By David J. Hayes
February 20, 2020
Everyone is aware that the Trump administration has been rolling back scores of environmental and climate regulatory requirements. What’s less apparent is how the rollbacks fit into a broader administration strategy to reduce industry accountability for environmental damage.
This is a surprising new role for the federal government, which is required by law to ensure that companies are complying with — rather than being relieved of — environmental, health and safety obligations. It is an upside-down government initiative that many law-abiding and environmentally responsible companies do not welcome.
The administration’s strategy to reduce industry accountability has three key elements. First, implement regulatory rollbacks that absolve companies of their responsibility to reduce harmful pollution and that invite industry laggards to pollute as they please. Second, develop replacement rules that reduce industry accountability by weakening prior rules and doing away with third-party compliance reviews. Third, slash inspection and enforcement activity, while soliciting ideas on how to protect companies from “unfair” prosecutions, rather than how to improve corporate compliance.
I. Rollbacks that remove federal oversight of corporate practices.
The Trump administration’s wholesale rejection and removal of many of industry’s core environmental responsibilities may be the most audacious part of its anti-environmental accountability scheme. Examples abound. The EPA recently finalized a rule that removes federal oversight and invites irresponsible real estate developers and corporate polluters to damage half of our nation’s wetlands and thousands of miles of streams without consequence. Likewise, the EPA has proposed to repeal oil and gas companies’ obligations to reduce harmful methane emissions, over the objections of some of those same companies. And the EPA and Transportation Department have proposed to freeze auto mileage standards from scheduled improvements, bucking the wishes of several major car manufacturers and numerous states.
Over at the Interior Department, officials have removed oil and gas companies’ and other industries’ long-standing legal obligations to take reasonable steps to avoid killing migratory birds in their operations. On public lands, oil and gas fracking operators are now free to ignore recently repealed requirements governing chemical use, well integrity and water management. Also gone are rules limiting wasteful oil and gas venting and flaring on public lands.
II. Weakened rules that nix third party reviews.
In addition to repealing regulations entirely, the administration has reduced industry accountability by weakening a number of key rules, including by removing independent third-party reviews of corporate compliance. For example, to improve safety systems following the BP offshore drilling disaster, the Interior Department’s well control rule married new deepwater drilling equipment specifications and inspection requirements with independent third party reviews. In its rollback, however, the Trump administration has weakened equipment specifications, reduced inspection frequency and, perhaps most importantly, removed a requirement that government-approved verification organizations conduct compliance reviews.
Likewise, when rolling back critical elements of its Chemical Accident Safety rule — even when presented with evidence of additional, recent serious chemical accidents — the EPA reduced corporate obligations to conduct and report on post-accident investigations, while also removing independent third-party reviews.
III. Enforcement antipathy.
Finally, the administration has shown a consistent antipathy toward enforcing environmental, health and safety laws that it has been unable (so far) to water down or remove from the books. The EPA conducts only about half as many inspections as it did a decade ago, and its required pollution control technology investments are far below the previous administration’s annual totals. On the big stuff, like enforcing the Clean Air Act’s “Good Neighbor” provision against upwind states that are responsible for causing significant adverse health effects in downwind states, including thousands of premature deaths, the EPA isn’t lifting a finger.
Meanwhile, in a remarkable document, the White House’s Office of Management and Budget recently solicited ideas for how to “protect Americans against the unjust or arbitrary exercise of government power,” including by potentially holding civil administrative enforcement cases to trial court evidentiary standards. In doing so, the White House is showing that it is more interested in restraining “agency and agency staff” from fully enforcing environmental laws, than holding accountable the companies that are violating them.
It truly is a sad state of affairs.
David J. Hayes is a nationally recognized environmental, energy and natural resources lawyer who leads the State Energy & Environmental Impact Center.