A month after President-elect Trump's victory, the specifics of his environmental agenda are beginning to come into focus, and it is clear the Trump EPA will differ significantly from its Obama-era predecessor. With the nomination of Oklahoma Attorney General Scott Pruitt—a leading critic and challenger of the Waters of the United States Rule ("WOTUS Rule") and the Clean Power Plan (CPP)—as EPA administrator, the Trump administration confirmed that its major environmental policy priorities are what most expected. Much has been written on these high-profile plans, which include scrapping the CPP, modifying the WOTUS Rule, and approving the Keystone XL pipeline.
But beyond these few headline-grabbing policy changes lay other significant implications of the election of the new president. Three likely under-the-radar developments are worthy of the regulated community's attention: the future of government-initiated enforcement actions and citizen suits, opportunities to drive President-elect Trump's initial environmental priorities, and the future of TSCA reform.
Enforcement Actions and Citizen Suits
Most broadly, regulated entities should prepare for a downtick in government-initiated enforcement actions, accompanied by a commensurate uptick in citizen-initiated lawsuits. Throughout his campaign, President-elect Trump repeatedly signaled an intention to create a regulatory environment friendlier to industry. Part of that strategy will entail reworking the regulatory structure at large by softening or removing certain regulations. Another piece of this strategy will be to modify environmental enforcement priorities and strategies. Though pending cases are unlikely to change significantly, beyond the possibility of more favorable settlement options, future enforcement actions are likely to differ in both scope and substance. Administrator-to-be Pruitt will set new national enforcement initiatives, probably deemphasizing enforcement against energy extraction and production firms. Of course, EPA- and DOJ-initiated enforcement actions will not cease entirely. But the regulated community can expect future investigations and lawsuits to be brought with somewhat less frequency and settled more favorably.
There are two important corollaries of an administration that is more sympathetic to industry. First, nongovernmental organizations (NGOs) will pursue their agendas with renewed vigor. After the election, environmental NGOs immediately began devising strategies to defend environmental regulations they believe President-elect Trump could roll back, identify opportunities for future citizen suits, and work with certain state and local governments to advance their agendas. Companies should expect more citizen suits and NGO resistance—both legal and lobbying—against regulatory rollbacks.
Second, significant federal regulatory and enforcement authority will be pushed downward to state and local authorities. Attorney General Pruitt is a long-time federalism advocate, both generally and in the environmental policy arena. One of Pruitt's first moves as Oklahoma Attorney General was to create a "federalism unit" in his office, challenging several federal environmental programs during his tenure, arguing that each represented an overextension of federal power. As a result, a Pruitt-led EPA is likely to grant states renewed autonomy to implement and enforce environmental laws as they see fit. Some states will step up environmental enforcement while others will deprioritize it, but given Attorney General Pruitt's established preference for state-level environmental regulation, it is expected that the EPA will stay out of the way of states, regardless of the approach each state takes. In short, regulated entities should prepare to counter NGO litigation challenging federal regulatory changes, defend against impending citizen suits, and monitor state and local environmental policy developments.
Advocating Targeted Regulatory Changes
Outside the regulatory schemes already identified by President-elect Trump, the incoming administration offers regulated entities a rare chance to push for additional targeted regulatory changes. Groups wishing to amend adverse administrative rules, processes, or enforcement priorities should act quickly to get their desired environmental reforms onto the President-elect's agenda. Because only a small portion of EPA staff are politically appointed, identifying and executing policy changes could be a relatively slow process within the agency. Not only will career staffers need time to be brought up to speed, but many permanent agency staffers are unlikely to buy into a deregulatory agenda.
Nonetheless, opportunities for energy extraction and production companies are particularly promising, and most regulated entities can expect to be favorably heard by the Trump administration, given the President-elect's stated pro-growth policy goals. Since the incoming administration is still in the process of fleshing out its environmental plan of action, now is the ideal time for regulated entities to get in the door and put their environmental policy goals on the table.
While President-elect Trump appears poised to reshape major pieces of the federal environmental regulatory scheme, recent amendments to the Toxic Substances Control Act (TSCA)—which the EPA is in the process of implementing—will likely be left relatively untouched. Known as the Lautenberg Chemical Safety Act (LCSA), the TSCA reform law was passed by Congress with strong bipartisan and industry support and sets enforceable deadlines for the EPA to evaluate numerous chemicals under a new risk-based safety standard. After the election, a bipartisan group of congressional and industry leaders, including Senate Environment and Publics Works Committee Chairman Sen. Jim Inhofe (R-OK) and the American Chemistry Council, expressed confidence that the new administration will continue to implement the LSCA. Because the LSCA forces the EPA to issue rulemakings on existing and future chemicals within certain deadlines, a Trump EPA would struggle to meaningfully delay implementation of the LCSA, even if it wished to do so. So though certain chemicals might be regulated differently under a Trump-led EPA, appreciable changes to the LCSA are not on the horizon.