What to Expect in Environmental Regulation for 2018

January 31, 2018

Deregulation was one of the primary promises of President Trump’s campaign, and the administration has been keeping that promise, particularly as it relates to environmental regulations. Rule rollbacks are on a fast track while the implementation of other rules has been stayed.

In some cases, such as the reinstatement of pre-2015 rules relating to wetland jurisdiction under the Clean Water Act, no public comment opportunity was provided. Other rules, such as the New Source Performance Standards for methane emissions for oil and gas operations, were stayed without notice and opportunity to comment under the rationale of avoiding uncertainty and preserving the status quo as the U.S. Environmental Protection Agency (EPA) considered revisions. This particular strategy was struck down in July 2017 by the U.S. Court of Appeals for the D.C. Circuit in Clean Air Council v. EPA. For regulations promulgated under the Clean Water Act, the administration proposed to stay existing regulations during reconsideration based on section 705 of the Administrative Process Act, which allows an agency to stay rules pending judicial review “when justice so requires.” 

Expect 2018 to continue the trend of federal deregulation and judicial challenges to such deregulation. Meanwhile, certain states, like California, will continue implementing a comprehensive environmental regulatory agenda while others will follow the lead of the federal government. The following are some of the more material areas to track in 2018.

Infrastructure and Permitting

A portion of the draft infrastructure plan prepared by the Trump administration contains specific provisions designed to remove perceived regulatory construction barriers to infrastructure projects. 

Among the proposed changes are legislative rewrites to the National Environmental Policy Act (NEPA) to do the following:

  • Require an Environmental Impact Statement (EIS) to be completed within two years.  Currently an EIS takes three to six years, and often longer.
  • Require that agencies analyze only those alternatives that are technically and economically feasible, as opposed to the current, broader standard that requires review of even infeasible alternatives or those outside the reviewing agency’s authority.
  • Increase the use of categorical exclusions under NEPA by allowing an agency to use a categorical exclusion if it has been adopted by any other agency. Currently, each agency must adopt its own specific categorical exclusion through the rulemaking process.
  • Remove the requirement that EPA review every EIS prepared by any agency.

The plan also proposes striking two provisions of the Clean Water Act that can give EPA a high level of authority over wetlands permits:

  • EPA’s authority to veto any § 404 wetlands permit issued by the U.S. Army Corps of Engineers
  • EPA’s ability to make final jurisdictional determinations as to what constitutes a regulated wetland

Over the years, there have been several proposals by administrations of both parties to streamline NEPA. The current plan is the first to make real changes to the law and regulations instead of merely recommending guidance and making task force recommendations. If these provisions do become law, then the NEPA process, while still involved, would become shorter.

The Clean Water Act changes are not as significant because they are used rarely, typically only for high-profile infrastructure projects perceived to have high environmental impacts.

Clean Power Plan

The Clean Power Plan (CPP), a signature Obama rule to address climate change through the reduction of carbon dioxide (CO2) emissions from existing fossil-fired (coal and natural gas) energy generating units (EGUs), is likely to be effectively repealed by replacement rules that take a very different approach. Through the CPP, the Obama administration proposed to reduce emissions of CO2 to 32 percent below their 2005 levels by 2030. The CPP gave each state the option to meet its goals through an emission standards plan or a state measures plan, as well as emissions trading among sources and states.

The Trump administration, and many in Congress, have long argued that the CPP is inconsistent with the requirements of the Clean Air Act. On Feb. 7, 2017, the U.S. Supreme Court issued an order staying the effectiveness of the rule, pending further proceedings in the U.S. Circuit Court of Appeals for the D.C. Circuit, which previously declined to issue a stay. The case, brought by a coalition of 27 states and a number of industry groups, cast doubt on the long-term future of the CPP, since it increased the likelihood that the Supreme Court would overturn the CPP, particularly given the Court’s earlier adverse rulings against EPA’s efforts to regulate mercury and other toxic air pollutants.

