by Maddie Emerson
One issue with the news lately is that they keep telling us what those in power want to do (do away with national monuments, etc.) without taking the time to explain exactly how our leaders plan to carry out this widespread deregulation, and I think that it is in this how that we can find this week’s source of hope.
When faced with news about the administration’s plans for deregulation, it is important for us to ask- how much can/will they be able to get away with? In order to answer this question, we need to understand the tools they use and what we have working on our side.
There are two main tools that, although complicated, are worth considering. First, Trump can direct agencies like the EPA to withdraw and rewrite rules. Fortunately, we have some pretty strong legal precedent on our side in the form of the Supreme Court’s 1983 State Farm decision. This case limits an agency’s ability to abandon a prior policy direction without a providing a reasoned analysis for doing so. This is to say that the EPA can be sued for revoking policies without providing sound reasons- and they will be hard pressed to find sound reasons to allow coal miners to pollute streams, oil and gas producers to squander natural gas, etc.
Next, we have seen the recent resurrection of an awkward political tool called the Congressional Review Act of 1996. This “constitution-proof” legislative veto allows the house and senate to nullify any recently finalized federal regulation by a simple majority vote in both chambers, so long as the president signs off. This tool has been rarely used since its enactment due to its political impracticality (it’s basically identical to the lawmaking process), but has recently seen some success due to our unique current political situation to kill big environmental rules like the stream protection rule for coal mining. The CRA presents a new challenge to the stability of public policies.
However, it applies to “recently finalized” regulations, meaning that only final rules submitted to Congress on or after June 13, 2016 are vulnerable to this legislative axe. Fortunately, these final-year regulations by no means represent the bulk of Obama-era environmental policy that set U.S. on the path to compliance with the Paris Agreement. Key components of Obama’s climate policy like the Clean Power Plan cannot be done away with in this way.
In summary, although the Trump administration has so far taken advantage of this little-known political tool and dealt some early blows to environmental regulations, the bulk of Obama-era climate policy cannot be so easily discarded due to more stringent legal requirements and some other things we have on our side: common sense and public support for environmental regulation.
For example, the environmental community celebrated a rare win this month when the Senate rejected an attempt by the Trump administration to use the CRA to overturn the Bureau of Land Management’s methane pollution rule, which was finalized in late 2016 and serves to reduce natural gas waste and methane emissions on federal and tribal land. This win can be attributed to common sense (saving taxpayer money, protecting public health), public support (science and climate marchers), and responsible representatives voting on behalf of their constituents rather than special interests.
Finally, even when agencies don’t act the way we want them to, people still have the power to protect their lands. For example, although the FERC approved Arlington Storage Company’s plan to store methane along a pristine lake in New York’s Finger Lakes region, a long-term, nonviolent direct action campaign in Seneca Lake, New York succeeded in convincing the company to abandon their plan.
In summary, when faced with overwhelming news stories of the Trump administration’s plans for environmental deregulation, it is important to recall the legal protections on our side as well as common sense and popular support, which have brought us these two much-needed wins over the past few weeks.