Reversing Environmental Rollbacks

1. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs (2-for-1)

• Directs agencies to repeal at least two existing regulations for each new regulation issued in FY 2017 and thereafter (2-for-1).
  • Reversal Strategy: Revoke or modify the EO. Regulatory processes would then be governed by the APA, the executive guidance found in OMB Circular A-4, and Executive Order 12866 (“Regulatory Planning and Review”).

2. Executive Order 13777: Enforcing the Regulatory Reform Agenda

• Complements the two-for-one order by directing agencies to establish “Regulatory Reform Task Forces” to evaluate existing regulations and make recommendations to the agency head regarding the repeal, replacement, or modification of regulations. 
  • Reversal Strategy: Revoke EO 13777 or issue guidance or a new order clarifying that Regulatory Reform Task Forces should not recommend repealing rules designed to achieve climate adaptation or mitigation goals. (S.C.)

3. Executive Order 13783: Promoting Energy Independence and Economic Growth 

• Set out several key policy objectives that prioritize fossil fuel development. The Order emphasizes avoiding “regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.” It also directed agencies to stop using an Obama-era calculation of the social cost of carbon that regulators used to estimate the long-term economic benefits of reducing carbon dioxide emissions.
  • Reversal Strategy: (1) Issue new EO to revoke 13783 and reinstate use of the Social Cost of Carbon; (2) Go further and update the SCC calculation to consider downstream effects of climate change, intergenerational equity, global impacts, and environmental justice.

4. Executive Order 13792: Review of Designations Under the Antiquities Act 

• Directed Secretary of the Interior to review presidential designations made under the Antiquities Act since 1996. The Order notes that these designations may “create barriers to achieving energy independence… and otherwise curtail economic growth.” DOI produced a final report recommending changes to several existing monuments.
  • Reversal Strategy: Issue new EO to revoke 13792. Although its report does not alter the existing boundaries of any other existing monuments, DOI could withdraw its recommendations relating to other monuments or issue a new report recommending that existing monuments be retained or expanded. (S.C.) 

5. Executive Order 13795: Implementing an America-First Offshore Energy Strategy

• Revoked an Obama executive order promoting climate resilience in the northern Bering Sea region of Alaska, which withdrew local waters from oil and gas leasing and established a tribal advisory council to consult on local environmental issues. The order establishes a national policy to encourage oil and gas drilling, including on the Outer Continental Shelf. 
  • Litigation status: The portion of Executive Order 13795 reopening certain OCS lands to oil and gas development was vacated by the U.S. District Court for the District of Alaska (3/29/19). The federal defendants appealed the district court’s decision and participated in oral argument in June 2020 (9th Cir. 2020). 
  • Reversal Strategy: Issue new EO to revoke 13795, effectively reinstating the limits President Obama set on oil and gas leasing on OCS lands. (S.C.)

6. Executive Order 13807: Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure

• Revoked Obama-era flood standards for federal infrastructure projects that required the government to account for sea level rise and other climate change effects. 
  • Reversal Strategy: Revoke EO 13807 and issue new EO updating flood standards.

7. Executive Order 13834: Efficient Federal Operations

• Revoked Obama EO that set a goal of cutting the federal gov’s GHG emissions by 40% over 10 years. The order revokes Obama’s EO 13693: “Planning for Federal Sustainability in the Next Decade.
  • Reversal Strategy: Issue new EO to revoke 13834 and reinstate/update EO 13693. Recommit to reducing the federal government’s greenhouse gas emissions. (S.C.)

8. Executive Order 13840: Ocean Policy to Advance the Economic, Security, and Environmental Interests of the United States

• Revoked an Obama-era executive order designed to preserve ocean, coastal and Great Lake waters in favor or a policy focused on energy production and economic growth.
  • Reversal Strategy: Issue new EO to revoke 13840 and go further to reaffirm the importance of managing marine resources in a way that recognizes their inherent value, the ecological services they provide, and the necessity of addressing the climate change implications of decisions relating to marine resources. (S.C.) 

