By Josh Bloom
Shifting away from the usual dry legal, analytical assessment of the state of affairs, this seemed like a good time, in view of federal environmental maneuvers over the past 3½ years, to take a step back and consider where things stand. There can be little question that a major initiative of the Trump Administration has been to slash environmental and natural resource regulation in ways that would have made the Reagan Administration blush. But, have those attempts been as successful as it might appear on the surface, and to the extent there has been success, what might be the long-lasting impacts of those changes?
As has been the case with many of the environmental regulations that the Trump Administration has attempted to revise or roll back, courts have been reluctant to rubber stamp those efforts. In addition, some of those efforts have run into practical limitations as well. Other regulatory efforts may be subject to reversal under the Congressional Review Act in the event of a Biden presidency and Democratic Congress come January 2021. Presumably, a Biden Environmental Protection Agency (EPA) or Department of Interior (DOI) would also seek to revise what they consider the more objectionable elements of regulations that had survived legal challenges. A President Biden would also have the United States rejoin the Paris Agreement. As a result, there is a real question as to the lasting impact of those rollbacks.
Take for example yet another in a series of rulings against the Trump Administration’s efforts to loosen existing environmental laws that was recently handed down. In an August 11, 2020 ruling in Natural Resources Defense Council, Inc., et al. v. U.S. Department of Interior, Case No. 18-CV-4596 (VEC), the Southern District of New York blocked DOI’s attempts to change a decades’-long interpretation of the Migratory Bird Treaty Act (MBTA). In that case, the court granted summary judgment to a broad coalition of environmental groups and states, holding that DOI’s view of the MBTA, a view that limited the activities that can render one liable under the statute, had no basis. Reversing DOI’s long-standing interpretation that the MBTA prohibits incidental takes and kills migratory birds, the Trump DOI determined that incidental takes and kills were not subject to the MBTA prohibition.
The change in direction was effected by a December 2017 DOI Solicitor’s Opinion that permanently withdrew and replaced a prior Solicitor’s Opinion that interpreted the MBTA to prohibit incidental take and kill. There was no opportunity provided for public review and comment on that December 2017 Opinion before it was put into effect. Although DOI argued that the Opinion was not a final agency action subject to review under the Administrative Procedures Act, the court disagreed, noting that the Trump Administration’s DOI Solicitor’s Opinion was by its terms definitive and binding on DOI, such that the U.S. Fish & Wildlife Services had developed guidance to give effect to that Opinion. As to DOI’s contention that it was planning to initiate formal rulemaking on the policy, the court, in consideration of DOI’s actions and the timing of its suggestion of formal rulemaking, deemed that promise to be disingenuous.
As for the practical hurdles that the Administration’s efforts face, two recent circumstances provide a clear illustration of those difficulties, even if such efforts survive the array of legal challenges they are confronting. In one, DOI, following a provision in the 2017 tax bill that directed DOI to auction off drilling leases in the Arctic National Wildlife Refuge in Alaska, and looking to a 2019 Bureau of Land Management Environmental Impact Statement, on August 17, 2020, indicated that it will now implement that directive. At issue are 1.5 million acres of Refuge along the coast of the Beaufort Sea. Apart from legal challenges that have already been filed, including whether such action is prohibited under the Alaska National Interest Lands Conservation Act, it is far from certain that the oil and gas industry will commit resources to exploration of that area. To date, there is a significant lack of geologic data, nor has there been necessary assessment of how seismic testing itself may impact the area. Beyond that, there will be a referendum in front of Alaska voters in November to decide whether to increase oil production taxes, and there is quite a bit of uncertainty as to whether the major banks are even willing to fund exploration efforts.
Those practical implications also revolve around states’ efforts to push back against the Administration’s reversals. As a natural consequence of the pullback and absence of environmental and natural resource regulation at the federal level, states have stepped up to fill the gaps created by federal action, or inaction as the case may be, such as in response to EPA and the Army Corps of Engineers “Waters of the United States” rule, limiting federal jurisdiction under the Clean Water Act. California, Washington, and New York, among other states, have made significant efforts to maintain an aggressive regulatory posture, notwithstanding attempts by the Administration or certain industry groups to federally preempt those actions, but others have followed the Administration’s path of a less-stringent regulatory environment. The result has been a patchwork of environmental standards that the federal statutes of the 1970s and 1980s sought to avoid.
