Trump’s Busy Year on Energy and the Environment

by Kelley Drye & Warren LLP

During his first year in Washington, President Trump made his mark on energy and environmental issues by issuing executive orders (EOs), proclamations, and presidential memoranda.  Seeking to undo regulations enacted during the Obama administration, President Trump withdrew from the Paris climate accord, rescinded the Clean Power Plan, scaled back regulations on the fossil fuel industry, and pushed for more drilling on land and at sea.  Here are some of the most significant executive orders affecting the environmental and energy arena issued in 2017:

1. “Expediting Environmental Reviews and Approvals for High-Priority Infrastructure Projects,” EO 13766. (January 24, 2017.)

This order establishes a new system by which to fast-track the construction of infrastructure projects.  It directs executive agencies to expedite environmental reviews and approvals for all infrastructure projects.  Projects such as electrical grid improvements and upgrades to ports, airports, pipelines, bridges, highways, and other projects that are deemed a “high priority to the nation” should be granted preference in this process.  Governors of States and executive agency heads may request that the Chairman of the White House Council approve infrastructure projects where a Federal review is needed. The Chairman shall provide a response within 30 days. The signing of EO 13766 came on the same day Trump signed Presidential memoranda, which approved the construction of the Keystone XL and the Dakota Access Pipeline, and stipulated that all new pipelines in the United States must be constructed using materials and equipment produced in the United States.

2. “Reducing Regulation and Controlling Regulatory Costs,” EO 13771. (January 30, 2017.)

This order states that executive departments and agencies who plan to publicly announce a new regulation must propose at least two regulations which will in turn be repealed. The cost of the implementation of these new regulations must be less than or equal to 0 dollars. If costs above 0 dollars are accrued, the payment of these costs shall be funded through the elimination of more regulations. Advice on the financial aspect of these matters is provided by the Director of the Office of Management and Budget. It also directs the head of each agency to keep records of the cost savings and send those records to the president.

3. “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the U.S.’ [WOTUS] Rule,” EO 13778. (Feb. 28, 2017.)

This order calls on federal agencies to revise the Obama administration’s Clean Water Rule or WOTUS Rule. Published in 2015, WOTUS expanded the number of water features subject to regulation under the Clean Water Act (CWA) to include ephemeral streams, channels, ponds, and isolated water features that were not clearly covered by the statute or guidance issued by EPA and the Army Corps of Engineers. But the WOTUS rule can’t simply be repealed through executive order.  Instead, both the Army Corps of Engineers and EPA must go through the federal rulemaking process to replace it.  Acordingly, the order directs the administrator of EPA and the assistant secretary of the Army for Civil Works to review the WOTUS Rule and propose a new regulation that either revises or eliminates it.

4. “Promoting Energy Independence and Economic Growth,” EO 13783. (March 28, 2017.)

This order seeks to dismantle many of the key actions that have been undertaken at the federal level to address climate change.  The order directs EPA to review and potentially rescind or re-write major regulations such as the Clean Power Plan (CO2 emission standards for existing power plants), CO2 emission standards for new power plants, and methane emission standards for the oil and gas sector. It also revokes a number of executive orders and actions, including: guidance on calculating the social costs of greenhouse gas emissions, a moratorium on federal coal leasing, and guidance on how to account for climate change in environmental reviews. Finally, it directs all agencies to review existing regulations, orders, guidance documents, policies, and any other similar agency actions that could burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources, and to develop recommendations on how to alleviate or eliminate aspects of agency actions that burden domestic energy production.

5. “Implementing an America-First Offshore Energy Strategy,” EO 13783. (April 28, 2017.)

This order reverses an earlier ban on Arctic leasing put in place by the Obama administration, and establishes a national policy of encouraging offshore energy exploration and production.  It revokes decisions to withdraw certain areas of the Outer Continental Shelf in Alaska and the Atlantic Coast from leasing, and directs the Interior Secretary to review areas available for off-shore oil and gas exploration.

6. “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure,” EO 13817. (August 15, 2017.)

This order seeks to ensure that the federal environmental review and permitting process for infrastructure projects is coordinated, predictable, and transparent.  It establishes “One Federal Decision” for major infrastructure projects, assigning each project a lead federal agency and creating a performance accountability system to track its progress. It also sets a goal of cutting the review/permitting time from more than seven years (the current average when an Environmental Impact Statement is involved) to just two years. It also revokes EO 13690, which mandated stricter environmental review standards in floodplains as part of President Obama’s Climate Action Plan, and required planners to use flooding predictions that incorporated climate science.

President Trump also issued several proclamations and presidential memoranda with significant impacts on the energy sector.  Most notably, President Trump issued a proclamation on December 4, 2018, which substantially reduced the size of the Bears Ears and Grand Staircase-Escalante National Monuments in Utah.  Utah Republicans called the designations of these monuments overzealous land grabs, and shortly after he took office, Trump promised to end what he called presidential “abuses” and give control of the land “back to the people.” In the end, Trump shrank both monuments by nearly 2 million acres, and Interior Secretary Ryan Zinke said the borders of other monuments in the Atlantic and Pacific oceans, as well as in the West, are under review.

Finally, the heads of federal agencies can also issue directives with major regulatory ramifications.   For instance, EPA Administrator Scott Pruitt issued an EPA-wide directive on October 16, 2017 directive to designed to end “sue and settle” practices with the Agency.  These practices involved the use of consent decrees and settlement agreements to resolve lawsuits filed against EPA by special interest groups.  Over the years, outside the regulatory process, these groups used litigation to force federal agencies – especially EPA – to compel the Agency to take certain steps, either through change in a statutory duty or enforcing timelines set by the law, and then EPA will acquiesce through a consent decree or settlement agreement, affecting the Agency’s obligations under the statute. Frequently, these agreements were reached with little to no public input or transparency. Whether this directive truly marks an end to “the days of regulation through litigation,” as Mr. Pruitt proclaimed, remains to be seen.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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