Only a few existing federal environmental rules have been set aside or overturned by the new Administration, and these actions were taken by the Congress in accordance with the special procedures of the Congressional Review Act (CRA). The repeal, rescission, postponement, or modification of existing rules generally must be accomplished in accordance with the procedures of the Administrative Procedure Act (APA). However, some rules which were promulgated but not effective by January 20, 2017 were delayed, consistent with established policy, to give the Administration sufficient time to review the new rules they will be charged with implementing.
1. The Congressional Review Act (CRA)
The CRA, enacted in 1996, establishes a “fast track” procedure to overturn rules issued by federal agencies within 60 days of a legislative session. The deadline for the new 115th Congress to act was calculated to be on or about May 8, 2017. Under the law, each house of Congress will pass a joint resolution which must be signed by the President to be effective. A handful of new rules were overturned by the Congress under the CRA. These laws are: PL 115-5, which disapproved the “Stream Protection” rule of the Department of the Interior (DOI; PL 115-12, which disapproved the new Bureau of Land Management (BLM) rules which established procedures to prepare, revise, or amend land use plans pursuant to the Federal Land Policy and Management Act of 1986 (FLPMA); and PL 115-20, which disapproved a DOI rule relating to the “non-substantive takes of wildlife in the Alaskan natural wildlife refuges.” On the other hand, the Congress failed to pass CRA legislation that would have revoked federal methane emissions regulations applicable to oil and gas operations on federal or tribal lands.
2. Presidential Executive Orders
Since taking office, President Trump has issued many Executive Orders (EO), principally directed to federal executive departments and agencies that are directly responsible to the President. These orders are clearly designed to enhance the domestic economy and to reduce the regulatory burdens facing American industry and commerce. In accordance with these directives, working groups have been set up in the various agencies and departments to develop plans and recommendations pursuant to timetable and deadlines to reform the administrative process and facilitate the expedited issuance of needed reviews and permits. The departments and agencies have been soliciting comments from the public regarding their existing rules and practices. No established and existing rules can be repealed by the issuance of these EOs, but they do set the tone for future administrative action. These EOs include:
- EO 13766 (January 24, 2017), which directs the Chairman of the Council on Environmental Quality (CEQ) to identify “high priority infrastructure projects” and coordinate the expedited federal review of these projects;
- EO 13771 (January 30, 2017), which is intended to reduce regulations and control regulatory costs. The EO authorizes the affected departments and agencies to, in accordance with law, eliminate two existing rules for every new rule that is authorized.
- EO 13777 (February 24, 2017), which is intended to reinvigorate the ongoing reform of the federal administrative process. Each agency is to appoint a Regulatory Reform Officer to ensure that the agency carries out the forthcoming regulatory reform initiatives;
- EO 13778 (February 28, 2017), which revisits the recent waters of the “Waters of the United States” or “WOTUS”definition promulgated by Environmental Protection Agency (EPA) and the U.S. Corps of Engineers on June 29, 2015 and which has been stayed by the court. The new rule and all rules, policies and guidelines are to be reviewed for consistency with the policies enunciated by this EO, including a preference for Justice Scalia’s interpretation of “Waters of the United States” in the Rapanos case.
- EO 13781 (March 13, 2017), which is a directive to the executive agencies to develop plans to improve the effectiveness of the executive branch;
- EO 13783 (March 28, 2017), which is a broad directive to enhance the development of the nation’s “vast energy resources.” There will be an immediate review of all agency actions that potentially burden the safe and efficient development of these resources, and to this end, the EO directs the EPA to review the “Clean Power Plan” (CPP); scrutinize the legal memorandum that support the CPP; disbands the “Working Group” on the social cost of greenhouse gas (GHG) emissions as well as the social cost of carbon policies. EPA is to review the June 3, 2016 rules applicable to the domestic oil and gas industry, and the DOI is to review its new oil and gas rules. Finally, the federal moratorium on coal leasing will be amended or withdrawn by the DOI;
- EO 13788 (April 18, 2017), the “Buy American and Hire American” EO;
- EO 13790 (April 25, 2197), which is intended to promote agricultural and rural prosperity, and to enhance traditional and renewable energy production “in the rural landscape;”
- EO 13792 (April 26, 2017), ordering the DOI to review recent expansive national monument designations under the Antiquities Act, especially those designations that can impede the balanced and fair use of federal lands;
- EO 13795 (April 28, 2017), which implements an “America-First Offshore Energy Strategy.” The EO requires a review and reconsideration of a host of recent federal actions affecting offshore energy development including new proposals for ensuring adequate offshore financial assurance requirements;
- EO 13794 (April 28, 2017), establishing the American Technology Council to improve the federal government’s information technology service; and
- EO 13797 (April 29, 2017), establishing an Office of Trade and Manufacturing Policy in the White House.
