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The Insider

2020 Elections Pose Test For Durability Of Trump EPA’s Deregulatory Effort

The Trump administration’s efforts to enact a long-lasting EPA deregulatory agenda faces a major test with the 2020 elections, with Democrats seeking to re-take the White House and full control of Congress and vowing to undo major agency rule rollbacks if that happens.

But if President Donald Trump wins his re-election bid, it gives him another four years to pursue further deregulatory efforts and ensures the durability of his work to scale back EPA’s policies.

Inside EPA’s Outlook 2020 analyzes these trends in what is shaping up to be a pivotal year for environmental policy. Even as Trump officials continue to advance their rollbacks of specific Obama EPA rules, they are planning a second-term agenda aiming for lasting changes that would limit the regulatory reach of future executives -- including changes to how to conduct regulatory review such as cost-benefit analysis.

Democrats, meanwhile, are proposing an aggressive agenda of new environmental rules and reversing Trump EPA rollbacks. They are hoping to lay the groundwork for quick action on climate and other environmental threats should they deny Trump a second term in office.

Meanwhile, states are gearing up to challenge many of the Trump rollbacks in court, with one critic seeing “significant litigation risks” for the administration because it is crafting a panoply of divisive rulemakings that courts might undo.

Regarding EPA’s agenda, one top deregulatory advocate is watching closely as the agency scrambles to complete key rollbacks in the first few months of the year to avoid a key election-related risk, even as one senior White House official says planning for a second-term agenda is well under way:

CEI’s Ebell Urges EPA To Complete Rollbacks By May To Avoid CRA Repeal
Myron Ebell, a leading deregulatory advocate, is watching closely as EPA scrambles to complete key deregulatory actions in the first few months of 2020 in an effort to finalize the rules before mid-May after which they may be vulnerable to repeal efforts under the Congressional Review Act (CRA) should Democrats sweep upcoming elections.

Myron Ebell of the Competitive Enterprise Institute notes that mid-May is a key date for completing rules because afterward they might be vulnerable to repeal efforts under the Congressional Review Act (CRA) should Democrats sweep the November elections.

He tells Inside EPA that the agency’s Affordable Clean Energy power plant greenhouse gas rule, which replaced the Obama-era Clean Power Plan, is “in somewhat better shape than some of the others” because it is already final and not subject to a possible CRA withdrawal “if politics flip in 2021.”

But Ebell worries that the administration may be cutting it close in its effort to replace the Obama administration’s vehicle GHG rules. “They have to get that out, and they have to do that before May to avoid the CRA window,” he says, which could allow a majority Democratic Congress to rescind rules finalized between late spring and the end of 2020.

The White House official, meanwhile, tells us that the auto GHG rollback is “the single most important item on the agenda.”

“Yes, you can at least prepare” for a second-term agenda even in a presidential election year, the source says. “But, you also have to act like [2020] might be all we have. In that case, you want to finish [high-priority] stuff. At least get [the auto rule] and wrestle it to the ground.”

At the same time, top administration officials are crafting wholesale changes that will limit the reach of future environmental regulations and to overhaul how those deregulatory plans are portrayed in public messaging:

Trump Eyes More Wholesale Deregulatory Moves In Second-Term Agenda
EPA is looking to expand its deregulatory agenda by continuing to make wholesale changes to the way it develops future regulations in addition to moving piecemeal rollbacks of Obama-era measures, efforts it will continue into 2020 and beyond if President Donald Trump wins a second term.

EPA Administrator Andrew Wheeler has largely shepherded these changes, which include efforts to limit the science the agency can consider, scale back estimates of regulatory benefits and boost the number of industry and state officials advising the agency on key matters.

EPA is also seeking to limit states’ ability to regulate more strictly than the federal government.

The agenda extends to other agencies, including the White House Council on Environmental Quality’s just-proposed rule that would dramatically scale back agencies’ requirements under the National Environmental Policy Act, as well as an effort to curb the scope of the Energy Department’s energy efficiency standards program.