9. Executive Order 13867: Issuance of Permits With Respect to Facilities and Land Transportation Crossings at the International Boundaries of the United States

• Moved the permitting process for certain projects that cross international borders, such as oil pipelines, to the office of the president from the State Department, exempting them from environmental review. 
  • Reversal Strategy: Issue new EO to revoke 13867 and return permitting responsibilities to the State Department, subjecting them once again to environmental review.

10. Executive Order 13868: Promoting Energy Infrastructure and Economic Growth

• Expedited the approval of energy infrastructure, including but not limited to oil and gas pipelines.
  • Reversal Strategy: Issue new EO to revoke 13868. 

11. Executive Order 13924: Regulatory Relief To Support Economic Recovery

• Directed agencies to rescind, modify, waive, or provide exemptions from regulations and other requirements that may inhibit economic recovery. 
  • Reversal Strategy: Issue new EO to revoke 13924 and instruct agencies not to engage in deregulatory activity under the auspices of COVID-19 recovery. (S.C.)

12. Executive Order 13927: Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities 

• Instructed agencies to expedite infrastructure projects, including by identifying opportunities to circumvent environmental review during the pandemic. 
  • Reversal Strategy: Issue new EO to revoke 13927 and instruct federal agencies to review proposed infrastructure projects consistent with the purposes and requirements of the CWA, ESA, and NEPA. As of 7/31/20 no agencies had taken action pursuant to the order. (S.C.)

13. Modifying the Northeast Canyons and Seamounts Marine National Monument

• Removed restrictions on commercial fishing in a protected marine preserve southeast of Cape Cod that is home to rare corals and a number of endangered sea animals. The Trump administration has suggested changing the management or size of two other marine protected areas in the Pacific Ocean.
  • Reversal Strategy: Issue executive proclamation to reinstate restrictions.

16. Modifying the Bears Ears and Grand Staircase-Escalante National Monuments

• Proclamation slashed the size of two monuments by 85% and 50%, leaving the rest of the area open to mining, oil and gas drilling. 
  • Reversal Strategy: Issue new proclamation restoring the original boundaries of each monument. (S.C.)
  • Litigation status: A group of Native American Tribes and other stakeholders filed the first of several lawsuits (12/4/17) arguing that President Trump has neither constitutional nor statutory authority to slash the size of these national monuments. Court denied the Trump administration’s motion to dismiss (9/30/19). The consolidated cases remain pending. Briefing on the summary judgment motions is complete (6/9/20). Awaiting the court’s decision (Hopi Tribe v Trump, D.D.C. 2020).

15. Chesapeake Bay Program

• The Trump administration has failed to enforce Total Maximum Daily Load (TMDL) for the bay, which establish enforceable limits of pollutants that can enter the bay.
  • Reversal Strategy: EPA enforces TMDL (and ensures funding is included in future budgets). 
  • Litigation status: States and The Chesapeake Bay Foundation file lawsuits against EPA (09/10/20) for failing to perform obligatory duties and failure to abide by the terms and conditions of the CWA, the APA, and the Chesapeake Bay Agreements.  (MD v. Wheeler, D.D.C. 2020) (CBF v. EPA, D.D.C. 2020)

16. Formal Notification of Intention to Stop Payments to the Green Climate Fund

• Stopped payments to the Green Climate Fund, a United Nations program to help poorer countries reduce carbon emissions. The US had pledged $3bn.
  • Reversal Strategy: Announce intention to reinstate payments and go further to increase 3 billion dollar commitment to the fund.

17. Formal Notification of Intention to Withdraw from the Paris Agreement 

• Submitted a notice of intent to withdraw the US from the Paris Agreement (will go into force 11/4/20).
  • Reversal Strategy: Readily move to rejoin the Paris Agreement on Day One. When a State joins the Agreement after it has already entered into force, it becomes a Party thirty days later. Other Parties would not have any ability to block or otherwise condition the United States’ return. Once the United States is again a Party, it will have an obligation to submit an NDC. (S.C.)

18. Removal of references to climate change and other important data from agency websites

• Researchers found the Trump administration removed a quarter of all references to climate change from federal government websites since 2016.
  • Reversal Strategy: Update agency websites to address the climate crisis with accessible, specific, and transparent language. 

