EPA Administrator Temporarily Rescinds Delegations

On March 2, 2017, David Schnare, a Trump Administration senior adviser in the EPA, sent an email to the acting Assistant Administrators (AAs) and acting Regional Administrators (RAs) temporarily rescinding previously-delegated decision making authority where a decision would "limit the flexibility of the States, limit energy resource use, impose significant costs on industry or commerce, or otherwise result in significant public attention...." The complete text of the email reads as follows:

Because the Presidentially-appointed Assistant Administrators and Regional Administrators have yet to assume their duties, for the next 30 days, the Administrator wishes to retain approval authority for Agency actions having significant regulatory and enforcement effect. The Administrator will rely on the Acting RA’s and AA’s to identify and send upward any proposed decisions or final agency actions for the Administrator’s review which, in the judgement of the Acting RA’s and AA’s would limit the flexibility of the States, limit energy resource use, impose significant costs on industry or commerce, or otherwise likely result in significant public attention on the proposed decisions or final agency actions.

ANALYSIS

The rescission of delegation means that decisions that are assigned generically to "the Administrator" now must be made by Administrator Pruitt unless the action (1) does not have significant regulatory and enforcement effect" and (2) does not "limit the flexibility of the States, limit energy resource use, impose significant costs on industry or commerce, or otherwise result in significant public attention."

COMMENTARY

The temporary rescission will likely slow decisions on NSR SIP approvals and delegations, permitting and enforcement while in effect and thereafter while regional officials assess its import. Together with the stayed provisions of Appendix W, which recentralized many modeling decisions to EPA's central modeling team, this email marks another step in reducing the discretion of regional officials and likely will slow sources ability to reach final decisions on NSR permitting issues that vary from guidance without Headquarters concurrence.