The Nickel Report

When most Americans think about the traditions of presidential transitions, they recall the oath of office, the prior president and family leaving the White House, the inaugural parade, the balls with their beautiful gowns and sharp tuxedos, and more. What they more than likely don’t think about, much less even know about, are other happenings in the White House and in the agencies that run our government. While the peaceful transfer of power is a hallmark of the American political system, it is not without controversy, particularly where the outgoing president is a member of a different political party with remarkably different political views than the incoming commander in chief.

Several presidential administrations have sought to shorten the lengthy process for obtaining federal authorizations and permits, with particular attention on infrastructure projects that usually require multiple federal permits with accompanying environmental reviews. Despite consistent interest in improving this process, delays persist, in part because of how courts have interpreted the level of analysis required during these environmental reviews. This past Tuesday, President Trump issued a new Executive Order (EO) 13807: “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.” As this EO is implemented, the big question is: How much relief can this or any other executive action provide?

You’ve likely heard that just hours after the inauguration, White House Chief of Staff Reince Priebus issued a Memorandum for the Heads of Executive Departments and Agencies captioned “Regulatory Freeze Pending Review.” The so-called Regulatory Freeze Memo sought to freeze midnight actions by the Obama administration. In response to President Trump’s freeze actions and expected regulatory reforms, California lawmakers are seeking to issue their own “freeze” to ensure regulations in place just before the transition remain effective in California. On top of that, California legislators have been introducing a series of bills designed to “insulate the state from dangerous rollbacks in federal environmental regulations and public health protections,” including:

• SB 49, entitled The California Environmental, Public Health, and Workers Defense Act of 2017, related to retaining all pre-Trump environmental regulations.
• AB 1646, related to website posting of petroleum refinery risk management plans (RMP) on public agency websites and establishment of emergency notification equipment.
• AB 1647, related to air monitoring for petroleum refineries.
• AB 1648, related to increasing CalOSHA’s refinery inspection resources.
• AB 1649, related to codification of Governor Brown’s Refinery Task Force.
• SB 584, related to speeding up the RPS 50 percent renewable goal by five years and setting a new 100 percent renewable goal at 2045.

Recently, the states and federal agencies have clashed in a number of environmental rulemakings and subsequent litigation over those rules. These disagreements have raised a host of important legal and policy questions, including the proper balance of power between the states and the federal government and the communication process and overall relationship between the states and federal agencies. Recently filed litigation challenging the Stream Protection Rule, 81 Fed. Reg. 93,066 (Dec. 20, 2016), would prompt judicial review of many of these issues. But the likelihood of administrative or congressional action on this rule (through the Congressional Review Act) could preclude judicial input on these questions for now. If the rule is ultimately withdrawn or overturned, the manner in which it is may also present important federalism questions. Further complicating this process are two motions to intervene in two of these cases, filed by several environmental groups to defend the final Stream Protection Rule from being vacated or weakened.

The U.S. Supreme Court is not the only one keen on taking a closer look at deference to agency interpretations. Just as the Supreme Court will have an opportunity “to rein in a particularly aggressive use of agency deference” later this year, the House of Representatives is also set to take aim at judicial deference to agency interpretations through the recently proposed Regulatory Accountability Act (the Act) — a compilation of several earlier reform bills. A similar act was proposed last July and passed the House, but was ultimately not considered by the Senate. With the new incoming administration, however, the Act may have an increased chance of success.

Just before Christmas, the U.S. Environmental Protection Agency (EPA) released controversial regulations, titled Accidental Release Prevention Requirements: Risk Management Programs under the Clean Air Act; Prepublication Final Rule, that EPA states will “modernize” the Clean Air Act Section 112(r)(7) Risk Management Program (RMP) regulations. These 1990s-era regulations, covering about 12,500 facilities across the country, require that facilities storing certain amounts of specified chemicals develop risk management plans to prevent the accidental release of those substances into the air and mitigate impacts of accidental releases that do occur. EPA initiated these RMP rule revisions under the directive of President Obama’s August 1, 2013, Executive Order (EO) 13650, Improving Chemical Facility Safety and Security. After proposal on March 14, 2016, EPA received more than 44,000 comments, making rule issuance in just over six months’ time remarkable, especially given that the final rule and response to comments total about 600 pages.

On Monday, December 19, the US Environmental Protection Agency released its enforcement and compliance annual results for fiscal year 2016 (FY 2016). The results compile environmental enforcement statistics for the final year of the Obama administration.

As the presidential transition draws nearer, many have asked what the change in administration will mean for the enforcement of our nation’s environmental laws. The Environmental Protection Agency, Department of Interior, Army Corps of Engineers, US Coast Guard and other agencies are all tasked with enforcement responsibilities under the major federal environmental statutes. The future of environmental enforcement under the incoming Trump administration thus depends on the future of each of these agencies.

With Republican control of the executive and legislative branches of government after the November 8 election, attention has turned to the Congressional Review Act and its powers to “get rid of the regulations that are just destroying us,” in the words of President-elect Trump.

The Congressional Review Act (CRA or the Act) was enacted in 1996. It is a tool for Congress to exercise authority over executive and independent agencies, allowing Congress to override an agency’s final action by passing a joint resolution of disapproval.