Reflecting the clearly stated intentions of the new Trump administration, EPA published a rule to repeal the CPP in October 2017, followed by an advance notice of rulemaking in December 2017 announcing that EPA would ask for public input on a rule to replace the CPP. The public comment period for input on a replacement rule closed in mid-January 2018. 

The proposed replacement rule focuses on limiting pollution reduction measures to those that can be applied at the source, rather than promoting shifts from coal to other energy and renewable sources. EPA estimates that this change could save up to $33 million in avoided compliance costs in 2030.

Some argue that replacing the CPP may not be the best way to reduce regulatory pressure on power plants and that there is an important interconnection between the New Source Review (NSR) program and the Clean Air Act and any replacement CPP. As plants are modified to run more efficiently and reduce CO2 emissions, those plants become more economical to operate. As efficiency increases, the pressure to operate the facility more also increases. This, in turn, increases emissions and can trigger NSR, a costly and time-consuming permitting process that most companies want to avoid. EPA seems sympathetic to this industry concern and is looking for ways to mesh NSR and the replacement CPP. Environmentalists remain concerned that pairing a CPP replacement with updated NSR would result in increased emissions. The industry can expect to see an EPA proposal on this topic in 2018.

Critics of the CPP also hope EPA will revisit its finding that greenhouse gases endanger public health and welfare. Revising the endangerment finding is much more complicated than replacing the CPP, however, and time will tell when and if the Trump administration will tackle this issue.

Waters of the United States (WOTUS) Rule

The WOTUS rule will continue to evolve in 2018. Developments to watch include: (i) the EPA and U.S. Army Corps of Engineers’ reaction to the Supreme Court’s Jan. 22, 2018, ruling in National Association of Manufactures v. Department of Defense; and (ii) the anticipated release of a replacement WOTUS Rule.

The WOTUS rule was stayed by two courts: the North Dakota District Court, which stayed the rule in all states in the 8th Circuit; and the U.S. Court of Appeals for the 6th Circuit, which stayed the rule nationwide. The Supreme Court recently ruled that U.S. District Courts, not Circuit Courts, have jurisdiction over appeals on the WOTUS rule.

The nationwide stay will dissolve in mid-February and the WOTUS rule will be effective in all of the states, other than the 8th Circuit states where the North Dakota district court stay is in effect. This is complicated by the fact that the Trump administration is undertaking a rulemaking to replace the WOTUS rule with a new rule, while the current WOTUS rule has not yet been rescinded.

In November, EPA proposed postponing the effective date of the rule from Aug. 28, 2015, until 2020. In the public notice accompanying the proposal, EPA said this was an interim measure while the “rescind and replace” process is underway. EPA is expected to finalize the postponement of the WOTUS rule effective date before the official lifting of the nationwide stay occurs in mid-February.

The administration recently indicated that a new WOTUS rule would be released in March, though other agency officials have indicated that it is unlikely a rule will be released before the end of the year. The rule is expected to adhere more closely to Justice Scalia’s more restrictive “relatively permanent waters” definition, than to Justice Kennedy’s broader “significant nexus to navigable waters” test.

So, although the WOTUS rule, as initially released, could theoretically become enforceable in most of the United States by the end of February, this is not a likely outcome. Instead, expect more litigation related to the legality of the effective date delay and, eventually, to the new WOTUS rule, once it is released.

Lead-in-Water Rule

The long-awaited rewrite of EPA’s lead-in-water rule, delayed since 2015, is expected to be released in August 2018. The regulations will govern how much lead in drinking water is acceptable and what actions must be taken if acceptable levels are exceeded.

Early predictions, based on an EPA white paper released by the Obama administration, were that the rule would require water providers to replace all lead pipes and that health-based standards, rather than the current feasibility-based standard, would drastically lower the permissible concentrations of lead in water. EPA is unlikely to follow through with mandatory lead line replacement and drastically lower lead standards because of the Trump administration executive order that requires increased costs of new regulations to be offset by the repeal of existing regulations. Lead line replacement likely would cost water utilities tens of billions of dollars, and finding a way to offset those costs would be difficult. Utility directors are closely watching to see what the proposed regulation will say and what it will cost to comply.

