Category: Department of Justice

Trump, Part Two

The second Trump Administration will likely usher in a pitched battle between its attempt to ‘roll-back the Biden Administration’s environmental rules and policies and environmentalists’ defense of those same rules and policies. The outcome is anything but clear.

The Biden Administration still has some time and power to cement its legacy. In this interim transition period, it can, among other things, deny requests for reconsideration of promulgated rules, grant petitions of objection to Title V permits, and seek expedited rulings in multiple court cases across the country. It can also finalize proposed rules and policies. However, those actions can be undone, delayed, or stymied once the Trump Administration assumes control of the EPA and the Department of Justice.

Once the Trump Administration is in place, there are any number of possibilities. Most importantly, President Trump has the power to issue executive orders. He can revoke, rescind, or amend any existing executive order issued by President Biden. He can also issue his own orders with new policies, guidance, and requirements. It is likely that prior executive orders regarding climate change and environmental justice will be targeted for revocation or revision.

Mr. Trump has picked Lee Zeldin, a former Congressman from New York, as the Administrator of EPA. In announcing the pick, Mr. Trump stated that Mr. Zeldin will “ensure fair and swift deregulatory decisions that will be enacted in a way to unleash the power of American businesses, while at the same time maintaining the highest environmental standards, including the cleanest air and water on the planet.” Mr. Zeldin stated that he would prioritize efforts to “roll back regulations” that have caused American businesses to struggle and would “restore US energy dominance … while protecting access to clean air and water.”

One possible regulatory ‘roll-back’ is the joint EPA and Corps of Engineers rule on “Waters of the United States,” which published in the wake of Sackett v EPA. That rule has been criticized for imposing jurisdiction on waters well beyond that allowed by the Supreme Court’s ruling. The EPA/Corps have also issued guidance which provides expansive interpretations of jurisdiction which the Corps is currently following. It is likely the scope of jurisdiction under Sackett will be codified in a rule and the EPA/Corps guidance, which retains an expansive view of jurisdiction, will be reissued to more properly align with Sackett.

Oil and gas industry interests have advocated for repeal of certain Inflation Reduction Act energy policies and the issuance of numerous executive orders relating to, among other things, prioritizing natural gas and liquefied natural gas exports, prioritizing American energy production, and requiring agency actions to align with statutory intent. Additionally, they have suggested modification of EPA’s methane emissions rules and greenhouse gas reporting requirements, modifying or repealing the methane fee implementation rule, revoking and replacing CEQ’s NEPA Phase 1 and Phase 2 rules, and revoking the SEC’s climate disclosure rule.

Further, other than those rules specifically required by statute, it is likely that EPA will not promulgate additional rules as expansive or far-reaching as have been proposed during the Biden Administration. The Trump Administration will also likely utilize the Supreme Court’s ruling in Loper Bright, which overruled Chevron and generally curtailed the application of deference to EPA’s interpretation of a statute, to provide a ‘best reading’ of an environmental statute that does not allow for expansive interpretations of the applicable statute.

However, these anticipated actions will not be met with silence or inaction. Environmentalists will use public pressure, the comment process, litigation, and any other methods or means at their disposal, to oppose, delay, or stop any possible ‘roll-backs’ by the Trump Administration. They did so with some success in the first Trump Administration and so have experience with opposing a Trump-controlled EPA. It has been reported that they anticipate a second Trump Administration to overreach in its actions and they will be ready to exploit any such errors.

The extent to which the second Trump Administration will be successful in moving away from the Biden Administration and imposing its own agenda is hard to predict. Regardless, as with the first Trump Administration, it promises to be a litigious and contentious time.

The Administration Restrains Itself

The Trump administration has recently signaled a retrenchment in agency actions. These voluntary actions curtail the administrative agency from exercising powers or authority beyond what may be provided to it under applicable statutes and regulations.

The attorney general issued a memorandum to all Department of Justice components in November stating that the department will no longer engage in the practice of issuing guidance documents that effectively create rights or obligations binding on persons or entities outside the executive branch without undergoing the rulemaking process. The memorandum barred any guidance documents of general applicability and future effect that are designed to advise parties outside the executive branch about legal rights and obligations falling within the department’s regulatory or enforcement authority.

When issuing guidance documents, the department was instructed, among other things, to identify the document as guidance and clearly state that they have no legally binding effect on persons or entities outside the federal government. Also, guidance documents should not be used for the purpose of coercing persons or entities outside the federal government into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or regulation.

As to the Department of Justice, this will end the practice of issuing guidance documents that have the effect of binding anyone outside of the government, unless the proper rulemaking procedures are followed. It is unclear whether the memorandum applies outside of the Department of Justice. Regardless, in addition to its public efforts, EPA has quietly taken two actions that voluntarily restrict its ability to inject itself into state permitting issues.

First, in a memorandum posted on EPA’s website in December relating to the pre-construction analysis of New Source Review applicability, Administrator Scott Pruitt announced that EPA will no longer delve into, or “second-guess,” the pre-construction applicability analysis submitted or performed by an applicant. Thus, when an applicant performs the applicability analysis in accordance with the calculation procedures in the regulations and follows the applicable recordkeeping and notification requirements, that owner or operator has met the regulations. In such cases, EPA will not substitute its judgment for that of the applicant’s emissions projections. Essentially, this action reverses a prior policy in which EPA asserted the right to require additional analysis despite the applicant’s projections or compliance with calculation protocols.

Secondly, Administrator Pruitt issued two orders in October denying petitions for objections to Title V air permits issued by state agencies. Under the Clean Air Act, any person may petition the EPA to object to the terms and conditions within a state-issued Title V permit. Title V permits usually contain requirements from the pre-construction Prevention of Significant Deterioration (PSD) Program. Over the last several years, citizen groups have successfully petitioned EPA to issue objections to PSD permit conditions included in Title V permits. These two decisions state that the petition for objection process is not the proper forum or method to object to PSD requirements. Instead, the state’s administrative and judicial review process should be utilized.

These actions are seen by many as a departure from the recent past, in which agencies wielded authority without appropriate limitations. Certainly, they suggest that agencies will now act in a more restrictive manner.