The Nickel Report

This summer has been an eventful time for EPA’s regional haze program. In July, the Fifth Circuit issued an important decision to stay EPA’s controversial Texas and Oklahoma regional haze rule and to retain jurisdiction over the litigation on that rule, denying an EPA request that the litigation be transferred to the DC Circuit. While that litigation played out in the spring of this year, EPA proposed major revisions to the regional haze rules­ that will shape the next round of the program’s implementation.

The deadline for public comment on the proposed rule revisions was extended after interested parties discovered that much of the proposed rule would need to be interpreted in light of a draft guidance document that EPA had yet to release. When that document was made available on July 1, 2016, it revealed the scope of EPA’s ambitions for the second planning period. Taken at face value, the rule revisions and draft guidance suggest that EPA intends to urge states to pull a wide range of new industries, including many small sources, into the next round of the program and to require an enormous amount of work to support state plans.

The draft guidance document raises concerns for any state hoping to develop a regional haze implementation plan that EPA will approve. Even though EPA says the guidance document is nonbinding, it is replete with seemingly mandatory language and apparent presumptions in favor of EPA’s policy preferences. Significant deviations by states from the “nonbinding” guidance most likely would not be without peril.

This is reminiscent of a scene from the British TV sitcom Yes, Minister, in which a self-important politician is repeatedly schooled in the ways of bureaucracy by far savvier civil servants. When he attempts to get an unpopular building torn down, the Minister learns that government forces aligned against him will be releasing new “guidelines” to help make the decision. The Minister is certain that the guidelines will have no ill effect and that the process will remain impartial, but, as his Permanent Secretary explains, “Railway trains are impartial too, but, if you lay down the lines for them, that’s the way they go.”

And that is indeed what we saw throughout the regional haze program’s first planning period. EPA guidelines and guidance documents, even when they purported to be nonbinding, routinely became the only way to go. States that failed to follow these putatively voluntary documents often saw their own plans rejected and replaced by EPA-imposed plans. If EPA misuses its new guidance document as it misused similar documents in the past, states and regulated industries could face serious obstacles to developing plans EPA will accept and will likely spend extraordinary resources in the attempt to do so. In that way, ostensibly nonbinding recommendations could upend a program that Congress intended the states to implement. Deciding on the best way to deal with those recommendations could make the difference between state and EPA control of the second planning period.