MUSINGS ON THE FUTURE OF EPA ENFORCEMENT – WILL IT GET TRUMPLED?

Posted on November 28, 2016 by John H. Johnson

Speculation about the environmental implications of the impending Trump presidency is running rampant.  That was the case as well when Ronald Reagan was elected President.  I served as an attorney in EPA Region 4 during his administration so I have a sense of dynamics that will be in play at the regional offices during the Trump administration.  With this historical perspective, I offer the following thoughts on the potential impact of the Trump administration on EPA enforcement at the regional level. 

·         Initial Frontal Assault – The early years of the Reagan presidency were marked by a robust and concerted effort to declaw EPA, largely carried out through political appointments at Headquarters and at the Regional Administrator level (the oft-repeated refrain was “doing more with less”).  Based on his condemnation of the “Department of Environmental Protection” during the campaign, I’m inclined to expect the same from President-elect Trump.  However, the list of names currently being floated for the positions of EPA Administrator and Assistant Administrator ranges widely from a climate denier to well-respected former program managers at EPA.  So, at this point, the jury is out on whether President-elect Trump will follow the Reagan administration’s lead or, like the George W. Bush administration, take a more restrained approach to regulatory implementation and enforcement, while recognizing the Agency’s fundamental legitimacy.

·         Effectiveness of a Frontal Assault – The efforts of the Reagan administration were largely unsuccessful and relatively short-lived.  At the regional level, this was due in no small part to muted but resolute resistance to those efforts from career employees.  If the Trump administration pursues similar goals, I would expect similar results.  I anticipate that rank-and-file enforcement personnel in the regional offices will continue to pursue and prosecute instances of statutory/regulatory noncompliance (consistent with budgetary constraints).  In light of the largely completed trend of delegating environmental programs to the states, enforcement actions undertaken these days by the EPA regional offices frequently involve allegations of significant regulatory noncompliance that state programs are unable (or unwilling) to address effectively.  Regional political appointees will be hard-pressed to halt or forestall meritorious enforcement actions.  In addition to wanting to avoid any appearance of impropriety, those appointees will be subject to an NGO watchdog network that is considerably more developed and vibrant than it was during the Reagan years.  If EPA doesn’t enforce, the NGOs will. 

·         Times Have Changed – Like me, today’s regulatory enforcement landscape bears little resemblance to what it looked like 36 years ago.  I can well recall spirited conversations in the late 70’s/early 80’s with reluctant program managers for some of the Region 4 states concerning the states’ adoption and enforcement of a regulatory framework that mimicked the basic structure of the major federal programs (air, water, and waste).  Those days are long gone, and I would anticipate that any efforts to suppress enforcement at the federal level will have minimal impact in those authorized states that have active enforcement programs.  Also, while some NGOs (e.g., NRDC, Sierra Club, Environmental Defense Fund) were quite active during the Reagan administration, particularly in high profile enforcement matters, the proliferation since that time in the number and variety of well-financed NGOs at the national, regional, and state level will likely compensate for any decrease in EPA enforcement that may occur under President Trump.  Ironically, what we may see in some cases is initiation of enforcement actions by EPA that blunt the use of citizen suits by NGOs, followed by settlements on terms considered less stringent than the NGOs would prefer.

Given President-elect Trump’s penchant for unpredictability and the current uncertainties surrounding the ultimate composition of the Trump environmental team, I’m not confident in my predictive powers, other than to say that we are about to embark on what I will gently call an interesting time in the history of environmental regulation.  Whether it proves to be déjà vu remains to be seen.

Trump’s Impact on Environmental Law? Let the Speculation Begin!

Posted on November 15, 2016 by Seth Jaffe

What will a Trump Presidency mean for environmental law?  trump-climateI’m not sure my crystal ball is better than anyone else’s, but here are a few quick thoughts:

  • It’s still going to be difficult to amend the key statutes, unless the GOP goes nuclear with the filibuster rules.  I don’t see Clean Air Act amendments happening.  Significant amendments might be possible to the Endangered Species Act and Superfund.
  • Changing regulations is more difficult than one might think.  As has already been noted, the Bush administration did not fare too well with judicial review of its efforts to roll back some Clinton environmental initiatives.  For example, I still think that the new ozone standard should survive and I think that courts would take a dim view of EPA efforts to raise it.  The Clean Power Plan is another matter.  All Trump needs there may be a new Supreme Court Justice.
  • The easiest target is executive orders.  The social cost of carbon?  Toast.  Guidance on incorporating climate change into NEPA?  Toast.

Trying to keep things light, I’ll close with a summary in haiku, which often takes nature as its subject.

Trump Presidency?

Deep-six the Clean Power Plan

Goodbye to winter