Environmental rules rollback attempts continuing

August 11, 2020

 

During Scott Pruitt’s very brief stint – February 2017 to July 2018 – as the administrator of the U.S. Environmental Protection Agency (EPA), his bizarre behavior was considered almost comical.

“When Pruitt was there, there was just so much incompetence that was in the news it was almost entertaining… just violating the law, having his staff trying to get a mattress for him living in someone's apartment. Just weird stuff,” said John Coeuyt, global climate policy director, Sierra Club.

With Pruitt gone, and Andrew Wheeler in his place, nobody is laughing about anything that has to do with the EPA anymore or the environmental rollbacks the Trump administration has put into place.

Over the last three-and-a-half years the Trump administration has completed, or are currently in the process to be complete, rollbacks on roughly 100 environmental rules and regulations.

“The big push has been just to undermine everything,” Coeuyt said. “There's very little that's untouched at this point.”


One of the most recent under attack is the National Environmental Policy Act (NEPA), one of the country's bedrock environmental laws and one of its most transparent.

Signed into law in 1970 by President Richard Nixon, NEPA was adopted in 1978 and established the Council on Environmental Quality (CEQ).

“The reason why these regulations exist is because each agency has their own agency level regulations for how to implement NEPA. But these regulations from the Council on Environmental Quality are meant to basically ensure that all the federal agencies are applying NEPA consistently across the federal government whenever they engage in an environmental review under NEPA,” said Caitlin McCoy, staff attorney for the Environmental and Energy Law Program at Harvard Law School.

NEPA requires that all federal agencies go through an environmental review for each proposed “major federal action,” such as permit decisions, formal planning, and agency projects. The final regulation changes significantly weaken the act and will expedite the approval of public infrastructure projects, like roads and pipelines, McCoy noted.

McCoy said some of the changes are problematic because there are a lot of phrases in the regulations which are new and are going to be open to interpretation by agencies, which defeats the purpose of having consistency across all agencies and how they implement NEPA.

Other changes include shortening the timeline for completing environmental studies, limiting the types of projects that will come under review, and cumulative effects on the environment – think climate change – as the project will no longer be required for federal agencies.

“So, for instance, if there is a permitting project for, say, a coal mine. The greenhouse gas emissions that will result from the combustion of coal, which you know, will not occur at that mine, will not be considered,” said Paulo Lopes, public lands policy specialist and staff attorney for the Center for Biological Diversity. “The climate change impacts will not be considered under the Trump administration's new NEPA rules. The environmental review would be limited to the actions that take place at that coal mine, not the actions more downstream.”

Public comments’ regulations on NEPA documents will now require more detailed analysis and information under the changes.

In mid-July, the CEQ issued its final NEPA regulations to the Federal Register, making it the first time these regulations were radically changed since their adoption. The new regulations will be effective September 14, 2020.

The whole point of these changes seem to be so the Trump administration can push infrastructure projects on a quicker trajectory because they deem the current NEPA regulations make projects take too long. Ironically, these changes could actually cause the opposite to occur.

“Instead of providing more clarity to agencies who are already struggling, especially with the climate analysis, they are providing less clarity,” Lopes said. “Courts will likely have to be involved to say no, this is what is actually meant by this phrase. It will probably lead to some projects being delayed.

“If you keep changing the rulebook too quickly, projects don't know exactly how to proceed, or they're being put on pause to reevaluate how they go,” he continued.

Having NEPA rolled back will likely have some serious long-term effects.

“For the Trump administration to go ahead and remove the requirement for projects to be evaluated on their impact of climate change is just totally negligent and generations to come, my kids, my kids' kids, are going to be feeling the effects if this one doesn't get reversed,” said Bentley Johnson, senior partnerships manager for the Michigan League of Conservation Voters.

NEPA, often called the “Magna Carta” of federal environmental laws, was the country’s first major environmental law and blazed the trail for the many that followed.