Water Fights

For decades, Florida and Georgia have fought over water resources in the Apalachicola-Chattahoochee-Flint River Basin. As Atlanta and agricultural operations in southwestern Georgia have grown, the need for water to serve those areas has reduced downstream flow into the Apalachicola Bay in Florida. This resulted in a dramatic decline in the oyster fishery in the Apalachicola Bay. 

During oral argument at the Supreme Court, several justices seemed to support Florida’s arguments for more equitable sharing of the water resource. The Army Corps of Engineers operates dams along the Chattahoochee River but is not a party to the litigation, and that may impact the Supreme Court’s decision in the case. In prior water allocation cases, the court has declined to force one party to take an action that would not provide a desired benefit for the other party. In this case, the Corps controls the release of water, so it is unclear whether a court mandate to Georgia to reduce its use of water would result in a proportional increase in benefit to Florida. 

The water war between New Mexico and Texas may be even longer-running. The Elephant Butte Dam built in 1916 along the Rio Grande River allowed large-scale agricultural operations in southern New Mexico. An agreement between New Mexico and Texas gave farmers in the southern part of New Mexico a yearly allocation of water depending on Rio Grande flows. In times of drought, these farmers supplement their water needs with groundwater. Over the years, groundwater levels in the regional aquifer have declined precipitously, affecting Rio Grande flows. In 2008, New Mexico and Texas irrigation districts entered into an agreement regarding water sharing. Three years later, New Mexico sued the irrigation districts, arguing that the agreement gave up too much of New Mexico’s water. Texas countersued. If the Supreme Court sides with Texas, New Mexico could face substantial damages and the need to find another source of water for Texas.

A decision in both cases is expected in the spring.

Contaminants of Emerging Concern and Unregulated Pollutants

Improvements in analytical methodology have allowed low-level detection of an ever-increasing number of pharmaceuticals, personal care products, hormones, pathogens and other contaminants of emerging concern (CECs). These programs are conducted primarily for the protection of drinking water quality under the federal Safe Drinking Water Act (SDWA), looking both at the sources of the drinking water and quality of the treated water. EPA, along with the U.S. Geological Survey, conducted comprehensive testing programs to determine the presence of certain categories of chemicals and other contaminants in the waters. 

Treatment plants chosen for this study receive waters impacted by a variety of waste sources, including municipal waste, septic systems and agricultural production. Samples were analyzed for 247 chemical and microbiological pollutants, including a wide range of chemicals used in homes, businesses and industries. The samples were analyzed by 15 methods for chemicals, microorganisms and estrogen bioactivity. Analyte selection focused on pharmaceuticals, but also included other classes of analytes, such as specific manmade chemicals, hormones, fungi, bacteria, protozoa and viruses.

The contaminants examined in the study are not among those regulated by EPA for drinking water, and little is known about their prevalence. However, in an attempt to learn more about these unregulated pollutants, in 1996, Congress amended SDWA to provide for monitoring of no more than 30 contaminants every five years. In response, EPA promulgated the Unregulated Contaminant Monitoring Rules (UCMR), which dictated the collection of data for contaminants that are suspected to be present in drinking water but do not have health-based standards set under the SDWA. The monitoring includes large systems and a representative sample of small public water systems serving less than or equal to 10,000 people, with the results stored in EPA’s National Contaminant Occurrence Database. 

