It is a popular fiction that despite its many foibles, the Trump administration has been successful in dismantling environmental regulations. Given the sheer number of attacks levied on energy and environmental regulations involving the coal, oil, gas, and automotive industries, casual observers might reasonably conclude that the administration is deploying a successful deregulatory strategy.
It is not. The administration has made multiple efforts to put Obama-era regulatory requirements on ice, but these efforts have largely failed. With its delay tactics in tatters, the administration is now taking a different approach—instead of just stopping old regulations, it’s surfacing new replacement rules that would let industry walk away from environmental and public-health and safety obligations that have solid evidentiary support and broad appeal. But having squandered half of its four-year term, the White House faces an uphill climb in developing and finalizing many of its major environmental rollback initiatives, and getting them past now-skeptical courts, before the clock runs out.
The efforts to roll back the oil and gas industry’s obligations to reduce methane emissions specifically illustrate this reality. Trump’s Environmental Protection Agency and Interior Department tried, first, to quickly sideline methane regulations. The gambit failed. Progressive state attorneys general and environmental groups pounced, and won, exposing an impulsive administration that had failed to do its legal homework.
The Trump administration targeted two specific methane rules that the Obama administration had finalized before it left office: the EPA’s New Source Performance Standard, or NSPS, and the Interior Department’s methane-waste reduction rule. The Obama administration finalized the EPA methane rule in June 2016. It focuses primarily on detecting and repairing methane leaks for new oil and gas drilling activities. In May 2017, former EPA Administrator Scott Pruitt announced a 90-day delay for a key compliance deadline for the NSPS. Three weeks later, the EPA proposed a bare-bones “suspension” rule that sought to delay implementation of the existing rule for two years.
State attorneys general and environmental groups immediately petitioned for court review, arguing that the EPA had no authority to nullify key compliance requirements by administrative fiat. The District of Columbia Circuit Court agreed. It moved swiftly to strike down the EPA’s compliance delay, ruling that “an agency issuing a legislative rule is itself bound by the rule until that rule is amended and revoked” through a formal, substantive “notice and comment” process. This ruling sent the EPA back to the drawing board for 14 months.
A similar pattern applies to the Interior Department’s restrictions on methane emissions for oil and gas operations conducted on public lands. The department promulgated the methane “waste prevention rule” in November 2016 in response to evidence gathered by the Government Accountability Office and other watchdog groups that some oil and gas drillers were wasting valuable, publicly owned assets by venting and flaring large quantities of unwanted methane in violation of the Mineral Leasing Act.
Like its efforts to sideline the EPA’s methane restrictions, the Trump administration tried to nullify the Interior Department’s methane-waste reduction rule. Initial efforts included a failed attempt to overturn the rule under the Congressional Review Act and an unsuccessful petition in the normally friendly U.S. District Court of Wyoming to enjoin operation of the rule. In June 2017, Interior Secretary Zinke announced that the department was delaying industry-compliance requirements under the rule. This effort also failed. A federal court in California agreed with California’s and New Mexico’s attorneys general, Xavier Becerra and Hector Balderas, that the Interior Department must complete a full rule-making process under the Administrative Procedure Act, or APA, before it can set aside the Obama rule. The court also noted that the Interior Department could not justify its change in direction by myopically focusing on the rule’s compliance costs to industry. It also must consider “the benefits of the rule, such as decreased resource waste, air pollution, and enhanced public revenues.”
Undeterred by its failures, Zinke’s Interior Department moved forward with a “suspension” rule that purported to put off the waste-reduction rule for a full year. California’s and New Mexico’s attorneys general sued again, arguing that the suspension rule represented an unlawful attempt to circumvent the APA’s substantive notice-and-comment rule-making process. In February, Judge Orrick in the Northern District of California agreed, noting, “The BLM’s reasoning behind the Suspension Rule is untethered to evidence contradicting the reasons for implementing the Waste Prevention Rule.”
After suffering one defeat after another in its repeated attempts to suspend or delay Obama-era methane regulations, the Trump administration’s leadership at EPA and the Interior Department is finally taking on the much harder task of developing and justifying entirely new rules, instead of just rolling back the rules we have. Whether or not they will be successful in turning back the inevitable judicial challenges is murky at best.
The EPA recently proposed a replacement for the NSPS rule that would roll back inspections and repair requirements and drop requirements for third-party validation of leak-detection and repair activities. The new rule identifies modest cost savings to industry but offers no clear, fact-based rebuttal to the Obama administration’s analysis of the benefits of the previous rule. Assuming that the EPA pushes forward to a similar final rule, it will confront a strong challenge to the foregone benefits associated with its weakened rule when it faces judicial scrutiny.
The Interior Department also is now moving forward with a replacement rule after the courts rejected the Trump administration’s initial efforts to sideline its methane-waste reduction rule. More specifically, it promulgated a new final rule last month that purports to completely remove restrictions on the oil and gas industry’s wasting of methane through excessive venting and flaring activities. Within hours of its release, attorneys general Becerra and Balderas challenged the final rule in federal court. In order to succeed in the rule’s implementation, the Interior Department must overcome the substantial administrative record that addressed the necessity of regulations proposed in the old rule. (When overturning the department’s attempted suspension of the methane-waste reduction rule, Judge Orrick emphasized the Supreme Court’s teachings that new administrations cannot simply overturn policies that had been legally established by previous administrations and that the high court requires a “more detailed justification” for overturning existing regulations than what is required for the creation of wholly new regulations from scratch.)
Meanwhile, state attorneys general have put the EPA on the defensive on other methane-emissions-related developments. A coalition of state attorneys general sued the EPA in April for failing to comply with its obligation under the Clean Air Act to restrict methane emissions from existing oil and gas drilling operations. (The NSPS standards apply only to new oil and gas operations.) Eight state attorneys general also sued the EPA in May for failing to enforce compliance deadlines set forth in a separate rule that applies to methane emissions from landfills. Those suits remain pending.
The same pattern seen in the Trump administration’s efforts to roll back EPA and Interior Department requirements to reduce harmful methane emissions is playing out in other environmental and energy contexts. In recent weeks, federal courts struck down attempts by the administration to delay implementation of Obama-era rules protecting workers and first responders from exposure to dangerous chemicals during accidents in industrial chemical facilities as well as delays by the EPA in banning the use of a dangerous pesticide, chlorpyrifos, on food crops.
In all of these matters, Trump’s initial deregulatory efforts failed. Some, like the Administration’s decision not to enforce the 2015 ozone rule, are being dropped entirely. Others are wending their way forward, typically with a cloudy future in terms of their ultimate deregulatory success. Even very high-profile deregulatory matters like the Clean Power Plan and car-tailpipe emissions requirements are only now getting underway in earnest. While the Supreme Court stayed enforcement of the Obama administration’s Clean Power Plan in 2016, EPA did not propose a replacement rule—the so-called Affordable Clean Energy Plan—until two months ago. It will be many months more before the replacement rule is finalized and subjected to judicial scrutiny. The same is true for the administration’s proposed rules rolling back emissions reductions for cars and light trucks.
In short, many of the Trump administration’s efforts to remove regulations that it complains are burdening the energy industry remain at the starting gate. In the coming months, courts will have an opportunity to weigh in and, for at least some of the new rules, send the administration back to the drawing board.
None of this is to say that the administration’s onslaught against common-sense regulations and other protections that benefit the environment and public health and safety is not doing real harm. Agencies are taking actions outside the rule-making context, through guidance documents, lack of enforcement, and other administrative actions, to put industry interests above the public interest. But the clock is ticking on many of the administration’s most serious rollback efforts, and increasingly, time is not on Trump’s side.