In his first 100 days in office, President Trump took significant steps to make federal environmental policy more friendly to industry, investment, and economic growth. However, opening new federal lands to oil and gas exploration and repealing the Clean Power Plan both were enacted as executive orders. Trump has yet to work with Congress as part of a broader energy plan. Now, more than three months after Inauguration Day, the Congressional calendar is open and ready to consider a cohesive energy plan. The trouble is, no one yet knows what that would look like.
Congressional staffers, speaking at an industry event on Tuesday, said that although Congress had needed time to adjust to the new administration, it was now ready to get to work.
“We have officially emerged from the lull,” said Colin Hayes, majority staff director for the Senate Energy and Natural Resources Committee, who explained that the committee was ready to approve a slate of 38 nominees for positions at the Department of the Interior and the Department of Energy, as well as FERC commissioners, at a hearing on Wednesday. He explained that, since more nominations have been made, hearings can be performed in batches, making them easier to schedule and expediting the overall process.
The appointments are an overdue first step towards moving forward on a cohesive energy plan. During the Obama administration, energy and environmental policy were often determined by administrative rulemaking or in the courts, rather than by Congress. As a result, the country still lacks a cohesive energy plan. Instead, industry is left with uncertainty, as policies like the Paris Agreement may be reversed in a later administration.
According to Rick Kessler, minority staff director for the House Energy and Environment Subcommittees, backing out of the Paris Agreement may meet with some disapproval from industry figures. While opponents of the deal criticize it for delaying implementation of emissions restrictions in China and India until 2030, Kessler argues that the deal succeeded because it brought these countries to the table for the first time.
(ExxonMobil, Chevron, Royal Dutch Shell, and BP also have released statements supporting the deal as a step towards creating a global emissions reduction framework. The companies also have a financial incentive to support the deal, which favors natural gas over coal.)
What would replace the Paris Agreement is an altogether different question. Figures in both industry and government acknowledge that current policy lacks a coherent overall framework, since much of it relies on executive agency enforcement measures interpreting statutes, like the Clean Water Act, which are decades-old. In absence of a legislative policy, approaches to greenhouse gas emissions and renewable energy, among other issues, can vary dramatically from administration to administration.
“I hope Congress will take a more active role evaluating its spectrum of legal authority and what can be done [on these topics], said Tom Hassenboehler, majority staff director for the House Energy and Environment Subcommittees, who noted that the problem with relying on policies dating back decades, was that they were “too susceptible to serious shifts.”
A stronger Congressional role in environmental regulation would dovetail well with EPA Administrator Scott Pruitt’s guiding doctrine of “EPA originalism.” Pruitt emphasizes that under his watch, the agency will return to a clear rulemaking process, a respect for the rule of law, and a stronger role for the states.
“Rule of law matters because at the end of the day it creates certainty,” said Pruitt on Wednesday, explaining that layering industry, state, and federal policies created a “jurisdictional nightmare” that hampered economic development.
In particular, he has spoken about doing away with the “consent-decree” method of enforcement, under which the EPA’s rulemaking power grew dramatically under the Obama administration.
In part, this approach reflects the EPA’s creation in response to chemical contamination crises like Love Canal in the 1970s. Then, the EPA was seen as an emergency response mechanism needed to stop contamination that was an imminent threat to public health.
Today, America’s soil, air, and water are far cleaner than they were in the 1970s, which speaks to the effectiveness of the EPA. At the same time, many of the contaminated sites it was created to fix remain. To Pruitt, the fact that lead and uranium contamination sites have remained on the list for nearly 30 years is unacceptable.
As administrator, Pruitt has made the 1,400 sites on the Superfund list a priority for the agency. He has even gone so far as to request to personally review the plans for any cleanup with a projected cost of $50 million or more. Even so, Superfund provides another example where new legislation could be a marked improvement.
Superfund has its limits. In particular, it lacks a provision for joint and several liability, complicating cleanup for sites which have been owned by multiple different companies over a period of decades. Furthermore, without a means of pre-enforcement review, a company cannot challenge the EPA’s cleanup solution prior to being sued.
Moving beyond the first 100 days, Pruitt has made it clear that Congress needs to step up to provide a cohesive energy plan and to better define the agency’s priorities. While the need is present, what that cohesive energy plan will look like remains to be discussed and debated in the coming weeks.