Insights on Current Policy Issues
EPA Initiates Regulatory Review in Response to Executive Order
By Frank Vlossak
On April 13, the Environmental Protection Agency (EPA) published a notice in the Federal Register soliciting public comments “on regulations that may be appropriate for repeal, replacement, or modification.” The notice is part of the EPA’s efforts to implement the Executive Order titled “Enforcing the Regulatory Reform Agenda” (E.O. 13777), which was signed by President Trump on February 24, 2017. The deadline for submitting public comments is May 15, 2017. EPA offices will also be conducting public forums on regulatory reform over the next four weeks. The Executive Order establishes mechanisms intended to reduce regulations, including by implementing the President’s January 30, 2017 Executive Order (E.O. 13771) which calls for agencies to eliminate two regulations for each new regulation they promulgate.
Update on Congressional Review Act Resolutions
By Frank Vlossak
Congress enacted the “Congressional Review Act” (CRA) as part of the “Contract with America Advancement Act” (P.L. 104-121) in 1996 and it is codified at 5 U.S.C. 801-808. The CRA established an expedited process for Congress to repeal recently promulgated regulations through passage of joint resolutions signed into law by the President. As of April 7, the President has signed eleven CRA resolutions into law. The House and Senate have passed two more, which the President is expected to sign. Activity on CRA resolutions will begin to wind down as the statutory cut-off for action on resolutions to repeal final rules issued during the 114th Congress is expected to occur no later than early May.
President Trump Issues Executive Order to Unwind Obama Administration Climate Policies
By Frank Vlossak
On March 28, 2017, President Trump signed an Executive Order directing a number of actions to repeal or revise Obama Administration policies targeting greenhouse gas (GHG) emissions and climate change. It also requires federal departments and agencies to “review existing regulations that potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources.” The “Promoting Energy Independence and Economic Growth” Executive Order (E.O. 13783) was published in the Federal Register on March 31.
Trump Administration Executive Order on “Enforcing the Regulatory Reform Agenda”
By Frank Vlossak
On February 24, 2017, President Trump signed an Executive Order entitled “Enforcing the Regulatory Reform Agenda”. The Executive Order establishes mechanisms intended to reduce regulations, including by implementing the President’s January 30, 2017 Executive Order which calls for agencies to eliminate two regulations for each new regulation they promulgate. Among the requirements of this latest Executive Order are mandates for federal agencies to appoint “Regulatory Reform Officers” and establish “Regulatory Reform Task Forces”. As described in a White House press release, the Executive Order directs each agency’s Regulatory Reform Task Force to: “evaluate existing regulations and identify candidates for repeal or modification”; and “focus on eliminating costly and unnecessary regulations.”
Trump Administration “Regulatory Cap for Fiscal Year 2017”
By Frank Vlossak
On January 30, 2017, President Trump signed an Executive Order entitled “Reducing Regulation and Controlling Regulatory Costs”. The Executive Order is intended to ensure that “for every one new regulation issued, at least two prior regulations be identified for elimination”. On February 3, the White House issued a memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017…” The memorandum provides agencies with information on how to implement the “Regulatory Cap for Fiscal Year 2017” established by the Executive Order.
Among the issues addressed, the February 3, memorandum clarifies that the Executive Order applies only to significant rulemakings, and does not require compliance by independent federal agencies such as the Securities and Exchange Commission (SEC), the Federal Energy Regulatory Commission (FERC), and the Federal Communications Commission (FCC).
Presidential Actions on Pipelines and Infrastructure
By Frank Vlossak
On January 24, President Trump signed an executive order and four memoranda addressing pipeline, infrastructure, and manufacturing issues. The memoranda include one directing prompt consideration of the remaining federal approvals needed by the Dakota Access Pipeline. Another memorandum invites TransCanada to resubmit its application for a Presidential border-crossing permit for the Keystone XL Pipeline. The memorandum further directs the Department of State to “reach a final permitting decision” within 60 days of receiving a new Keystone XL permit application.
A memorandum to the Secretary of Commerce requires the development of a “plan” to require “all new pipelines, as well as retrofitted, repaired, or expanded pipelines [to]…use materials and equipment [including steel] produced in the United States, to the maximum extent possible and to the extent permitted by law…”
Regulations and the Obama-Trump Presidential Transition
Presidential transitions in which one party takes over from the other can trigger regulatory activity in both the outgoing and incoming administrations, designed to further each president’s policy priorities. An outgoing president may attempt to finalize a number of regulations before leaving office. The incoming president can be left with the responsibility of implementing policies that are not aligned with the new administration’s agenda. An incoming president faces significant challenges in rescinding regulations that were adopted and finalized before the end of the prior administration. The new administration has more leeway in delaying or repealing regulations that are not final or effective by Inauguration Day. An incoming administration and aligned House and Senate majorities can also utilize the expedited processes under the Congressional Review Act to rescind regulations that were promulgated late in the outgoing administration.
Department of Interior Issues Regulations on Natural Gas Venting and Flaring
On November 15, 2016, the Department of Interior’s Bureau of Land Management (BLM) issued the final rule titled “Waste Prevention, Production Subject to Royalties, and Resource Conservation”. The rule is designed to reduce the venting and flaring of natural gas produced on federal lands. The BLM developed the final rule based on a Notice of Proposed Rulemaking (NPRM), which was published on February 8, 2016. The rule’s effective date is January 17, 2017, which will make it more difficult for the incoming Trump Administration to rescind the regulations. Congress could potentially seek to repeal the rule using the expedited process available under the Congressional Review Act.
Federal Interagency Task Force Reports on Natural Gas Storage Safety
On October 18, the Department of Energy released the report of the Interagency Task Force on Natural Gas Storage Safety, titled “Ensuring Safe and Reliable Underground Natural Gas Storage”. The Department of Energy organized the Task Force in April, and Congress codified it and provided direction to its final report in enacting Section 31 of the “Protecting our Infrastructure of Pipelines and Enhancing Safety (PIPES) Act of 2016” (P.L. 114-183). The Task Force and the report are part of the response to the Aliso Canyon natural gas storage facility methane leak, which occurred from late 2015 into 2016.
Outlook for Environmental and Energy Regulations
As the Obama Administration enters its final months, federal agencies are working to advance a series of energy and environmental rulemakings, even as they are also seeking to resolve court challenges and stays to other regulations. This paper describes some of the significant regulations that remain in development, or that are tied up in court challenges.