2019 Vermont Law Top 10 Environmental Watch List

Trump’s America First Energy Plan Puts Industry First, Environment Last

“Reliable and affordable energy is the foundation of America’s strength. Without it, our prosperity and security can fall outside our control.” -Andrew Wheeler, acting EPA administrator

President Trump’s “America First Energy Plan” has three ostensible goals: energy independence, job creation, and environmental protection. According to the administration, energy independence not only means lessening dependence on foreign energy but also energy dominance for the United States, to the point where energy exports become feasible. The second goal of the plan is to create “millions of new jobs” in energy-related fields through deregulation. Lastly, President Trump promised to “conserve our natural habitats, reserves, and resources” as part of the new energy revolution.

The administration tasked multiple cabinet officials with rolling out various components of the plan, including the secretaries of energy, agriculture, and the interior. So far, they have repealed multiple Obama-era regulations aimed at reducing pollution from fossil fuels and combating climate change. To fuel economic growth of the domestic energy industry, the Environmental Protection Agency (EPA) in particular is working to repeal multiple regulations that “kill jobs … and raise the price of energy so quickly and so substantially.”

These efforts began with an assault on Obama-era Clean Power Plan (CPP), which the administration claimed “unnecessarily raised electricity prices, decreased the competitiveness of America’s manufacturers, cost Americans jobs, and undermined the nation’s energy security” through regulatory overreach. EPA replaced the federally-based Obama-era CPP with the state-based Affordable Clean Energy (ACE) rule, which EPA predicts will save industry over $6.4 billion in compliance costs, while still reducing greenhouse gas production by the energy sector. To rectify the increased financial burden that the administration claimed the CPP had on low-income and middle-class Americans, the ACE rule returns discretion to meet Clean Air Act standards to the states, theoretically allowing each state to set its own standards. Almost immediately, supporters of the CPP filed suit to enjoin the ACE rule, arguing that EPA’s rollbacks constituted arbitrary and capricious agency action.

05_TrumpIndustryFirstIn addition to deregulation, the administration has approached “energy dominance” in using an “all-of-the-above” approach. The plan thus includes not only conventional energy resources but also renewables. One highly touted renewable energy source that the administration proposes to increase is offshore wind production. Declaring 2018 the year of a “bidding bonanza!”, the Bureau of Ocean Energy Management (BOEM) announced “the completion of the nation’s eighth and highest grossing competitive lease sale for renewable energy in federal waters.” This amounts to 4.1 gigawatts of commercial wind generation, which is enough to power 1.5 million homes. Yet, as the BOEM attempts to implement this portion of the America First plan, diverse environmental and economic concerns arise, including the impacts on fishermen and marine wildlife. Commercial fishing operations have already filed suit challenging discrete projects off the Atlantic Coast, and more will no doubt follow as the BOEM continues to lease wind projects at an unprecedented rate.

The pursuit of “energy dominance” also involves opening energy reserves on public lands, many of which have been closed to mineral exploration and extraction for decades. Massive portions of two national monuments in Utah—Bears Ears National Monument and Grand Staircase-Escalante National Monument—were eliminated by the Trump administration in 2017, seemingly to allow for oil and gas exploration and development and increased hard rock mining. President Trump has asked the Department of Interior to review 27 national monuments that he has deemed to be excessively large, for potential reduction, because the president believes that energy development and other extractive uses are paramount. Shortly after the reductions in Utah, the Hopi Tribe, joined by other regional tribes and several environmental groups and scientific organizations, sued the president over the monument reduction at Bears Ears, alleging that the reduction was unconstitutional. A similar suit is pending related to Trump’s reduction of Grand Staircase-Escalante National Monument.

Meanwhile, the 2018 Department of Interior energy burdens report foreshadowed other aspects of the plan that impact public lands. In addition to cancelling the review process for the final Bureau of Land Management (BLM) fracking rule, BLM has begun to implement the president’s 2017 executive order on “energy independence,” which required the BLM to review Obama-era provisions that unnecessarily burden the oil and gas industries. The BLM is expected to implement this mandate through a proposed rulemaking in January 2019. Most critically, though, the Trump administration finally persuaded Congress to open the Arctic National Wildlife Refuge’s (ANWR) 1.6 million-acre coastal plain (part of the 19 million-acre refuge) to oil and gas leasing. In the December 2017 budget reconciliation measure, Congress voted to allow drilling in the coastal plain, ordering two lease sales of at least 400,000 acres before 2027, with bidding projected to begin as early as summer 2019. Supporters say the lease sales are the first major step in a long-awaited boon to the Alaskan economy. Meanwhile, environmentalists have vowed to fight to keep drilling out of the uniquely large and pristine refuge, using the National Environmental Policy Act and other legal mechanisms to delay or halt leasing.

As it opened onshore reserves, the administration simultaneously worked to facilitate offshore leasing and drilling. In an executive order, President Trump implemented the America-First Offshore Energy Strategy using his authority under the Outer Continental Shelf Lands Act to open previously withdrawn offshore reserves surrounding the entire nation. It is now the policy of the United States to encourage exploration and production in the Outer Continental Shelf by revising leasing schedules to expedite development and implementation to the maximum extent permitted by law in the Western Gulf of Mexico, Central Gulf of Mexico, Chukchi Sea, Beaufort Sea, Cook Inlet, Mid-Atlantic, and South Atlantic. Unique to the Trump era, the executive order mandating leasing review requires that the Department of Commerce must evaluate and consider energy and mineral resource potential before the secretary designates a marine sanctuary. Following this executive order, environmental groups in Alaska filed a challenge in federal court arguing that the order was unconstitutional because the Outer Continental Shelf Lands Act only provides presidents with the authority to protect offshore submerged lands and does not include the authority to revoke such protections. The case, League of Conservation Voters et al. v. Donald J. Trump et al., is currently pending in U.S. District Court for the District of Alaska.

President Trump’s America First Energy Plan is a policy to watch for anyone who cares about the future of environmental protection, protected public lands, and wildlife. Public lands in particular are important for many natural resources beyond oil and gas, including preservation and protection of pristine natural spaces and wildlife habitat. Secretary of the Interior Ryan Zinke has statutory obligations to uphold the federal government’s stewardship responsibility over public lands and public natural resources. However, when that duty is undercut by a presidential policy aimed to position the U.S. as a global energy exporter free from foreign power, the protections to treasured public lands are placed at the mercy of industry. Those who are concerned about climate change, including adaptation and mitigation, protection of endangered and threatened wildlife, and our nation’s public lands should pay close attention as the administration rolls out all facets of the America First plan.