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Trump’s Proposed Environmental Agenda May Be Easier Said (or Tweeted) Than Done

Monday, December 12, 2016

Loyti Cheng

Co-head of the Environmental Practice Group and Counsel, Davis Polk & Wardwell LLP

David A. Zilberberg

Counsel, Davis Polk & Wardwell LLP

President-elect Donald Trump's environmental agenda to date has generally been focused on undoing certain specific Obama administration regulations, such as the Clean Power Plan (CPP) or the Waters of the United States (WOTUS) rule, and relaxing restrictions on domestic fossil fuel exploration and production. But what tools will the Trump administration have at its disposal to effectuate this agenda? While no one expects the niceties of administrative law to make an appearance in President-elect Trump's rapid-fire tweets, understanding the legal tools for overturning or revising existing policy or regulation and how they can be used is critical for understanding the potential ways in which environmental law is likely to change over the next several years.

Donald Trump's Twitter Account

The tools available to the Trump administration vary depending on the kind of policy or rule sought to be changed and when and how it was promulgated. In this post, we examine these various types of policies or rules and the key legal mechanisms to undo or revise them. For a more fulsome discussion of these legal mechanisms, including a table cataloging the legal mechanisms the Trump administration might use to target key Obama administration regulations or policies, click here.

  • Executive orders and actions. Most executive orders or actions, such as the U.S. Department of the Interior coal leasing moratorium, can be reversed by a subsequent executive order or action without formal rulemaking. Some news reports suggest that the Trump administration may view the U.S. government's decision to join the Paris Agreement as akin to an executive order, allowing the new administration to simply issue an order revoking the President’s signature from that agreement (assuming that President-elect Trump does not reconsider his opposition to the Paris Agreement, as he suggested was possible in a recent interview). For more information on the mechanics of withdrawing from the Paris Agreement, click here.
  • Regulations that haven't been published in the Federal Register by January 20, 2017. The Trump administration will be able to halt any regulation that hasn't been published in the Federal Register by the time he takes office. This includes any proposed regulations, such as the U.S. Environmental Protection Agency’s (EPA’s) proposed rule on hard-rock mining financial responsibility requirements, as well as rules that have been finalized and signed by the EPA administrator, but haven't yet been published in the Federal Register. Previous incoming administrations have issued a moratorium on such predecessor regulations and President-elect Trump has indicated his intent to take a similar approach.
  • Final regulations delivered to Congress after approximately June 2, 2016. Under the Congressional Review Act (CRA), Congress can void final regulations by a joint congressional resolution passed by a majority of each of the House of Representatives and Senate and signed by the President generally within 60 legislative days after the regulation is delivered to Congress. According to the most recent calculation conducted by the Congressional Research Service, final regulations delivered to Congress after June 2, 2016, could be subject to CRA review under the Trump administration. The June 2, 2016, deadline, however, is subject to change depending on when Congress adjourns its current session later this year. Joint resolutions under the CRA are generally not subject to Senate debate rules requiring 60 votes, which makes the CRA attractive as a tool for overturning regulation. Controversial environmental regulations that fall into this category could include the recently published Bureau of Land Management rule regarding methane emissions from oil and gas facilities on federal and tribal lands and the Office of Surface Mining Reclamation and Enforcement’s stream protection rule.
  • Final regulations delivered to Congress on or before approximately June 2, 2016. Final environmental regulations delivered to Congress on or before approximately June 2, 2016, such as the CPP or WOTUS rule, cannot simply be rescinded by President-elect Trump. Instead, the Trump administration would need to follow the same time-consuming and bureaucratically fraught notice-and-comment process that all rulemakings must follow. Any such rulemaking is likely to be met with litigation by advocates of the original regulation, and while courts are generally deferential to executive agency environmental rulemaking, the Trump EPA would have to convince a court that the regulatory record compiled in connection with the original rulemaking is no longer valid. Note that the CPP is the result of a long regulatory process that arose from U.S. Supreme Court precedent and a resulting settlement signed by EPA.

Any attempts to undo the CPP or WOTUS rule in particular will be set against the backdrop of the pending legal challenges to those rules (these challenges have currently stayed the implementation of these rules) and any result of such litigation could impact further rulemaking. President-elect Trump could also make a preemptive motion to voluntarily dismiss the cases to allow EPA to revise those rules, although it is unclear whether a court would grant such a motion.

Of course, Congress can undo any regulation through legislation. For example, in the past, certain Republican Congress members have proposed legislation exempting greenhouse gases from the Clean Air Act, which would essentially pull the rug out from under much of the Obama administration’s climate change agenda. However, the current prospects of any significant environmental legislation rolling back existing regulation are unclear given that current Senate debate rules effectively require 60 votes to pass a bill.

As President-elect Trump begins to fill key administration positions, including the recent nomination of Scott Pruitt as EPA administrator, it should be kept in mind that nothing about President-elect Donald Trump to date has been predictable. The legal framework governing regulatory change, however, is fairly well-established and understanding it is important in assessing the viability of the Trump administration's environmental agenda, whatever shape it ultimately takes.


 

Loyti Cheng is co-head of the Environmental Practice Group and a counsel at Davis Polk & Wardwell LLP. David A. Zilberberg is a counsel at Davis Polk & Wardwell LLP practicing in the Environmental Practice Group.

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