Environmental Update

Publication February 15, 2017

Congress and the Trump administration are moving to reverse a number of environmental regulations that affect the US energy sector.

Congress invoked the rarely used Congressional Review Act in early February to nullify a regulation limiting the venting of oil and gas wells on federal lands. The regulation, issued by the Department of the Interior, restricts flaring of gas leaking from wells on public lands in order to limit methane emissions that contribute to global warming. Methane is roughly 30 times more potent than carbon dioxide as a heat-trapping gas.

Congress also vacated restrictions that the Department of Interior imposed last December on discharging waste into streams and rivers from a form of coal mining called mountaintop removal.

The Congressional Review Act gives Congress the power to withdraw regulations within sixty legislative days after the regulations were issued by federal agencies. Removal requires a majority vote in both the House and Senate. The 60 legislative days in this case stretch back to mid-June 2016. As many as 200 regulations issued in the second half of 2016 may be at risk. Congress has until early June 2017 to act. Removal of a regulation then bars the federal agency from issuing any “substantially similar” regulation in the future without Congressional approval. Congress had previously used the Congressional Review Act successfully only once, 16 years ago, to overturn a Clinton administration rule. The statute has never been tested in the courts. 

These are first steps being taken by Congress and the new Trump administration to erase the Obama administration’s environmental regulatory legacy. As the 60-day window closes on new rules, opponents of environmental regulation will have to rely on other tools. One approach will be to cut funds and staff available for agencies to enforce the law, or to attach more targeted appropriations riders to legislation. Once the Trump team is in place, the agencies themselves can rewrite existing regulations, although the same time-consuming procedures will have to be followed to ensure consideration of conflicting points of view that applied when the regulations were first issued. 

Climate

The Trump administration quickly removed information about climate change from the US Environmental Protection Agency website, but dismantling the Obama Clean Power Plan and a series of other measures to reduce US greenhouse gas emissions will take more time.

Underlying each of these measures is an “endangerment finding” by EPA in 2009 that greenhouse gas emissions endanger public health and welfare. The finding followed from a 2007 decision by the US Supreme Court in a case called Massachusetts v. EPA that carbon dioxide is a regulated pollutant under the Clean Air Act.

Unless Congress amends the Clean Air Act to state that greenhouse gases cannot be regulated as pollutants, or the Trump EPA successfully revokes the endangerment finding, then some level of greenhouse gas regulation is legally required.

Trump advisers have suggested the new administration may simply dial back climate regulation to a minimum level rather than try to eliminate it altogether so as to put the government in a better position to defend against the inevitable legal challenges while still achieving the same outcome. This tactic could arguably upend common law claims that are currently pending in state courts against emitters.

Whichever approach EPA chooses, killing the Clean Power Plan – the agency’s regulatory scheme for regulating greenhouse gas emissions from power plants – is on the to-do list. Scott Pruitt, the incoming EPA administrator, told a Senate committee during confirmation hearings: “The Clean Power plan did not reflect the authority of Congress given to the EPA.” He said EPA went beyond the authority given to it in the Clean Air Act by trying to base emissions reduction targets on measures taken “outside the fence line,” as opposed to limiting the regulation to actions that can be taken at the plant itself.

Pruitt was most recently the Oklahoma attorney general. In that post, he filed lawsuits to block not only the Clean Power Plan, but also EPA regulations limiting mercury emissions from power plants and a regulation claiming broad jurisdiction for the agency to attack water pollution under the Clean Water Act.

New Script

Trump’s nominees to head various government departments took a more measured tone on climate change before the Senate during confirmation hearings than President Trump did while on the campaign trail.

Trump was a severe critic of US government efforts to deal with climate change. He called global warming a “hoax” invented by the Chinese.

Scott Pruitt told the Senate committee considering his confirmation, “I do not believe that climate change is a hoax” and “[s]cience tells us the climate is changing and human activity, in some manner, impacts that change.“ The nominee to head the Interior Department, Ryan Zinke, followed a similar script. Former Texas Governor Rick Perry, who will head the Department of Energy, reversed years of asserting that the science behind climate change is “unsettled” and a “contrived, phony mess.” Perry said, “I believe the climate is changing. I believe some of it is naturally occurring, but some of it is also caused by man-made activity. The question is how do we address it in a thoughtful way that doesn’t compromise economic growth, the affordability of energy, or American jobs.”

Notwithstanding the change in tone, the new administration is still expected to reverse course on regulation to address climate change. The argument going forward is expected to be that the science is uncertain as to what degree the climate is changing, to what degree that change is occurring as a result of man-made activity, and whether those changes will result in any harm. Pruitt said during his confirmation hearings, “The ability to measure the precision, degree and extent of the impact and what to do about that are subject to continued debate and dialogue.“

Science

There are fears that the Trump administration will withdraw scientific information from government databases and cancel research into climate change.

The Obama administration issued guidance on estimating the climate impacts of federal decisions. Such effects may no longer be taken into account in federal decisions if proposed changes are implemented.

The National Aeronautics and Space Administration has played a role for three decades in climate-change research. NASA satellites track melting ice sheets and rising seas. Former Congressman Bob Walker, who advised Trump on space policy during the campaign, argues that NASA should no longer conduct climate science and calls the agency’s actions a form of “politically correct environmental monitoring” that is better done by the National Oceanic and Atmospheric Administration, which monitors the weather.

Myron Ebell, who headed the Trump transition efforts on environmental issues, told reporters on January 30, 2017, that President Trump is likely to pull the United States out of the global Paris climate agreement. However, there has been no announcement, and Trump told former President Obama when the two met in November that he would keep an open mind.

Ninety-four countries, representing 66% of global greenhouse gas emissions, have ratified the Paris accord to address climate change after more than two decades of effort. They include the three biggest emitters: the United States, China and India. The agreement officially went into effect in November 2016. The countries agreed collectively to limit the increase in global temperatures to no more two degrees Celsius (3.6 degrees Fahrenheit). Scientists believe it is too late to prevent any increase.


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