A recent example of this dynamic centers on California, with two Clean Air Act rollbacks at issue. Under the Clean Air Act, there is specific waiver of federal preemption accorded to California that allows the state to set its own standards, and other states are permitted to implement those standards. Currently, thirteen states follow California’s greenhouse gas standards applicable to the light-duty vehicle fleet. EPA, in September 2019, undertook a final agency action that revoked California’s waiver. That decision is being challenged by a broad array of states and stakeholders presently. In the other rollback, EPA cast aside an Obama-era regulation that required a five-percent annual increase in fuel efficiency standards for cars and light trucks, and replaced it with a mandate that only a 1.5% increase is required. That too is presently the subject of broad legal challenge.
However, at the same time that the legal challenges to these two actions are working their way through the courts, the California Air Resources Control Board on August 17, 2020 entered into separate agreements with five auto manufacturers in which those companies agree that their autos and light trucks will comply with California standards. In return, those companies—Ford, Volkswagen (including Audi), Volvo, BMW (including Rolls Royce), and Honda—are given additional time to comply, and are provided greater flexibility with regard to those standards. On the other hand, California has indicated that for those companies that did not enter into agreements with the state but instead support the Administration’s actions—General Motors, Fiat Chrysler, and Toyota—the state will no longer purchase vehicles from those companies. That loss of revenue will not be insignificant.
And then there is the Congressional Review Act (CRA). The CRA permits Congress, by joint resolution, to disapprove of any regulation that was finalized within 60 legislative days after the rule has been provided to Congress. However, if the Congressional session ends before the 60 days has run, the period can run into the following session. For practical purposes, that means that any regulation finalized within 60 days before the end of the current Congressional session may be reviewed at the beginning of the next session. Whether it is recent National Environmental Policy Act or methane regulations, or revising how cost-benefit is to be assessed under the Clean Air Act, those and a number of other actions to limit environmental regulation may be subject to review.
Although the legislative calendar is not set in stone, particularly in light of actions arising as a result of Covid-19, early review by the next Congress of any regulation finalized before the end of May 2020, give or take, would be timely under the CRA. A disapproval resolution is not subject to Senate filibuster, but as with any other legislation, even a disapproval resolution is subject to presidential veto, which then could only be overturned by a supermajority vote. One can imagine if the House and Senate are under Democratic control come January 2021, there will be a hard look taken at regulations finalized within the CRA review period, and if there is a Biden Administration, any disapproval resolution would not likely be vetoed by the President absent particular circumstances.
This is not to suggest that all environmental actions by the Trump Administration could be easily reversed or mitigated by a Biden Administration. Any attempts at regulatory fixes will still be subject to litigation and judicial review and must comply with the Administrative Procedure Act. Changes through executive order can only go so far. Effects on climate change resulting from four years of federal resistance and inaction may not be countered any time soon. Impacts to deforested lands or species will remain. Of course, a Trump victory would render this assessment moot. Environmental and natural resource departments and agencies would likely be staffed to an even greater extent with those that share the ideology of the Administration, and under a Republican-controlled Senate, yet even more judges that are satisfactory to the Administration would be appointed to federal courts. A subset of states will continue to fill the gaps, but one can envision a greater judicial tolerance for federal preemption.
In the final assessment, it would appear that the advent of a Biden Administration in January 2021 would lead to a resurgence of environmental and natural resource regulations to a fair extent. However, a second Trump term portends more of the same, and perhaps even a more aggressive retrenchment than has been the case thus far.
 It appears the New York Times Editorial Board had the same idea-- https://www.nytimes.com/2020/08/22/opinion/sunday/trump-biden-environment-climate-change.html?action=click&module=Opinion&pgtype=Homepage
Joshua Bloom, Partner
Environmental General Counsel
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.