With the recent confirmation of EPA Administrator Scott Pruitt, President Trump's environmental priorities are quickly coming into focus. It goes without saying that President Trump's EPA will differ significantly from its Obama-era predecessor. Broadly speaking, recent and forthcoming environmental policy developments can be divided into two major categories: (1) the future of EPA-driven enforcement actions and citizen-initiated lawsuits and, (2) modification or elimination of particular environmental laws and regulations. Our update gives a brief overview of what to expect in each area.
Less EPA Enforcement and More Citizen Suits
During Administrator Pruitt's tenure as head of EPA, there will likely be a downtick in EPA enforcement actions, accompanied by a commensurate uptick in citizen lawsuits. As Oklahoma Attorney General, Administrator Pruitt advocated environmental federalism, arguing that the federal government should reduce its regulatory reach and allow states to enforce more environmental laws. Not only did Administrator Pruitt establish a "federalism unit" in the Oklahoma Attorney General's Office, but he also led lawsuits challenging two of President Obama's signature environmental laws—the Clean Power Plan and the Waters of the United States Rule. It is therefore expected that the Pruitt-led EPA will grant states more autonomy in administering and enforcing federal environmental laws, many of which are already substantially delegated to the states, and cut back on federally-driven enforcement actions. Of course, EPA will not cease all investigations and enforcement actions, since many are statutorily mandated. But EPA will almost certainly amend its National Enforcement Initiatives (likely deemphasizing the energy production and extraction industries). And the regulated community can expect somewhat more favorable investigatory and enforcement outcomes. On top of this general enforcement shift, President Trump recently released his proposed fiscal year 2018 budget, which would cut EPA's funding by nearly a third. While Congress will have the last word on any budgetary matters, and likely will temper the President's suggested cuts, any reduction in EPA funding could also hamper the agency's investigation and enforcement programs.
A corollary of decreased federal regulatory activity is a likely increase in the scope and sum of lawsuits filed by non-government organizations (NGOs) seeking to enforce federal environmental laws. Many laws, like the Clean Water Act, Clean Air Act, and Endangered Species Act, contain citizen-suit provisions which allow NGOs and private parties to bring lawsuits as "private attorney generals," to enforce potential violations of those laws. Since the election, environmental NGOs have made no secret of their intent to both step up citizen suit enforcement in the coming years, and defend the environmental regulations they expect Administrator Pruitt to roll back or modify.
Specific Policy Shifts
Beyond changing EPA's overall enforcement strategy, President Trump is also likely to amend or eliminate several specific environmental laws. Indeed, just a month into his term, President Trump started this process by signing legislation repealing the Stream Protection Rule, a mining regulation finalized at the end of President Obama's term. To kill the Stream Protection Rule, Congress utilized the Congressional Review Act (CRA), legislation that makes it easier to undo regulations issued in the last sixty legislative days.
Most recently, President Trump issued an executive order requiring federal agencies to "immediately review existing regulations that potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind" any such rules. Several Obama-era regulations are slated for review under the order, including greenhouse gas emission standards for power plants (popularly known as the Clean Power Plan), methane emission rules for oil and gas drilling operations, and Department of the Interior rules proscribing new coal mining on federal lands. Roll back of these rules won't be immediate, however, and the agency review and replacement/rescission process will take time. In the meantime, it is expected that the Department of Justice will ask for a stay or remand of the pending D.C. Circuit litigation challenging the Clean Power Plan rules.
Shortly before his climate change executive order, President Trump signed another executive order aimed at eliminating the controversial Waters of the United States Rule (WOTUS Rule), a federal regulation designed to clarify the scope of federal Clean Water Act jurisdiction. President Trump's executive order requires EPA and the Army Corps of Engineers (the Corps) to review the WOTUS Rule and consider "rescinding or revising" the Rule. Should the agencies promulgate a new rule, the executive order directs EPA and the Corps to consider adopting a narrower rule, constraining the Corps' jurisdiction in a manner consistent with Justice Antonin Scalia's opinion in Rapanos v. United States, 547 U.S. 715 (2006). While the mostly likely scenario is adoption of a replacement rule narrowing federal jurisdiction, the rulemaking process won't be immediate. In the interim, pre-WOTUS agency guidance—roughly resembling the WOTUS Rule—will continue to control, absent further action by the Trump Administration.
Administrator Pruitt has also isolated a few areas where he wants to reinvigorate EPA regulatory efforts. Shortly after his confirmation, Administrator Pruitt identified achieving Clean Air Act air quality attainment standards, improving and expanding Superfund cleanup efforts under the Comprehensive Environmental Response, Compensation, and Liability Act, and modernizing the nation's water infrastructure, as his top priorities. Of these, water infrastructure funding is the most likely to succeed, given the administration's suggestion that Congress increase funding in that area.
In short, federal environmental policy is sure to substantially change over the next few years. While core federal environmental regulatory programs will remain intact, President Trump and Administrator Pruitt have already begun the process of amending and removing particular enforcement priorities and regulatory rules. Environmental professionals should stay abreast of these changes and be prepared to change their practices and priorities as necessary.