Monitoring under the UCMR occurs in cycles, with testing for different substances in each cycle.  EPA’s selection of contaminants for a particular UCMR cycle is largely based on a review of the Contaminant Candidate List (CCL). Three testing cycles have been completed under UCMR. The fourth Unregulated Contaminant Monitoring Rule (UCMR 4) was published in the Federal Register on Dec. 20, 2016. 81 Fed. Reg. 92666. UCMR 4 requires monitoring for 30 chemical contaminants between 2018 and 2020 using analytical methods developed by EPA and consensus organizations. According to EPA, monitoring under UCMR will provide a basis for future regulatory actions to protect public health.

Toxic Substances Control Act

The Toxic Substances Control Act (TSCA), as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, requires EPA to designate chemical substances on the TSCA Chemical Substance Inventory as either “active” (currently manufactured or processed) or “inactive” (no longer manufactured or processed) in U.S. commerce. On Aug. 11, 2017, EPA issued a final rule on the TSCA Inventory Notification (Active/Inactive) Requirements in the Federal Register. 82 Fed. Reg. 37520. Under the old TSCA, many claimed, the inventory overstated the number of chemicals in active commerce. The final rule establishes a retrospective electronic notification of chemical substances listed on the inventory that were manufactured (including imported) for non-exempt commercial purposes during the 10-year time period ending June 21, 2016. The rule also includes forward-looking reporting requirements that apply to substances listed as inactive on the inventory that are to be reintroduced into U.S. commerce for non-exempt purposes. 

Chemical manufacturers and importers must report on active substances by Feb. 7, 2018. EPA has indicated that there will be no extension of this deadline. EPA will issue an interim list of active substances following the Feb. 7, 2018, deadline. Processors can use that list as a basis for their active notification submissions that are due Oct. 5, 2018. The final rule requires electronic reporting through EPA’s Central Data Exchange (CDX) system.

Manufacturing or processing of a chemical listed on the inventory solely for an exempt commercial purpose is not subject to reporting requirements. Where an “equivalent notice” that a chemical substance was manufactured during the look-back period has been provided to EPA, notification under the rule is not required. Such prior notice may have been received as part of the interim list of active substances, chemical substances for which TSCA registration by Notice of Commencement occurred after June 21, 2006, but before June 21, 2016, and those for which notification is made by another manufacturer.

There are two versions of forms to be filed. Facilities reporting retrospective chemical activity should use the Notice of Activity Form A, while the Notice of Activity Form B is to be used by those wishing to “reintroduce into … commerce” an inactive substance. Co-manufacturers and co-processors should determine which entity will comply with the rule, but both entities will be liable if a notification required under the rule is not submitted.

Trichloroethylene (TCE)

The industrial solvent TCE has long been targeted by EPA, which found that exposure to TCE can cause cancer, birth defects and other health problems. At the end of the Obama administration, EPA issued two proposed rules under TSCA Section 6 that would (i) prohibit the manufacture (including import), processing, and distribution in commerce of TCE for use in aerosol degreasing, spot cleaning in dry cleaning facilities, and vapor degreasing; (ii) prohibit the commercial use of TCE for aerosol degreasing, spot cleaning in dry cleaning facilities, and in vapor degreasing;(iii) require manufacturers (including importers), processors, and distributors, except for retailers of TCE for any use, to provide downstream notification of these prohibitions throughout the supply chain; and (iv) require limited recordkeeping. 81 Fed. Reg. 91592 (Dec. 16, 2016) and 82 Fed. Reg. 7432 (Jan. 19, 2017). Comment periods on the rules were extended and closed in mid-March and mid-April of 2017, respectively. EPA has indicated that it plans to issue one final rule addressing the TCE uses in both proposed rules, but it remains unclear when such final rule may be published and become effective, and whether it will go as far as proposed by the Obama administration. 

Coal Combustion Residuals (CCR)

The federal CCR rule — 80 Fed. Reg. 21, 302 (Apr. 17, 2015) (40 C.F.R. pts. 257, 261) — became effective more than two years ago, on Oct. 19, 2015, but uncertainty still surrounds it. 

