CHAPTER 1 THE CHANGING REGULATORY AND LEGAL LANDSCAPE OF AIR QUALITY AND CLIMATE CHANGE LAW UNDER THE TRUMP ADMINISTRATION
| Jurisdiction | United States |
THE CHANGING REGULATORY AND LEGAL LANDSCAPE OF AIR QUALITY AND CLIMATE CHANGE LAW UNDER THE TRUMP ADMINISTRATION
Attorney
Whiting Petroleum Corporation
Denver, CO
Peter Zalzal
Special Projects Director and Lead Attorney
Environmental Defense Fund
Boulder, CO
Cynthia Giles
former Assistant Administrator
EPA's Office of Enforcement and Compliance Assurance
Washington, DC
currently Director of Strategic Initiatives
Energy & Environment Lab
University of Chicago
Ivan London
Jane Kwak 1
Attorneys
Bryan Cave LLP
Denver, CO & Chicago, IL
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CLAY TAYLOR is an environmental attorney for Whiting Petroleum Corporation. Clay graduated from the University of Denver Sturm College of Law in 2009 and has been with Whiting since 2010. In his role with Whiting, Clay advises staff and management on issues related to environmental rulemakings, permitting, compliance, and enforcement. He is also chairperson of the Colorado Petroleum Association Air Committee and was recognized for his contributions by the 2015 Colorado Petroleum Association's President's Award.
PETER ZALZAL is Special Projects Director and Lead Attorney for the Environmental Defense Fund, in Boulder, CO. As a member of EDF's Domestic Climate and Air legal team, Peter Zalzal works to secure clean air and support climate change mitigation through policy initiatives and strategic litigation. Peter works with businesses, public health groups, states, environmental groups and other allies to advocate and defend efficient policies to curb emissions that are destabilizing the climate and harming human health.
CYNTHIA GILES is Director of Strategic Initiatives, Energy & Environment Lab, at the University of Chicago. Giles has joined forces with the Energy & Environment Lab to help develop and test pioneering environmental strategies that are effective in the real world, doing cutting edge work at the intersection of research and environmental policy. She was the Assistant Administrator for the U.S. Environmental Protection Agency's (EPA) Office of Enforcement and Compliance Assurance for all eight years of the Obama Administration. In that role she led civil and criminal enforcement of the nation's environmental laws, and implemented an innovative strategy for improving compliance and reducing pollution called Next Generation Compliance. Cynthia Giles has more than 30 years of service in the public, private and non-profit sectors. She prosecuted civil violators of environmental laws as an Assistant United States Attorney in Philadelphia, led the water protection program for the Commonwealth of Massachusetts, served as the Director of Enforcement Coordination for EPA Region 3, and before returning to EPA, was the Director of the Conservation Law Foundation's Advocacy Center in Rhode Island, where she advocated for laws and policies to combat climate change and promote clean energy. Giles has a BA from Cornell University, a JD from the University of California at Berkeley and an MPA from the Harvard University Kennedy School of Government.
IVAN L. LONDON is an associate in the Denver office of Bryan Cave LLP, where he primarily represents energy/natural resources and manufacturing clients - particularly in the oil and gas industry - in dealing with complex environmental and litigation matters. He assists clients in the administrative rule-making process, interacting with regulatory agencies during enforcement proceedings, litigating disputes in both administrative and civil settings, conducting compliance audits and defending government investigations.
§ 1. Introduction
Since President Trump took office on January 20, 2017, his administration's impacts on air quality and climate change regulation, enforcement and litigation have already been substantial, especially as those impacts relate to the oil and natural gas and mining industries. This paper summarizes and discusses how the Trump administration, including new leadership at the Environmental Protection Agency (EPA), and the 115th Congress have approached several
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air quality and climate change topics. Afterward, the paper will provide illustrative perspectives on the changing landscape from industry, the non-governmental organization (NGO) community and regulatory-enforcement community.
