President-elect Donald Trump’s administration is expected to break sharply with the environmental regulations of President Obama, particularly as it relates to climate change. During the campaign, Mr. Trump pledged to roll-back high-profile environmental regulations, such as the Clean Power Plan and the Waters of the US (WOTUS) rule. The timeline, pathway and difficulty for repealing these regulations will differ depending on the specific rule. For instance, Congress can block certain Obama environmental regulations through the Congressional Review Act (CRA), which provides lawmakers with a time period to review and pass disapproval resolutions for final rules. Other Obama-era environmental rules are beyond the scope of CRA review, but the incoming administration and Congress may employ administrative, legislative, litigation and regulatory strategies to repeal these regulations.
Broadly, the repeal efforts can be divided into three categories: (1) final rules that have been promulgated but are beyond the scope of the CRA; (2) final rules that have been promulgated and are subject to CRA disapproval; and (3) rules that have not been finalized and can be overturned or blocked through executive action.
Final rules not subject to the CRA
Two of the more controversial environmental regulations—the Clean Power Plan and the WOTUS rule—have been targeted for repeal by the President-elect and the Republican-led Congress, but such efforts could face a complicated and protracted path ahead. The Clean Power Plan and the WOTUS rule were both published in the Federal Register in 2015; therefore, the timespan for Congress to consider CRA disapproval resolutions for the Clean Power Plan and the WOTUS rule has expired, and the new administration and Congress will have to use other means to block these rules. Both rules are also subject to litigation, providing an added layer of complexity to efforts to roll-back these regulations.
As to the Clean Power Plan, the implementation of the rule is currently stayed due to a surprise order from the US Supreme Court in February. In September, the US Court of Appeals for the DC Circuit heard oral arguments in litigation over the Clean Power Plan, and the court could issue a decision on the case prior to Mr. Trump taking office. If the DC Circuit upheld the rule, the Trump administration could appeal the decision to the Supreme Court, where conservatives, assuming that Mr. Trump’s Supreme Court nominee gets confirmed relatively quickly, will maintain a 5-4 majority. If the DC Circuit rejects the Clean Power Plan, the Trump administration would likely decline to appeal the decision to the Supreme Court, though the states and non-governmental organizations (NGOs) who intervened on behalf of EPA could appeal the decision. If the DC Circuit does not issue a decision prior to Mr. Trump taking office, his administration could withdraw the government’s support for the Clean Power Plan, though, as noted above, states and NGOs would continue their advocacy for the rule.
While the Clean Power Plan is not subject to the CRA, Congress could pursue legislation to block the rule. Specifically, Congress could attempt to pass stand-alone legislation repealing EPA’s authority to implement CO2 standards for power plants, though passage in the Senate could be difficult given that 60 votes will likely be necessary to defeat a filibuster. Some Senate Democrats, such as Senator Joe Manchin (WV) and Senator Heidi Heitkamp (ND), would likely support this type of legislation, but this effort may fall short in securing enough Democratic support to clear a filibuster. Congressional Republicans may also use the appropriations process to block funding for the Clean Power Plan.
A Trump-led EPA may also attempt to withdraw the Clean Power Plan, but this effort would be time-consuming as the agency would have to initiate formal rulemaking to undo the regulation. Notably, in Motor Vehicles Manufacturers v. Association of the United States v. State Farm Mutual Automobile Insurance Company, the US Supreme Court unanimously struck down a Reagan-era rescission of a car safety standard. According to the US Supreme Court, the administration “failed to present an adequate basis and explanation for rescinding” the previous requirement. Thus, a Trump-led EPA will arguably have to offer “an adequate basis and explanation” for repealing the Clean Power Plan, and that “adequate basis and explanation” may be challenged by NGOs and states, potentially tying up the rule in litigation for years.
A Trump-led EPA could also use administrative measures to weaken the Clean Power Plan. For instance, EPA could defer enforcement of the CO2 standards for existing power plants. Alternatively, EPA could approve lenient state implementation plans.
The WOTUS rule, which attempted to clarify the scope of when Clean Water Act permits are necessary, is also subject to judicial stay. The US Court of Appeals for the Sixth Circuit is expected to hear oral arguments on the WOTUS rule in the spring of 2017. The Trump administration could request that the Sixth Circuit remand the rule, but the court would have to grant such a request and provide a justification for that decision. Similar to the Clean Power Plan, the Trump-led EPA could also initiate rulemaking to undo the WOTUS rule. In contrast to the Clean Power Plan, there may be some pressure from the agriculture, home construction, energy and other sectors for interim guidance from EPA on what circumstances Clean Water Act permits are required (One of the stated intents of the WOTUS rule was to provide clarity as to when Clean Water Act permits are necessary after two US Supreme Court decisions in the 2000s that added confusion as to what bodies of water fall under the statute’s jurisdiction). Congress may also work to block WOTUS, either through stand-alone legislation (which may have difficulty garnering 60 votes) or through the appropriations process.
Final rules subject to the CRA
Some final EPA rules are subject to the CRA and could be overturned by Congress and the Trump administration. Congressional Research Service recently estimated that any final rule published in the Federal Register after May 30, 2016 could be struck down by a CRA disapproval resolution. Thus, Congress may be able to consider CRA disapproval resolutions on EPA’s Clean Air Act methane and volatile organic compound standards for new oil and gas sources, which were published in the Federal Register on June 3, and Clean Water Act effluent water guidelines for the unconventional oil and gas sector, which were published in the Federal Register on June 28.
Notably, the period for lawmakers to consider a CRA disapproval resolution resets with the new Congress. Specifically, the CRA states that a final rule is deemed to have been published on the 15th legislative day or the 15th session day after the next session of Congress begins. It remains to be seen if Congress will target EPA’s methane standards for new oil and gas sources and the effluent water guidelines for the unconventional oil and gas sector. Republican leaders will have a limited window to act on these CRA disapprovals, and they may opt to address other non-EPA rulemakings, such as the Bureau of Land Management’s final methane rules. Furthermore, CRA disapproval resolutions will compete with other legislative priorities, such as spending and health care reform bills, for floor time in the new Congress.
Non-finalized rules/initiatives
The easiest Obama-era environmental regulations for the next Trump administration to block are those rules that have not been finalized. For example, a Trump-led EPA will likely cease work on developing methane standards for existing oil and gas sources. In March 2016, the White House announced that EPA would begin the process of promulgating Clean Air Act methane standards for existing oil and gas sources. While the agency has finalized an Information Collection Request for the industry, EPA has yet to issue a draft Clean Air Act methane rule for existing sources. Thus, a Trump-led EPA maintains the ability to easily jettison efforts to develop such methane standards.