In September 2017, EPA granted two petitions by the utility industry to reconsider 11 substantive provisions of the rule. EPA granted these petitions by utilizing the statutory authority granted in the Water Infrastructure Improvements for the Nation (WIIN) Act. EPA ultimately decided to reconsider 16 separate provisions in a process that will last through the end of 2019. Then, any proposed revisions to the CCR rule will go through the standard notice and comment period. 

The WIIN Act also authorized states to create their own permitting programs for CCR disposal.  To encourage states to adopt these programs, EPA issued guidance on the process and procedures that EPA will use to review and make determinations regarding state CCR permit programs. While Kansas and Georgia are among the first states to adopt their own CCR permit program, other states are likely to follow.

Separate from the CCR permitting programs are the solid waste management plans (SWMPs) that outline how a state will plan and manage its solid waste. Currently, most states have submitted SWMPs that have been approved by EPA. EPA recommends that states take advantage of this process, already in the regulations, by revising their SWMPs to address the issuance of the CCR rule and to submit revisions of these plans to EPA for approval.

Approval of a SWMP and a state CCR permit program are fundamentally different. Approval of a SWMP allows a state to grant facilities extra time regarding compliance schedules to meet regulatory requirements; however, the federal CCR rule still applies to the facilities. Approval of a state CCR permit program means that, once a permit is issued, the requirements of that permit operate “in lieu of” the federal rule. Three states have updated their SWMPs to incorporate how they intend to regulate CCR landfills and surface impoundments. 

Meanwhile, litigation over the CCR rule is ongoing on a parallel track. In 2015, both environmental and industry groups filed petitions in the U.S. Court of Appeals for the D.C. Circuit challenging the rule. In November, however, the EPA and industry groups requested to postpone adjudication until EPA completes its reconsideration process. 

Meanwhile, ongoing citizen suit litigation alleges violations of the CCR rule. On Sept. 20, 2017, environmental groups sent notices of intent to sue letters alleging violation of the CCR rule at more than a dozen sites in Indiana, Kentucky and North Carolina. A lawsuit was filed in December 2017 in the Middle District of North Carolina claiming similar violations and requesting removal of the coal ash from the ash basins. North Carolina enacted a Coal Ash Management Act in 2014, which has been amended to, among other things, reflect the adoption of the CCR rule.

Occupational Safety and Health Administration (OSHA)

Over the past year, OSHA has operated without an assistant secretary at its helm. That may soon change. On Oct. 27, President Trump nominated Scott Mugno to serve as the head of OSHA. Mugno is the vice president for safety, sustainability and vehicle maintenance at FedEx Ground and awaits final confirmation by the U.S. Senate. Under his leadership, OSHA is anticipated to focus less on enforcement and more on cooperative partnerships with businesses, such as the Voluntary Protection Program.

As for its policy agenda, OSHA will continue to dismantle certain Obama-era regulations. The fall 2017 regulatory plan that sets forth OSHA’s regulatory priorities has been scaled back, compared to earlier years. Moreover, the few regulatory priorities listed involve amending current regulations — including reducing the number of injury and illness records that must be electronically submitted to OSHA.   

Enforcement and Citizen Suits

Although the Trump administration has not yet published its fiscal year 2017 data for civil and criminal environmental enforcement, the publicly available numbers indicate Trump’s EPA and DOJ will fall far behind the previous two administrations in enforcement. 

According to news media reports, during the first nine months of Secretary Pruitt’s leadership, EPA initiated one-third fewer enforcement cases than under President Obama and one-quarter fewer than those under President Bush over the same time period. The amount of civil penalties sought — about $50.4 million — is only 39 percent of penalties sought by the Obama administration and 70 percent of those sought by the Bush administration over the same period. The value of injunctive relief sought has also dropped sharply. These trends are the result of a concerted effort by Secretary Pruitt to focus on EPA’s direct implementation responsibilities and the most significant violations, while leaving the states as primary implementers and enforcers.     

