Academic journal article Energy Law Journal

Report of the Environmental Regulation Committee

Academic journal article Energy Law Journal

Report of the Environmental Regulation Committee

Article excerpt

In this report, the Committee summarizes key developments in federal and state environmental regulation affecting the natural gas and electric industries from July 1, 2016 to June 30, 2017.·

I. Trump Administration Executive Orders

Developments in environmental regulation over the last twelve months fall into two very different patterns depending upon whether they precede or follow the change in Presidential Administration in January 2017.1 Prior to the change, developments were a continuation of those reported last year as the Obama Administration sought to complete the crafting and implementation of new rules to achieve its environmental objectives.2 For example, in November 2016, the Obama EPA issued its final information collection request to existing oil and gas facilities to assist in developing fugitive methane and carbon dioxide emission standards for such facilities; and the Department of the Interior issued final rules on natural gas flaring, venting, and leaks related to oil and gas production on Federal and Indian lands.3

Since January 2017, the investiture of the Trump Administration prompted a substantial reversal of direction driven by a changed focus-i.e., stressing improved economic activity less burdened by environmental regulation perceived as interfering with that activity.4 Whereas through Fall 2016, EPA actively developed and adopted new environmental requirements to lessen global warming and other air or water pollution (these new requirements were challenged in the appellate courts), after January 2017, EPA announced its intent to review and revise the Obama Administration rules, delayed early implementation and compliance deadlines for such rules, and further sought delays in appellate litigation to pursue its revision program.

These actions began with a series of Presidential Executive Orders issued days after President Trump's Inauguration.5 For example, on January 24, 2017, the President issued Executive Order No. 13,766, Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects, which describes its purpose as follows:

Infrastructure investment strengthens our economic platform, makes America more competitive, creates millions of jobs, increases wages for American workers, and reduces the cost of goods and services for American families and consumers. Too often, infrastructure projects in the United States have been routinely and excessively delayed by agency processes and procedures. These delays have increased project costs and blocked the American people from the full benefits of increased infrastructure investments, which are important to allowing Americans to compete and win on the world economic stage. Federal infrastructure decisions should be accomplished with maximum efficiency and effectiveness, while also respecting property rights and protecting public safety and the environment.6

The order provides a procedure by which the Chairman of the White House Council on Environmental Quality, at the request of a State Governor or certain others, may designate a particular project as "high priority" based on consideration of its "importance to the general welfare, value to the Nation, environmental benefits, and such other factors as the Chairman deems relevant."7 Once a project is so designated, "expedited procedures and deadlines for completion of environmental reviews and approvals for such projects" are to be established, and written explanations are to be provided by the Agency Head "explaining the causes for [any] delay."8 Employing the spirit of these new procedures, the Administration urged the permitting of two oil pipeline projects (Dakota Access & Keystone XL) long denied necessary approvals under the Obama Administration, which permits were subsequently issued despite strong environmentalist opposition.9

On January 30, 2017 and again on February 24, 2017, the Trump Administration issued two additional Executive Orders with a similar objective of assuring that federal regulation not burden the American public with unnecessary costs or project delays or interfere with economic activity. …

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