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A new balance: The undoing of Obama’s environmental policy

The courts have slowed some environmental rollbacks, but many have moved ahead

The Trump administration has been steadily undoing environmental protections established by the Obama administration. Rules designed to fight climate change have been especially targeted. Many such efforts are still underway because the Administrative Procedure Act and other laws require agencies to go through a lengthy process to rescind or rewrite a rule. That includes drafting a proposal, weighing costs and benefits, seeking public comment and submitting major rules to the White House Office of Management and Budget for review. Executive orders and other policies are easier to rescind.

Here are some of the rollbacks that have important implications for the West and public lands:

Fossil fuel royalties rule

Interior Secretary Ryan Zinke in August repealed a 2016 Obama administration rule designed to ensure that taxpayers get a fair return on oil, gas and coal. The Obama administration estimated the Office of Natural Resources Revenue rule would have increased by about $80 million a year the royalties that fossil fuel industries pay to mine and drill in federal lands and waters. The federal government splits these royalties with the states, which share them with local governments. The rule was meant to eliminate a loophole that allows companies to sell to affiliated companies that then export and re-sell the coal, oil or gas at higher prices. That reduces the government’s royalties, which are based on the first sale. But Zinke criticized the rule as too complex. He created a new royalty policy committee and plans to draft a new rule.

Clean water rule

The Environmental Protection Agency is proposing to rescind the 2015 Clean Water Rule. It was designed by the Obama administration to clarify which waters and wetlands would receive federal protection under the Clean Water Act. That rule was important in the arid West because it specified that tributaries to navigable waterways and adjoining wetlands were protected, even if they flow only part of the year. By revoking the rule, the Trump administration’s EPA would put some of these waters in jeopardy of being filled in, ditched or diverted into pipes for construction or farming without federal review. In 2015, a federal appeals court blocked the rule pending judicial review that has yet to run its course. Manufacturers and farm groups and many states have sued to overturn the rule. Some environmental groups – including Waterkeeper Alliance, the Center for Biological Diversity, the Center for Food Safety and the Sierra Club – have challenged parts of the rule. Other environmental groups, including Natural Resources Defense Council and National Wildlife Federation, are defending it.

Public comment on the EPA’s proposed rule to rescind the 2015 rule closes Sept. 27.

In October, the Supreme Court will hear arguments about whether federal district courts or appeals courts should hear the cases challenging the 2015 rule. Although the outcome in the courts is not clear, the fate of the Obama-era rule does not look good. EPA Administrator Scott Pruitt says he will later write a new rule describing which waters and wetlands warrant federal protection and which should be left to state discretion. That surely would be challenged in the courts as well.

Waste prevention or methane rule

This Bureau of Land Management rule limits how much methane can be vented, flared or leaked from some 96,000 existing oil and gas wells on federal and tribal lands. Methane is a potent greenhouse gas, and the 2016 rule’s goal was to reduce emissions that contribute to climate change, smog and health problems, as well as to increase royalties. Industry opposes the rule as too onerous and duplicative with state rules.

Offshore drilling

Obama withdrew large sections of the Arctic and Atlantic Oceans from drilling to protect marine habitats. In an April executive order, Trump reversed the withdrawals and ordered annual lease sales in those areas, including in the Chukchi Sea, Beaufort Sea, Cook Inlet, Mid-Atlantic and South Atlantic. Environmental groups have sued in federal court, challenging the legality of Trump’s action.

Blowout preventer rule

In April, Trump ordered a reconsideration of a 2016 rule designed to prevent the kind of engineering failures that led to the 2010 BP disaster in the Gulf of Mexico. That explosion killed 11 workers and inundated the fragile coast and deep sea with the largest marine oil spill ever seen, pummeling the Gulf’s seafood industry, killing thousands of marine mammals and rare sea turtles, and contaminating their habitats.

A heavy band of oil seen during an overflight after the Deepwater Horizon oil spill, which released 134 million gallons of oil into the Gulf of Mexico.

National Oceanic and Atmospheric Administration

The chairmen of the bipartisan National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling warned in a New York Times opinion piece that Trump’s order threatens the most important safeguard for preventing repeats of the BP disaster.

Environmental policy act reviews

In an Aug. 31 secretarial order, the Department of Interior “streamlined” the process that agencies go through to analyze the environmental impacts of major actions. Under the order, agencies may not spend more than a year to complete an Environmental Impact Statement nor may their final report be more than 150 pages, or 300 pages “for unusually complex projects.” Currently complex reviews can take up to several years. The policy, which was not publicized by the Interior Department, was signed by Deputy Secretary David Bernhardt, who has deep ties with industries.

Environmental groups alerted reporters about the policy change in early September. They warned that the arbitrary deadlines will hinder public engagement in decisions involving public lands, undercutting the National Environmental Policy Act. “This Order is exactly the type of late-night shenanigans we expect from Secretary Zinke’s Interior Department,” said Stephen Bloch, legal director for the Southern Utah Wilderness Alliance. “The Order will result in poorer, more hastily made decisions that we expect will favor extractive industry at the expense of our federal public lands.”

But Boise State University Public Policy professor John Freemuth said environmental impact statements often are long and incomprehensible to most people, and noted that regulations from the White House Council on Environmental Quality already set similar page limits. “Trying to make this process work better and happen quicker is probably not a bad thing, unless it’s done for surrogate reasons, like to get more coal off the land,” Freemuth says.

Social cost of carbon

Trump abolished policies crafted by the Obama administration to consider the cost of climate change to future generations when considering the costs and benefits of proposed regulations and when analyzing the environmental impacts of government actions under the National Environmental Policy Act. The social cost of carbon is a dollar amount that represents how much a ton of carbon pollution will “cost” society over the long run, such as the loss of usable dry land because of sea level rise; stresses to agriculture from droughts; and increased need for air conditioning. Trump’s March executive order directs agencies to use a 2003 policy that does not include directions on calculating these future costs of greenhouse gas emissions.