While rollback of EPA regulation and enforcement may have resulted in a downturn of government-sponsored investigations and enforcement actions, concern about decreased government action has already resulted in increases in funding to environmental special interest groups. Charity Navigator reviewed the donations made from Jan. 20 to April 20, 2017, and compared them to the donations made during that period a year earlier. The comparison shows a 500 percent increase in donations to the Environmental Defense Fund in President Trump’s first 100 days. Other similar charities also saw increased donations compared to previous years. Because many federal environmental statutes contain provisions that allow environmental special interest groups to act as private attorneys general to enforce the law (“citizen suits”), we expect such increased funding will result in increased citizen suit litigation to potentially fill the void left by decreased federal enforcement. 

For example, manufacturers and landfill operators can expect an increase in citizen suits under the Resource Conservation and Recovery Act (RCRA) in 2018 and beyond, based on cases already seen. See Tennessee Riverkeeper Inc. v. 3M Company, 234 F.Supp.3d 1153 (N.D. Ala. Signed Feb. 10, 2017), alleging that manufacturer and landfill operators discharged hazardous and solid waste and failed to carry out adequate remedial measures, in violation of RCRA; and Sierra Club v. Chesapeake Operating LLC, et al., No. CIV-16-134-F (W.D. Okla. Signed April 4, 2017), alleging disposal of produced water from oil and gas extraction caused earthquakes that endanger the state of Oklahoma. 

Also in 2018, keep an eye on citizen suits brought under the Clean Water Act alleging discharges of pollutants into groundwater. Under the Clean Water Act, the discharge of a pollutant into “navigable waters” — i.e., “waters of the United States” — is generally prohibited. 33 U.S.C. § 1362(12), (7). When facing the question of whether such “waters of the United States” include groundwater, federal district courts have been split. 

In particular, “EPA has taken the position, and a number of courts have found, that the CWA regulates discharges of pollutants into groundwater that is directly hydrologically connected to surface water.” See Red River Coal Co. v. Sierra Club, 2018 WL 491668 (U.S. Dist. Ct., W.D. Va., Big Stone Gap Division) (signed Jan. 19, 2018); and Ohio Valley Envtl. Coal. V Pocahontas Land Corp., 2015 WL 2144905 (Signed May 8, 2015). Other courts have dismissed such suits, holding that a discharge that does not leak pollutants directly into navigable waters, but rather into soil and groundwater that allegedly “may” reach navigable waters, are not a discharge of pollutants into “navigable waters,” pursuant to the Clean Water Act.  See Upstate Forever v. Kinder Morgan Energy Partners, L.P., 252 F.Supp.3d 488, 496 (April 20, 2017), noting that “the two circuit courts to address this issue have concluded that navigable waters does not include groundwater that is hydrologically connected to surface waters” (citing Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir. 1994); Rice v. Harken Expl. Co., 250 F.3d 264 (5th Cir. 2001)).  Future updates will provide the status of cases pending in several federal circuit courts concerning the applicability of Section 402 of the Clean Water Act to discharges to groundwater.

In 2018, expect to see more citizen suits alleging that discharges are directly hydrologically connected to the surface, potentially bringing groundwater under the scope of the Clean Water Act. 

Regulatory Accountability Act and the Chevron Doctrine

In the seminal case of Chevron, Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), the Supreme Court directed courts to defer to agency interpretations of the law on subjects within the agency’s expertise, so long as the agency’s interpretation is “reasonable.” Republicans in Congress have pushed to overturn what is now termed as Chevron deference in recent years, including House Bill 4768, which passed the House in the summer of 2016. Both H.B. 4768 and companion bill S. 2724 stalled in the Senate. 

On the first day of the new Congress in 2017, House Republicans once again introduced a bill to eliminate judicial deference to agency decisions that are challenged. House Bill 5, or the Regulatory Accountability Act of 2017, includes provisions that would not only eliminate deference, but also require agencies to “opt for the lowest-cost options when considering regulations” and that judicial review be completed before any rule having an impact of more than $1 billion comes into effect. The bill was passed by the House but again stalled in the Senate, along with companion Senate Bill 951.

