What Might Be Ahead for Environmental Regulation in the Trump Administration?

by Burr & Forman

Burr & Forman

By almost every account, the Trump Administration is likely to alter substantially the environmental regulatory landscape.  Actions have already been taken to delay the implementation of regulations as well as initiating policy changes that will likely affect the size of the Environmental Protection Agency and its budget, possibly including the portion used to provide grants to States and localities for environmental enforcement and compliance efforts.  There are also already indications of change in general policy, both at the domestic level and internationally.  And Congress is expected to take an active role, initially by disapproving some recently promulgated regulations.

A recently leaked list of initial executive order priorities seems on point with actions taken during the first few days of the new Administration.  (Axios).  If this memo is also accurate with respect to plans for EPA, it appears that the Agency will likely experience substantial budget reductions.  And there will be efforts to stop or alter initiatives such as greenhouse gas regulation for new sources, as well as those regulations applicable to existing electric power generating sources under the Obama Administration’s Clean Power Plan.  We can also expect a proposed change to the pending “Waters of the U.S.” Rule.  What that change will be and how it might be effectuated appear to be the open questions.

The Administration does have several options available to it to make changes in environmental regulations.  (“Five Ways Trump Could Unwind Obamas’ Environmental Policies“).  As noted there, the Administration, under various circumstances, has the option to repeal regulations, stop defending regulations already undergoing court challenge, reduce environmental enforcement activities, encourage more fossil fuel production, and stop international cooperation on climate change.

Trump has taken some initial steps to put a number of EPA regulations on hold.  (“White House Tells Agencies To Halt Regulations“).  Congress appears ready to become involved by directly eliminating some final regulations using a special procedure known as the Congressional Review Act (“CRA”).  That process allows Congress to overturn regulations within 60 Congressional Calendar days after they have become final.  A number of lists developed by various sources identify regulations that may be subject to the unique CRA process.   (Science Magazine).  Regardless of the actual scope of the CRA in this situation, it seems clear that a number of environmental regulations (as well as those of other agencies) will gain Congressional attention.  For example, an article in the Washington Post recently noted just two such regulations, one imposing stricter greenhouse gas emissions on oil and gas production operations and another which was recently promulgated by the Department of Interior prohibiting coal-mining companies from conducting activities that could permanently pollute streams or other sources of drinking water. (Rules on the Chopping Block – Washington Post).  With respect to international agreements on climate change, Trump has indicated that he will take action to terminate the US’s participation in such agreements.  The recent Paris agreement ostensibly provides that countries may not withdraw for a period of four years, but there are suggestions that this period of time might be shortened.  (Fortune – Change Paris Agreement).

Finally, regarding the potential impact on the States, recent news articles here in Alabama indicate that an announced freeze on EPA grants apparently does not apply to existing grants.  Thus, Alabama’s Department of Environmental Management has received assurances that current grant commitments will be fulfilled.  (Times Daily – ADEM Says Federal Funding Is Secure).  This determination is apparently not unique to Alabama’s grants.  At the same time, ADEM’s Director and other state directors have proposed to the Trump Administration that greater enforcement emphasis could be shifted to the states.  (EPA CUTS, al.com).  This would arguably allow for a diminished EPA operation while allowing continued enforcement of federal and corresponding state environmental regulations, perhaps at the current level, more or less, or perhaps not.

The regulatory landscape will change, probably substantially in some ways.  Whereas the Obama administration pursued a number of initiatives to expand the scope of environmental regulation, the new administration appears far more likely to seek to eliminate or revise existing regulations.  Much of this effort is likely to focus on procedural requirements in an effort to streamline regulatory processes since changing or eliminating existing substantive requirements is difficult to justify under applicable legal standards.   At the same time, any proposals for new regulatory initiatives may face much more rigorous evaluation including through a more rigorous cost-benefit-analysis process, and that may prevent many proposals from moving beyond the draft stage.  Even if existing regulatory limits and substantive compliance requirements are not revised, the prospect of budget cuts for EPA’s direct operations and pass-through grants to the States could certainly affect enforcement activities at both levels of government.  If there is a reduction in enforcement by the regulators, it will be interesting to see if there is a corresponding increase in citizen’s suit actions, which are authorized by the basic federal environmental statutes.

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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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