Now that we know we will have a Republican House, Senate, and President beginning in 2017, it is time to consider is what environmental and energy changes might take place during Donald Trump’s first term as President. I am neither supporting nor criticizing the possible actions that a Trump Presidency may entail. Instead, my goal is to lay out a possible roadmap of what may happen on the environmental and energy fronts during the next four years. I must also disclose that I have clients who may be affected adversely or positively by all of the matters discussed below.
Donald Trump’s website lists a number of goals that relate to energy:
- Unleashing untapped shale, oil, and natural gas reserves;
- Rescinding Obama executive actions;
- Opening onshore and offshore leasing on federal lands; and
- Rescinding moratoriums on coal leasing.
On the regulation front, Donald Trump’s environmental goals include:
- Eliminating the Waters of the U.S. Rule; and
- Scrapping the EPA Clean Power Plan
At various times Donald Trump has been quoted as wanting to:
- Eliminate incentives for wind and solar power;
- Eliminate the EPA;
- Legalize the use of asbestos (Trump claims that asbestos is 100% safe, once applied and also claims that the rules against asbestos were led by the Mob, which runs asbestos removal)(I’ve never heard that one before);
- Pull out of climate accords; and
- Abolish the Renewable Fuel Standard (“RFS”) which supports the ethanol industry.
What will Donald Trump actually focus on and what are the low hanging fruit that he can grab?
Waters of the U.S. I think that the elimination of the Waters of the U.S. Rule will be a given. The proposed rule is extremely unpopular among the rural voters that delivered him to power. Rural senators and congressmen have likewise been among his most ardent supporters. Of course, the idea that the proposed rule is a real problem is something of a canard. The underlying law has never been clearly defined despite numerous U.S. Supreme Court decisions and the only way to solve the definitional question of what constitutes a “Waters of the U.S.” is to enact new legislation. I view the chances of an elimination of the Waters of the U.S. Rule as 100%. I see the chance of a more effective definitional solution by Congress at 50%. I’d put the chances of legislation higher were it not for my belief that Congress will continue to show its inability to agree on anything other than recess dates.
Wind and Solar. Donald Trump may have to soften his antagonism against wind subsidies to get rural congressional support for legislative changes to the definition of “Waters of the U.S.” I believe that there is only a small chance that existing tax credits will be extended when they expire in 2020 during a Trump term unless there is a grand bargain with Midwest Senators. Solar power may well be the poor stepchild in this trade, though rapid reductions in the manufacturing costs of solar panels and batteries may allow solar to remain competitive regardless. I think that the utility industry has every reason to try to pass federal legislation similar to recent legislative efforts in Florida (failed) and Arizona (succeeded) aimed at preventing alleged “stranded costs” due to the private adoption of solar power.
Coal Mining. Resurrecting coal may be a case of too little too late. The biggest bar to coal mining is the Mine Safety and Health Administration on the extraction side, air emission standards for coal fired power plants (Maximum Achievable Control Technology “MACT” rules and Mercury and Air Toxics standards) on the combustion side and coal ash regulations on the disposal side. Without comprehensive new legislation it is unlikely that a President can have much success loosening the rules. Public interest attorneys will simply litigate any attempts at agency leniency. Changes to regulations on the combustion and disposal could make coal-based power more competitive with shale gas, but if President Trump has his way with the expansion of natural gas extraction then coal prices will be trying to meet a moving target. I think it is unlikely that a Trump Administration will be able to do much to resurrect the coal industry to its former strength. Competitively priced energy sources are just too abundant after eight years of incentives and expansion of natural gas production is likely to make new coal mining investment very challenging.
Coal Fired Power Plants. Even if costly safety rules are relaxed and the cost of extracting coal goes down, it is also worth noting that it is practically too late to stop the shuttering of many coal fired power plants. Two hundred and forty two plants have been retired or are being retired. Also, what do you do to create a level playing field for utilities that have already invested billions of dollars in upgrading the remaining newer plants? There could be modest improvements in utility costs through legislative changes, but it is hard to know what other special interests may get in the way of definitive legislative changes. That said, there is really little outside of a Senate minority standing in the way of passing some legislation attacking MACT and air toxics standards, so I give some changes to those laws a 25% chance of passage. Those rules probably account for a majority of the spending by industry (either directly or through utility costs) that are related to environmental compliance (said to be $10 billion per year).
Clean Power Plan. Dead.
Paris Climate Deal. Ignored for now and terminated in three years.
Unlocking Federal Lands. I think that there will be overwhelming support in Congress to force the federal agencies to make federal lands available for energy extraction. This will likely help fuel the boom in well construction, fracking, and pipeline construction in the U.S. I fully expect at least some statutory roadblocks to unlocking federal lands for energy exploitation to be removed with heavy support from the western governors and senators.
Even if Donald Trump stalls out in his effort to enact a legislative agenda, Presidents wield enourmous power if they want to expand or contract agency action. They can starve agencies of employees and funds and slow walk regulatory changes or aggressively enforce even minor alleged violations or rewrite rules to the extreme limits (or past) what the legislative drafters intended. It is also quite likely that we will see unforeseen fractures in the political landscape as new allies are formed and old alliances are torn apart.
James L. Pray
James Pray has more than thirty years of experience assisting industry with environmental compliance issues, including industrial and municipal wastewater permitting, air permitting, RCRA and Superfund cleanups, brownfields development, wetlands, contaminated site cleanups, infrastructure development, renewable fuels, and wind and solar power development, regulation and construction. He is a frequent speaker on environmental topics and has litigated environmental and energy issues in the Federal and State courts of Iowa, the Iowa Supreme Court, and the Federal Courts of Appeals.
Attorney, Brown Winick Law Firm
666 Grand Ave. Suite 2000
Des Moines, Iowa 50131
Note that this article does not necessarily represent the opinions or positions of Brown Winick Law Firm and only represents the speculation and opinions of the author.