Environment
 

The art of the deal: Trump may discover it’s hard to repeal environmental regulations

Donald Trump’s surprise victory in the presidential election left Louisiana’s environmental community asking two questions:

How bad?

How quickly?

They were the right questions.

When Trump is sworn in on Jan. 20, the Oval Office and both houses of Congress will be controlled by politicians who have pledged to roll back or eliminate a long list of environmental regulations and programs. Many of them are considered key to Louisiana’s struggle to save its crumbling coast.

For environmentalists, that would seem to forecast plenty of bad news – and quickly.

But veterans of Capitol Hill’s environmental battles are not so sure. It’s always tough to predict how successful a new administration will be in implementing its agenda, they said, but Trump’s mercurial nature makes it an even bigger gamble.

The fight ahead could take one of two paths, they said:

Congress could stick with the traditional path, a years-long slog through the complicated process required to rescind and replace regulations.

Or it could choose the faster path by using its authority to write new laws and control the budget.

The well-traveled road

Despite claims by some politicians and businesses, environmental regulations are not created at the whim of bureaucrats. Instead, laws passed by Congress require agencies to create regulations. That’s why most regulations are considered laws by the courts.

For example, the Clean Air Act requires the Environmental Protection Agency to monitor air quality and create regulations to keep it safe for human health. That’s why the EPA won court challenges when it decided to regulate carbon.

A particular law, the Administrative Procedure Act, guides the process of creating a regulation. It requires an agency to provide scientific evidence that the regulation is needed, estimate its costs, and provide the public with an opportunity to review the regulation and comment on it. The agency must respond to each of the questions or criticisms.

“It is a very democratic process,” said Rob Verchick, an environmental law professor at Loyola University and president of the Center for Progressive Reform. He served as an EPA administrator during the Obama administration.

After a regulation is finalized, it must clear the Congressional Review Act, a 60-day window during which it can be killed if a majority of both houses of Congress and the president agree to override it. Its only successful application was on a regulation concerning workplace ergonomics, said Steve Cochran, the Environmental Defense Fund’s director of the Restore the Mississippi River Delta Coalition.

Even after that process, many regulations are challenged in court before they take effect. “Someone might claim the science isn’t conclusive or that there is another, less expensive way to achieve the same result,” Verchick said.

“The whole process can take a couple of years – and more in some cases.”

That same process must be followed to repeal, replace or even change an existing regulation. That stymies many attempts to change them.

For instance, the George W. Bush administration arrived in Washington promising to soften many environmental regulations considered too burdensome or costly to business interests, Verchick said. One of the first goals was to turn a new mercury regulation into a cap-and-trade system to reduce the financial blow to power plants. But the courts ruled the change left the public at risk.

“That effort spanned both his terms, so it took many years – and still wasn’t successful,” Verchick said.

“I believe softening regulations is the same thing that Trump has been talking about,” he said. “So we’re not talking about a quick change, in most cases, if any.”

Trump has promised to repeal two regulations for every new one.

Cochran said this long process based on science and public input was a key reason environmental regulations have survived similar efforts in the past.

“People forget the serious challenges we faced from the administrations of Ronald Reagan and George W. Bush,” said Cochran, who worked for the Environmental Protection Agency under President George H.W. Bush. “They wanted to sell off national parks, drill everywhere, turn back years of progress on environmental protections – and for the most part, they failed.”

He said the reviews required by the Administrative Procedure Act helped galvanize public support to stop the rollbacks, even with the GOP-controlled Congress pushing the changes.

Those efforts failed “because people at the end of the day people did not vote for dirty air,” he said. “They did not vote for dirty water. They voted for a lot of things, but they did not vote for those things.”

The quick way

All those approaches are on the legislative side. As president, Trump could change things much more quickly at the agencies under his control.

He could change priorities at the EPA and the Department of the Interior, including how aggressively they enforce regulations. This often is done in the form of a “guidance,” which can be changed at any time because it does not have the force of law like regulations.

For instance, the Obama administration in August issued a guidance requiring all government actions to include an assessment of their impact on greenhouse gases and climate change. Given Trump’s hostility to climate science, many environmentalists expect him to quickly rescind that.

Congress has ways to move quickly, too.

Senators and representatives could avoid the lengthy process of rescinding regulations and opt to amend sections of landmark environmental legislation such as the Clean Air and Clean Water acts. Or they could pass laws prohibiting specific regulations.

“So, rather than try to change regulations, they could change the law and withdraw the agency’s authority to regulate some things,” Verchick said.

“Of course, they would probably have to get that past a Democratic filibuster in the Senate.”

Even when not in total control of Capitol Hill, Republicans have passed bills rolling back regulations, only to be blocked by Democratic filibusters in the Senate or President Obama’s veto promises.

Since Trump was elected, they have triumphantly predicted victory for that agenda when he takes office.

A more likely strategy involves budgeting. Both the president and Congress can reduce or even eliminate funding for an agency, a section of an agency or for specific programs within it. For example, GOP House members have repeatedly added riders to budget bills to cut spending at environmental agencies.

“That’s part of what we call the foot-dragging effect: slowing the process with the budget and the way the agencies are run,” Verchick said. “And that can do a lot of damage.

“But, like everyone says, we’ll have to see what Trump actually decides to do.”

The Trump factor

That wildcard gives pause to supporters and opponents of Trump’s statements on environmental policy. No one can be sure where he will come down on any issue.

For example, the president-elect has long called global warming science a hoax. He has promised to cancel Obama’s initiatives to reduce greenhouse gas emissions, the main drivers of sea level rise, including the historic international agreement made in Paris. That would take about 4 years, but in the interim Trump could simply not send the millions of dollars Obama promised to help the effort.

Coastal scientists said those actions could doom south Louisiana to a watery grave in 50 years.

But since the election, Trump may have softened some of his stands. In an interview with The New York Times, he said he valued clean water and clean air and had an “open mind” about climate change. And yet his chief of staff later said those comments did not change Trump’s “default position” that global warming “is a bunch of bunk.”

“Some of the things he promised during the campaign clearly would be terrible for Louisiana and the nation,” said Mark Davis, Director of the Tulane Institute on Water Resources Law and Policy. “But he’s also moderated or changed some of those promises.

“No one knows what he’s going to do because, quite frankly, his statements indicate even he doesn’t know what he’s going to do.”

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