EPA and Interior ease rules amid pandemic as repeal window nears

Flurry of rollbacks could reflect White House strategy to dodge CRA

Oil rigs near Port Fourchon, La., in 2010. Top political officials at agencies that regulate energy issues and the environment have been particularly active during the coronavirus pandemic in pursuing policies with repercussions that will likely stretch for years. (Tom Williams/CQ Roll Call via Getty Images file photo)
Oil rigs near Port Fourchon, La., in 2010. Top political officials at agencies that regulate energy issues and the environment have been particularly active during the coronavirus pandemic in pursuing policies with repercussions that will likely stretch for years. (Tom Williams/CQ Roll Call via Getty Images file photo)
Posted April 20, 2020 at 6:00am

In the weeks since the coronavirus pandemic engulfed the White House, Congress and the presidential campaign, federal agencies have responded in temporary and health-focused ways.

They canceled meetings, delayed deadlines for the public to comment on pending rules, rescheduled hearings and directed employees to work remotely. Fearing the spread of COVID-19, the disease the virus causes, the Patent and Trademark Office even waived a requirement that applicants submit original documents, allowing copies instead.

But top political officials at agencies that regulate energy issues and the environment have been particularly active during the period in pursuing slates of policies with repercussions that will likely stretch for years, in addition to short-term, virus-specific rules.

Political and policy experts say the flurry of rollbacks could reflect a White House strategy to have new rules in place before they might be subject to the Congressional Review Act, which allows Congress to strike down regulations and which Democrats could employ if they win the White House and both congressional chambers in November.

“It’s something that the Trump administration has to be thinking about,” said Sean Hecht, co-executive director of the Emmett Institute on Climate Change and the Environment at the UCLA School of Law.

Since late March, the EPA and the Interior Department in particular have taken steps to ease regulations on energy industries, including oil and gas companies, which are under financial pressure due to low oil prices and the nearly comatose economy.

Decisions at the two departments could echo for years or even decades to come, experts said.

Their steps stand apart from decisions at other energy- and environment-focused agencies, including the Federal Energy Regulatory Commission, the National Oceanic and Atmospheric Administration and the Nuclear Regulatory Commission, which have issued temporary policy changes tailored to COVID-19 concerns but stopped short of proposing significant overhauls.

Citing the coronavirus, the EPA on March 26 unveiled a broad policy to relax environmental rules and allow companies it regulates to determine on their own if they can follow federal reporting requirements on air and water pollution.

Environmental groups filed a lawsuit Thursday in federal court in New York for more information about the new policy.

Then on March 31,  EPA, in a joint effort with the Transportation Department, formally rolled back fuel-efficiency standards for light-duty cars and trucks, dealing a blow to the single-biggest step from the Obama administration to cut greenhouse gas emissions. 

On Tuesday, EPA Administrator Andrew Wheeler announced the agency would not strengthen air pollution standards on soot emissions, which are linked to thousands of premature deaths in the U.S. annually.

And two days later, on Thursday, the EPA finalized a rule that could make it easier for oil- and coal-fired power plants to emit toxic pollutants, including mercury, a neurotoxin associated with brain damage.

Industry groups supported the decision, including the American Petroleum Institute.

“The U.S. has made significant progress in this area as the U.S. has reduced PM annual concentrations by 39 percent since 2000. This proposal is an important step toward continuing this progress,” Frank Macchiarola, senior vice president of policy, economics and regulatory affairs at the API, said in a statement.

Tim Whitehouse, executive director of Public Employees for Environmental Responsibility, a nonpartisan watchdog group, said the EPA is seizing this window to strip down regulations.

“They’re taking advantage of the pandemic to jam these things through,” he said. “The language of EPA, the mission of EPA during the crisis appears to be to continue to push through as rapidly as possible a deregulatory agenda.”

Whitehouse added: “Public health and the environment are an afterthought at the EPA.”

