On November 8, 2016, Republican presidential candidate Donald Trump achieved one of the biggest political surprises in the history of presidential elections. This month’s newsletter examines what short- and long-term impacts the incoming administration can have on the environmental regulatory landscape over the next four years.
During the election, candidate Trump discussed repealing environmental laws that inhibited economic growth- especially the EPA Clean Power Plan. His selection of Scott Pruitt as EPA administrator has added credibility that he intends to deliver. However, the path forward is complicated and may take some time to fully complete.
Like his predecessors, one of President Trump’s early actions will be to place a moratorium on all new and pending environmental regulations and review and suspend several selected executive orders. During the transition period, the Obama Administration will unlikely pass any controversial regulations given the threat posed by the Congressional Review Act. The Act allows the Republican controlled Senate to review all new regulations within 60 days of its enactment, and if disapproved by joint resolution, would be passed back to the new President. If accepted by the President, the regulation is invalidated and the regulation must restart any action from the beginning.
Overturning the Clean Power Plan will be a much different matter since it was a final rule was passed in October 2015 before it was litigated. The US District Court of Appeals will issue its ruling by early next year. Being a final regulation, it cannot be withdrawn unless overturned by the Courts or the Administration provides just cause and goes through another administrative rulemaking process to rescind the rule.
EVA’s “best guess” is that the US Court of Appeals will rule for EPA but the US Supreme Court (with a new 9th justice) will eventually overturn it. However, it may not be until 2018 or later before the Clean Power Plan is killed. The carbon emission control efforts likely will not be rekindled until a more modest and far less costly program approach is adopted by Congress.
The Trump promise to withdraw from the Paris Climate Treaty will be far easier to implement. The new Administration can elect to ignore implementing the treaty and trigger the 4-year process to withdraw.
However, these legal and administrative federal actions will have no effect on the continuing regional greenhouse gas control initiatives (Regional Greenhouse Gas Initiative, California-Quebec CO2 Cap & Trade Program). These regional programs are in the process of setting lower carbon emission targets and could potentially expand with additional states joining where there is wide popular support for climate change measures. Currently, many state climate change actions have centered on passing more aggressive renewable portfolio standards and support of expanded energy efficiency measures.
The areas where the new Administration will have far greater impact are their interpretation of existing laws and implementing regulations. The Obama Administration has been very aggressive in their interpretation of reasonable progress for state regional haze plans (e.g. Texas and Arkansas) that extend beyond the BART affected stations and force costly post combustion control retrofits or accelerated retirements on existing coal generating units. Another example is the Obama Administration use of high carbon societal cost values to justify federal program actions. These (and other) aggressive policy approaches will likely change under the Trump Administration as it attempts to temper the environmental regulatory burden.
New rules currently under development could also change to become more business friendly. For example, impending rules dealing with coal mining overburden disposal and natural gas fracking will be reviewed and likely revised.
The ongoing legal battles over what constitutes “waters of the US” should continue. However, the new Administration may elect to revise the definition in light of re-interpreting the rule’s supporting data.
Changing ozone attainment plans may be another target by Trump supporters but could prove difficult to change without legislative action. Planning measures to meet the 2015 ozone standard are already underway and will trigger some additional NOx control measures. Only an eventual change of the standard itself or adoption of less conservative air modeling approaches would reduce the pressure for additional control measures. The Cross State Air Pollution Rule would likely remain in effect as the primary mechanism of controlling the utility sector contribution.