19. Removal of important EPA webpages

• EPA removed several web pages containing detailed climate data and scientific information. One provided detailed information on the Clean Power Plan, including fact sheets about how different demographic groups were affected by GHG emissions.
  • Reversal Strategy: Add agency web pages and ensure access to information.

1. Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions

• CEQ proposed new guidelines on consideration of GHG emissions and climate change in NEPA reviews (06/26/19). CEQ repealed Obama CEQ guidance in 2017. The draft is vague when it comes to GHG quantification and discourages agencies from using the social cost of carbon.
  • Reversal strategy: Immediately reinstate August 2016 CEQ guidance as interim guidance while CEQ considers an update to the 2016 guidance.

1. Coastal Barrier Resources Sand Policy

• In an informal memo, the Secretary of the Interior David Bernhardt claimed the Office of the Solicitor was reversing its 1994 position to find that the Coastal Barrier Resources Act does not prohibit the use of sand from a protected area for beach replenishment outside of the area, prompting litigation. 
  • Reversal strategy: Issue guidance to affirm earlier interpretation of Coastal Barrier Resources Act. 
  • Litigation status: The National Audubon Society filed a lawsuit against the DOI (Nat’l Audubon Soc’y v. Bernhardt) alleging that the Nov. 4 letter is being implemented by the FWS as an unlawful rule in violation of NEPA and the APA. (S.D.N.Y. 2020).

2. DOI EIS Limited to 150 Pages (DOI Secretarial Order 3355)

• Secretarial Order 3355 restricted most Interior Department environmental studies to one year in length and a maximum of 150 pages, citing a need to reduce paperwork.
  • Reversal strategy: Issue a new secretarial order to withdraw the memo.

3. Guidance to implement America-First Offshore Energy Strategy (DOI Secretarial Order 3350)

• Pursuant to EO 13795, DOI published a guidance withdrawing and updating various rules and implementing the 5-Year Offshore Leasing Program.
  • Reversal strategy: Issue a secretarial order revoking 3350.

1. Master Leasing Plans

• BLM issued a policy memo (01/21/18) eliminating the use of Master Leasing Plans, a planning approach introduced by the Obama Administration to manage oil and gas activity on sensitive landscapes, such as national parks, and avoid harmful impacts to sensitive resources.
  • Reversal strategy: Issue guidance to reinstate Obama MLPs policy. Consider enhancing MLP policy. 

2. Decreased Review Times for Applications for Permit to Drill (APDs)

•  For the APDs BLM received from May 2016 through June 2019, overall review times decreased from 196 days to 94 days, or by more than half. BLM officials said that field offices handle APD review prioritization differently and there is no documented process for whether or how to prioritize applications.
  • Reversal strategy: Issue internal guidance/memo requiring more stringent and formal review of APDs. 

3. Notice of Intent To Prepare an Environmental Impact Statement for the Proposed Revision of Grazing Regulations for Public Lands

•  BLM published a Notice of Intent (01/21/20) to draft an EIS to overhaul grazing regulations on public lands in order to increase permitting efficiency. Western Watersheds Project notes concern that the changes will result in decreased enforcement against illegal grazing. 
  • Reversal strategy: Rescind and replace rule if final rule is published; otherwise halt rulemaking process.

4. Notice of Intent To Prepare an EIS for the Twin Metals Project in the Superior National Forest

•  BLM reversed 2016 findings and renewed hardrock mining leases in the Superior National Forest without any environmental review or public input. The prospecting permits allow Twin Metals to drill holes, build roads, and do other mining exploratory work throughout more than 15,000 acres of Superior National Forest. BLM then announced its intention to draft an EIS.
  • Reversal strategy: If new EIS not completed, can revert to 2016 EIS and deny permits. Otherwise, conduct a new environmental assessment.
  • Litigation status: Environmental groups sued (08/05/20) the Department of the Interior challenging their decision to renew 13 permits (D.C. Cir. 2020).

