Trump races clock on remaining environmental rollbacks

The Trump administration is scrambling to wrap up a slew of environmental rollbacks before President-elect Joe Biden takes office in less than 70 days.

The administration has yet to get some of its most prized proposals across the finish line: finalizing the prep work to enable drilling in the Arctic and off the coasts; limiting protections for endangered species and migratory birds; and restricting what types of studies inform the government’s policy choices.

Those efforts are raising concerns among environmentalists who have spent the past four years battling President Trump on issues like climate change and scientific independence.

“This is an administration that has been breaking norms from the beginning, so why shouldn’t we expect them to do that until the bitter end?” said David Hayes, executive director of the State Energy and Environmental Impact Center at New York University’s School of Law.

Hayes, along with others, is also worried about “personnel and other disruptive executive actions” beyond new regulations.

At the Environmental Protection Agency (EPA), top of the list is a proposal that has already generated roughly 600,000 negative comments.

The rule, which the agency bills as a transparency measure, could block consideration of studies that don’t make their underlying data publicly available, something likely to exclude landmark public health research when crafting agency policy.

Former EPA head Scott Pruitt, who led the agency from 2017-2018, called the rule a way to battle “secret science.” Critics counter it will block the agency from using studies that won’t release personal health information or confidential business data — common practices in studies the agency relies on when reviewing chemicals and assessing public health risks.

Another rule the agency hopes to get out before Jan. 20 would change the cost-benefit analysis behind Clean Air Act regulations, making it tougher to account for some of the benefits of curbing air pollution. The rule change would also make it more difficult for future administrations to justify new air regulations.

Critics say the two proposals would systematically undermine the agency going forward.

“Those two are just killers for the whole foundation of the work of EPA,” said Betsy Southerland, director of the Office of Science and Technology at the EPA’s Office of Water during the Obama administration.

Stan Meiburg, who served as the EPA’s acting deputy administrator under former President Obama, said “you can’t just put your fingers on the scale by discounting the benefits” of reduced air pollution.

“You have to count all the costs and all the benefits,” he added.

Also in the hopper at the EPA are two rules that would freeze pollution standards for smog and soot, unusual moves for an agency that typically sets more ambitious targets when they are reconsidered every five years.

“I think they want to lock those in … instead of allowing them to carry over to the Biden administration to either finish the rules or redo them,” said Amit Narang, a regulatory policy advocate with the left-leaning good governance group Public Citizen.

EPA spokesman James Hewitt said the agency plans to use its final days to “advance the president’s commitment to meaningful environmental progress while moving forward with our regulatory reform agenda.”

At Interior, the department has yet to finalize a five-year plan for offshore drilling that would determine which areas are open for leasing through 2024. The agency is also pushing ahead with plans that pave the way for a massive increase in oil activity at both the Arctic National Wildlife Refuge in Alaska and the neighboring National Petroleum Reserve.

In a separate move that would benefit oil and related industries, the department is pushing ahead with a rule that would fine companies only if their work intentionally kills birds, ending the practice of punishing businesses that “incidentally” kill birds.

“That will absolve companies for any liability for migratory bird deaths even when they’re acting recklessly and know they’re going to cause bird deaths and don’t take reasonable steps to avoid killing the birds. It’s a radical, extreme interpretation of law that they are trying to put in place,” Hayes said.

A move to implement the policy by guidance has already been struck down in court.

“The department will continue to implement President Trump’s agenda to create more American jobs, protect the safety of American workers, support domestic energy production and conserve our environment,” Interior Department spokesman Conner Swanson said by email when asked about the agency’s plans.

Some, however, are skeptical the administration will be able to accomplish much in such a short time frame.

“They can try, but they’ve waited too long,” said John Walke, an attorney with the Natural Resources Defense Council.

“Lawsuits challenging those rules don’t even have briefing schedules before the Biden administration announces that they are taking a voluntary remand of the rule or seeking to place the lawsuits in abeyance,” he said, citing two strategies that would indicate the Biden administration doesn’t plan to defend any Trump-era rules in court.

But Narang said the Trump administration is under immense pressure to plow ahead now that it’s a one-term presidency.

“This administration has not been shy about rushing out regulatory rollbacks even if they’re done in a very sloppy fashion and risk reversal in court, so my expectation is they’re going to continue to try and finalize what they can finalize, even if it will look rushed and expose them to more litigation risk,” he said.

In addition to those regulatory efforts, environmentalists are worried about potential staff shake-ups that could destabilize agencies or slow work before the new administration comes in.

With time dwindling to solidify major policy proposals, personnel changes could be an easier lift, and some recent changes by the Trump administration could allow them to follow into the next administration.

Trump has already demoted Neil Chatterjee, previously the chair of the Federal Energy Regulatory Commission, and reassigned the top scientist in charge of the Fifth National Climate Assessment, a major report evaluating the status of climate change.

And a late October order from Trump created a new category of federal employees that work on policy, something critics fear is a way to slot political appointees into career roles and buy them time in the next administration.

Southerland said those holdovers could be particularly damaging given that the agency is already understaffed and many people will be leaving soon.

“I think there’s a lot of potential for those people to go unnoticed and they could really slow things down or hurt the work, because again, with a small staff they’re going to need everyone they can to work full out,” she said.