3. Presidential Memorandums
In the early days of his administration, the President issued a series of Presidential Memorandums stating that, to the maximum extent provided by law, all new, repaired or retrofitted pipelines will be constructed by materials produced in the U.S. In addition, the President used these memoranda to expedite the governmental permitting review and construction of the Keystone XL and Dakota Access Pipelines. In another early Presidential Memorandum, the President directed the Secretary of Commerce to take steps to streamline the permitting processes affecting the domestic manufacturing sectors.
4. Presidential Appointments
Key appointments have been made to the Office of Management and Budget, EPA, and the DOI, all of which presage strong commitments to regulatory reform and relief. In addition, the President has nominated prominent attorneys to positions in the Department of Justice (DOJ).
5. Agency and Departmental Actions
Many Federal Register notices that have been published, chiefly by EPA, announce the reconsideration or delay of the effective date of many rules, and otherwise seek public comments in accordance with the President’s EOs.
A. Environmental Protection Agency
- January 26, 2017 (82 F.R. 8499). EPA delayed the effective date of 30 recently promulgated rules, including the risk management plan (RMP) rule and the new Comprehensive Environmental Response, Compensation, and Liability Act, known also as Superfund (CERCLA), subsurface intrusion rule.
- March 6, 2017 (82 F.R. 12532). Responding to the President’s EO, the public is notified that an advance notice of proposed rulemaking with respect to the redefinition of WOTUS will be issued.
- March 2, 2017 (82 F.R. 12333). EPA extended the comment period on its proposed financial responsibility requirements for certain facilities in the hard rock mining industry.
- March 16, 2017 (82 F.R. 13968). The effective date of the RMP rule was extended to June 19, 2017; the Administrator has decided to convene a proceeding to reconsider the RMP program amendments.
- March 20, 2017 (82 F.R. 14324). The effective date of five rules issued between December 12, 2016 through January 17, 2017, was postponed until May 22, 2017. This batch of rules included the subsurface intrusion rule. The notice indicated that the lack of confirmed agency officials influenced this action.
- April 3, 2017 (82 F.R. 16144). EPA withdraws the October 23, 2015 proposals for a federal plan to implement GHG emissions guidelines, consistent with the EO of March 28, 2107.
- April 3, 2107 (82 F.R. 16146). A further delay is proposed for the effective date of the RMP rule to February 19, 2019.
- April 4, 2017 (82 F.R. 16330). EPA announces that it is reviewing and may institute proceedings to suspend, revise or rescind the New Source Performance Standards (NSPS) for GHG emissions from coal plants.
- April 4, 2017 (82 F.R. 16329). EPA announces the same intention with respect to the CPP.
- April 4, 2017 (82 F.R. 16331). EPA announces that it is reviewing the NSPS for oil and gas operations, as promulgated on June 3, 2106 at 81 FR 35824.
- April 13, 2017 (82 F.R. 17793). EPA requested public comments on which of its existing rules should be repealed, replaced or modified. Thousands of comments were received by the agency.
- April 25, 2017 (82 F.R. 19005). EPA announces that it is postponing the compliance dates for the Clean Water Act (CWA) effluent limitations and guideline issued for the steam electric point source category that were published on November 3, 2105 at 80 F.R. 67838; the matter was then being litigated in the U.S. Court of Appeals for the Fifth Circuit.
- May 22, 2017. The EPA Administrator announces that he is forming an agency task force to review the CERCLA remedial action processes, which take a very long time before a Superfund site is cleaned up and removed from the National Priorities List (NPL).
- June 5, 2017 (82 F.R. 25730). EPA announces that it has convened a proceeding for reconsideration, and a partial stay of the fugitive emission (methane) requirements published in the Federal Register on June 3, 2016. The rules will be stayed from June 21, 2017 until August 3, 2017. This matter is being litigated in the federal courts in the District of Columbia.
- June 6, 2017 (82 F.R. 26017). EPA requested the U.S. Court of Appeals for the Fifth Circuit to hold in abeyance the litigation noted above in the steam electric point source category while it reviews a petition for reconsideration filed by industry groups, and the agency disclosed that the court granted this request. EPA will issue a new rule providing new compliance dates.
- June 6, 2017. By letter dated June 6, 2017, the EPA Administrator states that the deadlines for complying with the 2015 ozone National Ambient Air Quality Standards (NAAQS) will be extended by one year.
B. Department of the Interior
May 11, 2017 (82 F.R. 22016). The DOI announces that it is seeking public comments on its National Monument designations.
C. The Coast Guard
June 8, 2017 (82 F.R.26632). The Coast Guard seeks comments on its regulatory program, and these comments should be filed by July 10, 2017.
6. The Attorney General
On June 5, 2017, the Attorney General issued a statement that the DOU will no longer engage in the practice whereby monetary settlement agreements made to conclude on going federal litigation will be shared with non-governmental third-party organizations.