01.20.17

Newsletters, Publication,

President Trump and the Environment: New Administration Faces Hurdles on Path Toward New Policies

PRACTICE GROUPS

By Marshall Morales and Emerson Hilton

Introduction

As a new presidency begins today, numerous changes to American environmental law and policy are on the horizon. Businesses and other regulated entities will face a period of regulatory uncertainty at the outset. Many changes are coming, and some will be swift. But, as the new administration begins its work in earnest, not all legal and policy changes can be made overnight. The new administration will have to navigate labyrinthine procedural, administrative, and legal hurdles. With a new transition of power in Washington, we take a brief look at key issues that will affect the country’s trajectory on environmental law and policy – and how quickly that new trajectory will take shape.

Executive Orders and Actions

A recent former contender for the Oval Office observed last year that “if you live by the pen, you die by the pen.” That comment reflected the belief that executive orders and actions, which are an easy means of making policy changes because they do not involve congressional approval, are an equally easy means of undoing policy changes. A number of President Obama’s environmental policies could be targeted quickly by the new administration. Some of those changes could be expedient, but others could be disputed and contentious.

In December 2016, President Obama issued an executive order[1] to withdraw a wide swath of the Bering Sea from mineral leasing under the Outer Continental Shelf Lands Act (OCSLA).[2] Later the same month, Mr. Obama issued two presidential memoranda withdrawing areas in the Atlantic and Arctic as well.[3] The OCSLA authorizes the President to “withdraw from disposition any of the unleased lands of the outer Continental Shelf.”[4] This is somewhat comparable to the president’s authority to designate federal monuments under the Antiquities Act of 1906,[5] which several presidents have used to preserve large swaths of territory from development or resource extraction.[6]

However, the important and untested legal question here is whether the new president has authority under the statute to reverse the prior president’s withdrawal of lands. That is, when a statute says the president may withdraw lands from leasing, did Congress also authorize a new president to return lands to leasing? How courts answer that question could have broad impacts on other fields of presidential discretion. The bottom line is that one stroke of a pen may not be enough to erase the stroke of an earlier pen – at least not until a court or Congress weighs in.

Enacted Regulations

Existing federal regulations can be amended or abrogated through three venues: the agency that issued the regulation, Congress, and the judiciary. Two recent environmental regulations in particular – the Clean Power Plan and the Clean Water Rule (sometimes called the “Waters of the United States” rule) – are set to implicate all three venues in the new administration.

The Environmental Protection Agency (EPA) issued the Clean Power Plan in 2015,[7] and an associated set of Carbon Pollution Standards,[8] which set out to regulate carbon emissions for existing and new electric utility sources under the Clean Air Act. Carbon was not regulated under the Clean Air Act before the Obama administration. The Clean Water Rule revised EPA’s interpretation of the scope of the Clean Water Act. The new interpretation sweeps more water bodies from state regulation into federal regulation.

When an agency amends or repeals a regulation – just as when an agency adopts a regulation – it generally must follow the steps required by the Administrative Procedure Act (APA).[9] To revise or rescind the Clean Power Plan or the Clean Water Rule, EPA would need to issue a proposed rule, receive and respond to public comments, and issue a final rule. The APA requirements mean a lengthy process of comment and agency deliberations over the course of many months, if not years. In other words, even an agency led by one of its previous chief opponents is a lumbering machine.

Congress has the power to act somewhat more expediently in rescinding a regulation, although such congressional actions are open to legislative delays. Congress can use ordinary legislation to overturn an agency action or revise a statute. Congress could, for example, explicitly bar regulation of carbon emissions under the Clean Air Act or sharply constrict the definition of the “waters of the United States” in the Clean Water Act. But re-opening substantive components of these major statutes would be controversial and would still be subject to opposition tactics in Congress, such as drawn-out hearings or a filibuster in the Senate.

For recently finalized regulations (within 60 legislative days), Congress may use a resolution under the Congressional Review Act (CRA)[10] to repeal those regulations. One regulation in this timeframe is the Department of Interior’s new coal mining regulation, dubbed the Stream Protection Rule, aimed at preventing water pollution from coal extraction. That regulation could be repealed by a CRA resolution from both houses of Congress. This mechanism may allow Congress to side-step thornier debate over passing a bill. Either way, congressional action is often not a certain or timely way to repeal regulations.

The judiciary has long been a preferred forum for blocking agency regulations. A new administration can undermine existing regulations that have already been challenged in court by ceasing to defend those regulations. Both the Clean Power Plan and the Clean Water Rule have been challenged in court and stayed pending resolution of their appeals.

In appeals challenging the Clean Power Plan[11] and the Clean Water Rule,[12] outside groups have joined with EPA to defend the regulations. While the Trump administration may have leeway to abstain from defending the cases, the other parties currently aligned with EPA may have standing to continue the defense. These cases will be consequential for air and water regulation, and they are likely to set important precedent in statutory interpretation.

