President Obama meets with President-elect Donald Trump in the Oval Office last week. Trump wants to unravel the past eight years of the Obama administration’s environmental policies, but he’ll face some challenges. Photo courtesy of the White House.
President-elect Donald Trump vowed on the campaign trail to topple just about every major energy and environment policy enacted in the past eight years.
From torpedoing the Obama administration’s Clean Power Plan and international climate deal to expanding oil and gas development and overhauling the regulatory system, the incoming administration has big promises to keep.
But while massive change is expected, Trump will face limits on carrying out his plans.
Even with two friendly chambers of Congress, passing major energy legislation is time-consuming and politically daunting. Writing new regulations is a bureaucratic slog, and those are likely to face protracted legal battles. Trump might also face hurdles unraveling some Obama rules that are already on the books and trying to roll back some executive moves, such as designations of national monuments.
“We know even when presidents win a decisive victory and have majorities in their party in Congress, they don’t get everything they want in that first two-year window,” said Barry Rabe, a professor of public policy at the University of Michigan. He pointed to President Obama’s failure to usher through climate legislation despite Democratic-led chambers of Congress.
“We’ve gone through now an extended period where, for the most part, new environmental legislation has not been adopted,” Rabe said, despite White House attempts. “This is not going to be an exception, and we may see a very aggressive executive effort, … but it’s really hard to know over the course of a two- or four-year window what can be accomplished, even through purely executive action.”
Energy and environmental experts also warn that the Trump administration could overreach and spark a public opinion backlash if it doesn’t tread carefully on its regulatory rollbacks.
“EPA has extremely powerful statutory responsibilities, and it isn’t as though the administration can get up one morning and decide not to follow them,” said William Reilly, who led U.S. EPA in the George H.W. Bush administration and who endorsed Hillary Clinton for president.
If the Trump administration does take a major shift on environmental issues, “does that really trigger public reaction, public concern?” Rabe said, noting that crises like the Flint, Mich., water problems and the Deepwater Horizon oil spill can crop up at any time. “Would a Trump administration overplay its hand and go too far?”
The incoming administration has said it’s committed to “conserving our wonderful natural resources and beautiful natural habitats,” while simultaneously promoting energy production.
“America’s environmental agenda will be guided by true specialists in conservation, not those with radical political agendas,” the transition team said.
Here’s a look at Trump’s big plans on a range of energy and environmental issues, and some of the hurdles he might face:
Clean Power Plan on chopping block
The Obama administration’s carbon rules for power plants are in dire straits.
Trump has pledged to “scrap” the Clean Power Plan. He’s expected to take action quickly to try to unravel the rule, although it won’t be instantaneous.
The federal courts could strike down the rule in pending lawsuits. Even if it’s upheld in court, Trump’s EPA could go through a lengthy formal rulemaking with public notice and comment to rescind the rule, and the administration would have to give an explanation for reversing course.
A faster way to ax the Clean Power Plan could be with legislation from the Republican-controlled Congress (Greenwire, Nov. 9).
The Trump administration could also scuttle EPA plans to regulate emissions of methane — an especially potent greenhouse gas — from existing oil and gas operations.
WOTUS in hot water
The odds of survival for the Obama administration’s contentious Clean Water Rule, known as the Waters of the U.S. rule, aren’t good.
“I would submit that the Clean Water Rule is dead,” said Brooks Smith, an attorney with Troutman Sanders who is representing Murray Energy Corp. in the ongoing challenges against the rule.
The 6th U.S. Circuit Court of Appeals has blocked EPA and the Army Corps of Engineers from implementing the rule, which redefines which streams and wetlands get automatic Clean Water Act protection.
There’s a good chance the court will vacate the rule and send the agencies back to the drawing board. But if the 6th Circuit does uphold the regulation, a Trump EPA could eventually repeal the rule, which would require a public notice and comment period. It could also issue a replacement rule to clarify the definition of “waters of the United States” that does not include the controversial changes in the Obama rule.
