By Brianne Bennett
INTRODUCTION
In the last four years since President Donald J. Trump has taken office, he and his administration have been hard at work attempting to dismantle major climate protections and have rolled back over 70 rules governing environmental protections focusing on water, toxic chemicals, clean air, and wildlife protections.[1]The majority of these rollbacks have been undertaken by the Trump Administration’s Environmental Protection Agency (“EPA”).[2]In addition to the over 70 rules currently rolled backed by the Trump Administration (“the Administration”), almost 30 additional regulations are also in the process of having their restrictions and consequences cut.[3] The efforts by the EPA to roll back these regulations include the weakening of several Obama Administration era policies such as wetland protections as well as limits on mercury and carbon dioxide emissions from power plants.[4]
In addition to the rollbacks from the EPA, additional rollbacks have come from the Interior Department. These rollbacks have limited protections for wildlife and increased land granted to oil and gas companies under government leases.[5]According to a spokesperson from the Administration’s EPA, the changes in environmental regulations by the Administration are designed to “[P]rovide certainty for states, tribes, and local governments,” and to demonstrate the Administration’s dedication to putting the EPA back on track of its original purpose of “[p]roviding cleaner air, water and land to the American people.”[6]
However, many groups, both environmental and legal, have emphasized that not only are the Administration’s rollbacks not putting the EPA back on track, they are having the exact opposite effect. Many of the Administration’s rollbacks have been challenged, not only by environmental groups, but also by states.[7] Hillary Aidun, an employee responsible for tracking deregulation at the Sabin Center for Climate Change Law at Colombia University, states that many of the rollbacks enacted by the Administration have been authorized without sufficient justification behind them, leaving them open to litigation.[8]
The Administration has stated that the rollback of these regulations is an effort to return the EPA to its core mission of protecting the environment and stimulating the economy.[9]However, it is proven that environmental regulations are, in fact, highly beneficial for the economy.[10] The Clean Power Plan, finalized by the Obama Administration in 2015, for example, was estimated to add tens of thousands of jobs within the renewable energy sector by 2040.[11]In addition to their economic value, environmental regulations are also highly beneficial in preventing illness and death related to pollution.[12]
Ken Cook, a spokesperson for the Environmental Working Group states that “There has never been a president who has actively pursued an agenda so hostile to the environment . . . than Mr. Trump.”[13] Earthjustice has filed more than 100 lawsuits against the Administration to date and emphasizes that the Administration “drives a destructive pro-polluter agenda at the expense of the American people.”[14]Section I of this Comment will address the main areas where the Administration has focused its efforts to reduce environmental protections. The following Sections will address the use of rollbacks by the Administration, and how the results of the upcoming, November 3, 2020, election may affect the future of environmental regulation in the United States.
I. Major Regulations Subject to Potential Rollbacks
A. Clean Air Regulations
i. Toxic Air Pollution
This Section focuses on the Mercury and Air Toxics Standards Rule which determined that the benefits of eliminating toxic air pollutants greatly exceed the cost of complying with regulations.[15]The EPA announced a review of this rule in April 2017.[16] The EPA provided no justification for its review.[17] For the time being, this regulation remains in effect. If the EPA were to conclude that the costs outweigh the benefits, it could lead to a possible rollback of limits on power plant emissions. However, if we are to follow along with the statement made by Hillary Aidun that these rollbacks, without justification, are vulnerable to litigation, it is probable that any rollback of this rule will result in court challenges.[18]
ii. Industrial Malfunction Pollution
During a 2017 case before the D.C. Circuit Court of Appeals, the Administration attempted to delay litigation concerning the EPA’s “Startup, Shutdown, and Malfunction SIP Call.”[19] This regulation required more than 30 states to review their Clean Air Act State Implementation Plans (SIPs).[20] The D.C. Circuit Court of Appeals granted an indefinite postponement of oral arguments regarding this regulation. This indefinite stay will allow for power plants to postpone the implementation of harsher SIPs regulations without fear of litigation.
iii. Greenhouse Gases from Power Plants
The Greenhouse Gas Rule sets forth the standards to limit carbon dioxide from all types of fossil fuel-fired steam electric power plants.[21] This regulation is in the process of being reviewed by the Administration following an executive order by President Trump ordering a review of the 2014 Clean Power Plan and all its associated rules.[22] Power plants already produce forty percent of caron dioxide emissions in the United States.[23] If the Administration succeeds in rolling back the Greenhouse Gas Rule we could see a drastic increase in carbon dioxide emissions.
iv. Oil and Gas
The Administration halted the implementation of the rule that required oil and gas facilities to find and repair leaks of methane from new facilities in 2017.[24] These facilities include wells, compressor stations, and tanks. That same year several organizations filed a federal lawsuit to stop this “stay” of the regulation. The U.S. Supreme Court found in favor of the environmental organizations promoting the implementation of the rule and granted an emergency motion, leaving the rule in effect.[25] The Oil and Gas Methane Rule is expected to reduce 510,000 tons of methane by 2025.[26] This is a great environmental benefit as it is the equivalent of reducing 40 million metric tons of carbon dioxide from the air.