The 1970's were a vital time for the U.S. environmental movement, and a time when it really began to gain more traction, at least culturally. Scientifically though, Heather Good, the executive director of the Michigan Audubon Society, would say that started in the 1960's with Rachel Carson’s seminal book, Silent Spring, which looked at the harmful environmental effects caused by the indiscriminate use of pesticides. It led to a nationwide ban on the insecticide, Dichlorodiphenyltrichloroethane (DDT) for agriculture use.

It also helped lead to the founding of the EPA in 1970.

During the Nixon administration, there were some very high profile environmental challenges, like Cuyahoga River in Ohio, which caught on fire in 1969 due to chemical contamination. That same year the Rouge River in Detroit also caught on fire. The cause was sparks from an acetylene torch that ignited floating oil and oil-soaked debris on the north bank of the river.

“Congress came together in a real bipartisan way and created the Clean Air Act, Clean Water Act, the toxics law, the waste law – all of that got created during that period in a very bipartisan fashion. Like, it's almost impossible to imagine this happening again,” said Coeuyt from the Sierra Club. “It took a long time for a lot of it to be implemented, but it was the golden period for environmental law.”

Since that golden era, multiple administrations have tried, to some success, to minimize the effectiveness of  U.S. environmental rules and regulations.

According to a 2018 article from the American Journal of Public Health, “History of US Presidential Assaults on Modern Environmental Health Protection,” President Ronald Reagan and President George W. Bush took different approaches to efforts to turn back environmental progress. The article said Reagan “launched an overt attack on the EPA, combining deregulation with budget and staff cuts, whereas the George W. Bush administration adopted a subtler approach, undermining science-based policy.”

The Bush administration also used creative marketing to its advantage. Take for instance the Clear Skies Initiative. Ross Hammersley, a partner with the Michigan law firm of Olson, Bzdok & Howard, who works in environmental law, among other areas, said that the initiative actually would have rolled back clean air protections and would have arguably made the skies dirtier. But, as a marketing tool, they labeled it the clear skies initiative.

Hammersley said something similar happened with timber interests under the healthy forests initiative, a law proposed by the Bush administration in 2003. The title made it seem like it would be helping forests, but once the details were looked at more closely, Hammersley said logging companies would have been able to go in and cut down certain forested areas that were national forests.

Keeping with the tradition of new administrations making executive changes to existing regulations, Democratic President Barack Obama made changes and reversals as well.

“The Clean Air Act, in particular, grandfathered in a large number of very large, heavily polluting coal plants. It wasn't really until the Obama administration that those loopholes finally got dealt with,” Coeuyt said. The Clean Air Act is one that the administration has proposed for changes. The Obama administration put so many new climate regulations in place that the Sabin Center for Climate Change Law at Columbia Law School created a climate regulation tracker. Now, that tracker is being used to keep track of the Trump administration’s deregulations.

“We don’t have a similar deregulation tracker for previous administrations, because we only started tracking climate regulation under President Obama, and are now tracking climate deregulation under President Trump,” said Hillary Aidun, a climate law fellow at the Sabin Center for Climate Change Law.

“The thing that's notable about the Trump administration now is that it's both kind of on all fronts, and it's just unrelenting,” Hammersley said. “It’s not just that they accomplish one rollback and then sit back and just try to administer the laws faithfully as they're supposed to. It's really just they're constantly looking for opportunities to reduce regulations across the board, so it just means that everybody – everybody is fighting on all fronts at all times.”

The Trump administration has rolled back rules and regulations on everything from air pollution and emissions to infrastructure and planning, water pollution, and animals, many of which were enacted during the Obama administration.

Efforts enacted during the Obama administration aren’t the only ones under attack. There’s also the Migratory Bird Treaty Act, which was passed by President Teddy Roosevelt in 1918, and many from the golden era of the 1970's.

The Migratory Bird Treaty Act was enacted as a result of the loss of U.S. bird populations to hunting and poaching, with the feathers being used primarily for women’s hats. The Trump administration is proposing a scaling back of protections to over 1,000 species, and end the decades-long practice of treating accidental deaths caused by industry as potential criminal violations.