Congress could also gut the regulation with a bill to repeal it or by defunding the rule through appropriations.
The repeal process could begin before the litigation ends, Smith added.
“This is too high a priority to let it pass,” he said.
Inheriting Obama’s lawsuits
Ongoing litigation over the Clean Power Plan, WOTUS and other Obama regulations isn’t going to go away when the Trump administration takes office.
But what happens to those lawsuits depends on what Trump decides to do with the rules at issue and where in the legal process the cases stand.
“In my experience, it is unusual for a new administration to take a 180-degree turnaround from a position that’s already been briefed and argued,” said David Baron, managing attorney at Earthjustice.
For rules that the Trump administration is considering eliminating, like the Clean Power Plan, the Justice Department and other parties may ask the courts for delays in litigation.
Getting rid of regulations that are already finalized, however, will require a formal rulemaking — a long process that itself would be met with lawsuits (Greenwire, Nov. 11).
In some ongoing cases, the Trump administration could simply decide not to appeal what it sees as favorable court decisions, similar to the situation that occurred when the Obama administration came into office and didn’t appeal a decision eliminating President George W. Bush’s air pollution transport rule and mercury standards.
But even in instances where Trump’s DOJ decides to stop defending a rule, environmental groups, industry entities or states that have intervened could potentially carry on the suit.
Vow to ‘cancel’ climate deal
Trump has pledged to “cancel” last year’s landmark international climate deal reached in Paris.
He could opt to drop out of the overall climate convention that set the framework for Obama administration pledges on greenhouse gas cuts — although direct withdrawal from the Paris deal is a four-year process.
Trump’s transition team and Republican lawmakers argue that leaving the agreement will be simple because it hasn’t been ratified by the Senate (ClimateWire, Nov. 10).
Also threatened: a global aviation industry agreement to implement a market-based mechanism to curb emissions from the commercial sector and a nearly 200-country agreement to limit heat-trapping hydrofluorocarbons under the Montreal Protocol on Substances that Deplete the Ozone Layer.
Trump could pause rulemaking efforts related to endangerment findings that obligate EPA to limit emissions from aircraft, and GOP victories in the Senate position the chamber to block the landmark agreement on HFCs and target proposed rules for phasing out HFC-containing refrigerants.
Mission Innovation, an agreement committing 20 nations to double their clean energy investments, is already behind schedule in the United States due to Republican opposition and is unlikely to gain steam. Some experts also expect the Trump administration is unlikely to contribute the $2.5 billion the government still owes to the U.N. Green Climate Fund, which is allocated to adaptation.
‘Slow-walk’ air rules
The incoming Trump administration will have limited leeway to scotch existing regulations aimed at improving air quality.
There’s probably no going back, for example, from EPA’s rule to limit mercury from power plants, one of the most expensive rules ever issued by the agency. As of April, almost all coal-fired plants were in compliance, according to the U.S. Energy Information Administration.
Still, the new administration will have more latitude to drag out implementation of more recent regulations — and to simply avoid offering new ones.
In the first category, industry groups are eager to delay the process for ensuring compliance with the tighter ozone standard put in place last fall.
EPA is further along in implementation of its more stringent 2012 annual air quality threshold for fine particles, but here, too, it could “slow-walk” the compliance process, said Eric Schaeffer, executive director of the Environmental Integrity Project. EPA could also take its time with a fresh review of particulate matter standards now in its early stages, Schaeffer said.
Still awaiting an agency decision: whether to proceed with a rulemaking that would impose a 90 percent cut in the nitrogen oxides (NOx) emissions limit for heavy-duty truck engines. The South Coast Air Quality Management District, which covers much of the Los Angeles area, had petitioned for the change in June, partly on the grounds that a tighter NOx benchmark was essential for meeting the new ozone standard. Other state and local agencies have signed on.
Monuments, offshore oil and gas
Obama has unilaterally protected more land and water than any other president in U.S. history, creating or expanding 28 national monuments under the Antiquities Act. Environmental groups expect him to create even more before he leaves office.