B. Clean Water Regulation
i. Coal Plants
In 2017, the Administration halted compliance deadlines with the 2015 Steam Electric Effluent Limitations Guidelines (“ELG”).[27] The ELG places limits on toxic water pollution from coal-fired power plants. Even further, in 2018 the EPA announced intentions to file in the U.S. Court of Appeals for the Fifth Circuit to reduce the limits on wastewater from coal gasification plant.[28] This demonstrates the Administration’s intentions to further lessen the restrictions on coal plant pollution.
ii. Streams and Wetlands
In 2019, the Administration enacted the “Waters of the U.S.” rule revoking the federal protections of about 18 percent of streams and about 51 percent of wetlands across the U.S.[29] These areas are especially important as they serve as headwaters for many river and lakes that provide drinking water. They act as natural filters for these bodies of water that prevent pollutants from entering the drinking water reserves. Protecting these areas from pollution is massively important because the pollutants poured into these areas include toxins such as arsenic and selenium.[30] Both of these are poisonous to humans and allowing them to be dumped into drinking water resources can cause devastating health defects and even death.
II. How Are These Rollbacks Possible?
Many of the rules and regulations that are under attack by the Administration are results of the administrative law process. Within this structure, Congress has taken a step back and allowed federal agencies to take their place in the regulation of these areas. Environmental policies are prone to administrative regulation because they are seen by Congress as a very black and white area of law.[31] Things either fall under environmental protection, or outside of it, therefore it is a relatively easy area to regulate and does not need constant Congressional oversight.
Typically, when an agency intends to implement a regulation, that regulation goes through a required process known as a “Notes and Comments” period where the regulation is open to the public to submit their thoughts on the regulation.[32] Those comments must then be examined and considered by the agency. Once a regulation has been enacted by an agency, any changes made to it are subject to the same kind of “Notes and Comments” period as the original regulation.[33] However, portions of these regulations may be overturned by courts.
It is this method that the Administration has used to enact many of these rollbacks. By filing suit in federal courts, the Administration can obtain a “stay” or “halt” of specific sections of the regulation without repealing or changing the wording of the regulation in such a way that would require the Notes and Comments period. Halting a specific portion of these regulations allows the Administration to achieve their goals of lessening restrictions on environmental polluters without having to go through the arduous process of changing the law.
III. Potential Election Consequences
Many of the aforementioned regulationshave actually been “stayed, rather than completely repealed.” That means that the EPA is attempting to, or has succeeded in, halting the application of all or a part of these regulations. The EPA is using this as a workaround to avoid having to formally overturn these rules. Administrative law requires a Notice and Comment process in order to amend or repeal a rule. The Notice and Comment process is a long and arduous process that the Administration is avoiding by “rolling back” these regulations rather than fully abolishing them.
However, many of these rollbacks are seeing attacks from environmental agencies across the country. At the beginning of October 2020, a three-judge panel met to rule on the Administration’s efforts to repeal regulations on power plant emissions.[34] The court in this case contains two judges named by former President Barack Obama, who placed emphasis on higher, rather than lower, economic regulations. However, even if the court rules against the current Administration, this case and many more like it are likely to reach the Supreme Court for further ruling.[35] With a conservative majority in the Supreme Court, the Administration’s desires are likely to prevail.
To date, the Administration has completed rollbacks on over 70 environmental regulations.[36] An additional 27 regulations are currently in the process of being rolled back.[37] If President Trump is able to secure a second term, the current rollbacks would obviously remain in place. The 27 regulations currently in the process are likely to be rolled back and the Administration will move forward with their pattern of aggressive deregulation in the environmental field.[38] In the current political climate, a potential second term for President Trump, along with a conservative majority in the Supreme Court and a potential continued conservative majority in the Senate, the current Administration has the potential to do lasting damage to environmental regulation. There is confirmation that further rollbacks are exactly what the Trump Administration intends to do with a second term. Andrew Wheeler, the head of the Administration’s EPA, has stated that “President Donald Trump will move to weaken more environmental regulations of industries if reelected in November.”[39]
Even if former Vice President Biden is elected, the current rollbacks could still have lasting future impacts. But there is still hope for environmental and natural resource protections. In the last ten months, several court cases have arisen to fight back against the Trump Administration’s rollbacks. Amongst the rollbacks challenged were the decrease in fossil fuel development limitations, methane emission standards, the Dakota Access Pipeline, migratory bird protections, and natural gas flaring.[40] The New York University Institute for Policy Integrity Database shows that the Trump Administration EPA has won only nine of forty-seven cases and the Interior Department has won only four of twenty-two.[41] With a less than twenty percent success rate, there is great likelihood that the Administration will be stopped from furthering wrongful environmental regulations.