Accidental deaths include when birds fly into wind turbines, telecommunications towers, and oil pits. Good from the Michigan Audubon Society said that industry sources already kill between 450 million to one billion birds annually in the U.S., and 7.2 billion birds are killed by industry in North America.

“The Trump administration laws say you can get away with that, that's not illegal,” Good said. “And so anything that industry does, if there is any sort of harm to birds, death to birds, any other hazards, they say, oops, that was just an accident. But there's no restitution or repair, which of course hurts the whole environment and the human community at those sites and in those geographic areas.”

Considering the law has been in effect for over 100 years, why does Good think this administration is trying to change it now?

“The argument is that it's outdated and that it's preventing us from making progress and accidents happen,” she said. “They want to remove it now because it would be more freedom for industry, less environmental impact statements, less hoops, less what they see as just kind of paperwork and a pain to do the right thing and assess project sites and things like that, mining operations, oil drilling, to assess them properly for the environment, they just want to skip, that they want to make it really easy, efficient and supported by the government to continue to support industry and to continue with fossil fuel extraction.”

This past June, the U.S. Fish and Wildlife Service released a draft environmental impact statement (EIS) for public comment of the proposed changes. The 45-day public comment period ended on July 20, and a final decision is being waited on.

“We basically have to keep a watchful eye on this,” Good said.

While those like Good wait to hear about the future for birds, others, like Noah Greenwald, the endangered species director for the Center for Biological Diversity, has already begun to see the impacts of three other major changes to the Endangered Species Act. All three were finalized and put in to effect in September 2019.

One of the revisions, under section four of the act, changed the regulations for listing species and designating critical habitat, which was added to the act in 1982 in response to an executive order from the Reagan administration, which said the federal government would have to do an economic analysis of all rules that they issued. Basically, the 1982 addition made it so the cost to protect a species from extinction wasn’t a consideration. The Trump administration now considers the economic impact of listing a species. Another change significantly weakened protections for threatened species, leaving those listed as threatened with very little protection, and the last one deals with critical habitats.

“The Endangered Species Act is one of our best tools for identifying places that support endangered species and protecting those places. With these weakened protections, if we don't, you know, strictly follow the Endangered Species Act to protect these weakened detections, we're just going to lose more and more areas,” Greenwald said. “And in most cases, once something is destroyed or degraded, it's really hard to get it back.”

All three rules have been challenged in court at the federal and state level, and are currently tied up in litigation.

With the upcoming November election, there seems to be one last  major push from the Trump administration to affect the country’s environmental rules and regulations.

In early July, the administration published the Unified Regulatory Agenda, which is published twice a year with details for new regulations and rollbacks. The one published in July had 317 items in proposed or final stages lined up for both the Department of Interior and the EPA. Sixty-four rules for the EPA and an additional 74 Interior rules are in the final stage.

The question is how likely is it that President Trump will be able to get all those rollbacks through?

“I mean, not to give you like the most obnoxious lawyer answer ever, but it depends,” said McCoy from the Environmental and Energy Law Program at Harvard Law School. “If a rule is proposed, and it hasn't gone out for comment yet, it's really unlikely that it will be final by January 2021.”

Public comments for a rule are often done once it is put in the Federal Register. Aidun, from the Sabin Center for Climate Change Law, said that people can submit comments to federal agencies online or mail them to the relevant agencies. State agencies, like Michigan’s Department of Environment, Great Lakes, and Energy (EGLE), have a similar process and accept public comments online.

Environmental lawyer Hammersley said those comment periods can be for as little as 30 days to as long as 90 days, although generally it falls in between, at 45 days, much like the comment period for the Migratory Bird Treaty Act.

These comments are then generally read by staffers in those specific agencies, which can sometimes be burdensome. Hammersley mentioned that in Michigan, thousands of comments were received at the Department of Environmental Quality (DEQ), now EGLE, during the Nestle water case.
Normally, the changes made after public comment are minimal, but occasionally, a public commenter points out a real flaw in a rule or proposed change to a rule. Then the agency can fix it.

