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As the nation deals with civil unrest and the global pandemic, the Trump administration quietly continues its environmental rollbacks. Trump came into office promising to rid the nation of what he called unnecessary and burdensome rules on the fossil fuel industry and others. Environmental regulation trackers like those run by Harvard and Columbia law schools find that he’s made good on that promise, so far dismantling or in the process of dismantling 100 major climate and environmental policies.
The Trump administration has weakened efforts to reduce climate-changing carbon emissions from power plants, rolled back mileage standards on cars and trucks, reduced Clean Water Act protections, and shrunk the size of two national monuments by millions of acres.
We’ve examined many of these moves on our Trump on Earth podcast since Trump took office in January 2017. In this episode, Trump on Earth’s Julie Grant talks with Hana Vizcarra staff attorney at Harvard Law School’s Environmental and Energy Law Program, who helps run its environmental rollback tracker to get an idea of the scope of this legacy.
JG: So let’s start with the latest. What regulations are currently being eyed for rollback?
HV: As you mentioned, there are about 100 or so that have been eyed in some form. Some of those are final; some of those are in proposal stages; some are still coming in. A few of the major ones that are further along: The cars rules, the Mercury Air Toxics Standards (MATS) were just finalized, the Waters of the U.S. Rule is a major one. There’s a lot of work around energy. This administration has been focused heavily on expanding energy production — onshore development on public lands as well as offshore.
Really the scope of the changes that they’re considering touches on any area of environmental law you can think of.
JG: Maybe you could talk about the environmental tracker — what is it and why did you start it?
HV: The idea was, with an administration that had very vocally expressed interest in rolling back regulations before they even came into office, that there would be a lot of activity and that it would be hard to keep up with. So this was a tool we designed to try to manage that to some extent.
We tried to go into more detail than you might see elsewhere so you can keep up with developments as they happen. We hope it’s a tool for attorneys working in the space, advocates working in this space, and the public in general, trying to understand more about what’s going on. These are complicated issues and it doesn’t necessarily completely uncomplicate them, but we hope it is a helpful tool.
JG: So by count of our staff, the tracker lists more than 80 environmental rollbacks. It seems to have accelerated with more than 50 of those actions in 2020. Is this because it takes time to go through the regulatory process or because the administration gets it now, how the process is supposed to work?
HV: I think it’s a little bit of both of those things. So it definitely takes time. Regulation is not designed to be fast. It’s designed to be careful. It’s designed to incorporate the expertise of technical agencies.
I would argue that under this administration you’ve seen pressures on those intentions and they have, especially early on, tried to move very fast and in a way that didn’t necessarily follow the statutes around regulatory procedures and take into consideration the expertise of the agencies. That has shifted, particularly in places like the EPA, where you had a switch in administrators and the new administration was much more familiar with that process.
The other piece of it is just that this stuff takes time. If you have a rule that’s in place from a prior administration that you want to change, you can’t just undo what exists. You have to actually start a whole new rulemaking process. They have to have a proposal. They have to do public comment. They have to do hearings. They have to then revise that proposal and provide a final rule. And they have to have a reason.
If the agency is going to significantly change a decision that that same agency made, they have to have a reasonable explanation as to why they’re doing so and have some administrative record to support that. Rule by rule, we can argue whether that’s really been the case so far, and that’s what litigation is going to be about, in many of these cases.
JG: Have you seen any pattern in how the administration has gone about rolling back environmental rules and policies?
HV: There’s a couple of things I would point to. One is the focus on climate. The biggest target has been on any prior efforts to address greenhouse gases through the Clean Air Act. You’ve seen a lot of effort to reinterpret those rules.
The other piece of it isn’t just a focus on climate, but also a focus on reinterpreting and limiting agency authority. It sort of puts them in the odd position of having federal agencies arguing that they don’t have authority to regulate. That’s what we’ve seen in a number of these rules. Even some rules that you feel like maybe this doesn’t even make the most sense for their agenda from a substantive perspective, it does if you understand what they’re arguing under the law.
