To the victor belong the spoils, and President-elect Donald Trump’s victory in the presidential election (get used to it) and Republican Congressional control will significantly impact environmental programs and priorities going forward. Among other campaign commitments, President-elect Trump promised to increase fossil fuel production and to repeal numerous environmental initiatives of President Barack Obama. However, concerns of a return to industrial revolution-era pollution levels seem as likely as an independent counsel being assigned to further investigate former Secretary Hilary Clinton’s e-mails. Nevertheless, because so many of President Obama’s environmental regulatory priorities were accomplished by executive fiat, they can similarly be reversed by executive action.
Trump, a skeptic on climate change, is likely to support withdrawal from the Paris Agreement achieved in December 2015, though how he chooses to do so remains to be seen. Without the advice and consent of the Senate and implemented by executive order, so too could the United States’ participation in the Paris Agreement seemingly be reversed. However, Trump conceivably also could choose to send it to the Senate for ratification where it would seem certain to suffer the same slow death fate of the Kyoto Treaty. Regardless, because Article 28 of the Paris Agreement requires a four-year waiting period before allowing a signatory nation’s withdrawal, a presidential edict proclaiming withdrawal may not be as easy as it seems. With or without formal withdrawal, a lax attitude toward compliance via selective implementation and enforcement of numerous Obama-era regulatory proposals may provide an alternative to formal Paris Agreement withdrawal.
The Obama Administration’s Clean Power Plan (CPP), stayed by the Supreme Court on February 9, 2016, only four days before Antonin Scalia’s death, and currently under challenge and being reviewed by the D.C. Circuit Court of Appeals also is destined for revocation or significant claw back. If remanded to EPA, a Trump EPA could take that opportunity to drastically amend the plan as originally passed. Twenty-nine states support its revocation, giving the Trump administration ample momentum to request outright revocation.
In the water realm, the much maligned Waters of the United States (WOTUS) rule, now languishing before the Sixth Circuit, also is certain to be impacted. The WOTUS rule could be withdrawn or revoked. Like the CPP, a majority of states also support its revocation. Of course, as a preliminary matter, a Trump Justice Department could, as to these and other environmental regulations currently under legal challenge, direct the DOJ to simply stop defending the legal challenges or pursue settlement of the challenges on terms more favorable to the regulated community. Because decisions impacting both the WOTUS rule and CPP seem destined to at least get to the Supreme Court, President-elect Trump’s appointment to replace Justice Scalia may be among his most critical early decisions.
Other environmental issues worthy of monitoring that face amendment, implementation, review, renewal, and/or revocation include:
- Fracking on federal lands
- Toxic Substances Control Act regulations
- Keystone XL Pipeline
- Renewable energy requirements, tax credits, and evolving technology
- Aviation emissions
- Methane regulation
Notwithstanding the potential for significant impacts to pending and future environmental projects and policies, electoral support for environmental protection remains high and, although tilting the balance in favor of economic development and energy production seems probable, the more likely reality is a tempered approach to environmental regulation and amendment.