Shale Law in the Spotlight: Changes in Energy and Environmental Policy During First 100 Days of Trump Administration

Written by Chloe Marie – Research Fellow

In the first one-hundred days of the Trump administration, President Donald Trump and the Republican majority in Congress have undertaken efforts towards revising and repealing some Obama-era environmental and energy regulations that they have deemed contrary to economic growth. In a previous article, we discussed the use of the Congressional Review Act as one method to alter existing energy and environmental policies, including the repeal of the Stream Protection Rule, which was disapproved on February 16, 2017. In this article, we will address subsequent attempts by Congress to repeal other Obama-era environmental and energy rules using the Congressional disapproval procedure under the Congressional Review Act (5 U.S. Code § 802).

On January 30, 2017, five joint resolutions were introduced in the U.S. House of Representatives relating to environmental and energy matters: (1) H.J. Res. 46 seeking to disapprove the National Park Service’s rule on “General Provisions and Non-Federal Oil and Gas Rights;” (2) H.J. Res. 45 seeking to disapprove the U.S. Fish and Wildlife Service’s rule on “Management of Non-Federal Oil and Gas Rights;” (3) H.J. Res. 36 seeking to disapprove the BLM’s rule relating to “Waste Prevention, Production Subject to Royalties, and Resource Conservation;” (4) H.J. Res. 44 seeking to disapprove the BLM regulations establishing the procedures used to prepare, revise, or amend land use plans pursuant to the Federal Land Policy and Management Act of 1976; and (5) H.J. Res. 41 seeking to disapprove the Securities and Exchange Commission’s rule on “Disclosure of Payments by Resource Extraction Issuers.” From this pool of resolutions of disapproval, Congress passed only H.J. Res 41 and H.J. Res 44.

The House of Representatives passed H.J. Res. 41 on February 1, 2017, by a margin of 235 to 187.  The Senate did likewise on February 3, 2017, by a 52 to 47 vote. On February 14, 2017, President Trump signed into law H.J. Res 41 repealing the final rule “Disclosure of Payments by Resource Extraction Issuers.” The rule imposed upon resource extraction issuers an obligation to report annually any payment made to a foreign government. It was published in the Federal Register in July 2016 with an effective date of September 26, 2016.

The Resource Management Planning Rule was overturned on March 27, 2017, with President Trump’s signing of H.J. Res. 44 into law. The House of Representatives had passed H.J. Res. 44 on February 7, 2017, by a vote of 234 to 186. The Senate followed with a vote of 51 to 48 on March 7, 2017. The Resource Planning Rule had aimed to strengthen the role of the public in land-use decision-making processes. This final rule was published in the Federal Register in late December 2016 and became effective on January 11, 2017.

With regard to the three other energy-related resolutions of disapproval introduced in January, on May 10, 2017, the U.S. Senate rejected a motion to consider H.J. Res 36 by a 49 to 51 vote. H.J. Res. 36 sought to remove the rule on Waste Prevention, Production Subject to Royalties, and Resource Conservation. Congress did not pursue further legal actions with regard to H.J. Res. 45 and 46.

Three additional energy-related resolutions of disapproval were introduced in the U.S. House of Representative during the month of February; however, no further actions were undertaken on the resolutions. Those resolutions included H.J. Res. 56 seeking to overturn BLM’s Final Rule “Onshore Oil and Gas Operations; Federal and Indian Oil and Gas Leases; Site Security” introduced on February 1, 2017; H.J. Res. 70 seeking to disapprove the rule submitted by the Department of the Interior regarding requirements for exploratory drilling on the Arctic Outer Continental Shelf introduced on February 9, 2017; and H.J. Res. 82 seeking to disapprove BLM’s Final Rule “Onshore Oil and Gas Operations; Federal and Indian Oil and Gas Leases; Measurement of Gas” introduced on February 16, 2017.

Prior to President Trump assuming office, efforts were undertaken to repeal part of EPA’s regulations relating to the Clean Power Plan using the Congressional Review Act. On January 6, 2017, H.J. Res. 22 was introduced seeking to disapprove the 2016 Oil and Gas New Source Performance Standards for New, Reconstructed, and Modified Sources. The final rule “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources” was published in the Federal Register on June 3, 2016, for the purpose of updating and improving the current new source performance standards (NSPS). The rule became effective on August 2, 2016. H.J. Res. 22, however, did not advance beyond the House Subcommittee on Environment.

Since use of the Congressional Review Act was unsuccessful in modifying the Obama administration’s Clean Power Plan, President Trump signed an Executive Order on March 28, 2017, entitled Promoting Energy Independence and Economic Growth. This Executive Order requires EPA to review the Clean Power Plan and related rules and regulatory actions, including the final rule “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units;” the final rule “Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units;” the 2016 Oil and Gas New Source Performance Standards for New, Reconstructed, and Modified Sources; and the proposed rule “Federal Plan Requirements for Greenhouse Gas Emissions from Electric Utility Generating Units Constructed on or before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations.” Respectively on April 3 and 4, 2017, EPA announced the withdrawal of the proposed rule and the review of the three final rules stated above.

Stay tuned for further legal developments!