By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently working on a book about textile artisans.
The Trump team continues to dismantle slowly and methodically the limited environmental protection legacy of its predecessor– particularly with respect to climate change. Most immediately. it’s the turn of the methane rule, which was enacted during the waning days of the previous administration by the Interior Department to limit the flaring of methane and other problematic practices on public (federal) lands.
Yes, I know: that regulators couldn’t get their act together to promulgate a new rule until Trump was nearly installed in the White House was no doubt a feature– not a bug. Most of those responsible for that and similarly misguided delays, no doubt expected Hillary Clinton to be elected President, and that meant the exiting charade of pretending to protect the environment– and addressing the imperative of climate change—while never quite getting around to enacting final binding rules– could continue to be played.
Waiting ‘til end days to act ensured that enacted regulations were vulnerable– and ensured that some apparent Democratic governance victories were short-lived. Significant rules that had been properly promulgated were subsequently scuppered under the procedures set out in the Congressional Review Act (CRA)– although I concede that Democrats perhaps didn’t anticipate just how aggressively these measures could be deployed. The Trump administration and its allies among the deregulation uber allies congressional Republican set have used CRA procedures to target rules enacted within 60 session days of Congress passing a CRA resolution to overturn the rule. That means the agency that had promulgated the deep-sixed rule was thenceforth barred from reviving the rule in “substantially the same form”, unless and until Congress passes new authorizing legislation (for my further discussion of CRA, see Republicans Deploy CRA Authority to Roll Back Regulations, Trump and Congress Use Congressional Review Act to Roll Back 14 ‘Midnight’ Rules; More to Follow? and Republicans to Use CRA to Roll Back ‘Midnight’ Rules and Benefit Oil Companies).
CRA procedures have not only been used to overturn midnight rules passed during the administration of Trump’s predecessor, but have also been used to strike down rules that have been put forward during the Trump administration– such as the ban on mandatory arbitration clauses in consumer financial contracts that the CFPB failed to promulgate until July 2017, despite mulling the issue seriously since late 2013 (see my discussion in RIP, CFPB Mandatory Arbitration Ban which includes other links to earlier coverage discussing this sad and sorry tale).
Another major way Democrats failed to govern effectively when they controlled the executive branch was by neglecting to promulgate strong rules early during their tenure in office. Once rules are in place, companies adjust. They make investment and other corporate decisions, including taking appropriate compliance steps, based on the changed regulatory framework. As the implementation date for new rules approaches and then passes, companies that have anticipated the change and prepared themselves to comply became themselves a powerful constituency supporting the new regulatory status quo. To do otherwise would provide a competitive advantage to their competitors who had instead chosen to flout their compliance obligations. Most recently, this dynamic has been in play with respect to the fiduciary rule– as I have written here. Because many companies had already moved to comply, the constituency supporting overturn was gravely weakened.
But when the regulators who controlled agencies before Trump became President left ’til late or the last minute implementing their regulatory priorities, the stage was set to overturn these policies when Trump and his congressional allies charged themselves with rolling back allegedly excessively burdensome regulations.
According to yesterday’s report in the New York Times :
The Trump administration on Monday moved to repeal one of the last unchallenged climate-change regulations rushed into place in the waning days of the Obama presidency — a rule restricting the release of planet-warming methane into the atmosphere.
The rule, which applied to companies drilling for energy on federal land, has been the subject of intense court battles and delay efforts, as well as one surprise vote last year in which Senate Republicans temporarily saved it from being torpedoed.
Methane, which is about 25 times more potent at trapping heat than carbon dioxide, accounts for 9 percent of all domestic greenhouse gas emissions; about a third of that is estimated to come from oil and gas operations. Under the rule, oil and gas companies would have been required to capture leaked methane, update their equipment and write new plans for minimizing waste when drilling on government property.
US fossil fuel producers targeted overturning the rule as a top priority, as they estimated compliance costs could reach nearly $280 million. Interestingly, Congressional Republicans earlier apparently (briefly) opposed efforts to kill the methane rule, again according to the Grey Lady:
An early effort to revoke the regulation hit a snag in May when Senators John McCain of Arizona, Susan Collins of Maine and Lindsey Graham of South Carolina, all Republicans, voted against a Senate resolution that would have eliminated it. The lawmakers said they were concerned that the resolution would have made regulating methane waste more difficult in the future.
Little now stands in the way that will prevent the killing this all too modest rule– yet another setback for the huge challenges of designing policies to slow, reverse, or prepare for impending climate change.
In passing, permit me also to mention another recent environmental regulation setback. Last month, Scott Pruitt’s Environmental Protection Agency kicked into the long grass the Clean Water Rule– promulgated in 2015 (a topic I discussed at greater length in my June 2017 post, EPA, Agencies to Rescind Clean Water Rule. To be sure, litigation had previously delayed implementation of this rule. Although Pruitt’s latest suspension nominally applies for two years only, the policy is now effectively buried until at minimum Repulicans lose political control of the executive branch:
As reported by Mother Jones (and crossposted by grist here):
[Last month] EPA Administrator Scott Pruitt formally suspended the Obama-era Clean Water Rule for two years, while the Trump administration works to repeal and replace the rule with their own, industry-friendly version.
Also known as Waters of the United States (WOTUS), the rule was established by the EPA and Army Corps of Engineers in 2015. Largely celebrated by environmental groups, it expanded the protection of headwaters, streams, and 20 million acres of wetlands under the 1972 Clean Water Act. It also held farmers and real estate developers accountable for runoff pollution in streams running through their property. Over 100 parties initially challenged Obama’s rule, including business groups and some Republican officials, arguing that it was an overstep of government power.
WOTUS has been a target of Pruitt’s for years, even before he was in Washington; as Oklahoma attorney general, in 2015 he helped lead a multi-state lawsuit against the rule, calling it the “greatest blow to private property rights the modern era has seen.”
Contrary to the narrative put forward by some of the mainstream media, Trump and his minions have been surprisingly effective at implementing some significant governance priorities. Several environmental, including those discussed here, qualify as such a “success story. In addition, the Trump team has aggressively and effectively filled vacant federal judgeships with those determined to be like-minded souls (as I discussed most recently in this post, Trump Sets Records for Seating Federal Judges, and the posts referenced therein). That means that if and when Trump administration regulatory and policy decisions are challenged, they are likely to survive judicial review.