The Trump administration has introduced two new deregulatory efforts over the last 10 days, aimed at weakening protections under the U.S. Endangered Species Act, making it more difficult to factor climate impacts into endangered species determinations, and fast-tracking pipeline development with amendments to the federal Clean Water Act.
Both moves triggered immediate promises of legal action, with less than 15 months remaining (442 sleeps!) until the 2020 presidential election that could change the occupancy of the White House.
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The Endangered Species Act (ESA) revisions introduced by Interior Secretary and former fossil lobbyist David Bernhardt target legislation that “has been credited with keeping 99% of listed species from becoming extinct, including humpback whales and bald eagles,” InsideClimate News reports. The revisions would weaken protection for species and their habitats, “let the government consider economic interests, and could open doors to oil and gas drilling and mining in sensitive areas, including the Arctic.”
The New York Times says the changes are expected to take effect next month.
The revisions “make it harder to take climate change into account when deciding whether a species needs protection, and they limit protections for critical habitat,” InsideClimate states. “They also allow [U.S. government] agencies to consider economic interests when deciding whether to list a species—something that was explicitly forbidden in the past. And they make it harder to list threatened species—those with populations that appear to be stable but which face risks from expected loss of habitat, like ice-dependent species or those susceptible to sea level rise.”
To Trump Commerce Secretary Wilbur Ross, those provisions “fit squarely within the president’s mandate of easing the regulatory burden on the American public, without sacrificing our species protection and recovery goals.” After years of complaining about the ESA, the American Petroleum Institute welcomed the announcement, while the National Cattlemen’s Beef Association called it “regulatory relief”.
The announcement comes just months after a major United Nations commission warned that up to a million species are at risk around the world, with climate change a key driver, and that humanity is in a “danger zone” as a result.
California Attorney General Xavier Becerra, who vowed a legal response to the changes, said they were far more than just “nibbling at the edges” of the Act, adding that the administration’s intention to cut climate protections is obvious even if it isn’t explicitly stated. “It’s clear that these rules were drafted more by attorneys than by scientists,” he said. “They are trying to be a little too clever in attacking climate change [action].”
“We’re going to do everything we can to oppose these actions that put our local communities and our environment at risk,” added Massachusetts Attorney General Maura Healy. “Gutting the Endangered Species Act sounds like the plan of a cartoon villain, not the work of the president of the United States.”
That descriptor showed up in the headline for an in-depth New York Times editorial panning the regulatory changes.
Healy said a group of AGs will likely argue that the amendments are arbitrary and ignore scientific evidence, that Trump officials failed to review environmental impacts and didn’t account for public comments, as required by the law, and that they violated the text and purposes of the Act itself.
“It’s sad. It’s just so myopic,” said United Nations Foundation biodiversity specialist and senior fellow Thomas Lovejoy. “It’s very easy to actually do a poor economic analysis, which basically sets it up so that the endangered species take it in the chin.”
“These are code words for, ‘Don’t look too far into the future and don’t rely on models,'” added former deputy interior secretary David Hayes, now director of the State Impact Center, referring to a new provision that would allow a species to be listed only if it will be affected in the “foreseeable future” as the Act defines it. “It’s the playbook that the anti-Endangered Species Act folks have been using to challenge [protections for] species that are encountering climate problems.”
InsideClimate notes that polar bears are listed as endangered under the ESA due to their dependence on sea ice, and some promising fossil deposits are off-limits to the U.S. fossil industry as a result. “If critical habitat is somehow changed by this proposal, that might be easier for oil and gas development there to go forward,” said Steven Amstrup, chief scientist at Polar Bears International, a former career polar bear biologist with the U.S. Geological Survey. And if the economics of a proposed resource project can now be taken into account, “people might make an argument that the short-term gain is valuable and not look at what the long-term costs of these things are.”
“We could see potentially oil and gas development on the Arctic National Wildlife Refuge, the possibility being enhanced by these actions,” he added, “and that would have long-lasting effects.”
The changes to Clean Water Act permitting rules, announced earlier this month by Trump’s Environmental Protection Agency, “would limit the amount of time states and tribes can take to review new project proposals to a ‘reasonable period’ of no more than one year, with the definition of ‘reasonable period’ left to federal agencies to determine and the clock starting from the initial request for a permit, with no pauses or restarts,” InsideClimate writes. “It also would limit states to considering only water quality and allow the federal government to override states’ decisions to deny permits for projects in some situations.”
The order is seen as a bid to limit jurisdictions’ ability to block new pipelines over concerns for water safety.
“This proposed rule change would hobble the most important tool that states have to protect significant waters, from prized trout streams to essential drinking water sources,” said Conservation Law Foundation President Bradley Campbell. Matthew Gravatt, deputy legislative director for the U.S. Sierra Club, added that states need time and access to information to assess major projects, particularly pipelines. “Putting limitations on that and the types of information they can consider is a problem,” he said.
“Our proposal is intended to help ensure that states adhere to the statutory language and intent of Clean Water Act,” EPA Administrator and former coal lobbyist Andrew Wheeler said in a written statement. “When implemented, this proposal will streamline process for constructing new energy infrastructure projects that are good for American families, American workers, and the American economy. “
“A well-defined timeline and review process for water quality certifications are integral to developing infrastructure that reliably provides clean and affordable energy to American families and businesses every day,” agreed Robin Rorick, vice president of midstream and industry operations at the American Petroleum Institute.
“President Trump and EPA Administrator Wheeler like to tout that this administration has made ‘crystal clear water’ a top priority,” shot back Sen. Tom Carper (DE), ranking Democrat on the Senate Environment and Public Works Committee. “But the only thing today’s proposed rule makes crystal clear is that this administration prioritizes the false promises of ‘energy dominance’ over clean water, even if it means defying the intention of Congress, undermining the Clean Water Act, and abandoning all pretense of cooperative federalism to do so.”
But in a post republished by the Institute for Energy Economics and Financial Analysis, S&P Global Market Intelligence says the new rule won’t likely have the impact pipeliners are looking for. “While the policy would likely shake up federal-state dynamics on infrastructure projects and appears destined for lengthy court battles, the proposed EPA rule is unlikely to prevent states from denying pipeline developers critical water quality permits, several lawyers and energy analysts said.”
“There is a plausible case to be made that this proposed rule is more of a victory for style over substance in terms of being able to effectively rebut recalcitrant state governments that are not interested in permitting new natural gas pipelines,” said Rob Rains, an energy industry analyst at Washington Analysis LLC.
“Superficially, you would say that more favourable guidance from the EPA strengthens the legal position of pipeline projects and LNG projects,” added energy analyst Katie Bays, a co-founder of research and consulting firm Sandhill Strategy. “However, because the guidance does not remove the ability of the states to reject an application for a water quality certificate, they can still do that.”
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