Environmental update

Publication June 2017

The US Environmental Protection Agency has begun a systematic process of withdrawing or modifying various Obama-era environmental regulations. 

EPA under President Trump characterizes these actions as refocusing EPA on its “core statutory duties” and deferring to states on environmental regulation.

Thus far, Trump signed a series of executive orders driving agencies toward deregulation, including one that requires the repeal of two existing rules for every one new rule and requires agencies to meet a zero net regulatory expense target. Another order requires federal agencies to create task forces to review existing regulations in an effort to reduce regulatory burdens.

Another order directed EPA to review and possibly withdraw the “Clean Power Plan” that sets greenhouse gas limits for existing power plants as well as a rule on methane emissions from new oil and gas wells. 

EPA has begun weighing whether to withdraw or modify numerous other regulations in response to industry petitions, including its air quality standards for ozone, the Clean Water Act effluent regulation for power plants, and rules limiting refrigerants that contribute to global warming.

While the deregulatory push is underway, there are obstacles to speedy implementation. 

One obstacle is finding enough staff to tackle such a determined agenda. President Trump had named only two people to top jobs at EPA as the NewsWire went to press: Scott Pruitt as EPA administrator and Susan Parker Bodine as new head of the office of enforcement and compliance assurance. Bodine is currently chief counsel for the Senate Committee on Environment and Public Works.  

Budget cuts may also slow things. The administration is proposing to cut the EPA budget by 31 percent and reduce agency staff by 25 percent for fiscal year 2018, which begins on October 1.  

The agency faces numerous statutory, regulatory and court-imposed deadlines that take up staff time. Reexamination of existing regulations, including through notice and comment rulemaking, can be as time consuming as issuing a new regulation. 

Sue and settle

The new administrator, Scott Pruitt, has directed EPA staff to curtail “regulation through litigation” where environmental groups use “sue and settle” tactics with a goal of having courts issue consent decrees that set deadlines for rulemaking by the EPA or other government agencies. 

In the typical scenario, an environmental group sues a government agency for missing a statutorily required rulemaking deadline, and the government and the plaintiffs then negotiate a settlement under which the court approves a new deadline. 

Pruitt views such tactics as an abuse of the process. “The days of ruling by consent order, the days of ruling by litigation in the judicial system are over,” he said. “There is a time and place to settle, there is a time and place to engage in a consent decree, but the consent decree should not be used to engage in rulemaking because that subverts the process that Congress has set up.”   

It is unclear to what degree the new administration considers itself bound by past consent decrees about which rules must be addressed and by when since the consent decrees are settlements with a different agency head.   

Republican leaders in Congress are trying for a legislative fix. 

One pending bill would restrict lawsuits against federal agencies that miss statutory deadlines to issue new rules. Another bill would bar the government from agreeing to pay plaintiffs’ costs when settling claims under environmental statutes. Such statutes allow courts to award costs to the successful party. However, neither bill appears to have much traction yet.

Meanwhile, attorneys general in some Republican-controlled states are considering lawsuits to force repeals of various environmental regulations. It remains to be seen whether the Trump administration will embrace “sue and settle” in cases where plaintiffs seek deregulatory outcomes.    

Paris

The Rhodium Group recently estimated that, under Trump, US emissions will probably fall 15 percent to 19 percent below 2005 levels by 2025, rather than the 26 percent to 28 percent that the US pledged previously.

Since the Trump administration has already signaled an end to the Clean Power Plan, which was to serve as the initial means by which the US would have taken significant first steps toward meeting its pledge in the Paris agreement to reduce its emissions by 2025, there seems little practical effect on the US market of the announcement by President Trump on June 1 that the US is withdrawing from the accord, unless withdrawal galvanizes US states to take further action to curb carbon emissions. 

The most important political effect may be that the US is unlikely to fulfill its monetary pledges to help developing countries meet their obligations. The US agreed to pay up to $3 billion by 2020 to help poorer countries meet climate goals and adjust to a warming planet, particularly island countries that are expected to be flooded by rising seas. The United States delivered $1 billion under the Obama administration, but President Trump has indicated that is now at an end. 

The danger is that failure by the US to meet its commitments could serve as a catalyst for other countries to retreat from theirs.

China and India 

The number one and number three greenhouse gas emitter nations, China and India, are expected to exceed targets they set for themselves in the 2015 Paris Climate Agreement, according to United Nations monitors.

Chinese emissions of carbon dioxide may peak more than 10 years sooner than expected. China pledged in the Paris agreement that its emissions would peak around 2030 and that it would source about 20 percent of its electricity from carbon-free renewables by then. China’s faster progress is largely due to reducing coal use for three years in a row, as China moves to bring severe air pollution under control, and a decision to drop plans to build more than 100 new coal-fired power plants. 

India had pledged to reduce its carbon intensity per unit of economic activity in line with historical levels, reversing spiraling trends as its economy industrializes. India is now expected to generate 40 percent of electricity from non-fossil fuel sources eight years ahead of schedule by 2022.  

China and the United States are the world’s two biggest emitters, accounting for approximately two fifths of greenhouse gas emissions. 

Greater sage grouse 

A federal judge in Oregon in April revoked approval for a wind project given by the Bureau of Land Management. The judge said the bureau failed to properly consider the effects on the greater sage grouse. 

An environmental group appealed the approval in 2015. The case went to a US appeals court that sent it back to a lower federal court in May last year after deciding the agency incorrectly concluded that the sage grouse does not spend the winter at the proposed site by relying on data solely from other sites. 

The project is the 104-megawatt Echanis project. The developer is proposing to put between 40 and 69 wind turbines on 10,000 acres of private land serviced by transmission lines crossing land owned by the federal government.

The case is Oregon Natural Desert Association v. Ryan Zinke

— contributed by Andrew Skroback in Washington, DC


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