CHAPTER 11 CLEAR CUTTING THE REGULATORY FOREST: REPEAL AND REPLACEMENT OF RULES BY NEW PRESIDENTIAL ADMINISTRATIONS
| Jurisdiction | United States |
(Feb 2019)
CLEAR CUTTING THE REGULATORY FOREST: REPEAL AND REPLACEMENT OF RULES BY NEW PRESIDENTIAL ADMINISTRATIONS
Special Counsel, Duane Morris LLP
Austin, TX
Kent Holsinger
Managing Partner, Holsinger Law, LLC
Denver, CO
Mary Whittle
Partner, Guerrero & Whittle PLLC
Austin, TX 1
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JACOB P. ARECHIGA is a Special Counsel in Duane Morris LLP's Austin, Texas office. His practice is focused on complex commercial matters in the energy and electric power industries. He works with executives, managers, and counsel in these and other industries to address contested legal matters and mitigate risks associated with capital investments, transactions, and daily operations. Mr. Arechiga also works with clients to ensure compliance with a broad range of rapidly changing federal, state, and local regulatory requirements. In addition, he represents clients in administrative hearings before state agencies and appeals before federal courts. Mr. Arechiga is a 2009 graduate, with honors, of the University of Texas School of Law, where he was a member of the Texas Environmental Law Journal, and a graduate of Princeton University.
KENT HOLSINGER is the founder and Managing Partner of Holsinger Law, LLC, Denver, CO. Kent's emphasis is on lands, wildlife and water law. His efforts have been recognized in the Wall Street Journal, Washington Times, New York Times, the New Yorker and on National Public Radio, among many others. Kent has helped draft legislation and has testified before Congress and the Colorado General Assembly many times. He is frequently cited as an expert in the media and in trade publications and has authored publications on the use of water for oil and gas operations, hydropower, wildlife law, water quality and politics and the media. Kent previously served as the Assistant Director for Water at the Colorado Department of Natural Resources and worked in Washington, D.C. for U.S. Senator Wayne Allard and Congressman Bob Schaffer. He was named to 5280's Top Lawyers in Colorado for the past two years and as a "Rising Star" by Super Lawyers. Kent served as president of the Colorado Lawyers Chapter of the Federalist Society and was nominated by Governor Hickenlooper to Colorado's Conservation Easement Oversight Commission where he served as Vice-Chairman. He is a member of the National Western Association and Secretary to the Board of Western Energy Alliance.
MARY WHITTLE is a Partner with Guerrero & Whittle PLLC in Austin, TX. Mary is a seasoned trial lawyer who has tried cases in state and federal court. She provides results-driven advice designed to put her clients in the best position to resolve a dispute on their terms. She has a breadth of experience, having worked as a government lawyer, a private practitioner, and as an attorney for the nation's premier non-profit environmental law firm. Mary started her legal career in 2001 as a trial attorney at the United States Department of Justice in Washington D.C., where she successfully litigated a variety of complex cases around the country. She worked closely with client agencies to understand how a case might impact their mission and the importance of setting a precedent, receiving multiple commendations, including a nomination for the prestigious John Marshall Award - the highest award offered to government attorneys. In private practice as a partner at Perry & Haas, Mary was one of a team of lawyers who represented families in six of the major cases arising out of the BP Texas City Refinery explosion, achieving substantial settlements for all the clients in only four months from the explosion. Mary established her own solo practice from 2011-2013, partnering with other law firms in complex civil litigation matters and providing expertise in environmental law. In 2013, Mary joined Earthjustice in Philadelphia, where she represented national environmental organizations, tribes, and community groups in precedent-setting matters before various federal district and appellate courts, including in direct enforcement actions against some of the nation's largest and most powerful utilities and industry groups. After leaving Earthjustice in 2017, Mary founded Guerrero & Whittle PLLC. Mary enjoys taking on high-stakes cases and sticking with them through trial and appeal when warranted. She is also adept at resolving complex matters, coming up with creative solutions that meet her clients' needs in negotiation, mediation, or arbitration. Mary was born and raised in Texas, lived and worked in Washington D.C. and Pennsylvania, and eventually convinced her husband to move to Austin to raise their three children. She is an advocate for children with special needs and learning differences, having two dyslexic children of her own, and she loves being outdoors with her family and dogs.