As the administration develops its rollbacks, state attorneys general (AGs) are gearing up for battle in court, with one official supporting the AGs’ efforts predicting major litigation risks for the Trump policies:

NYU’s Hayes: ‘Highly Divisive Rulemakings’ Face ‘Very Serious Litigation’
State attorneys general (AGs) are among those leading efforts to block the Trump administration’s stepped-up effort to roll back current regulatory requirements and limit the reach of future rules. David Hayes is the executive director of the State Energy & Environmental Impact Center at New York University’s School of Law, also known as the State Impact Center. The group supports state AGs in defending and promoting clean energy, climate and environmental laws and policies.

In an interview with Inside EPA, David Hayes of the State Energy & Environmental Impact Center at NYU Law argues that EPA and other agencies’ scrambling to complete flagship rollbacks of Obama-era policies in the final year of Trump’s current term shows that they will be at a legal disadvantage when the time comes to defend those policies in court. The center says it supports state AGs “in defending and promoting clean energy, climate and environmental laws and policies.”

Hayes says the rush to finalize the deregulatory actions “is not a good thing from the perspective of the administration. It has taken four years to get to the final rules and it is not because a consensus has been negotiated with the key parties. To the contrary, these are highly divisive rulemakings that have a 100 percent likelihood of very serious litigation to be filed, and significant litigation risks for the administration.”

After a “skirmish” during the administrative process of crafting the rules, he says, “what is next is the all-out war. The lawyers are going to suit up in their gladiator outfits and face-off with each other. There has been so little attempt to find a middle ground that works for the state AGs, the environmental community, industry, community interests.”

Meanwhile, Democrats on Capitol Hill and on the campaign trail are seeking to refine their climate policy agenda for the 2020 elections, while Trump is trying to both tout his deregulatory moves while blunting possible defections from voters concerned about his environment stance:

Amid 2020 Campaign, Hill Democrats Prepare Climate, Environment Pitch
House Democrats enter 2020 poised to elaborate on a climate change policy agenda that stands little chance of immediate enactment but that will help frame the party’s environmental case for the November election and lay a predicate for action in the next Congress should President Donald Trump lose his re-election bid.

House Speaker Nancy Pelosi (D-CA) last month pledged committee or floor action -- or both -- on prospects “major” climate legislation after the chamber’s select climate committee issues a series of policy recommendations.

“Yes. That is the purpose of the select committee,” she said. “Not just to be an academic endeavor, but to report to the legislative committees so that we can act upon it and build along the way in the public the fact that the Congress is acting.”

Pelosi’s reference to swaying public opinion highlights Hill Democrats’ twin imperatives -- to make progress on climate policy even as few predict enactment of major measures before the election, and to respond to unprecedented attention to climate change as a political issue during the Democratic presidential primary.

Both tasks imply a political balancing act between wooing supporters and minimizing fodder for opponents in an election year, but former Obama EPA policy chief Robert Sussman tells Inside EPA that what happens in the House this year on policy development is “more important than the climate plans of the Democratic candidates.”

Similarly, former Clinton administration climate official Paul Bledsoe -- now a strategic adviser to the Progressive Policy Institute -- says he would “look just as much if not more to congressional plans than to promises from competing Democratic presidential candidates. What more responsible Democratic committees put forward does matter, in terms of what could actually happen in 2021 should a Democrat become president.”

At the same time, Trump critics acknowledge they must continue pressing their substantive criticism of his deregulatory policies -- and his repeated pledges to gut EPA’s budget -- to counter attempts by the president to promote a handful of limited water and toxics measures:

Amid Major Deregulation, Trump Pursues Limited Environment Pitches
President Donald Trump and his allies enter the 2020 election season poised to tout their aggressive deregulatory record, even as they selectively try to promote a handful of water and toxics measures in an apparent bid to blunt possible defections from voters concerned about climate change and other environment issues.

“Given Trump’s propensity for making [stuff] up, we should be fully prepared to have Trump claim his administration has been good for the environment,” one environmentalist says. “He has been awful, and it is incumbent for the environmental community to make that clear to swing voters.”

A Republican energy consultant sees the president’s acknowledgment of this political battlefield in some recent actions -- including his May reversal of prior opposition to funding for Florida’s Everglades -- a stance the source says makes sense given polling showing increasing concerns over climate change.

Wheeler in October remarks in Detroit similarly touted an action plan for the Great Lakes Restoration Initiative and a promise not to gut its $300 million budget -- a notable reversal of multiple Trump budget proposals to eliminate the program that is widely popular in the Midwest.