Welcome to the 15 th Annual VEHS Conference! September 28 th & 29 th Westin Hotel and Conference Center 1
Welcome VMA Members & Guests! Chuck Stiff, EHSS Chairman, Altria (Gold Sponsor) 2
Virginia Occupational Safety & Health (VOSH) Regulatory Workshop Chuck Stiff, VMA EHSS Chairman 3
Virginia Department of Labor and Industry (VDOLI) Panel: Ray Davenport , Commissioner Bill Burge , Asst. Commissioner Jay Withrow , Director of Legal Services, VPP, and BLS Ron Graham , Director, Health Compliance Jennifer Rose , Director, Safety Compliance Crystal Main , VPP Administrative Lead 4
Virginia DEQ Regulatory Briefing Tom Knauer, Thomas E. Knauer, PLLC & Brooks Smith, Troutman Sanders (Break Sponsor) 5
Virginia Department of Environmental Quality (VDEQ) Panel: David Paylor , Director James Golden , Director of Operations Jutta Schneider , Water Planning Division Director Melanie Davenport , Water Permitting Division Director Tom Ballou , Director of Air Data Analysis & Planning Angela Conroy , Air Quality Planner 6
Thank You To Our Break Sponsors! 7
Environmental Regulation Under Trump: A Report Card and What to Expect Introduction: Clay Rohrer, Airline Hydraulics Corp (Silver Sponsor) Presenter: Channing Martin, Williams Mullen, (Silver Sponsor) 8
ENVIRONMENTAL REGULATION UNDER TRUMP: A REPORT CARD AND WHAT TO EXPECT Channing J. Martin Williams Mullen 200 South 10 th Street Richmond, VA 23219 cmartin@williamsmullen.com (804) 420-6422 September 28, 2017
In Case you haven’t Noticed… > Regulation of the environment is not just about protecting the environment. > Politics. > Special interest group agendas. > Winning elections. > How did we get here? > Major environmental statutes were passed by Congress in ’70s, ’80s and early ‘90s. > Since then, the Executive Branch has driven the bus. 10
Continued…. > Party in power gets to decide what all of those things should say; as politics has gotten more divisive, so too have environmental regulations. > New language is “discovered” in statutes that allegedly provides authority for agenda-driven rules. > Lots of litigation follows. > Result? Regulated parties get whip-sawed continually, especially from one Administration to the next. > Look no further than the transition we are going through now. 11
How Effective Was Obama AT…. > Using rule-making, Executive Orders, agency policies and guidance, and other means (a phone and a pen! + Gina McCarthy) to implement his environmental agenda? > A+ 12
How About Trump at …. > Using rule-making, Executive Orders, agency policies and guidance, and other means (Scott Pruitt) to implement his environmental agenda? > It’s early, but… > A+ 13
What’s the Key to Trump Being Effective? > You don’t need Congress to get things done when your predecessor didn’t need Congress to get things done. > Just reverse what your predecessor did. 14
Trump’s Toolbox > Roll-back regulations using APA. > Issue Executive Orders. > Use Congressional Review Act. > Ability to propose the federal budget and control the size of federal agencies (“draining the swamp” at EPA). > Ability to appoint judges and change positions in litigation. 15
Why not just eliminate regs? > Rulemaking is hard. > The Administration can’t just rescind a regulation it doesn’t like. > A “long and winding road” that takes a lot of time. > Have to provide “substantial justification.” > Can’t be “arbitrary and capricious.” > NGOs will do all they can to slow things down and will then file suit. 16
Congressional Review Act > A/K/A: The “Midnight Regulation” Roll-back Act. > What are “Midnight Regulations”? “We’re running – not walking to the finish line of Obama’s presidency.” November 9, 2016 EPA Administration Gina McCarthy 17
continued… “As many as 98 final regulations under review at the White House as of November 15 could be implemented….” November 27, 2016 Politico 18
Obama’s Midnight Salvo 1. GHG standards for 2019-2017 Medium and Heavy- Duty Engines and Vehicles – (10/25/16). Trump elected 11/6/16. 2. DOI Venting and Flaring Rule (11/15/16). 3. Renewable Fuel Standard for 2017 and 2018 gasoline and diesel fuel (12/12/16). 4. Final Determination of Mid-Term Evaluation of GHG standards for 2022-2025 light duty vehicles (1/12/17). 19
Obama’s Midnight Salvo 5. Accidental Release Prevention Requirements under the Clean Air Act (1/13/17). 6. Stream Protection Rule (1/19/17). President Trump inaugurated 1/20/17. 20
