Methane and the three branches 

Last week, the Trump Administration issued its repeal of an Obama Administration regulation policing methane leaks from oil and gas operations on tribal and public lands. The tortuous repeal of the methane regulation, which is not yet complete, illustrates the balance between the three branches of government in an era when regulation and deregulation have become major policy tools.

Methane is a potent greenhouse gas, contributing more to climate change per pound than carbon dioxide. The Obama Administration regulation would have required oil and gas producers to take steps to reduce the leakage of methane. {mosads}

The question of whether to regulate methane leaks on public lands has ping ponged between the legislative and executive branches of government, with occasional intervention by the judicial branch. Congress’ first involvement dates to long before anyone knew about methane leaks and their impact on climate change. The Mineral Leasing Act (MLA) was passed in 1920 and requires “reasonable precautions to prevent waste of oil or gas developed in the land.”

Fast forward nearly a century to 2016. The Obama Administration Bureau of Land Management (BLM) issued the regulation in question citing the above provision of the MLA. BLM estimated that once benefits to operators and to the environment were considered, the net benefits of the regulation would range from $46 to $204 million.

The natural resource extraction industry was not happy with the regulation. When Republicans captured Congress in 2016, the GOP tried to undo the regulation using the Congressional Review Act, a tool it used to undo 14 other regulations from the last six months of the Obama Administration. This bid failed by one vote in the Senate when Senator McCain voted against the repeal.

The question of repeal then went back to the executive branch. The Trump BLM both tried to delay the implementation of the Obama Administration regulation and to propose a repeal of it. The delay was struck down by the U.S. District Court for the Northern District of California. But the proposal was finalized last week.

Now that the executive branch has succeeded where the legislative branch has failed, it is time for the judicial branch to weigh in once and for all. The states of California and New Mexico immediately sued the Trump administration over the repeal arguing that BLM violated the MLA as well as the Administrative Procedure Act and the National Environmental Protection Act. The Trump Administration’s record in defending its regulatory repeals has been poor.

Congress has regularly delegated authority to the executive branch to make policy through regulation. This delegation often takes the form of vaguely worded statutes on issues that Congress does not want to tackle. This allows agencies significant discretion to make choices regarding specific policies. While Congress occasionally steps in (as in the CRA resolutions described above), it’s power to muster a majority to do so is often limited. This often leaves many important policy questions to be resolved between the executive and judicial branches.

In the case of the methane regulations Congress decided that repeal of the Obama policy decisions would leave the planet too hot. The Trump Administration is definitely cold on any Obama Administration attempts to combat climate change. At the end of the day though, it will be up to the judicial branch to decide which approach is “just right.”

Stuart Shapiro is professor and director of the Public Policy Program at the Bloustein School of Planning and Public Policy at Rutgers University, and a member of the Scholars Strategy Network. Follow him on Twitter @shapiro_stuart.