Trump Team to Rescind Methane Rule

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 RegulationsTrump 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.

Methane Rule

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.

Recent Context

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.”

Bottom Line

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 initiatives, including those discussed here, qualify as such  “success stories”. 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.

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    1. steelhead

      No. The oligarchs believe that they and their children/grandchildren are not subject to climate change because of their belief that they are omnipotent and not subject to the laws of nature….

      1. pretzelattack

        i would happily send them all to mars, but they have to leave right now to get their free trip. then the rest of us can get on with working on the problem.

      2. Colin Spenncer

        Oligarchs believe that their children and grandchildren will not be affected because they have enough money to escape the negative consequences of ignoring climate change.

    2. Massinissa

      They think climate change only effects ‘other people’, and that they can spend money to negate any effects it will have on their children and grandchildren.

      1. beth

        They did avoid the negative effects of getting fossil fuels out of the ground until they moved it to the United States. We all did.

        Now they avoid seeing fracking outside their windows and live far enough out of the way to avoid the earthquakes. Air & water quality issues: not so much. We get all the negative effects.

    3. a different chris

      Why would you expect them to? They are the most self-focused people on earth, + they lately think they have a real shot at immortality.

      Using “think” very loosely, more like an onset of mental derangement but whatever

  1. David

    There are several issues with the 2016 BLM rule. One example from the BLM proposed rule,

    …the BLM acknowledges that the 2016 final rule contains requirements that overlap with other Federal and State requirements and regulations. However, unlike the Environmental Protection Agency (EPA) regulations with which the rule overlaps, the 2016 final rule would affect existing wells, including a substantial number that are likely to be marginal or low-producing and therefore less likely to remain economical to operate if subjected to additional compliance costs.

    One might think this is good. The older well activity needs to be brought up to current standards.

    …many of the 2016 final rule’s requirements would pose a particular compliance burden to operators of marginal or low-producing wells, and there is concern that those wells would not be economical to operate with the additional compliance costs. Although the characteristics of what is considered to be a marginal well can vary, the percentage of the nation’s oil and gas wells classified as marginal is high…about 69.1 and 75.9 percent of the nation’s operating oil and gas wells, respectively, are marginal…On Federal lands, this would equate to 68,972 wells designated as marginal.

    The 2016 final rule allows for exemptions from many of the requirements when compliance would impose such costs that the operator would cease production and abandon significant recoverable reserves. Due to the prevalence of marginal and low-producing wells, we would expect that many exemptions would be warranted, making the burden imposed by the exemption process excessive.

    Like many Obama rules, there are exemptions. So what is the point of generating rules with high compliance costs and exemptions for those who can’t afford to comply? They end up paying a tax (exemption process costs) and then go back to business as usual.

    1. StephenVerchinski

      One of our State Senators (LeaCounty) holds a portfolio of about 1,000 marginal wells. I heard he makes about $1,000 per well so compliance cost for him definitely would be high. That said however maybe many of these should be shut in if they are leaking so badly that it’s contributing to the long-term decline of our agricultural base in the United States.

      I don’t believe that anybody has looked at the cost benefit of that in terms of overall damage to the agricultural base vs. benefits.

      There also should be a concern about opening new areas in areas with high risk to long term damage of the commons.

    1. rd

      I live in upstate NY. It is probably one of the few places where climate change will actually improve our climate. However, that will be for nought if the oceans acidify and simultaneously release methyl hydrates into the atmosphere.

      Ironically, the areas most opposed to the concept of climate change are likely to be hammered the most by it.

  2. Altandmain

    My impression is that the Deep State wants this to pass, which is why they do not want to draw attention to this issue.

    Similarly they have drawn very little attention to the Trump Administration stuffing the court system with right wing judges.

    They only seem to draw attention to the problems when they are overwhelmingly obvious, such as his big tax cut for the rich. In some cases, such as Trump’s strike on Syria, they have even portrayed him positively.

    Outside of that, the mainstream media is largely fixated in Trump’s Twitter account, the Democratic Establishment fabrication of Russia hacking the elections, and culture war identity politics.

    Real economic issues related to why Trump is in power in the first place are not discussed. Note how negatively too the media savaged Bernie Sanders. They serve the rich for sure.

    As far as global warming, I think that as the others have noted it is the arrogance of wealth. I remember reading Collapse by Jared Diamond. The elites always choose their self interest over the collective long term interests. Ultimately that sets the stage of collapse when combined with overshooting ecological limitations of the land that the civilization occupies.

    It is a failure to think long term because the wealth of the elite insulated them. It is interesting to see that the more egalitarian nations such as the Nordic nations are much more responsive to the issues like global warming. They are far from perfect, but better than we North Americans are.

  3. rd

    It wasn’t clear that Trump would be the nominee until spring 2016. It was also not a given that Clinton would beat one of the other initial GOP leaders.

    So basically, the regulators were just slow. They also probably didn’t fully comprehend the visceral hatred against their activities.

  4. Jack

    The “25 times more potent” line about methane from the NYT piece is out of date, and the fact that this number is still being used in the paper of record should be a cause of serious concern. On the sorts of time frames that matter at this point for whatever meaningful policy action is still possible, the figure is more like 85 times. Cornell climate scientist Robert Howarth has been on this for years. See for instance:

    1. Simon Girty

      Thanks for reminding us… god knows nobody else is, for fear of lawsuits, losing remunerative jobs or being labled Rooski dupes?

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