01/06/2020 - Regulatory Rollbacks

Five Major Rollbacks at the End of 2019

by Jody Freeman

Here are the five worst things the Trump administration did toward the end of 2019 to set back environmental protection and clean energy, followed by one bright spot:

    1. Weakened environmental disclosure for federal projects. The National Environmental Policy Act requires federal agencies to evaluate and disclose the environmental impacts of major federal projects like natural gas pipelines, coal mines, highways, and other infrastructure, including how those projects affect climate change, and how climate change might make them more vulnerable. But the Trump administration reportedly is moving to weaken the rules by significantly limiting the extent to which agencies must consider climate impacts. While NEPA is not perfect, its core commitment to look before you leap has been foundational to environmental protection for fifty years. Requiring the government to at least consider environmental and public health consequences, including climate related impacts, before irretrievably committing public resources to major developments, can help prevent or mitigate big mistakes, and keep the government accountable. Federal courts consistently have found that climate impacts must be thoroughly considered under this law, raising questions about whether Trump’s new rules trying to weaken it can survive judicial review. For more on the anticipated changes see here.
    2. Hampered clean energy deployment in Mid-Atlantic states by adopting new market rules disfavoring renewables and energy efficiency, which will cost electricity consumers billions of dollars without providing any benefits. While FERC is a traditionally bipartisan independent agency (which early in the Trump administration resisted pressure to approve non-economic subsidies to prop up the coal industry), its makeup has changed with some personnel shifts. The agency is now run by Trump’s Republican appointees, one of whom is an adamant climate denier, who outnumber the sole Democratic appointee (shout out for commissioner Glick). For more on the new rules see here and look for additional analysis to come soon from the Director of our Electricity Law Initiative, Ari Peskoe.
    3. Extended the life of highly inefficient lightbulbs by blocking a planned 2020 phase-out. The phase-out would have saved consumers money on their energy bills, reduced energy use, and cut both conventional air pollution and greenhouse gas emissions by transitioning to far more efficient lightbulbs. For more, see our tracker post.
    4. Undermined clean air protections by giving old coal plants and other high-polluting sources more latitude to update equipment and run longer, without installing modern pollution controls. This is wonky even for experts, but… EPA published final guidance expanding exclusions for its “New Source Review” program. Now, ambient air is excluded “where the source employs measures, which may include physical barriers, that are effective in precluding access to the land by the general public.” To find out what that means, see our tracker post here. This decision follows earlier guidance from November that also benefits facilities wishing to upgrade without controlling their air pollution (that guidance concerned a narrow interpretation of the word “adjacency”). Having fun? For additional context, and to understand the breadth of the latest changes to this program, see our recent legal analysis.
    5. And just to break your heart, the administration scaled back protections for threatened and endangered sea turtles that get caught in nets used by the commercial shrimp fishing industry. Now, “turtle exclusion devices,” which allow captured turtles to escape from the nets, will be used on fewer vessels than originally planned under the Obama-era proposal, leading to more avoidable deaths. For more see here and for turtle facts see here.

What’s the bright spot? A panel of scientific experts, many appointed by the Trump administration, found that three of EPA’s major regulatory rollbacks—including the proposal to narrow what counts as “waters of the United States” for purposes of clean water protections—could not be justified by the relevant science. The EPA’s “Science Advisory Board” plays an important role checking the integrity of the agency’s decisions. When the Trump administration replaced many members of the longstanding and highly respected Advisory Board with its own picks, observers worried that it would skew the board’s advice. But scientific integrity seems to have prevailed.

The Board’s draft report, which it will discuss at its January 2020 meeting, faults EPA for deviating from the established science when proposing these three rules, stating, for example, that “The departure of the proposed [Clean Water] Rule from EPA recognized science threatens to weaken protection of the nation’s waters…These changes are proposed without a fully supportable scientific basis, while potentially introducing substantial new risks to human and environmental health.”

The Advisory Board also criticized EPA’s proposal to roll back vehicle efficiency and greenhouse gas standards, finding various of its projections fishy, and noting that the Obama-era standards “might provide a better outcome for society than the proposed revision….”

The Board’s findings may have legal consequences, since courts are likely to look skeptically at EPA rules that fly in the face of science and fail to follow the advice of the agency’s own expert Advisory Board.

And finally, here are the Top 20 Regulatory Rollbacks to Watch in 2020. This is part of what our team at the Harvard Law School Energy and Environmental Law Program will be tracking in the coming year.

Follow our team on Twitter @JosephGoffman @AriPeskoe @HanaVizcarra @CaitlinMcCoy_ and @LauraBloomer. You can see all our tracker posts here.