§ 2. Air Quality and Climate Change Topics
[1] "Energy Independence"
In early 2017, the Trump administration quickly took several controversial steps regarding air quality and climate change regulation. In March 2017, President Trump signed an executive order calling for, among other things, a review of all existing regulations that potentially burden the development or use of domestically produced oil, natural gas and coal.2 This "Energy Independence" order also revoked several Obama administration actions pertaining to greenhouse gases, and withdrew documents associated with the "social cost of carbon."3 It further directed agencies to rescind guidance on greenhouse gas issues in the National Environmental Policy Act (NEPA) process, and reconsider greenhouse gas rules applicable to mining and oil and natural gas.4
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[2] Changing Course
The practice of a new administration changing a prior administration's actions dates back to the early days of America.5 However, in modern America, an agency cannot discard prior policies without explaining how the new action is consistent with the agency's statutory mandate, and providing a reasoned explanation grounded in the factual record.6 Accordingly, the agencies' statutory authorizations, the Administrative Procedure Act (APA) and the courts' interpretations of those laws will limit the extent to which President Trump and his agencies can rescind or revise air quality and climate change regulations.7 When changing course, the agency must explain why its new policy is justified.8 Its reasons for the new policy do not have to be objectively better than the reasons for the old.9 Instead, the new policy must be permissible
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under the statute, there must be some good reasons for it and the agency must explain why it believes the new approach is better.10
In furtherance of the "Energy Independence" order, EPA and other agencies are undertaking a potentially wide-ranging review of existing air quality and climate change regulations pursuant to President Trump's order that they "alleviate unnecessary regulatory burdens placed on the American people."11 In the context of President Trump's demand for reconsideration of air-emission issues related to fossil fuel development, the potential wholesale change in course by the Trump administration, EPA and other agencies portends significant efforts to change environmental regulations that could affect mining and oil and natural gas operations for many years to come. Meanwhile, potential challengers are scrutinizing every rulemaking that eases or removes climate and air quality requirements and standards for consistency with the APA and the agencies' statutory duties.
[3] Congressional Review Act
In 1996, as part of the "Contract with America," Congress enacted the Congressional Review Act to police the executive branch's use of rulemaking to execute Congress' laws.12 Congress often gives broad and generalized grants of authority to executive-branch agencies, and some members of Congress have long worried that its delegations of authority would give agencies too much power; however, the only way for Congress to check administrative authority
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once given is by legislative act.13 In a sense, the Act just reiterates that Congress can use legislation when it wants to disapprove of an agency action.14 Congress always had this power, but the Act gained attention with government transition because, in the past, it has seemed unlikely that a president would sign a law disavowing a regulation that the president's own agency had just enacted.15
Moreover, the Congressional Review Act streamlines Congress' ability to nullify regulations. First, the Act shortens the time needed to nullify an agency rule by shortening the congressional procedure and avoiding the need for time-consuming executive-branch rulemaking.16 Second, the Act prohibits the repudiated agency from reissuing "a new rule that is substantially the same" as the repudiated rule unless Congress specifically authorizes such a rule.17 The Act does not define the meaning or scope of "substantially the same," nor does it provide any criteria for assessing similarity or designate who should make a "substantially the same" determination. Similarly, courts have also yet to interpret the meaning of "substantially the same."
While Congress nullified two environmental rules that are relevant to mining and oil and natural gas operations, it notably failed to nullify a third rule with air quality and climate change
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consequences. Congress nullified the Department of the Interior's (DOI) Stream Protection Rule, which addressed the impacts of surface coal mining operations on surface water and groundwater,18 and Congress nullified the DOI's "Planning 2.0" procedures for preparing, revising and amending land-use plans pursuant to the Federal Land Policy and Management Act of 1976.19 However, the Senate voted not to consider nullifying the Bureau of Land Management's (BLM) Venting and Flaring Rule,20 which presented a notable setback to the Trump administration's push to reduce regulation of the oil and natural gas industry.21
[4] Chevron Deference
As demonstrated by Congress's policing of regulation under the Congressional Review Act, the separation of power and respect different governmental branches accord each other informs many issues in air quality and climate change regulation, enforcement and litigation. Turning to the judiciary's role, the fundamental principle...
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