Calendar

The CRA, which allows Congress to repeal executive branch regulations put in place during the previous 60 legislative days, was a favorite tool of Republican lawmakers in 2017 when they controlled both chambers and the White House to undo Obama-era regulations. If Democrats win the presidency and congressional majorities in 2020, Trump administration rules could be in jeopardy. Democrats next year could turn the law against Trump-era rules finalized late enough this year.

Halting regulatory actions until the coronavirus pandemic clears would delay the administration’s timeline and render more rules eligible for a CRA.

If Democrats were to gain a Senate majority and the White House, Hecht said, there’s “no question” that by the time the country gets past the coronavirus, any new rules would qualify for congressional review.

“It’s a very powerful law because not only can Congress eliminate the regulation, but it forbids a future administration from passing a similar regulation,” Hecht said. 

It’s unclear what Congress’ timetable will look like after the nation overcomes the coronavirus crisis and returns to work. However, based on the standard 2020 congressional  calendar, the George Washington University’s Regulatory Studies Center calculates that any rules issued after May 19, 2020 could be subject to review by the next Congress.

While the congressional review timeline may be a factor, Paul Bledsoe, an advisor at the Progressive Policy Institute, said a bigger driving force is Trump’s “obsession” with erasing former President Barack Obama’s legacy.

“It’s just strange that he would, for example, roll back pollution regulations on particulate matter in the midst of a pulmonary pandemic,” Bledsoe, a former Clinton White House adviser, told CQ Roll Call.

Oil and gas leases

Tim Stretton, an analyst with the Project on Government Oversight, a nonpartisan watchdog group, said Interior has also been particularly active as the public rides out the pandemic.

Interior Secretary David Bernhardt will “quickly process” requests from companies that pay royalties to the federal government, typically for drilling on federal land or in federal water, to waive those fees, according to Sen. Bill Cassidy, R-La. 

The department also leases acreage to energy companies to drill for oil and gas, dig for coal and produce renewable electricity. 

Stretton has his eyes on oil leases, in the Gulf of Mexico, for example. In March, before COVID-19 restrictions clamped down nationwide, an auction of offshore drilling rights in the Gulf brought about $93 million worth in winning bids, down from the previous auction, which took place in August and attracted more than $159 million in high bids. And it’s still less than the more than $240 million in auction bids Interior received in March 2019.

While oil and gas trade on global markets, and current low prices will almost certainly rebound, this trend of Interior accepting lower bids leaves Stretton questioning why the government is selling at rock-bottom prices.

“The oil market has normal volatility to it,” Stretton said by phone. “Everybody knows that this was not going to be the end of the oil industry forever. … We brought in 62 percent less money than we did a year ago and 40 percent less than just six months before. That to me screams outrageous.”

This has been the weakest oil lease sale in the Gulf since 2016, when oil prices also cratered.

Federal leases can last years or decades and can be subject to renewal, meaning companies can lock in rights for up decades in some cases before breaking ground.

Sens. Tom Udall, D-N.M., Jeff Merkley, D-Ore., and Ron Wyden, D-Ore., pressed Bernhardt in an April 3 letter to halt policies unrelated to COVID-19.

Spokespeople for the EPA and Interior both said the agencies are continuing to carry out their work, while being cognizant of the need to address special needs raised by the pandemic.

EPA spokesperson Corry Schiermeyer said the agency is not rushing through regulations but rather continuing to follow the schedule outlined in its regulatory agenda released in November.

“Much of the timing depends on when rules are proposed, comment periods end, rules are sent for interagency review, and when that review is finalized,” she said.

Still, Ann Weeks, senior counsel and legal director at the Clean Air Task Force, said the EPA appears to be rushing through its rule-making process. 

“It does feel like they’re pushing everything out,” she said in an interview. A procedural document the agency filed for its Mercury and Air Toxics Standards, or MATS, rule appeared flung together with sections copied and pasted, she said.

“Maybe they’ve decided that they’re not going to get reelected so they had better hurry,” she said, “and they’ll lose everything they worked on to the Congressional Review Act.”  

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