The Trump administration’s approach has started to run afoul of the courts. A federal judge in August blocked a major expansion of a coal mine in Montana and ordered the Office of Surface Mining, Reclamation and Enforcement to redo its environmental analysis. The judge took issue with the agency’s argument that the millions of tons of extra greenhouse gas emissions from the Montana mine would not result in any costs to society because if that coal weren’t burned, other coal would be. Judge Donald Molloy of the U.S. District Court for the District of Montana said the conclusion was illogical and put the agency’s “thumb on the scale by inflating the benefits of the action while minimizing its impacts.”

Floods and infrastructure

As part of his strategy to prepare the United States for the greater risks of climate change, Obama signed a 2015 executive order requiring that the federal government consider sea level rise and storm surge when designing infrastructure and building in flood-prone areas. Just days before Hurricane Harvey hit Texas, Trump signed an executive order revoking Obama’s order. Trump defended his decision as an incentive for investments in infrastructure. Many professional engineers, insurance companies and environmentalists objected to the repeal, saying that the standard protected people and property and reduced expenses to the federal government associated with rebuilding after flooding.

Federal coal

Obama wanted the federal coal mining program to better reflect the costs to taxpayers and the planet of using coal. So in 2016 his Interior Secretary Sally Jewell placed a three-year moratorium on new coal leases on federal land while reviewing the program, which produces about 40 percent of the coal burned in the United States for electricity.

This March, Zinke canceled the moratorium and the review as part of the Trump administration’s broader effort to increase fossil fuel production from federal lands.

Given the depressed demand for coal, though, there has been no rush for new coal leases. In fact, companies withdrew at least four applications for leases this year, according to documents obtained from the BLM by the Powder River Basin Resource Council, an environmental group. In Wyoming, by far the largest federal coal mining state, the agency is taking comment on an application from Cloud Peak Energy to expand its Antelope Mine onto an additional 3,508 acres of the Powder River Basin.

Power plants

The EPA is reviewing the Clean Power Plan. Pruitt is determined to either revise or revoke the Obama regulation intended to reduce greenhouse gas emissions 32 percent by 2030 compared to 2005. The Supreme Court had already stayed the rule, pending court review. The Trump administration asked the DC Circuit Court of Appeals not to rule in the case and in August the court agreed to suspend its review.

Trump’s EPA also is reconsidering an earlier Obama administration rule that required that all new power plants meet greenhouse gas standards, which roughly equate to emissions from modern natural gas plants. The rule effectively banned the construction of new conventional coal-fired power plants, and remains in effect.

Cleaner cars

The Environmental Protection Agency and the National Highway Traffic Safety Administration are considering backtracking from Obama’s plans to boost fuel efficiency for cars and light trucks to the equivalent of 54.5 miles per gallon by model year 2025. The EPA is taking public comment until Oct. 5 on its plan to reopen the process. It would have to undergo a full rulemaking process were it to decide to change the standards.

The outcome is important in the West because California has led the rest of the country in pressing for cleaner cars, both to improve its air quality and achieve its climate change goals. California has fiercely objected to the possible rollback and vows to keep the standards. Thirteen other states, including Oregon and Washington, also warned Pruitt not to weaken the fuel standards and vowed to defend them in court if he does.


President Trump revoked Obama administration policies that had blocked or postponed construction of the Keystone XL and Dakota Access pipelines. Environmentalists had long objected to Keystone XL because the heavy tar sands crude that it carries has a bigger greenhouse gas footprint than conventional crude. It requires a lot of energy to get tar sands out of the ground and process it for transporting by pipelines.

The Standing Rock Sioux Tribe and many supporters from other tribes and the environmental community staged a months-long protest to oppose DAPL. They’re concerned about sovereignty and the risk that potential spills pose to water resources that the tribe needs for farming and other uses. Trump touts the pipeline projects as key parts of his energy independence and infrastructure plans.

National parks management

The National Park Service in August rescinded a sweeping December 2016 policy that acknowledged that national parks could no longer be managed to remain pictures of the past because climate change is altering them. Director’s Order No. 100 told managers to use an adaptive or flexible approach to decision-making that takes into consideration uncertainties such as impacts of climate change. It also tells park managers to err on the side of caution if natural and cultural resources could be harmed. The order reflected the parks’ science advisers’ 2012 report Revisiting Leopold. It also committed the agency to addressing harassment of workers.

Influential Republicans, including Senate Energy Committee Chair Lisa Murkowski of Alaska and House Natural Resources Committee Chair Rob Bishop of Utah had opposed the order. The National Park Service said revoking the order avoids confusion while Zinke establishes his own vision for the parks.

Parks plastic water bottle bans

In August, the National Park Service ended a policy of letting parks ban the sale of disposable water bottles. The agency said it was doing so because the ban “removed the healthiest beverage,” while still allowing the sale of sweetened drinks.

Grand Canyon, among the 23 parks that had the bans, reports that plastic water bottles make up 20 percent of its trash and 30 percent of its recycling. Zion, the first park to ban plastic water bottle sales, estimated by 2012 it already had eliminated the sale of 60,000 bottles of water or 5,000 pounds of waste plastic.

Other Western parks that had banned the sale of disposable water bottles included Arches, Bryce, Canyonlands and Timpanogos Cave National Monument in Utah; Lake Mead National Recreation Area, San Antonio Missions National Historical Park and Saguaro in Arizona; Colorado National Monument; and Pecos National Historical Park in New Mexico.

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