Mr. Trump made cutting regulations a central promise of his campaign. At one point he suggested 70% of federal regulations could be eliminated. Although his staff quickly walked that number back, there is little doubt that at least a few EPA regulations will be among those the administration will target.
An agenda that involves a thoughtful attempt to revise and simplify the environmental title of the Code of Federal Regulations would be a welcome development and might receive broad support. Observers from most of the political spectrum will concede there are at least some incidents of over-regulation and counterproductive micro-management for which the EPA is responsible. According to the Heritage Foundation, the annual cost of EPA regulations enacted during the Obama Administration constitute nearly half of all new annual federal regulatory costs imposed during that period. Examples of over regulation abound in all spheres of environmental law, where it now takes specialists to understand each subdivision of the regulations. For those who want examples, see the “verified recycler” exemption at 40 C.F.R. 261.4(a)(24), any portion of the land disposal restrictions at 40 C.F.R. Part 268, or the newly issued New Source Performance Standards and Emission Guidelines for Municipal Solid Waste landfills.
It is too early to know whether Mr. Trump will strike the right balance. His campaign was short on the relevant details. There were a few areas, however, where he got specific. Some of President Obama’s signature environmental regulations are likely to be completely abandoned. One way or another, the Clean Power Plan is dead. At the moment the statutory challenge to it is awaiting adjudication by the full panel of the U.S. Court of Appeals for the D.C. Circuit. But if his harsh criticism of the rule in the past left any doubt, Mr. Trump recently announced he would appoint an unabashed climate skeptic to lead his EPA transition team.
Similarly, it is likely only a question of how, rather than whether, the United States will reverse course on the Paris Agreement on climate change. Among Mr. Trump’s options are to formally exit the deal through the process it provides, but that would mean America would still be bound by it until 2020. He may choose instead to simply ignore the agreement by failing to implement the Clean Power Plan or any other policy that would cause the country to meet its voluntary goals; there is no punishment mechanism in the agreement for those that fall short.
The Clean Water Rule, which was supposed to resolve the issue of jurisdictional limits of the Clean Water Act, will also not survive, at least in its current form. Before the election it was already being challenged by opponents, on whose behalf 88 Republican members of Congress filed an amicus brief arguing that the agency was expanding its jurisdiction beyond what was intended by the statute and encroaching on the States’ authorities. And Mr. Trump has excoriated the rule on the campaign trail and said he would eliminate it. He will now be able to do that. Look for Mr. Trump to instruct the Justice Department to stop defending the rule in court.
The circumstances Mr. Trump faces with respect to the Clean Water Rule, however, highlight the flaw of his over-simplistic attacks on the quantity of EPA regulations. Many regulations do not actually impose costs and burdens themselves. To the contrary, they give clarity and predictability to otherwise ambiguous statutes. The Clean Water Rule was intended to establish when Clean Water Act permits are required. Without it, costly and time consuming case-by-case evaluations will be necessary. If Mr. Trump is truly concerned with cutting bureaucratic red tape he will act swiftly to replace, rather than eliminate, the Clean Water Rule.
Mr. Trump has talked less about President Obama’s GHG emissions standards for light-duty vehicles, which were designed to double the fuel efficiency of new cars and trucks between 2011 and 2025. A mid-term review of these regulations was already scheduled, and the auto industry sees an opportunity. This week, the Alliance of Automobile Manufacturers wrote to President-elect Trump asking him to reduce the targets.
There are probably not any monumental changes coming to the regulations that govern the waste and recycling industry. Several likely policies could provide an indirect boon to business, however. Corporate tax cuts, a one-time allowance for repatriation of foreign domiciled profits, or a big infrastructure bill would each likely result in higher volumes of waste for disposal. Gas to energy businesses may not fare as well as focus shifts back to fossil fuels though.
As we learn more about Mr. Trump’s energy and environmental plans, we will keep you updated here.