courts are challenges to EPA’s mercury and air toxics standard (MATS) for utilities, and the Cross-State Air Pollution Rule.

EPA also is expected to take final action soon on a national ambient air quality standard for very fine particulates (soot), and will continue deliberations on a more stringent ambient standard for ozone. President Obama delayed action on the ozone standard in the fall of 2011, pushing it out until at least 2013 – which now is upon us.

Energy Policy

President Obama adopted an “all of the above” energy strategy.

Will Congress decide to extend the wind energy production tax credit, which is set to expire at the end of 2012. President Obama’s first term saw approval of 34 wind, solar and geothermal projects on federal lands, with combined production capacity over 13,750 megawatts.

Hydraulic fracturing (“fracking”) and horizontal drilling. The coming year will see debate over the Administration’s newly issued proposal to regulate fracking on federal lands, and EPA’s ongoing study of potential drinking water resource impacts is slated to be completed in 2014.

The Obama Administration will be asked to decide next year whether to authorize a re-routed Keystone XL pipeline from Canada to Texas, bring oil from Canada’s tar sands to the Gulf of Mexico.

Proposed energy export projects further exemplify the changed energy landscape. Multiple proposals for coal export terminals are working their way through state agencies. Similarly, over a dozen liquefied natural gas export facilities have been proposed. The Department of Energy is poised to issue a report on the economic impacts of proposed LNG exports that will likely inform the development of official policy on that issue.

Water Quality, Wetlands, and Water Resources

EPA will continue to grapple with several threshold issues regarding the reach and applicability of the Clean Water Act (“CWA”), particularly in the context of wetlands. The Supreme Court issued a decision in 2006, Rapanos v. United States,but the  failure of that decision to set out clear standards, has created confusion that the courts, EPA, and the Army Corps of Engineers (“Corps”) have yet to clarify. The Obama Administration will likely now revisit the issue.

Currently pending before the Supreme Court is the question of whether stormwater permits are required for discharges from ditches and culverts on logging roads. While the case has been pending, EPA has proposed revisions to its regulations to specify which, if any, logging road activity requires stormwater permits. On November 9, EPA sent a final rule to the White House for review. The Supreme Court currently is slated to hear oral argument on December 3, which will likely precede release of EPA’s new rule.

EPA also has stated that it intends to propose a rule to strengthen the national stormwater program by June 10, 2013 and complete final action by December 10, 2014. These new rules are likely to affect industrial facilities and municipalities.

Natural Resources

In 2009, the Obama Administration established an Interagency Ocean Policy Task Force, led by the White House Council on Environmental Quality, to develop recommendations for a national policy that ensures protection, maintenance, and restoration of oceans, coasts, and the Great Lakes, as well as a framework for coastal and marine spatial planning. The Administration, acting through the National Ocean Council, is expected to publish a final implementation plan in early 2013. The resulting policy changes – if fully implemented – are likely to affect many industries: fishing, aquaculture, agriculture, offshore energy development, and others.

The next few years also are likely to see a material increase in the number of species listed as “threatened” or “endangered” under the Endangered Species Act (“ESA”).

Hazardous Waste and Chemicals Regulation

The Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA,” or the federal Superfund statute), which went into effect in the 1980's, is overdue for a comprehensive overhaul. Not likely.

EPA does seem likely to move forward with its proposal to regulate coal combustion residuals (“CCRs,” commonly known as coal ash) from electrical power generation under the Resource Conservation and Recovery Act (“RCRA”).

The Administration’s second term could be the reform of federal chemicals regulation under the Toxic Substances Control Act (“TSCA”). TSCA has been on the books now, without substantial amendment, for over 35 years. (Marten Law, 11/14/2012)