CONCLUSION
Environmental protections play an important role in the sustainability of the United States. Not only do these regulations protect natural resources such as air and water quality, they also provide health benefits which far outweigh the costs to implement them. Despite the importance of environmental protections, the Trump Administration is attempting to roll back several regulations. As a result, tens of thousands of jobs will be lost, a massive cut to the economy.[42]If the Administration continues its path of deregulation, it is only a matter of time before the United States has damaged the environment and depleted its resources beyond what government regulations can recover from. Whether President Trump remains in office or former Vice President Biden assumes the role of President, one thing remains true: we must work to preserve the United States’ depleting environmental protections and natural resources.
[1].Environmental Integrity Project, Environmental Protections of the Chopping Block, Regulatory Rollbacks(2020), http://environmentalintegrity.org/trump-watch-epa/regulatory-rollbacks/.
[2]. Nadka Popovich, Livia Albeck-Ripka, and Kendra Pierre, The Trump Administrations Is Reversing Nearly 100 Environmental Rules. Here’s the Full List., The New York Times(October 15, 2020), http://www.nytimes.com/interactive/2020/climate/trump-environment-rollbacks-list.html.
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[10]. Environmental Integrity Project, Environmental Protections of the Chopping Block, Regulatory Rollbacks(2020), http://environmentalintegrity.org/trump-watch-epa/regulatory-rollbacks/.
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[13]. Environmental Management, Trump Touts Environmental Record; Green Groups Scoff,39 No. 26 Westlaw Journal Environmental 01, (2019).
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[15].Environmental Integrity Project, Environmental Protections of the Chopping Block, Regulatory Rollbacks(2020), http://environmentalintegrity.org/trump-watch-epa/regulatory-rollbacks/.
[16].Id.
[17].Id.
[18]. Nadka Popovich, Livia Albeck-Ripka, and Kendra Pierre, The Trump Administrations Is Reversing Nearly 100 Environmental Rules. Here’s the Full List., The New York Times(October 15, 2020), http://www.nytimes.com/interactive/2020/climate/trump-environment-rollbacks-list.html.
[19]. Environmental Integrity Project, Environmental Protections of the Chopping Block, Regulatory Rollbacks(2020), http://environmentalintegrity.org/trump-watch-epa/regulatory-rollbacks/.
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[31]. Donald J. Kochan, Strategic Institutional Positioning: How We Have Come to Generate Environmental Law Without Congress, 6 Tex. A&M L. Rev. 323, 341-42(2019).
[32]. Environmental Protection Agency, The Basics of the Regulatory Process, Laws & Regulations(July 22, 2020), https://www.epa.gov/laws-regulations/basics-regulatory-process.
[33].Id.
[34]. Lisa Friedman, Judges Hear Arguments in President Trump’s Biggest Climate Rollback, The New York Times, (Oct. 8, 2020), https://www.nytimes.com/2020/10/08/climate/trump-climate-change.html.
[35].Id.
[36]. Nadka Popovich, Livia Albeck-Ripka, and Kendra Pierre, The Trump Administrations Is Reversing Nearly 100 Environmental Rules. Here’s the Full List., The New York Times(October 15, 2020), http://www.nytimes.com/interactive/2020/climate/trump-environment-rollbacks-list.html.
[37].Id.
[38]. Lisa Friedman and John Schwartz, Election and Supreme Court Fight Will Decide Trump’s Environmental Legacy, The New York Times, (Sept. 23, 2020), https://www.nytimes.com/2020/09/23/climate/trump-environment-courts.html.
[39]. Emma Newburger, Trump Will Roll Back More Environment Regulations if Reelected, says EPA Chief, CNBC, (September 3, 2020), http://www.cnbc.com/2020/03/epa-chief-trump-will-roll-back-more-environmental-rules-if-reelected.html.
[40].Id.
[41].Id.
[42]Environmental Integrity Project, Environmental Protections of the Chopping Block, Regulatory Rollbacks(2020), http://environmentalintegrity.org/trump-watch-epa/regulatory-rollbacks/.