The Nickel Report

On May 9, the White House released its Spring 2018 update to EPA’s regulatory agenda. Agency watchers quickly dove into the document to check the status and timelines for high-profile rulemakings and gain insights on the Trump administration’s priorities. But aside from any revelations about the administration’s own initiatives, this latest document was also notable for showing just how much EPA’s regulatory agenda can be driven by forces outside of the executive branch.

Released twice a year, the Regulatory Agenda is a snapshot of each federal agency’s plan of work for the near future and outlines the expected timeline for each regulatory action. EPA’s most recent update addresses the Agency’s plans and internal rulemaking timelines for proposing and finalizing rules on such high-profile issues as its review and potential replacement of the Clean Power Plan, defining “waters of the United States,” and setting renewable fuel volume standards. But not every issue on the agenda reflects the administration’s policy priorities. A substantial portion of the actions on EPA’s regulatory agenda are included because they are mandated by law and are subject to legally binding deadlines.

Indeed, in EPA’s Spring 2018 regulatory agenda, more than one third of all the Clean Air Act-related activities listed for action are being driven by legal mandates rather than executive branch priorities. Out of 74 rules listed in the prerule, proposed rule, or final rule stage by EPA’s Office of Air and Radiation, 25 are included because they are subject to statutory or judicial deadlines requiring the Agency to act by a date certain. In fact, 18 of these rules (plus four more listed under EPA’s agenda for “long-term actions”) are mandated by just one section of the CAA – the Risk and Technology Review provisions of section 112.

These RTR actions provide a compelling example of the power that the CAA gives outside parties to force EPA’s agenda in the face of what are, by any measure, extremely challenging statutory deadlines. Section 112 requires that EPA review its National Emission Standards for Hazardous Air Pollutants for listed source categories 8 years after promulgation in order to address remaining health risks or intervening developments in technology. But as these reviews came due under previous administrations, the mandatory deadlines came and went for most source categories without a hint of regulatory activity. While postponing these actions may have bought time and resources for the Agency to pursue more discretionary initiatives, EPA could only postpone its statutory mandates for so long before they caught up to a future administration. Environmental advocacy groups were able to use the CAA’s citizen suit provisions to challenge, in court, the Agency’s failure to perform these mandatory duties. Because it was indisputable that EPA missed the deadlines in question, those cases were able to quickly proceed to the remedy phase—where the courts have generally imposed aggressive deadlines for EPA to complete these reviews. By filing just two lawsuits, environmental groups were able to obtain court orders requiring EPA to complete RTRs for 33 different source categories within the next two years. Cal. Communities Against Toxics v. Pruitt, No. 15-cv-512 (D.D.C. Mar. 13, 2017); Blue Ridge Envtl. Def. League v. Pruitt, No. 16-cv-364 (D.D.C. Mar. 22, 2017). In total, the Agency is now subject to court orders requiring it to complete RTR rulemakings for 46 source categories by October 2021.

As this example demonstrates, the combination in environmental statutes of mandatory (and usually, aggressive) deadlines and the availability of citizen suits to enforce them can significantly constrain EPA’s ability to control the regulatory agenda. Similar provisions are common in environmental statutes, and, because Congress allows citizen lawsuits to enforce these deadlines, advocacy groups are empowered to force issues on EPA’s agenda and to negotiate new deadlines with the Agency in settlement discussions. As a result, EPA’s regulatory agenda can become crowded quickly. And it may become more crowded in the future: Congress’s 2016 amendments to the Toxic Substances Control Act adopted aggressive new statutory deadlines governing many aspects of the law’s implementation, including the individual phases of EPA’s risk evaluations for existing chemicals.

In a world of limited administrative resources and dwindling budgets, this struggle over EPA’s regulatory agenda has real impacts. As environmental groups, states and other advocates use the courts to add more non-discretionary issues to EPA’s agenda, successive presidential administrations will face mounting challenges to implement their own policy initiatives as quickly as desired—after all, Agency staff bandwidth is a finite resource, and not just anyone can write a regulation that passes scientific and legal muster. And where courts establish unrealistic deadlines for mandatory actions, there is a risk that the quality and substance of those rulemakings will suffer. Unfortunately, the opportunities for regulatory stakeholders to influence these deadlines are limited as courts have frequently rejected third-party attempts to intervene in deadline suits against EPA. But at the very least, industry parties should closely monitor deadline suits against the Agency and, going forward, encourage EPA to finish as many of its mandatory duties within the statutory timelines as possible. One way or another, those actions will eventually find their way onto the Agency’s agenda.