By Celina Romero & Don Lewis
Donald Trump’s inauguration will no doubt lead to a shift in federal environmental policy. While President Trump’s views on environmental issues may still be evolving, it is safe to say that the new administration will be more inclined to rein in Obama-legacy regulations rather than to develop new initiatives. Trump has said that “we’ll be fine with the environment. We can leave a little bit, but you can’t destroy businesses.”
The record of the persons Trump has selected to lead his environmental transition team, and whom he is considering for agency leadership positions, also demonstrates a commitment to regulatory restraint and skepticism regarding man-made climate change. For example, his nominee to run the Environmental Protection Agency, Attorney General Scott Pruitt of Oklahoma, has described himself as “a leading advocate against the EPA’s activist agenda” and has filed multiple lawsuits against EPA alleging that the agency had overstepped its bounds; he also established a “Federalism Unit” in Oklahoma to “more effectively combat unwarranted regulation and systematic overreach by federal agencies, boards and offices.”
Immediately after taking office, Trump could issue an Executive Order to halt all progress on federal rules that have not yet been finally adopted. Rescinding rules that are already in place, however, would not be so simple. The agency must in most cases conduct a new notice and comment rulemaking and provide a rational explanation for the repeal or revision. Meeting this standard can be difficult for the reversal of any rule, but it can be especially challenging if the rule was supported by an administrative record replete with scientific or technical data. In addition, litigation would undoubtedly follow any Trump administration action to curtail existing rules, which could take years to resolve.
Trump would not necessarily have to resort to the burdensome notice and comment rulemaking process to accomplish his goals. To the extent legally permissible, he could set policy by issuing new executive orders or by revoking existing executive orders. The new administration could also support Congress in the passage of legislation aimed at furthering Trump’s agenda; however, some Democratic support would be required because Senate Republicans do not enjoy a filibuster-proof majority. Additionally, the Trump administration could implement a litigation strategy that includes strategic decisions to settle ongoing litigation challenging certain environmental regulations, to enter into favorable consent decrees, or to pick and choose which court decisions to appeal or defend. For rules promulgated in the waning months of the Obama administration, Trump could ask Congress to act under the Congressional Review Act, which allows Congress to void recently enacted rules. Finally, Trump could encourage Congress to use the power of the purse and not fully fund EPA and other agencies with environmental jurisdiction, which could reduce the level of activity engaged in by those agencies going forward.
It remains to be seen whether Trump will seek to completely revoke existing rules or, instead, will try to selectively rescind specific provisions while leaving other parts of the rules intact. Targets of upcoming Trump administration action could include the Clean Power Plan; greenhouse gas endangerment finding; waters of the United States rule; standards for existing sources of methane emissions in the oil and gas industry; new 2015 ozone NAAQS; venting and flaring rules aimed at reducing methane emissions from oil and gas production on federal land; requirements for hydraulic fracturing on federal lands; and NEPA guidance related to the review of greenhouse gas emissions.
In addition, Trump has already signaled support for the Dakota Access and Keystone XL pipeline projects.
While industry generally stands to benefit from the anticipated Trump administration environmental policy, not all industries will benefit equally. Moreover, some industries might not welcome all rule rescissions, especially where widespread investments in control technology have already been made in order to comply with current rules. Therefore, as the new administration takes office, it will be important for industry representatives to monitor unfolding developments, analyze the impact of proposed changes, and, if appropriate, express their views to decision makers. Early efforts to help shape Trump’s policy could be especially effective if, as appears, some aspects of his environmental agenda are still unformed and evolving. By remaining engaged and proactive, companies can position themselves to take advantage of the changes in the environmental landscape that are on the horizon as the Trump administration takes office.