“Those efforts to reinterpret statutes to limit their own authority are designed to constrain future administrations if they hold up in court.”
There’s been a pattern of various rules, particularly in the [Clean] Air Act space, that they are arguing that the EPA can’t regulate the way the prior administration regulated. In doing so, what they’re trying to argue is that the statute limits this, that they and any future version of the agency can’t regulate in that space.
One good example of that is the Mercury Air Toxics Standards. This was a rule that was finalized under the prior administration. That was the rule that even the industry wasn’t super keen on changing; they had basically implemented the rule already. Those efforts to reinterpret statutes to limit their own authority are designed to constrain future administrations if they hold up in court. Then the way these agencies, particularly EPA, is able to regulate on climate and on environmental issues will change.
JG: You know, this kind of rewriting of regulations at such a whole-scale level — is this normal procedure every time we have a new administration or is this considered somewhat unprecedented?
HV: There is a certain amount of back and forth administration to administration. Certainly, policy directions change. Regulatory efforts that may have been begun in one administration, might be put on the backburner or stopped in the next.
I would argue that there was a very big shift in the first Reagan term –some similar efforts that you’re seeing to sort of rework agencies and sort of remove as many regulations as you can. This is a broader effort to remake the environmental regulatory landscape.
JG: Do you have a sense of what’s on the agenda for rollbacks in the next six months as we move into the end of the first term?
HV: We’re still waiting for the methane roll that should be coming soon. There’s Arctic drilling rule that established a regulatory framework for drilling off of Alaska. There’s the five-year leasing plan for offshore drilling which is waiting on some an appeal of a federal district court judge decision.
They’re in a rush to get as many as they can out, partially because of the threat of the Congressional Review Act which is an interesting piece of legislation that has grown in importance under this administration. It’s existed for a while, but only been used once before. When President Trump took office, Congress used it, I think, 16 times in about a year to basically nullify regulations that were implemented towards the end of the Obama administration.
JG: What does it do, the Congressional Review Act?
HV: So the CRA requires agencies to submit new rules to Congress for review. Congress can pass a resolution of disapproval with just a majority of both chambers. That has to happen within 60 days of when the rule is either submitted to Congress or published in the Federal Register.
“There’s a rush to try to finalize things as early as possible, partially because they want to be able to get through much of the litigation process that might follow.”
So then if the president signs the resolution, it supposedly prevents the rule from taking effect but also prevents the agency from creating a new rule that is substantially the same. What that actually means, we’re not really sure, because it has not really been challenged in court. We don’t have a very solid idea of exactly what the language means and how it would be interpreted when challenged.
Really with any administration, there’s a rush to try to finalize things as early as possible, partially because they want to be able to get through much of the litigation process that might follow.
JG: Now we are coming up on a presidential election. If President Trump should lose his bid for a second term, what happens to the rules that are still in progress, still being rewritten? Can the next administration just drop those and go back to the original rule?
HV: They can change their positions to some extent. For example, if there is litigation and process and they’re considering revising the rule, they can go to the court and ask for the litigation to be stayed for a timeframe while they’re reconsidering the rulemaking because they may be addressing some of the issues at stake in the litigation. Rulemaking may fix some of the problems that are raised in the challenge.
Courts don’t look kindly on one agency dramatically switching sides on their legal stances. So there’s some limitation to what they can do.
JG: This may take somewhat of a crystal ball, but would you expect the next administration, should it not be the Trump administration, to spend the next four years turning back what’s just been done?
HV: A new administration’s agenda should not be limited to undoing that of the prior administration. That just wouldn’t be enough. There will certainly be rules they need to prioritize for revision or reversal.
I don’t know that what any environmental advocate would want from a new administration that’s more environmentally friendly would be to necessarily spend all their time systematically going through every revision and trying to undo them. There may be better ways at addressing some of these issues.
They also will need to spend time rebuilding these agencies that have lost a lot of very experienced people that have had internal changes as far as how they operate that have also had pretty significant effects on environmental outcomes. That should be a big focus of a new administration. But they also will need to come up with their own proactive forward-thinking agenda.