“It’s really important if people see flaws in the administration's reasoning when an action is first proposed for evidence that an agency is not considering. It's important to take that opportunity to point out those analytical flaws or put evidence before the agency, because the agency then has an obligation to consider everything that's in front of it,” Aidun said.

The process doesn’t end after comments are made and reviewed. McCoy said after that a final rule is crafted, it is is sent to the Office of Management and Budget for review. Then the final rule is released and published in the Federal Register. Then it’s complete.

There’s also litigation to worry about, which can slow down the process. Also mentioned by multiple sources was that the Trump administration has been sloppy in some of its legal work, leading to unsuccessful turnover attempts and, again, a significant amount of litigation.

“This administration is doing it in such haste that they're making a lot of mistakes along the way, some very obvious mistakes,” said Oday Salim, director, Environmental Law & Sustainability Clinic, University of Michigan.

Salim said there have been times when the Trump administration has been dealing with a rule finalized under the Obama administration and wanted to suspend applications of the rule indefinitely. Environmental groups then stepped up and the court ruled they couldn’t just arbitrarily suspend the application of a rule once it had been finalized because that would be considered tantamount to getting rid of the rule altogether.

There have also been instances when the Trump administration has tried to withdraw certain rules and been told by the courts they need a reason for its withdrawal. Courts have told them they can’t just take laws off the table and not explain themselves.

“Their explanations have been significantly lacking,” Salim said.

Multiple rules originally rolled back by this administration have ultimately been reinstated. An example is when a 2015 rule was no longer enforced that prohibited the use of powerful greenhouse gases in air conditioners and refrigerators. The prohibition was later restored. Another example is the delayed implementation of a rule that regulated the certification and training of pesticide applicators. A judge later ruled that the EPA had implemented this illegally and said the rule was still in effect. Protections were reinstated by a federal judge after the Yellowstone grizzly bear was removed from the endangered species list. In May 2019, the Trump administration appealed the ruling.

There have been a few other wins along the way, despite the many rollbacks.

In July, the Great American Outdoors Act passed in the House of Representatives, a month after it was passed by the Senate. President Trump has said he’ll sign it into law. The act, a combination of two bills, is set to fully fund the Land and Water Conservation Fund for the first time since it was enacted in 1964, and possibly eliminate the $12 billion maintenance backlog for the National Park Service. The act’s restoration fund for national parks and facility improvement will total no more than $1.9 billion for the fiscal years between 2021 and 2025.

“That’s a really big deal in terms of conservation,” said Chad Lord, the senior director for the National Parks Conservation Association’s (NPCA) Waters program.

There has been recent success in the courts when it comes to oil pipelines. In July, a judge ruled that the Dakota Access pipeline must be shut down and drained of oil – at least until the U.S. Army Corps of Engineers completes a review on its impact on the environment. A federal judge also recently blocked the Keystone XL pipeline from going forward. Initial construction had started but it remains tied up in court.

On the whole though, watching the Trump administration try to dismantle so many different environmental rules and regulations has not only been frustrating to many, but to some, expected.

“The Trump administration, and Donald Trump, campaigned on dismantling environmental protections and he is fulfilling his campaign promise to his corporate donors,” said Christy McGillivray, political and legislative director for the Michigan Chapter of the Sierra Club. “I don't want to be too hyperbolic about it, but it's just crushing. You know, it's terrible to watch our political system cave to the corporate interests of polluters instead of public health, especially during a pandemic.”

While there is a lot to be concerned about – when asked if there were specific rollbacks anyone was particularly worried about, many answered that would be like selecting a favorite child and they were worried about all of them – but one of the most worrisome in Michigan, the Great Lakes State, has been the attacks to the Clean Water Act.

Laura Rubin, director of the Healing Our Waters-Great Lakes Coalition, said the Trump administration has gone after two different sections that fall under the act. One is section 401, which governs certification of water quality, and the other is the Waters of the U.S. (WOTUS).

The latter, WOTUS, which defines which streams and wetlands, are protected by the Clean Water Act, went in to effect on June 22 in every state except Colorado. With the new definition, the amount of waterways and wetlands protected under the act will be reduced.