If Trump wants to undo any of those monuments, he might run into trouble. The Antiquities Act does not expressly authorize a president to abolish existing monuments — and no president so far has tried. If Trump did so, he would likely face a legal battle.
But Congress can do it. It has abolished a dozen or so monuments in the past, usually because it did not find them nationally significant.
Trump faces a similar dynamic for offshore oil and gas leasing. The Obama administration will soon release a five-year leasing program; environmentalists have pushed for it to not include three proposed leases in the Arctic.
A Trump administration could scrap the plan and start over. But Obama has another option: to use an obscure provision of the Outer Continental Shelf Lands Act in an effort to permanently withdraw Arctic waters. Like the Antiquities Act, OCSLA does not specifically give presidents the ability to undo such a withdrawal (Greenwire, Sept. 27).
Energy on public lands, sage grouse
Trump has more wiggle room to reverse Obama’s policies when it comes to energy development on public lands.
The Obama administration has emphasized the need for more renewable energy projects — and as Trump has said he supports an “everything” energy strategy, some of those efforts could continue. For example, a new rule from Interior establishing a competitive leasing process for renewable energy projects could be left untouched.
But Trump has also proposed expanding oil and gas development.
That could put the Obama administration’s sage grouse plan in his sights. The 2015 plans from the Bureau of Land Management and Forest Service made an area the size of Ohio off-limits to surface impacts, prompting a lawsuit from the oil and gas industry (Greenwire, May 12).
But it’s unclear whether Trump can dismantle the plan without running into opposition and legal roadblocks.
The same goes for regulations that cover oil and gas drilling on public lands, such as one upcoming rule to limit methane released by oil and gas operations. A Trump administration would have to propose new rules, carry out public comment periods, then withstand likely legal challenges.
New ‘regulatory regime’ for coal
After deploring the so-called war on their industry, mining companies are ready for a major regulatory rollback.
“We’re looking at executive actions that can be undone by new executive actions that can put us back to where we were before,” National Mining Association President Hal Quinn said in an interview. “And then from there, we can move on and look at long-standing impediments to accessing our mineral endowment here in the U.S.”
A Trump Interior secretary is expected to quickly rescind the current moratorium on coal leasing, ending a program review about royalties and climate change.
In-progress rulemakings, like self-bonding reform changing how coal companies can promise to pay for potential mine cleanup, could easily be put on the chopping block, and draft Superfund regulations on hardrock mining financial assurances, which EPA is court-ordered to publish next month, will likely undergo a fundamental rewrite.
Changes at the Office of Surface Mining Reclamation and Enforcement and the Mine Safety and Health Administration could also undermine the final stream protection rule, overdue for publication. While a new rule would be required to strike new restrictions on coal mining near waterways, implementation would fall into unwelcoming hands.
West Virginia University law professor Patrick McGinley said Trump and a Republican Congress have a chance to create “a whole new regulatory regime for coal,” but the problem remains competition from natural gas, which Trump also plans to expand. “I don’t see any major jump in coal production in the near future, no matter what regulatory, legislative actions are taken by the new administration.”
Renewables, targets for rule rollbacks
While vowing to roll back climate goals and open up public lands to more oil and gas development, Trump has been less clear about his plans for about wind and solar.
While campaigning in Iowa last year, Trump said he supported a wind production tax credit that phases out in 2020, and some industry leaders have said a new administration is unlikely to revise those tax incentives.
Changing or repealing the tax credit also would have to be approved by the Republican-controlled Congress, and that could prove difficult. Sen. Chuck Grassley (R-Iowa) has said Trump would get a bill through Congress to scrap the wind production tax credit only “over my dead body.”
Trump hasn’t said he will attempt to repeal incentives for the solar industry that narrow to 10 percent by 2022, but analysts believe that could be on the table.
Analysts suggest a raft of regulations seen as hampering domestic fossil production could be rolled back using the Congressional Review Act (Greenwire, Nov. 9).
