Environmental Law

Envt'l Law News Fall 2018, Vol. 27, No. 2

Deja Vu All Over Again: Failed Reforms from the George W. Bush Administration Make a Reappearance in Trump EPA’s Approach to Stationary Source Regulation

by Meredith J. Hankins*

Under Administrator Scott Pruitt, and now acting Administrator Andrew Wheeler, President Trump’s Environmental Protection Agency (EPA) has pursued an intensely deregulatory agenda, rolling back many of President Obama’s most significant environmental achievements.1 But hidden in these rollbacks is another concerning trend: a return to failed Clean Air Act reform efforts first attempted by the George W. Bush EPA, and in particular, a renewed focus on the New Source Review (NSR) program. Using a recent example from the proposed Clean Power Plan2 replacement, this article illustrates the importance of looking beyond the big deregulatory headlines to find the seemingly minor reforms quietly hollowing out the Clean Air Act.

NSR is the bedrock of stationary source permitting in the United States. Adopted as part of the 1977 Clean Air Act amendments,3 NSR lays out the procedures for pre-construction environmental review of new and modified stationary sources of air pollution across the country. The NSR program is a key part of state implementation plans to achieve and maintain attainment with the public health-based National Ambient Air Quality Standards (NAAQS). By requiring pre-construc-tion permits and imposing technology-based standards based on regional air quality, NSR has dual goals to improve the air in polluted regions and maintain clean air in relatively less polluted regions.

While the EPA has announced a few standalone "streamlining" proposals,4 its most insidious proposed change to NSR was announced as part of the administration’s Clean Power Plan replacement: the Affordable Clean Energy (ACE) rule regulating greenhouse gas emissions from existing power plants. Because the ACE proposal solely relies on emission reductions achievable inside the fenceline of affected coal-fired power plants, many of these plants will need to upgrade their equipment in order to achieve the necessary emission reductions. As explained in more detail below, such modifications at major sources would normally trigger NSR, thereby requiring environmental review and the installation of air pollution control technology. But instead, the Trump administration is proposing to change how NSR is triggered in order to effectively exempt these sources from NSR.

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