Proposed Regulations

A regulation is not in force until it is finalized, following the notice-and-comment procedure required by the APA. That procedure requires time for the regulation’s development, publication, and public comment process where stakeholders engage with the agency. As a result, a regulation that is not finalized can be rescinded or delayed by a new administration. Recent administrations have used this tactic to some extent. On January 20, 2009, the Obama administration issued a memorandum to all executive agencies to halt proposed regulations pending review. The George W. Bush administration issued much the same instruction on January 20, 2001, to halt development of Clinton-era regulations. Given this pattern, it is likely that the Trump administration will move to halt all pending regulations.

Some of the more recent impactful proposed EPA regulations involve the financial responsibility requirements of Section 108 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).[13] Section 108 of CERCLA requires that businesses demonstrate sufficient financial responsibility to address any hazardous contamination expected from their operations, and EPA is moving forward on regulations that apply to the hard-rock mining, chemical, petroleum, and electricity industries as well. These proposed regulations are the result of an earlier settlement, and therefore the new administration will not be able to scuttle them entirely, but it will be able to redirect the requirements of the regulations.

Agency Determinations

Finally, agency-level determinations can be changed by new agency leadership and staff. But an agency can reverse course on an earlier determination only with substantial justification to support its new course of action. Litigation over agency reversals can therefore be fact-intensive and time-consuming. In 2016, for example, the Supreme Court declined to hear a long-running case from the Ninth Circuit concerning whether George W. Bush’s Department of Agriculture properly reversed course on a determination made by the same agency in the twilight of the Clinton years. Agencies under the new administration inaugurated today will surely take a different approach to many environmental issues, but changing course on existing policies and reversing already-made agency determinations is a process subject to significant procedural hurdles and litigation delays.

Conclusion

Today’s inauguration likely marks the starting point for many significant changes to American environmental law and policy. It also marks the official start to skirmishes over those changes, as some groups are already rattling their sabers to oppose the new administration’s proposals. These issues portend substantial shifts in environmental policy, and the ensuing litigation likely will resonate with impacts through all fields of administrative law.

The Riddell Williams Environmental Practice Group  looks forward to tracking these developments closely and to helping our clients find confidence in the uncertainty.


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The Riddell Williams Environmental Practice Group has played a key part in addressing some of the most challenging environmental issues in the Pacific Northwest and throughout the nation.  Our group’s clients include utilities, pulp and paper manufacturers, petroleum companies, regional energy companies, airlines and airfreight carriers, steel manufacturers, waste management companies, technology businesses, real estate development partnerships, private landowners, and some of the state’s leading environmental groups.

The opinions expressed in this article are those of the authors and do not necessarily reflect the views of Riddell Williams or its clients.  This article is for general informational purposes and is not intended to be, and should not be taken as, legal advice.


[1] Northern Bering Sea Climate Resilience, Exec. Order No. 13754, 81 Fed. Reg. 90,669 (Dec. 9, 2016), https://www.gpo.gov/fdsys/pkg/FR-2016-12-14/pdf/2016-30277.pdf.

[2] 43 U.S.C. § 1331 et seq.

[3] Memorandum on Withdrawal of Certain Portions of the United States Arctic Outer Continental Shelf, 2016 Daily Comp. Pres. Doc 860 (Dec. 20, 2016), https://www.gpo.gov/fdsys/pkg/DCPD-201600860/pdf/DCPD-201600860.pdf; Memorandum on Withdrawal of Certain Areas off the Atlantic Coast on the Outer Continental Shelf, 2016 Daily Comp. Pres. Doc. 861 (Dec. 20, 2016), https://www.gpo.gov/fdsys/pkg/DCPD-201600861/pdf/DCPD-201600861.pdf.

[4] 43 U.S.C. § 1341(a).

[5] 54 U.S.C. § 320301.

[6] See, e.g., Proclamation 8327, Establishment of the World War II Valor in the Pacific National Monument, 73 Fed. Reg. 75293 (Dec. 10, 2008) (protecting 6,310 acres in the Pacific), https://www.gpo.gov/fdsys/pkg/FR-2008-12-10/pdf/E8-29344.pdf.

[7] Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015), https://www.federalregister.gov/documents/2015/10/23/2015-22842/carbon-pollution-emission-guidelines-for-existing-stationary-sources-electric-utility-generating.

[8] Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,510 (Oct. 23, 2015), https://www.federalregister.gov/documents/2015/10/23/2015-22837/standards-of-performance-for-greenhouse-gas-emissions-from-new-modified-and-reconstructed-stationary.

[9] 5 U.S.C. § 500 et seq.

[10] 5 U.S.C. § 801 et seq.

[11] North Dakota v. EPA, No. 15-1381 (D.C. Cir. filed Oct. 23, 2015).

[12] Murray Energy Corp. v. US Dep’t of Def. et al., Slip op., No. 15-3751 (6th Cir., Feb. 22, 2016).

[13] 42 U.S.C. § 9608.