5. Final Environmental Assessment for Lifting the Coal Leasing Moratorium

• BLM published a final Environmental Assessment and finding of no significant impact (02/25/20) for reinstating the federal coal leasing program.
  • Reversal strategy: Reinstate the federal coal leasing review and moratorium. BLM had already commenced the scoping process for the programmatic review and could resume the NEPA process where it left off. Go further to look at the effects of all federal fossil fuel leasing decisions. A more comprehensive approach, which includes oil and gas leases, would allow for better analysis of cumulative effects. (S.C.) 
  • Litigation status: In Citizens for Clean Energy v. U.S. DOI (05/22/2020), Montana Federal Court said issuance of EA and FONSI for Lifting of Moratorium on Coal Program remedied NEPA violations. Plaintiffs challenged the EA (07/23/2020) citing several flaws, including ignoring cumulative impacts and arbitrarily refusing to use the social cost of carbon or another metric to assess greenhouse gas impacts (D. Mont. 2020). 

6. Rescinded Climate Change and Mitigation Manuals (DOI Secretarial Order 3360)

• Secretarial Order 3360 rescinded the DOI Manuals on Climate Change Policy and Landscape-scale Mitigation Policy, the BLM Mitigation Manual, and the BLM Mitigation Handbook.
  • Reversal strategy: Issue a new secretarial order revoking Order 3360 and reinstating the DOI/BLM Manuals and Handbooks.

1. Notice to Lessees Requiring Additional Financial Assurance   

• Rescinded NTL No. 2016-N01, which provided new guidance for when BOEM would require additional financial assurance for leases.
  • Reversal strategy: Issue guidance to reinstate NTL No. 2016-N01.

2. Offshore Oil and Gas 5 Year Leasing Draft Proposed Program (DPP)

• Pursuant to Secretarial Order 3350, DOI released a draft proposal for a 2019-2024 5-year leasing program that would open most US coastal waters to oil and gas drilling. The program has been put on hold after pushback from states and lawsuits.
  • Reversal strategy: If the DPP is not finalized, BOEM could withdraw it and proceed with the 2017-2022 National OCS Oil and Gas Leasing Program, which was approved on 1/17/17. A new five-year leasing plan would need to be developed for the post-2022 period. If the DPP is finalized, BOEM could initiate the development of a new five-year leasing plan by issuing a request for information and comments. (S.C.) 
  • Litigation status: 9th Circuit scheduled oral argument for the Trump administration’s appeal of the March 29, 2019 decision by a federal district court judge that is preventing the administration from proposing a new 5-Year Leasing Plan that includes areas available for leasing that President Obama had withdrawn from availability. The oral arguments were held on June 5, 2020 (9th Cir. 2020).

1. Revoked Director’s Order #100 

• NPS rescinded Director’s Order #100, which reaffirmed that resource stewardship was a preeminent duty of the NPS. The policy specifically recognized that climate change is creating shifts in the park environments and visitor experiences.
  • Reversal strategy: Issue a new order addressing stewardship and climate change impacts.

2. Reversal of Rule Restricting the Sale of Plastic Water Bottles 

• Reversed restrictions on the sale of plastic water bottles in national parks designed to cut down on litter, despite a Park Service report that the effort worked.
  • Reversal strategy: Reissue memorandum and require individual parks to ban the sale of disposable plastic water bottles.

1. U.S. Fish and Wildlife Service Mitigation Policy 

• USFWS revoked a directive for federal agencies to minimize impacts on water, wildlife, land and other natural resources when approving development projects (07/30/18).
  • Reversal strategy: Reinstate the 2016 mitigation policy and look at strengthening agency policy with consideration of potential constitutional takings issues. 

2. Water Project Biological Opinions (also U.S. Bureau of Reclamation)

• USFWS’s Bay Delta Fish & Wildlife Office relaxed environmental protections for salmon and smelt in California’s Central Valley in order to free up water for farmers.
  • Reversal strategy: Direct the U.S Bureau of Reclamation issue a new biological assessment on the CVP and SWP operations and have the Bay Delta office issue a new biological opinion. 
  • Litigation status: Motions for preliminary injunction granted in part and denied in part (E.D. Cal 2020).

