The Trump administration’s march to reshape federal environmental protection has gathered pace during the coronavirus pandemic, resulting in lighter regulation of America’s air and water.
The two-pronged effort includes temporary measures aimed at fostering economic activity as well as permanent rule changes that are being pushed through in time to prevent Democrats — should they sweep November’s election — from using a little-known legislative tool to overturn them.
“We’ve seen a sense of urgency in the first half of 2020 to get some of their higher-ranked items out the door,” said Hana Vizcarra, staff attorney at Harvard University’s Environmental and Energy Law Programme.
In response to the economic slowdown caused by the pandemic, President Donald Trump has ordered officials to find ways to speed up construction of highway or pipeline projects that could circumvent environmental reviews. The Environmental Protection Agency has adopted “enforcement discretion” for polluters unable to meet monitoring and testing duties.
The EPA this spring also has published rules on air, water and fuel that scrap the work of the Obama administration. Last Thursday, it abandoned oversight of perchlorate in drinking water, dropping its stance on a chemical — used in munitions and rocket fuel — that can harm infants’ brains.
Making permanent rule changes has gained urgency for the administration because of a law called the Congressional Review Act, which allows rules published in the last 60 “legislative days” to be repealed by simple majorities in the House and Senate, with presidential assent. Otherwise, changing federal rules involves protracted administrative processes.
If Democrats were to keep control of the House of Representatives and take back the Senate and the White House, they might be able to use the CRA to reverse some of the rules published by the Trump administration. Which regulations could be considered remains unclear, because it is not known how many “legislative days” there will be this year, given the time lost to the pandemic.
According to George Washington University’s regulatory studies centre, the 60-day clock probably started ticking in late May, but might not begin until July or August. Harvard’s Ms Vizcarra estimates that of the environmental rules finalised in 2020, at least four were probably completed early enough to be safe from review under the CRA.
Supporters say the administration’s actions were overdue and keep federal powers within the bounds of the law. The perchlorate change, which was opposed by the American Academy of Pediatrics, “fulfils President Trump’s promise to pare back burdensome ‘one-size-fits-all’ overregulation for the American people”, said Andrew Wheeler, the EPA administrator.
Environmental advocates say the administration is pushing ahead with rollbacks while Americans are preoccupied with a public health crisis.
“Since the Covid-19 epidemic took hold, Trump has not eased up on efforts to roll back environmental protections. It’s been full steam ahead,” said Nancy Ketcham-Colwill, a former EPA attorney who now volunteers with Save EPA, a group fighting administration policy.
This month, the agriculture secretary invited more oil and gas exploration in national forests. Mr Trump proclaimed a marine monument that is home to turtles and whales open to commercial fishing. The EPA issued a final rule that would undercut states’ power to block new natural gas pipelines.
Working from home, EPA officials in late March eased fuel economy standards for cars in a rule they estimated would cause 2bn more barrels of oil to be burnt, increasing carbon dioxide emissions by 900m tonnes.
In April, the EPA proposed leaving standards unchanged for airborne fine particulates that can damage lungs, even as an expert panel called them inadequate.
The EPA does not describe its agenda as rollbacks. “There is not any more pollution that is coming out in light of our recent actions,” a senior EPA official told the Financial Times.
One proposal, issued this month, would require cost-benefit analyses of all future air rules. Mr Wheeler, a former coal lobbyist, said it “corrects another dishonest accounting method” used by the Obama administration by distinguishing direct benefits from side benefits. The action was backed by groups including the American Petroleum Institute and the National Mining Association.
“For too long the cost-benefit analysis has been distorted to overstate the benefits of certain rules solely to achieve political rather than environmental ends,” said the mining association, whose members include coal producers such as Peabody Energy and Arch Resources.
Ann Weeks, legal director at Clean Air Task Force, an environmental group, said mandating this form of cost-benefit analysis would hinder future attempts to change course. “It seems that the administration is pushing that quickly through, so that it will be in place if they are voted out of office. It will make it more difficult for a new administration to undo the damage that they’ve done,” she said.
The EPA performed a similar cost-benefit calculation in April to determine that it was not “appropriate and necessary” to regulate mercury from the smokestacks of power plants that burn coal or oil, reversing its previous finding.
The agency said imposing the rule on generators would have increased compliance costs by $7.4bn-$9.6bn, while the benefits from controlling the pollutants targeted under the rule were worth only $4m-$6m. The Obama EPA had estimated the benefits at between $36bn-$89bn, having included “co-benefits” such as less soot.
The Obama EPA also took into account how pollution from coal plants posed a greater threat to people living nearby, a disproportionate share of them black people and other minorities.
But the Trump EPA’s analysis emphasised the total costs and benefits of imposing the rule, not the local impacts. The agency believed “it is reasonable to conclude that those factors to which the EPA previously gave significant weight — including qualitative benefits, and distributional concerns and impacts on minorities — will not be given the same weight in a comparison of benefits and costs for this action”, it said in its rulemaking.
The EPA said mercury emissions would still be regulated under Clean Air Act standards.
However, the day it withdrew the “appropriate and necessary” finding, the entire regulation was challenged in a lawsuit filed by a coal company, Westmoreland Mining Holdings. “The standards are still in place but they’ve lost this pretty major legal underpinning. And so of course, that makes them vulnerable to legal challenges,” said Laura Bloomer at Harvard.