“That sounds pretty boring, right? That's pretty bureaucratic. But it's so super important and the way it plays out and impacts people's lives,” Lord said.

“It means that we will have filling of wetlands and streams without permitting, those wetlands and streams, I mean, if you're familiar with the roles that wetlands plays, they’re sort of the kidneys of the water ecosystem,” Rubin said.

The proposed changes under section 401, which would limit state authority over water quality certification, are currently being challenged by a coalition of 20 states and the District of Columbia, which filed a lawsuit.

“It really takes away a lot of the decision-making authority at the local level, which makes it harder for local communities to protect rivers, lakes and streams and other waters,” said Rubin about the section 401 rollbacks. “The waters of the U.S. are also very impactful because it strips away protections for streams and wetlands, and those are the waters that feed most of our public drinking water supplies across the country, including, the 30 million people that live in the Great Lakes states in the U.S..”

The department in Michigan that would be most effected by these rules, EGLE, said they are currently in a waiting game right now as to how to proceed.

“As the WOTUS changes are being challenged – with the latest lawsuit to try to block the changes filed just this month – there is no change on EGLE’s part until the issue is eventually resolved. Then, we will study what impact it will have on Michigan and whether we need to change any of our processes,” said Nick Assendelft, media relations and public information with EGLE. “It wouldn’t be prudent to make changes before federal rule changes are finalized and then having a chance to assess how those changes mesh with rules at the state level that we must follow.”

At the state level, agency decisions can be overturned by the Environmental Rules Review Committee and Environmental Permit Review Committee. The two statutes permitting the committees were enacted towards the end of Gov. Rick Snyder’s administration.

When overhaul happens to rules that were created to set standards across the country, as with NEPA, it will now come down to individual states regarding how they proceed without much federal guidance.

“In general, many environmental laws are based on the concept of cooperative federalism, which means that the federal government sets the floor and states can set the ceiling,” Salim said.

In Michigan, regulations regarding per- and polyfluoroalkyl substances (PFASs), toxic “forever” substances used to make fluoropolymer coatings, are a prime example. While Salim said the National Wildlife Federation has done a fantastic job of describing ways that states can set standards for PFAS, the EPA isn’t doing anything when they could be.

Under the Clean Water Act, the EPA can set water quality standards and drinking water standards for chemicals, but has decided it is not going to do it anytime soon, even though people are continually being exposed through their water, fish and wildlife.

“So through the Clean Water Act, at least, and through the Safe Drinking Water Act, the EPA has made a terrible decision to just sit it out,” Salim said. “Well, states have stepped up,” including Michigan, which Salim mentioned has quality standards that protect surface water and drinking water.

“If the federal government doesn't want to do something or wants to scale back on doing something, there are opportunities for states to step up and at least maintain the status quo if not do better,” he said.

Congresswoman Elissa Slotkin (D-Rochester, Rochester Hills) has actively worked to for PFAS cleanup, and introduced a provision in a House Defense bill earlier this year that would require the Pentagon to use Michigan's PFAS standards for PFAS cleanup in Michigan.

At the state level, federal changes will effect what’s done but not necessarily in the way people will expect.

McGillivray, from the Michigan Chapter of the Sierra Club,  emphasized that a lot of environmental regulation is about reporting, a large aspect which was taken out of the NEPA changes and the Clean Water Act.

“So it's not necessarily about what does happen, but what doesn't happen, like when it comes to regulation,” McGillivray said. “The reporting won't happen. The citations and enforcement of environmental laws won't happen. It'll be difficult to even get a sense of exactly how expensive the damages are, without having the scientist and regulators there to actually track what is happening.”

And sometimes those changes are more slow to happen at the state level.

Edward Golder, public information officer for the Michigan Department of Natural Resources (MDNR), said changes at the federal level are experienced over time by the states and, sometimes, how the state experiences those changes will depend on how the new policies are implemented by the federal government. Golder said there hasn’t been any dramatic change in their work based on different federal regulations in any division.

To some, it seems this administration is trying to set a record this type of rollback.

