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Nov. 15 — There is no “short cut” for President-elect Donald Trump to roll back environmental regulations but the incoming administration still could target Obama era rules, a former Justice Department official said Nov. 15.
“The beauty of the administrative process is that the agency can change its mind, but it has to support its decision-making with an appropriate administrative record. It has to be rational and reasonable and in accordance with the law,” said Ignacia Moreno, who was assistant attorney general for the Justice Department’s Environment and Natural Resources Division from 2009 to 2013 and is the principal of the iMoreno Group PLC in McLean, Va.
Congress, however, could overturn Obama administration rules or pursue revisions to laws like the National Environmental Policy Act that could weaken environmental protections. Meanwhile, the Trump administration could place a freeze on any rulemakings the outgoing Obama administration has not yet completed, Moreno said at a conference on environmental policy under the new administration hosted by the New York University Law School’s Institute for Policy Integrity.
Though Republicans will control both Congress and the White House, David Hayes, a Stanford University law professor who was deputy secretary of the Interior Department from 2009 to 2013, said repealing environmental laws is unlikely.
“I’d be surprised if that happened,” he said. “These laws have endured and typically have been the classic statutes for being broad and leaving room underneath for administrative tweaking.”
He added: “I think the ballgame will be in the regulatory sphere,” with the possible exception of any attempts to amend the Endangered Species Act over California water rights issues.
Similarly, Moreno said applying the National Environmental Policy Act will bear watching, but the fate of the law itself isn’t likely to be in question. But legislative attempts might be made to provide exemptions from the NEPA, for example, or expedited review for infrastructure projects, she said.
On natural resources policy, Hayes said, based on campaign rhetoric and public positions, “we’ll be back to ‘Drill, baby, drill’ ” with the Trump administration.
The Obama administration’s “common-sense regulatory responses” to the “renaissance of domestic energy production” will be met with “overall skepticism and antipathy toward environmental rules in general,” Hayes said.
Possible areas of opportunity for environmental protection would include building climate resilience planning into Trump-proposed infrastructure projects, as well as mounting bipartisan efforts in such areas as clean energy or outdoor recreation, Hayes said.
With the executive branch and Congress controlled by one party, “people will look to other venues” to achieve environmental goals, said Michael LeVine, Pacific senior counsel at the Oceana advocacy group based in Juneau, Alaska. He pointed to actions by states, companies and the marketplace as alternatives to federal regulation.
States were active in opposing environmental policies of the George W. Bush administration, in an example of “living federalism,” said Peter Lehner, a senior attorney with Earthjustice in New York who helped mount legal challenges as chief environmental lawyer in the state attorney general’s office from 1999 to 2006.
“I think we’ll see important actions by the states to resist the rollbacks in environmental protection,” he said of the outlook for the Trump administration.
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