3. Overturned ban on importing trophies of African lions and elephants

• Withdrew ESA findings banning the import of elephant trophies from Zimbabwe and Zambia. In its place, FWS would instead “grant or deny permits to import a sport-hunted trophy on a case-by-case basis.”
  • Reversal Strategy: Update agency policy to reinstate ban.
  • Litigation status: After being sued (Natural Resources Defense Council v. Zinke, Docket No. 17-02504 (D.D.C.)) for violating the APA and ESA, the FWS withdrew the new policy, then announced that it would apply that policy in individual adjudications (03/01/18). Federal appeals court in D.C. upheld the policy, allowing the agency to proceed through informal adjudication when deciding whether to allow trophy imports of species classified as threatened (Friends of Animals v. Bernhardt, 961 F.3d 1197 (D.C. Cir. 2020)).

1. Supplemental Environmental Projects (“SEPs”) in Civil Settlements with Private Defendants

• Starting in 2017, the Attorney General and DOJ’s Environmental and Natural Resources Division (ENRD) issued a series of policy memoranda that curtail DOJ and agencies’ authority to reach settlements that include payments to third-party organizations. This culminated in a March 2020 memo expressly prohibiting DOJ from agreeing to any settlements that include SEPs.
  • Reversal strategy: Issue new guidance reinstating use of SEPs.

1. Retrospective Study of Reparable Coal Mine Dust Rule 

• Announced a review of an Obama-era rule that lowered coal dust limits in mines. When senators from West Virginia voiced concern that the study might prompt a rollback, an MSHA administrator stated the study was only meant to determine whether the rule has been effective. The public comment period has been extended until 2022.
  • Reversal strategy: Let the study be completed with no subsequent action. If results show improvements can be made, those should be considered.

1. Pipeline Safety: Exercise of Enforcement Discretion Regarding Farm Taps

• PHMSA announced they would not enforce rules against operators that do not comply with farm tap regulations. Farm taps supply gas to customers in rural areas.
  • Reversal strategy: Replace with agency directive to enforce farm tap regulations.

2. Stay of Enforcement – COVID-19

• PHMSA announced that it would relax enforcement of natural gas pipeline regulations during the COVID-19 pandemic. Could result in a rise of methane emissions.
  • Reversal Strategy: Issue a notice revoking the March 2020 notice.

1. Significant New Use Rule for Long-Chain LCPFAC and PFAS chemical substances

• The final rule (07/27/20) did not include a de minimis threshold for determining “reasonable potential for exposure” and dropped safe harbor provisions from earlier drafts of the proposed rule.
  • Reversal strategy: Exercise agency discretion to make more stringent determinations. Promulgate a new rule that imposes more stringent standards and allows for less discretion. 

2. Significant New Alternatives Policy (SNAP) Program (Hydrofluorocarbons) 

• In April 2018, EPA announced that it would not enforce a 2015 rule restricting the use of hydrofluorocarbons, which are powerful greenhouse gases and climate super-pollutants. D.C. Circuit Court of Appeals ruled that EPA acted unlawfully (04/07/20) in issuing its guidance on nonenforcement. The court explained that it had previously held that EPA could not compel operators who had already switched to HFCs to make another switch to a new substitute but that EPA did have the authority to prohibit operators currently using ozone-depleting substances from switching to HFCs.
  • Reversal strategy: Issue new guidance clarifying that the 2015 rule remains in effect to the extent that it prospectively prohibits replacing ozone-depleting substances with HFCs. (S.C.)

3. Revised Method for National Level Listed Species Biological Evaluations of Conventional Pesticides

• Revised methods for assessing pesticide risks to endangered species at the request of the pesticide industry. EPA made extensive changes to the process set forth by the Obama administration which would allow the agency to dismiss real-world impacts from pesticides. 
  • Reversal strategy: Reinstate Obama-era agency policy.
  • Litigation status: Center for Biological Diversity filed a formal notice of intent to sue (08/31/20).

4. Guidance Interpreting “Adjacent” for New Source Review and Title V Source Determinations

• EPA issued guidance revising key Clean Air Act definitions in a way that could relax permitting requirements across a number of industries. The new guidance instructs EPA to look at “physical proximity” as opposed to “functional interrelatedness,” and could allow some operators to avoid the need for an NSR permit where such a permit would have previously been required. 
  • Reversal strategy: Withdraw this guidance and issue a new memorandum restoring Obama-era guidance that directed EPA to consider a range of factors, of which physical proximity was only one part. (S.C.)

