What the President-elect can — and can’t — do when it comes to water, coal and climate change.
By Cally Carswell, High Country News | Reprinted with permission 1/16/17
This story originally appeared in the High Country News print edition | 12/12/16
One week after the presidential election, on a summery November day, I phoned Denver-based climate activist Jeremy Nichols. Nichols has pressured the government to keep its fossil fuel reserves in the ground, with some success: In January, the Obama administration put a moratorium on federal coal leasing, something unimaginable during the heady drilling years of Bush and Cheney. I called to ask what Nichols expected from the next president? He remarked on the unseasonably warm weather, then lamented, “I’m going to yearn for the George W. Bush days.”
Environmentalists have good reason to worry about President-elect Donald J. Trump. In 2012, Trump tweeted that climate change was a “concept” ginned up by the Chinese. Now, he’s appointed a prominent critic of climate science and policy to oversee the Environmental Protection Agency’s transition. On his new website, Trump promises to grease the permitting skids for fossil fuel production, end the “war on coal,” support renewable energy and scrap the Clean Power Plan. At the same time, he professes a commitment to “our wonderful natural resources.”
The energy industry is delighted. “I think what we’re looking for right off the bat is simply having an administration that is not openly hostile to us,” says Kathleen Sgamma of the Western Energy Alliance. Meanwhile, conservationists expect to spend the next four years defending their Obama-era gains. But Obama’s environmental achievements are considerable, and Trump can’t vanquish them with a snap of his fingers. Many power plants have already taken steps to rein in toxic mercury emissions and pollutants that cloud parks and wilderness with brown haze. Obama’s clean car rules have already stood up in court. So far, Obama has designated 27 national monuments — more than any other administration — and the new president has no clear legal authority to erase those protections.
Still, the carbon-cutting Clean Power Plan, one of the president’s most significant accomplishments, is in peril. And the rarely used Congressional Review Act allows Congress to weigh in on any rule finalized after May 30 of this year, according to a Congressional Research Service estimate, by giving it 60 days in session to pass something called a “joint resolution of disapproval.” If the president signs the resolution, the rule is nullified, and agencies are forbidden to issue similar rules.
Here we highlight some of the Obama administration’s achievements and Trump’s position on them, if known, and explain how Trump could attempt to undo them.
FEDERAL COAL LEASING MORATORIUM
What Obama Did: In January, Interior Secretary Sally Jewell issued a “secretarial order” directing the department to stop leasing federal coal reserves, pending a review of the program. Environmentalists like Nichols had pushed for this, arguing that leasing federal coal was inconsistent with Obama’s climate goals, and that the program didn’t deliver fair returns to taxpayers.
Trump’s Take: One of the few specific promises Trump has made is to lift the moratorium.
Trump’s Options: Trump’s administration can scrap the moratorium with the stroke of a pen — the same way the Obama administration created it.
BLM AND EPA METHANE RULES
What Obama Did: Both the EPA and Bureau of Land Management finalized rules this year to limit the amount of methane, a potent greenhouse gas, vented or flared by oil and gas drilling. The rules would limit those emissions at both new and existing facilities and funnel additional royalties to taxpayers, who don’t currently earn revenue on methane that’s burned as waste.
Trump’s Take: We don’t know. However, Trump has positioned himself as a staunch ally of the industry, which vigorously opposes the rules. The BLM’s rule, finalized on Nov. 15, was met immediately with an industry lawsuit. Oklahoma Republican Sen. Jim Inhofe, who chairs the Environment and Public Works Committee, released a statement saying he looks forward to helping the new administration rescind the rules.
Trump’s Options: Congress could use the Congressional Review Act to ask Trump to nix the rules, or include language in appropriations bills temporarily prohibiting the agencies from using funds for implementation or enforcement. Whatever happens, Erik Schlenker-Goodrich of the Western Environmental Law Center notes that waste prevention is a core principle of federal oil and gas law, and says his group will continue to ensure that BLM fulfills its legal obligations.
OIL AND GAS LEASING REFORMS
What Obama Did: In the early days of the George W. Bush administration, The Wilderness Society’s Nada Culver says, you had to visit BLM field offices in person to keep tabs on oil and gas lease sales. Coordinates for parcels up for auction were posted, but you had to map them yourself and protest within a short window. As public-land drilling intensified, encroaching on places like Dinosaur National Monument, environmentalists protested more and filed more lawsuits. The result, says Culver, frustrated everyone: Environmentalists felt that the BLM put too little thought into leasing, and some offices became burdened with multi-year backlogs, a burden for industry.
Interior Secretary Ken Salazar sought to break the gridlock by increasing public participation and including more upfront planning. Public comment periods now precede lease sales, and the BLM is starting to give citizens more insight into its thinking before it drafts management plans. Master leasing plans, which try to resolve conflicts between industry and others ahead of leasing, are another product of Salazar’s reforms.
Trump’s Take: We don’t know. Trump has promised to “lift restrictions” on energy development on public lands, but the Western Energy Alliance says it’s hard to know exactly what that means. Litigation still bogs down leasing and protests continue, Sgamma says, pointing to a WildEarth Guardians lawsuit challenging all leases sold in Utah, Colorado and Wyoming since the start of 2015. She hopes for changes that speed up leasing and permitting.
Trump’s Options: The reforms were created through memoranda issued by Salazar, and they could be changed in the same fashion. But whether the new administration will do so is anyone’s guess. Culver notes that the reforms have been incorporated into BLM’s management handbooks, and that reducing public involvement could be politically tricky. “It’s going to be hard to say, ‘Never mind, don’t pay attention to that man behind the curtain making all of the oil and gas decisions.’” Culver contends that there aren’t that many restrictions on development anyway; the market is the primary limiting factor.
Nichols expects some change: “I think we will see Interior move to limit BLM’s discretion to reject leases,” he says.
WATERS OF THE U.S. RULE
What Obama Did: This supremely wonky rule allows the feds to regulate pollution in small and intermittent wetlands and streams under the Clean Water Act.
Trump’s Take: Trump has promised to eliminate what he calls a “highly invasive” rule, opposed by energy companies, agriculture groups, the U.S. Chamber of Commerce and many Republicans, who say it represents an egregious expansion of federal regulatory power.
Trump’s Options: Since the rule is currently tied up in court, Trump could let the legal system decide its fate. It’s likely to end up in the Supreme Court, which may soon tilt in the GOP’s favor. He could also ask the court to send the rule back to the EPA for revision. However, that process would be open to public comment and ultimately to more litigation.
OFFSHORE OIL LEASING
What Obama Did: On Nov. 19, the Obama administration finalized its five-year plan for offshore oil leasing, which determines where leases will be offered through 2022. It canceled proposed lease sales in the Arctic Ocean and put the Atlantic and Pacific coasts off-limits to new leasing.
Trump’s Take: We don’t know, but industry groups and Alaska Republicans aren’t happy, and an “infuriated” Sen. Lisa Murkowski, R, has promised to fight the decision.
Trump’s Options: The new administration could write a new plan, but probably not quickly. Obama’s plan was developed over two years, and industry interest in Arctic drilling has cooled amid low oil prices. Shell abandoned its exploratory efforts in the Chukchi Sea in 2015, citing disappointing results.
Cally Carswell is a contributing editor for High Country News. She writes from Santa Fe, New Mexico.