Peter Glaser

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In a Wall Street op-ed piece yesterday, House Majority leader Kevin McCarthy announced that the House intends to pass resolutions next week under the Congressional Review Act (CRA) to kill two prominent Obama Administration environmental initiatives, the Interior Department’s Stream Protection Rule (which applies to coal mining) and EPA’s methane performance standards for oil and gas facilities.  Under the CRA, Congress can void agency regulations upon a bare majority vote of each chamber.  Sixty votes are therefore not needed in the Senate to kill a regulation.  Once a CRA resolution is signed by the President, the agency is prevented from adopting a substantially similar regulation.

On January 24, President Donald J. Trump signed presidential memoranda jumpstarting the stalled Keystone XL (“Keystone”) and Dakota Access (“Dakota”) pipelines.  President Obama previously rejected TransCanda Corp’s application for a permit to cross the United States-Canadian border, finding at the time that the 1,700-mile pipeline was not in the national interest.  The United States Army Corps of Engineers (“USACE”) similarly decided  last month that it would not issue an easement allowing the Dakota pipeline to cross federal land in North Dakota, opting instead to consider alternative routes to reduce environmental and cultural impacts to the Standing Rock Sioux Tribe.

In the wake of Donald Trump’s election as the next president of the United States, questions have been raised regarding the fate of federal regulatory actions taken by the current administration. Recent Environmental Protection Agency (EPA) actions are of particular interest because EPA has adopted a number of very high profile and highly impactful regulations. Commenting on EPA during the campaign, Mr. Trump stated that “[w]e are going to get rid . . . of [EPA] in almost every form. We’re going to have little tidbits left but we’re going to take a tremendous amount out.” While Mr. Trump later softened this stance by stating that he would “refocus the EPA on its core mission of ensuring clean air, and clean, safe drinking water for all Americans,” these statements illustrate that the Trump administration will almost certainly seek to roll back at least some of President Obama’s ambitious environmental initiatives. While Mr. Trump vows to reduce EPA’s size and repeal business-burdening regulations, these changes will not occur overnight. The following sections discuss ways in which an incoming administration may halt or repeal its predecessor’s actions.

Environmental and Natural Resources Partner Peter Glaser co-authored an opinion piece in the August 2 edition of the Wall Street Journal titled, “States Should Shun the EPA’s New Power Mandate.” Glaser and co-author Hal Quinn, president and chief executive of the National Mining Association, say that the Obama administration’s Clean Power Plan will not significantly reduce climate change but will impose significant costs on all electricity rate payers for decades to come.

The Supreme Court yesterday reversed EPA’s “Tailoring Rule,” but affirmed EPA’s authority to regulate greenhouse gas (GHG) emissions under the Clean Air Act Prevention of Significant Deterioration permit program.  Writing for a five-member majority, Justice Antonin Scalia ruled that EPA could not “tailor” the PSD statutory permitting thresholds to exclude small GHG emitters from PSD program requirements.