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Catalyst Magazine - Winter 2018
By: Chris Carusone
The answer to this question depends on the outcome of next year's gubernatorial election.
Upon taking office, President Donald Trump issued two executive orders designed to implement what his former chief strategist Stephen K. Bannon described as "deconstruction of the administrative state." The first, Executive Order 13771 titled "Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs" (January 30, 2017), requires that "for every one new regulation issued, at least two prior regulations be identified for elimination." It also requires that the "total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law" or approved by the Director of the Office of Management and Budget. The second, Executive Order 13777 titled "Presidential Executive Order on Enforcing the Regulatory Reform Agenda" (February 24, 2017), requires federal agencies to designate a Regulatory Reform Officer and establish a Regulatory Reform Task Force.
U.S. Environmental Protection Agency Administrator Scott Pruitt is all in. On October 16, 2017, the EPA issued a proposed rule to repeal the "Clean Power Plan." The EPA also launched its "Smart Sectors" program on October 3, 2017, to better engage with the regulated community on ways government and industry can work together. This new program establishes partnerships with trade associations and creates industry sector ombudsmen to generate more meaningful. sector-based dialogue on ways to protect the environment without inhibiting economic growth.
Pennsylvania appears to be moving in the opposite direction. On November 30. 2017, the state Department of Environmental Protection released details of two draft final general permits that address methane emissions and other air pollutants from unconventional well sites and midstream and natural gas transmission facilities. DEP Secretary Patrick McDonnell proudly referred to these changes as "first in the nation" measures to address methane emissions. However, questions have been raised about DEP's authority to regulate methane emissions and its increasing use of permit conditions to establish groundbreaking environmental policy.
On October 14, 2017. the DEP published two Technical Guidance Documents titled the "Development and Review of Regulations" and "Advisory Committee Guidelines." These documents, which set forth the DEP's revised internal procedures for the development of regulations arid its use of advisory committees, are noticeably shorter than their predecessors, Such brevity has caused some in industry to question the DEP's commitment to examining the economic impacts of its proposed regulations, particularly on small businesses, as required by the Regulatory Review Act. Explicit procedures for the examination of such impacts, which featured more prominently in former versions of these TDGs, have been replaced by explicit references to Article I. Section 27 of the Pennsylvania Constitution, otherwise known as the Environmental Rights Amendment. This section, enacted in 1971, has gained new life in recent years courtesy of the Pennsylvania Supreme Court, which declared the Commonwealth's public natural resources to be the common property of all of the people and the Commonwealth government as the trustee for the benefit of all the people.
This divergence in regulatory philosophy in Pennsylvania is expected to continue in 2018, but how it plays out in 2019 largely depends on the occupant in the Governor's residence)!
Christopher D. Carusone is a partner and chair of the Government Law and Regulatory Affairs Group at Cohen Seglias Pallas Greenhall & Furman PC.
This article was originally published in the 2018 Winter edition of Catalyst Magazine.