5. FY 2018-2022 EPA Strategic Plan 

• EPA released a Strategic Plan for Fiscal years 2018-2022 that omits any mention of climate change.
  • Reversal strategy: Rerelease a fiscal plan from 2021 ongoing that addresses climate change impacts. 

6. Weakening Obama-era Regional Haze Rule

• In January 2017, the Obama-era Regional Haze Rule went into effect. The rule was meant to reduce air pollution in national parks and wilderness areas. After litigation with states and industry groups, the rule has been held in abeyance and is under review. In April 2018, a presidential directive ordered EPA to review all existing regional haze Federal Implementation Plans (FIPs) and replace them with State Implementation Plans (SIPs). In August 2019, EPA published guidance for state implementation plan development intended to leave emissions controls to states. Critics argue that this guidance allows states to simply ignore how pollution impacts visibility in parks and offers little advice on how to identify pollution sources for emission reduction analysis.
  • Reversal strategy: Issue new guidance offering states clear and specific instructions on how to achieve standards while review of rule is completed.
  • Litigation status: Court granted EPA’s motion to hold the case in abeyance (01/30/18) pending review of the final rule by the EPA. This case would have an impact if the rule was returned to its 2016 version or the state guidance was rewritten.

1. Decision to Not Renew the Charter of the Federal Advisory Panel for the National Climate Assessment

• The Trump Administration did not renew the charter of the federal advisory panel for the National Climate Assessment.
  • Reversal strategy: Renew and update charter.

1. Ground Water Protection at Uranium in Situ Recovery Facilities 

• NRC requested comment (01/31/19) on whether it should proceed with rulemaking to require groundwater protections for certain uranium mines. Recently, the administration’s Nuclear Fuel Working Group proposed opening up 1,500 acres outside the Grand Canyon to nuclear production.
  • Reversal strategy: Issue guidance stating that NRC will proceed with rulemaking to require groundwater protections.

1. OMB Guidance for Implementing Executive Order 13771

• Pursuant to EO 13771, OMB released a guidance clarifying that agencies must in fact implement (as opposed to merely identify) two deregulatory actions for each new regulatory proposal. The guidance states that regulatory benefits such as public health benefits and energy efficiency savings should not be accounted for when measuring the “incremental costs” of regulatory actions.
  • Reversal Strategy: Revoke or introduce new guidance on cost-benefit analysis to supplement OMB Circular A-4. Such guidance could provide uniform standards and clear direction on how to account for public health benefits, climate change-related costs, and other regulatory impacts.

2. OMB Guidance for Implementing Executive Order 13783 

• OMB released a guidance document instructing agencies how to implement EO 13783 Promoting Energy Independence and Economic Growth requiring executive departments and agencies to review existing regulations that “burden the development or use of domestically produced energy resources” and appropriately rescind those that “burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law.”
  • Reversal Strategy: Revoke guidance via executive order.

1. Final Guidance for Implementing Executive Orders on Reducing Regulatory Costs 

• OIRA issued final guidance on the implementation of EO 13771: Reducing Regulation and Controlling Regulatory Costs. The EO directs agencies to repeal two existing regulations for every new regulation, and to do so in such a way that the total cost of regulations does not increase. (S.C.)
  • Reversal Strategy: Revoke the guidance via executive order.

1. U.S. Positions on Multilateral Development Banks Engaging on Energy Projects and Policies

• Guidance instructed U.S. representatives on the executive boards of MDBs to “help countries access and use fossil fuels more cleanly and efficiently.” This overturned an Obama-era guidance that made it difficult to use public resources to support coal projects except in rare circumstances.
  • Reversal Strategy: Revoke 2017 guidance and reinstate 2013 Treasury Department guidance while considering an update. 

1. Published Notice of Intent to prepare EIS for Locatable Minerals

• Initiated an Environmental Impact Statement to revise agency regulations that minimize adverse environmental impacts on the National Forest System in connection with prospecting, exploration, and mining.
  • Reversal Strategy: Conduct new environmental assessment.