Longstanding conservative members of the Supreme Court have expressed opposition to the Chevron decision. And now, with the appointment of conservative Justice Gorsuch, Chevron deference is even more likely to be limited by the court. Writing while a circuit judge at the U.S. Court of Appeals for the 10th Circuit, Gorsuch called Chevron the “elephant in the room,” stating that it “permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” On Nov. 28, 2017, the case of Digital Realty Trust, Inc. v. Somers was argued before the Supreme Court. This case presents significant questions regarding the amount of deference due the SEC’s interpretation of the anti-retaliation protections of Dodd-Frank. The court’s upcoming opinion in this matter may signal the direction of the court on this issue.

New Forest and Rural Land Phase I Standard

On Jan. 3, 2017, ASTM International released an updated version of its Phase I environmental site assessment standard for assessing rural and forestland properties for potential releases of hazardous substances and petroleum products. The Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property E 2247-16 (2016 rural property standard) is an update to a version released in 2008 with the number E2247-08. 

Effective March 14, 2018, the 2016 rural property standard replaces the 2008 standard for use in meeting AAI under EPA’s regulation. (Purchasers of real property who intend to use the rural property standard for a closing before March 14, 2018, however, may still use the 2008 standard.) This change is of particular importance to solar and wind projects proposed for large tracts of rural and farmland property, as it allows for less rigorous onsite assessment than the site visit requirements used for assessing commercial and industrial properties, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, E 1527-13 standard. For more information on the 2016 rural property standard, see McGuireWoods’ Jan. 17 legal alert, “EPA Approves Use of Updated ASTM Phase I Standard for Forestland, Rural Property.”


California during 2017 continued marching to the beat of its own drum across a range of environmental issues. While much work on climate change regulation at the federal level has been paused or rolled back, California defended the legality of its cap-and-trade program in court and extended the program through 2030 in the legislature. California’s powerful Air Resources Board (ARB) late in the year issued a revised plan to meet the state’s newest greenhouse gas emissions target of 40 percent below 1990 levels by 2030, including the following key measures: 

  • Generating half the state’s electricity from renewable resources by 2030
  • Making California’s Low Carbon Fuel Standard more powerful
  • Accelerating building and appliance efficiency standards
  • Enforcing rules concerning methane and other powerful greenhouse gases
  • Making better use of natural and working lands to enhance their use as carbon sinks
  • Decreasing public and private transportation emissions

On the issue of transportation and motor vehicle emissions, California relies on a waiver issued by the EPA administrator to allow it to regulate more stringently than the federal government. The waiver now in place covers vehicle model years through 2025. The ARB is currently in closed negotiations with EPA on whether to allow the state to regulate model years 2026 and future years. President Trump’s EPA, along with a large majority of automobile manufacturers, favor one national automobile emissions standard. As the federal government has leverage, in that it can threaten not to grant a future waiver, negotiations may also involve softening California and federal rules for model years 2025 and earlier.   

In 2018, large interstate trucking companies will face continued enforcement of California’s Truck and Bus Rule and Drayage Rule. State energy proceedings will continue to tangle with implementing energy efficiency measures in commercial buildings and increasing renewable energy and energy storage on the state’s electricity grid, with a new focus on community choice energy and vehicle-grid integration. Water supply issues in California will also dominate many of the discussions between federal and state officials.

Under California’s infamous Proposition 65, companies will need to comply with new warnings taking effect in August 2018. Private plaintiffs enforcing Prop 65 will likely continue to focus on acrylamide, BPA, lead and phthalates in a variety of consumer products. Finally, the California Department of Toxic Substances Control just closed the public comment period on its proposal to list paint and varnish strippers containing methylene chloride as a “priority product” as part of its Safer Consumer Products initiative.

For more information on these topics, please call any of the authors.