Full Attack on Environmental Regulation

Media reports are numerous and some go into some depth, so rather than attempt to summarize or provide much detail about what the latest executive order entails, I’ll simply state it guts environmental regulation.

At some point in the future, this administration is going to be rightfully chastised for its role in debasing the global environment. For now, we have to live with the ignorance, greed, and corruption associated with it.

Official Title: Presidential Executive Order on Promoting Energy Independence and Economic Growth

Executive Order posted March 28, 2017.

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Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule

I can’t help but chuckle at the hyperbole in the title of this order. Does the “Rule of Law” really need to be “restored”? Will this rather narrow executive order restore “Federalism and Economic Growth”? This reads a lot like one of his speeches full of grandiose promises.

Essentially this order gives direction to the EPA Secretary and Assistant Secretary of the Army for Civil Works to revise or replace the final “Clean Water Rule: Definition of ‘Waters of the United States,”. It also directs them to communicate with the Attorney General regarding current litigation related to the rule.

In addition, the order requests consideration of the definition of “navigable waters” to be brought in line with an opinion of Justice Antonin Scalia in the decision of Rapanos v. United States, 547 U.S. 715 (2006).

I attempted to skim the lengthy opinion by Scalia (joined by Roberts, Alito and Thomas) to understand the point of this being cited in this order. It appears to be a return to earlier understanding of the meaning of navigable water as “waters that are actually navigable”. The Army Corps of Engineers had expanded the definition to include other waters including swamp lands, etc. Definitions are important in law and it makes sense to revert to the actually navigable definition, from my point of view, because it is the common reading of the language. What complicates matters is the original Clean Water Act of 1972 used a different term – the Nations waters – and under that term, the Army Corps understanding of waters actually makes good sense as well.

Ultimately, this order means the dismantling of environmental protections is beginning as promised.

Executive Order posted February 28,2017.

Actions Dated January 24, 2017

Four memoranda and one executive order were signed and posted. Most have been thoroughly covered in news reports, so my comments will be limited. The overall impact is to significantly shift policy with regard to the environment.

  • Presidential Memorandum Regarding Construction of the Dakota Access Pipeline

Basically reversing the most recent action by the Army Corps of Engineers that initiated an environment review before deciding on approval of the pipeline. It’s result is to expedite the completion of the Dakota Access Pipeline.

  • Presidential Memorandum Regarding Construction of the Keystone XL Pipeline

This memorandum invites the TransCanada Keystone Pipeline company to re-submit a request to the Secretary of State reversing a decision by the Obama administration.

  • Executive Order Expediting Environmental Reviews and Approvals For High Priority Infrastructure Projects

Establishes a procedure for designation of high priority projects (within 30 days of a request) and when so designated to expedite all reviews, permits, etc.

  • Presidential Memorandum Regarding Construction of American Pipelines

The gist is in the following quote:

“…use materials and equipment produced in the United States, to the maximum extent possible and to the extent permitted by law”

  • Presidential Memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing

“This memorandum directs executive departments and agencies (agencies) to support the expansion of manufacturing in the United States through expedited reviews of and approvals for proposals to construct or expand manufacturing facilities and through reductions in regulatory burdens affecting domestic manufacturing.”

 

 

Actions of January 12, 2017

Yesterday a total of eight actions were added to the White House website. All are more or less routine although some are more significant in their importance.

Three Executive Orders
  • Executive Order — Amending Executive Order 11016 to Update Eligibility Criteria for Award of the Purple Heart

This order is routine in the sense that it appears to be just updating a previous order to include more recent definitions of hostilities and department names, such as Homeland Security.

  • Executive Order — Designating the World Organisation for Animal Health as a Public International Organization Entitled to Enjoy Certain Privileges, Exemptions, and Immunities

A short, simple order to add this international organization to the list of recognized entities.

  • Executive Order — Exclusions from the Federal Labor-Management Relations Program

Due to national security, some department, agencies and programs are exempt from the normal labor law requirements with regard to collective bargaining, etc.  This appears to be a routine updating of those exclusions.

Five Proclamations

Two of the proclamations have to do with the environment. Both build on National Monuments established by President Clinton in 2000.

  • Boundary Enlargement of the Cascade-Siskiyou National Monument
  • Boundary Enlargement of the California Coastal National Monument

Three proclamations are related to civil rights in one way or another.

  • Presidential Proclamations — Establishment of the Birmingham Civil Rights National Monument
  • Presidential Proclamations — Establishment of the Freedom Riders National Monument
  • Presidential Proclamations — Establishment of the Reconstruction Era National Monument

I believe these three proclamations are very important for the country as a whole to not forget the past and to celebrate individuals and groups who have made a difference.

One Memorandum
  • Presidential Memorandum — Promoting Diversity and Inclusion in Our National Parks, National Forests, and Other Public Lands and Waters

I’ll simply quote from the memorandum one paragraph that says it all:

“The purpose of this memorandum is to ensure that all Americans have the opportunity to experience and enjoy our public lands and waters, that all segments of the population have the chance to engage in decisions about how our lands and waters are managed, and that our Federal workforce — not just the sites it manages — is drawn from the rich range of the diversity in our Nation. In this memorandum, “diversity” refers to a range of characteristics including national origin, language, race, color, disability, ethnicity, age, religion, sexual orientation, gender (including gender identity), socioeconomic status, veteran status, and family structure. The term “inclusion” refers to a culture that connects each employee to the organization; encourages collaboration, flexibility, and fairness; and promotes diversity throughout the organization so that all individuals have opportunities to participate and contribute to their full potential.”

All actions posted January 12, 2017.

 

Four Proclamations of December 28, 2016

All four proclamations signed December 28, 2016

Not every presidential proclamation makes the news, but this day, two  were widely reported because of their controversial nature. Several of the media saw the actions establishing two more National Monuments in the western U.S. as the President thumbing his nose at the opposition to the broad powers given to every president by the Antiquities Act (section 320301 of title 54, United States Code).  The original act of Congress is labeled American Antiquities Act of 1906 (16 USC 431-433).

No one disputes the power of the president in this regard, but it remains to be seen if new congressional action in the coming months or years will strip this power from the president. All previous attempts to do so have failed.

The two non-controversial proclamations declared January 2017 to be:

  • National Mentoring Month, 2017
  • National Slavery and Human Trafficking Prevention Month, 2017

Both are self-explanatory in their titles.

The two new monuments established by proclamations are:

  • Bears Ears National Monument (Southeastern Utah)
  • Gold Butte National Monument (Southeast Nevada)

Judging from the detailed descriptions of the lands designated for the monuments, these proclamations are important and warranted for environmental as well as cultural and aesthetic reasons.

Executive Order — Northern Bering Sea Climate Resilience

Issued December 9, 2016

This is an extensive order establishing a number of important initiatives with regard to the Bering Sea and the changing climate conditions. It refers to a previous executive order as a base upon which this is built. Among other things, the order creates a task force co-chaired by offices from three departments/agencies (Department of Interior, National Oceanic and Atmospheric Administration, Coast Guard) to implement the order.

In addition, the order establishes The Bering Intergovernmental Tribal Advisory Council as a means for effectively communicating with and honoring the traditional knowledge of the Alaskan Native tribal governments.

Issues addressed by this order include leases, pollution by ships, shipping lanes, etc.

I am pleased to see the establishment of structures that will help monitor and counteract environmental changes in the region, but more importantly that will provide official ways for communication of tribal governments.