ALERT: The Trump Administration's First WeekPresident Trump and his staff have taken several steps to implement his environmental agenda.
As reported previously (see Freeze on Regulations), Mr. Trump’s Chief of Staff, Reince Priebus, on January 20, 2017, issued a Memorandum requiring, among other things, that all federal agencies postpone the effective date of all regulations published in the Federal Register but not yet effective as of January 20, 2017. EPA, on January 23, 2017, complied, postponing the effective date of thirty rules until March 21, 2017. See 82 Fed. Reg. 8499 (Jan. 26, 2017). The thirty regulations include the:
Risk Management Program revisions (previously effective on March 14, 2017),
Renewable Fuel Standards for 2017 (previously effective on February 10, 2017), and
Addition of a subsurface intrusion component to the hazard ranking system (previously effective on February 8, 2017).
The President has also taken several other steps which have an impact on EPA. On January 23, 2017, he instituted a hiring freeze for all executive departments and agencies, except the military. Obviously, as positions are vacated through attrition or retirement, EPA’s size will shrink, impacting its ability to conduct inspections, issue permits, and new rules. As to inspections, this may mean that EPA will rely more heavily on its Next Generation Enforcement Initiative (unless that too is modified or ended by the new administration). (For more on Next Generation Enforcement, see ‘Emission Shaming’ – EPA’s Latest Compliance Tactic and How to Protect Yourself.)
On January 24, 2017, he issued several directives focused on pipelines, streamlining the permitting process, and expediting environmental reviews.
As to pipelines, he issued Presidential Memoranda regarding the construction of the Keystone XL Pipeline and the Dakota Access Pipeline. While signaling his support for these projects, these memoranda are not approvals. In the Keystone Memorandum, he invited TransCanada to re-submit its application and stated that a final permitting decision must be made within sixty days of the re-submittal. TransCanada submitted its application on January 26, 2017. He also required that the Final Supplemental Environmental Impact Statement issued by the Department of State in January, 2014, be regarded as fulfilling any review required under NEPA, the National Environmental Protection Act. The Final Supplemental EIS found, among other things, that the “total annual GHG emissions (direct and indirect) attributed to [movement of materials by rail] range from 28 to 42 percent greater than for the proposed Project.” Final Supplemental EIS, Executive Summary, p. ES-34. In the Dakota Access Memorandum, he instructed the Corps of Engineers to “review and approve in an expedited manner, to the extent permitted by law and as warranted, … requests for approvals to construct and operate the” pipeline, including any “permits or approvals under section 404 of the Clean Water Act.”
As to permitting, he announced that all executive departments and agencies “support the expansion of manufacturing in the United States through expedited reviews of and approvals for proposals to construct or expand manufacturing facilities and through reductions in regulatory burdens affecting domestic manufacturing.” This directive is broad enough to include environmental permits. Within 120 days, the Secretary of Commerce is to solicit stakeholder comments and issue a report “setting forth a plan to streamline Federal permitting processes for domestic manufacturing and to reduce regulatory burdens affecting domestic manufacturers.”
As to environmental reviews, he required that the Chairman of the Council on Environmental Quality (CEQ) decide whether an infrastructure project qualifies as a “high priority” infrastructure project. Once so declared, the Chairman of the CEQ must coordinate with the relevant agency and “establish, in a manner consistent with law, expedited procedures and deadlines for completion of environmental reviews and approvals for such projects.”
Several other measures were taken by the Trump Administration, including the freezing of the award of new contracts and grants and curtailing certain social media postings. Additionally, reports surfaced that transition team members wanted to reduce the size of EPA over the next four years to about one-third its current size. These reports have reportedly caused some EPA employees to arrive at work in tears. Apparently, however, as of now, the administration has backed off of removing EPA’s climate change web-page.
It was also reported that Congress may invoke the Congressional Review Act to address several recent regulations impacting the environment. (For more on the Congressional Review Act, see The hurdles of Trump’s EPA.) Several regulations mentioned in this context are EPA’s Risk Management Program revisions noted above, Interior’s Stream Protection Rule, and the Bureau of Land Management’s recent methane rule. EPA’s revisions to the Oil and Gas Sector NSPS Rule, published on June 3, 2016, may not come within the ambit of the Congressional Review Act as the Congressional Research Service, on December 15, 2016, stated that the deadline for such review would apply to rules submitted on or after June 13, 2016.
Depending on your perspective, it has been an exciting or unsettling first week. Regardless, it has been active, with more to come next week. Stay tuned!