Kevin Book, an analyst at Washington, D.C.-based ClearView Energy Partners LLC, in a note to clients this week said targets for rollbacks could include any tightening of the Army Corps’ Nationwide Permit 12, the stream protection rule, the Bureau of Land Management’s venting and flaring rule, the administration’s five-year plan for offshore oil and gas drilling, and the Bureau of Safety and Environmental Enforcement’s well control rule.
‘Midnight regulations’
Turning back Obama rules that aren’t yet final — so-called midnight regulations — is certain to be a top priority of the incoming Trump administration.
It’s standard fare for a new president on his first day in office to issue a stop-work order on pending rules by the prior administration, calling for them to be withdrawn and reviewed by new political appointees. President George W. Bush’s administration sent out such a memorandum in 2001; the Obama White House did the same in 2009.
Also, Republicans have long wanted to pare down the regulatory state — a goal that could be achieved if Trump signs off on legislation. For example, this week, the House is set to vote on a bill that would allow multiple final rules issued by an administration to be overruled by one joint resolution of Congress.
Trump has his own ideas, as well. As part of his “Contract with the American Voter,” the president-elect says that for every new regulation issued, two existing ones must be voided.
Also, on his transition team’s website, Trump touts regulatory reform and says he will issue a “temporary moratorium” on new federal rules.
Slashing the federal workforce
Trump also has big plans for the roughly 2-million-strong federal workforce that keeps the government humming.
Also as part of his voter contract, the incoming president plans to institute a hiring freeze on all government employees in order to reduce the workforce’s size. His top advisers, like former House Speaker Newt Gingrich (R-Ga.), are pushing to curb job protections for federal workers and battle with their unions.
Legislation targeting the federal workforce that likely wouldn’t be signed into law by Obama could find a new lease on life under Trump. Sen. Ron Johnson (R-Wis.), chairman of the Senate Homeland Security and Governmental Affairs Committee, has pushed a legislative package of several bills that would overhaul the federal government and its workforce.
Trump has also championed reform of the Department of Veterans Affairs, which left military veterans stuck with long wait times for health care. Retiring House Veterans Affairs Chairman Jeff Miller (R-Fla.), reportedly close to Trump’s team, led work on a VA reform bill in 2014 that would make it easier to fire federal employees — a change that some worry could spread to other agencies, including EPA and the Energy and Interior departments (Greenwire, Aug. 4, 2014).
RFS, pesticides
The Trump administration will make early decisions about the federal renewable fuel standard, including whether to be more open to making fuel blenders — rather than refiners and importers — responsible for meeting the RFS volume requirements for ethanol and other renewables.
His administration will also decide whether to keep Obama administration Agriculture Secretary Tom Vilsack’s program of helping outfit gas stations with pumps for higher-ethanol fuels such as E15 and E85, a program at the secretary’s sole discretion, officials say.
Groups with a stake in agriculture policy are also watching for the incoming Trump administration to reduce regulatory hurdles for pesticides and ease environmental requirements on farms.
In addition to overhauling rules, the Trump administration could simply opt to not enforce some policies it doesn’t like, stakeholders said, an approach that could apply to a range of regulations like the Endangered Species Act and the Federal Insecticide, Fungicide and Rodenticide Act.
Trump wouldn’t need legislation, either, to make it easier to use pesticides on farms, or to use a wider array of them. EPA could interpret current standards in a way that leans toward wider use of farm chemicals. That’s good news to farm groups that want more responses to chemical-resistant bugs and weeds but bad news to environmental groups worried about the effect on water supplies, wildlife and pollinators.
Trump’s Agriculture Department will also craft rules for labeling of foods made from genetically engineered crops, which pit consumer groups against trade associations such as the Grocery Manufacturers Association. That could play out over the next year.
Reporters Kevin Bogardus, Dylan Brown, Marc Heller, Hannah Hess, Corbin Hiar, Rod Kuckro, Hannah Northey, Amanda Reilly, Sean Reilly, Tiffany Stecker and Emily Yehle contributed.