Hammersley, from Olson, Bzdok & Howard, P.C, speculated that the rollbacks are an open door for the type of lobbyists the Trump 2016 presidential campaign referred to as part of the “swamp” he was going to drain.

“I think in truth, the opposite has happened,” Hammersley said. “You've got industry lobbyists, and folks who have pretty substantial financial means, who basically are just getting whatever they want.”

He said the lobbyists and some big businesses seem to be the only ones benefiting from these types of rollbacks.

In the fight of environment versus economy, many argued that the two can work together -- it shouldn’t be one or the other.

Lord, from the NPCA, said that if you look at the economic growth in the U.S. during the Obama administration, where many of these environmental rules were promulgated, the economy was doing quite well, even with robust environmental regulations in place.

“I'm sympathetic to business owners. I don't want businesses to fail. I want them to succeed and be healthy and thriving economically,” said Erma Leaphart, who represents Sierra Club Michigan on the Healing Our Waters Coalition. “But it isn't an either or scenario. It can’t be…It must be all three things that we're taking into consideration. Economic impact, environmental impact and its impact on people. It cannot be one or the other. That will not work.”

The Great Lakes are a perfect example of this not being an either or situation.

“Some of the research we've done on the Great Lakes shows that this kind of ecosystem restoration, the protection of these waterways – clean water is an economic driver. We also see it in parks. People go to parks to swim, they go to parks to fish, kayak, to do all sorts of things. That's all economic activity,” Lord said. “We also have seen breweries, who sell their beer, that's economic activity, they get their water from our watersheds. So protecting our clean water is also economically important.”

All the back-and-forth about these environmental rules and regulations can also be frustrating for businesses and creates uncertainty, like with the auto industry, which played an instrumental role in setting the 2012 Obama administration’s fuel economy and greenhouse gas standards for motor vehicles.

Hammersley said automakers were making progress both from a cost perspective and on cleaning the emissions coming from cars, and now President Trump has been pushing them in a direction they weren’t even really sure that they want to go.

The administration also revoked authority previously given to California to have its own standards and motor vehicles.

These changes are anticipated to have a huge effect.

“So we look at that rollback as a gift to the oil industry, pure and simple, and just a raw calculation that the more gas used in our vehicles, the better for the fossil fuel industry. And then that's at the expense of lives, with the air pollution that would have otherwise been prevented with these increasingly stringent standards,” said Johnson from the Michigan League of Conservation Voters.

Out of everyone spoken to for this story, only one said he had zero concern about the rollbacks, Chris Kobus, director of Engineering and Energy Education at Oakland University.

“I have zero concern because the trajectory towards cleaner energy production is being done by industry, no matter what's going on in this administration, or what anybody else is going to do out there,” he said. “I think everybody sees what the future is. There's a lot of consumer demand for cleaner energy. So yeah, those rollbacks have made zero difference.”

While Kobus’ outlook is extremely optimistic, there are many people, from lawyers and activists to environmental groups, both at the federal and state level, who are still concerned about the lasting impacts.

“The assumption is that the next administration will eventually clean some of this up, but the places where it's going will take time and the damage will be things like the pollution that ends up in the water,” said Coeuyt from the Sierra Club. “The other thing that's going to take time and the damage will be difficult is just not strengthening ozone standards, the changes in the science advisory councils and the underlying costs benefits analysis. The way that they're talking about doing this, there will be lasting damage there.”

Stephanie Kodish, senior director and counsel, clean air and climate, National Parks Conservation Association, has a different worry.

“I think my fears are mainly concentrated in the utter waste of the last four years,” she said. “We are going to now need to spend a lot of time to just unwind the great and demonstrable damage this administration's caused.”

But hope isn’t completely lost, especially if a new administration enters the White House next January.

“Mother Nature's very resilient,” Leaphart, of the Sierra Club, said. “But on the other hand, I worry about human survival, our ability to be resilient.”

Many people seem to be up to the challenge.

“You know, this country has bought itself back from the brink of serious environmental contamination before and so we can do it again,” said McGillivray from the Michigan Sierra Club. “But we absolutely have to prioritize public health over corporate profit.”

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