I. Introduction
Since 2017, there has been a significant effort to rollback regulations impacting energy and natural resources development. In a substantial shift away from Obama-era regulatory expansion, President Trump, Congress, and administrative agencies have repealed, replaced or undone numerous regulations and actions.
Setting the tone for this regulatory rollback, the Trump Administration, through executive action, emphasized energy independence and a renewed and expansive use of fossil fuels. As an example, on March 28, 2017, President Trump issued the Promoting Energy Independence and Economic Growth Executive Order (the "Energy Independence Executive Order"),2 which began the process of suspending, revising, or rescinding a significant portion of the Obama Administration's efforts to reduce greenhouse gas ("GHG") emissions nationwide and compelling agencies to review existing regulations that the Trump Administration believes burdens the development of domestic energy resources.3 Other executive orders called for expanding oil and gas development, including offshore drilling.4 The Trump Administration also announced on June 1, 2017, that the United States was withdrawing from the Paris Climate Accord.
Despite significant internal transition within the Environmental Protection Agency ("EPA") and the Department of the Interior ("DOI"), these agencies under President Trump have remained focused on undertaking efforts to rescind or change regulations and expanding domestic fossil fuel production. While not an exhaustive list, the more significant recent rules and actions are discussed in detail below.
II. Congressional Review Act
A. General Overview & Explanation of the CRA
The Congressional Review Act ("CRA"),5 enacted in 1996, gives Congress an accelerated
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ability to overturn rules issued by federal administrative agencies within the previous 60 days of a legislative session.
Prior to 2017, the CRA had been invoked only once: it was used to overturn a 2000 Occupational Safety and Health Administration ("OSHA") rule related to workplace ergonomics standards. The CRA has been invoked so few times because it effectively requires either: 1) a supermajority vote (when one party controls both Houses of Congress and the President is a different party); or 2) action to be taken within the first 60 congressional days after the inauguration of a new President, when one party controls both Houses of Congress and the Presidency, and when that new President is of a different party than the prior President. It was under this second prong that the new Trump Administration and Republican Congress were able to take advantage of the CRA. Because the 60-day tolling period allowing CRA review is based on the number of days that Congress is actually in session, the 115th US Congress had until May 11, 2017 to use the CRA to issue joint resolutions on regulations promulgated on or after June 13, 2016.
B. Examples of Implementation
When a rule is overturned via the CRA, it is as if the rule was never finalized in the first place. The CRA also provides that any subsequent rule cannot be "substantially in the same form" as the rule that was overturned via the CRA. At least fourteen Obama-era regulations were overturned via the CRA. In the context of regulations impacting energy development, there were a few significant CRA actions.
1. Stream Protection Rule
The Stream Protection Rule, issued by the Office of Surface Mining Reclamation and Enforcement ("OSMRE"), was published on December 20, 2016, and went in effect January 19, 2017.6 Years in the works, the Stream Protection Rule updated, added, or modified hundreds of provisions of existing regulations imposed on coal mining operations. The rule called for a significant expansion in requirements for coal mining companies to change practices to protect water resources, including related impacts to wildlife and the environment. Key elements of the Stream Protection Rule included requirements to: address potential impacts to groundwater and surface water from mining beyond the mining permit area; conduct additional pre-mining data collection; conduct additional groundwater and surface water monitoring; take measures to restore certain streams; protect certain protected species; and numerous other measures. The Stream Protection Rule was overturned via the CRA on February 16, 2017, after passing the U.S. House by a vote of 234-186 and the Senate with a vote of 51-48.7
2. Methane and Waste Prevention Rule
The Bureau of Land Management ("BLM") promulgated a rule known as the Methane and Waste Prevention Rule to reduce waste of natural gas from venting, flaring, and leaks during oil and natural gas production activities on onshore Federal and Indian (other than Osage Tribe)
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leases.8 The rule also clarified when produced gas lost through venting, flaring, or leaks is subject to royalties, and when oil and gas production may be used royalty-free on-site.9 The rule was...
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