Congressional Review Act > Enacted in 1996 under Clinton Administration. > Used only once before. > Hard to do! Both Houses of Congress must vote to disapprove and President must sign. > Congress must act within 60 legislative days after the regulation is transmitted by the agency to Congress. > If the resolution of disapproval is enacted, the regulation may not take effect and no substantially similar rule may ever be promulgated without new statutory authorization. 21
Congressional Review Act > CRA used to disapprove Stream Protection Rule (2/16/17) > Tried to disapprove venting and flaring rule, but vote failed in Senate. > Deadline for using CRA has passed. > What about the other Obama “midnight regulations”? > All are being “reconsidered” or already have proposed rules issued to reverse them. 22
Trump Executive orders 1/30/17 E.O. set the stage: 1. Prohibited publication of new regulations without Administration approval. 2. Any regulation published, but not yet effective, to be temporarily delayed. 3. Two existing regulations to eliminated for every new regulation proposed. 4. Total incremental costs can’t exceed zero. 5. Federal employee hiring freeze. 23
Reaction By NGOs? > Challenged by NRDC – February 8, 2017 (8 days later) 1. No statute authorizes agencies to withhold a needed regulation based solely on an increase in cost resulting from the regulation; and 2. Agencies may not be forced to repeal regulations already determined to be appropriate through the rulemaking process. 24
Trump Executive Orders > Gave greenlight to Keystone and Dakota Access pipelines (1/24/17). > Required agencies to expedite review of high priority infrastructure projects (1/24/17). > Required all agencies to form Regulatory Reform Task Groups and to make recommendations on modifying existing regulations (2/24/17). > Required review and revision of WOTUS Rule (2/28/17). > Required all federal agencies to examine all programs to eliminate duplication and waste (3/13/17). 25
Continued… > “Promoting Energy Independence and Economic Growth”: Required all regulations to be reviewed that potentially burden energy industry; disbanded working group on social cost of GHGs; rescinded directive to consider GHGs in NEPA reviews; required review and revision of CPP and venting and flaring rule; eliminated ban on leasing of federal lands for coal mining (3/28/17). > Reversed Obama ban on Artic drilling (4/28/17). > Required reviews of environmental permit applications for major infrastructure projects to be completed within two years of application (8/15/17). 26
Other Trump/Agency Actions > EPA announced intent to review and, if appropriate, suspend, revise or rescind CPP (4/4/17). > EPA formed Task Force to make recommendations for Superfund reform; new focus on completion of cleanups (5/30/17). > President withdrew U.S. from Paris Climate Accord (6/1/17). > EPA has delayed effective date of RMP Rule until February, 2019 (6/12/17). > DOI postponed compliance dates for venting and flaring rule pending review of rule (6/15/17). 27
Continued… > DOI has proposed to rescind Obama rule prohibiting hydraulic fracking on certain federal and Indian lands (7/25/17). > EPA has proposed to vacate WOTUS rule; announced plans to issue replacement by December, 2017 (7/27/17). (Comment period on proposal ends 9/27/17). > EPA announced it is reconsidering Obama Administration’s decision not to relax CAFE 52.5 mpg standards for model year 2022-2025 light duty vehicles (8/21/17). 28
Trump’s Budget > April 12, 2017 OMB memo to agencies: Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce > Memo required agencies to submit a plan by 6/30/17 to reform their operations and reduce the size of their workforce. > Eight days later: EPA announced plans for an early buy-out program to achieve workforce reductions (4/20/17). > Two weeks later: Administration’s 2018 budget proposes to cut EPA funding by 31% (5/5/17). 29
NGO Reaction “This isn’t a budget – it’s a road map for the President, EPA Administrator Pruitt and polluters to see that millions of Americans drink dirtier water, breathe more polluted air and don’t have enough nutritious food to lead healthy lives.” – Ken Cook of the Environmental Working Group 30
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