The United States Capitol buildingConsistent with campaign pledges from President-elect Donald Trump, Congressional Republicans are wasting no time in targeting key environmental regulations established during the Obama administration. On January 6, House Republicans used the Congressional Review Act (CRA) to target the Environmental Protection Agency’s rule, finalized last year, seeking to reduce methane emissions from new, modified and reconstructed oil and gas wells.  Among other provisions, the rule established new requirements for detecting and repairing fugitive methane emissions from leaks at oil and gas wells.  We summarized the methane rule here.

If passed by Congress and signed by President Trump once in office, the joint resolution of disapproval (H.J, Res. 22) would negate the EPA methane rule and bar the agency from creating a rule that is substantially similar to it in the future. The resolution was referred to the House Energy and Commerce Committee. The CRA could similarly be used to target other environmental rules finalized by the Obama administration in the latter half of 2016. Congressional Republicans have vowed to use the review act, which only has been successfully used once previously (for a Clinton-era ergonomics rule), to undo what they view as regulatory overreach by agencies such as the EPA. The CRA allows Congress to disapprove of rules within 60-days after they were issued.

The methane rule is one of several rules expected to fall in the crosshairs of President Trump and the Republican majority in Congress. On January 11, Sen. Jeff Flake (R-Ariz.) introduced an amendment to a budget resolution which would delay enforcement of the EPA’s 2015 ozone limits (down to 70 parts per billion from 75 ppb) until January 2025. Sen. Flake is pushing for a vote on the amendment during debate over S. Con Res. 3, the Senate budget resolution that Senate Republicans hope to complete by shortly. The budget resolution is non-binding, so Flake’s amendment would not have the force of law. But the amendment is a preview of things to come for the Republican-controlled Congress.

Other likely targets of President Trump and Congressional Republicans include:

  • Clean Power Plan: This rule, made final last year, was the centerpiece of President Obama’s climate change agenda and mandates a 32 % cut in the power sector’s carbon emissions by 2030. See our summary of the plan here.  The rule has been the subject of legal challenges and is currently under review by the Court of Appeals for the District of Columbia.  The U.S. Supreme Court has stayed enforcement of the rule pending review by the D.C. Circuit.
  • Waters of the U.S.: The EPA and Army Corps of Engineers’ Clean Water Rule, finalized in 2015, was a frequent Trump target on the campaign trail and one of the key Obama environmental rules that congressional Republicans oppose. The rule dramatically expands the EPA’s jurisdiction under the Clean Water Act. The rule has also been stayed pending review by the Sixth Circuit Court of Appeals.
  • BLM fracking rule: Among other things, this rule, finalized in 2015, sets new standards for well casing, chemical disclosure, and wastewater storage when fracking on federal and Indian lands.  It was overturned last year by a federal judge in Wyoming, and that ruling has been appealed by the Obama administration.  On the campaign trail, President Trump repeatedly indicated that he wants to remove barriers to oil and gas development generally and fracking in particular, so this rule is a likely candidate for action by the Trump administration or Congressional Republicans.

President Trump will have several options to dismantle each of these rules.  For rules that have been struck down by a court, such as the BLM fracking regulations, the Department of Justice under a Trump Administration could refuse to defend the rule or pursue further appeals, although that would likely lead to legal challenges from environmental groups. For those rules currently under review by federal appellate courts, including the Clean Power Plan and Waters of the U.S., the EPA under Trump could rescind and replace the rules.  That option would be subject to public notice and comment requirements, meaning that environmental groups would have an opportunity to challenge the action as arbitrary based on EPA’s prior findings undergirding the existing rules.

Even if these rules are rescinded and replaced, that kind of reversal on already finalized rules would likely lead to legal challenges from environmental groups. Alternatively, Congressional Republicans could seek to amend the laws under which these rules were passed – to remove EPA’s authority to regulate greenhouse gases under the Clean Air Act, for example – to undo or limit the EPA’s authority under rules passed under the Obama administration. Such action would also likely be challenged in court by environmental groups.   At the end of the day, even if President Trump and Congressional Republicans move forward with efforts to dismantle these rules, the process will likely take time and be subject to time-consuming legal challenges regardless of the path chosen.