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News from our Environmental Attorney

Author: Lilia Factor, Esq.

Yesterday, President Trump issued a Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs. It states that for every regulation that a federal agency wants to promulgate, it must eliminate two other regulations. Also, there can be no net increase in the regulatory cost - ie. compliance costs, in the fiscal year.

Tomorrow, the House is set to vote on a resolution to disapprove the Stream Protection Rule, which was finalized on May 30, 2016 by the Office of Surface Mining Reclamation and Enforcement to require study, mitigation and restoration of stream and wildlife habitat after surface mining operations.

On Friday, the House will vote to disapprove the Methane Rule for New Oil and Gas Operations, which also dates from May 2016. This rule limited methane emissions and required operators to submit semi-annual or quarterly reports. The goal was to reduce emissions by 11 million tons of CO2 equivalent per year by 2025. In issuing the rule, the EPA had noted that methane is 86 times more potent than carbon dioxide as a greenhouse gas and that methane emissions from gas operations have nullified any climate benefits from switching from coal to gas.

Helen Roussel, a member of SCLI group's Executive Committee asked:

  • Can they just vote on this quietly with no warning?

  • Can they change environmental law in this country this quickly?!

  • I know hindsight is 20/20 but really! Can all laws in this country be this easily dismantled? With no peer review?

The Congressional Review Act allows Congress a limited window of time to review and disapprove new federal regulations. It has been successfully used only once because, if Congress disapproves, but the President vetoes the resolution, the regulation stays in place, unless Congress can override the veto.

With Trump and Congress trying to dismantle as much as possible of what was done under the previous administration, the above law can be used to disapprove and nullify regulations dating from May or June 2016 (estimates vary). If the disapproval resolution passes and is signed by the President, the agency cannot issue any similar regulations in the future.

The law currently requires Congress to have a separate vote for each regulation it wishes to annul. However, there is a pending proposal to allow it to annul multiple regulations in just one vote. Of course, there is no fear of a presidential veto.

There are at least 17 major environmental regulations that were finalized since May 2016 and are at risk of rescission through the Congressional Review Act. Another 22 environmental rules and amendments, which were in the process of final issuance, have been frozen by the Priebus Memo and are now subject to review and revocation.

Older rules and regulations that cannot be revoked through the above procedures may still be undercut simply through budget and personnel cuts.

Sorry for the bad news...


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