It has been a year of momentous change in environmental protection and governance. As we look over the horizon to 2021, it’s clear that many traditional expectations about environmental protection have been changed in areas of water pollution, climate change, endangered species, and air emissions. Added to this are numerous procedural changes affecting rulemaking, cost-benefit analysis, use of scientific information, federal advisory committees, and a comprehensive rewrite of the National Environmental Policy Act (NEPA) regulations. The procedural landscape is in greater flux than at any time since the early 1970s. ELI has been seeking to aid practitioners and policymakers to think about what lies ahead.

It’s important to recognize that rulemaking activity has accelerated. This is affected by the Congressional Review Act (CRA), which provides an expedited process for legislative repeal of rules and which has a look-back period for rules adopted toward the end of a prior session of Congress. These provisions were used by Congress in 2017 to repeal 15 rules adopted by the Obama administration in 2016. Perhaps fearing a turnabout, the administration has been finalizing as many of its rulemakings as possible by June 2020 in order to avoid the possibility of CRA action in 2021.

Rulemaking processes are changing. EPA is overhauling its standard approach to cost-benefit analysis, last revised in 2010. And in April 2020, the agency submitted a draft rule to OMB which may limit or exclude consideration of “co-benefits” in air pollution rulemaking. EPA used this approach in its April 2020 final regulatory review of the Mercury and Air Toxics Standard for stationary sources. By excluding co-benefits from control of particulate matter, EPA concluded that regulatory and compliance costs from the rule exceeded the remaining direct benefits.

The “social cost of carbon” is another instance in which revised cost-benefit practices affect regulations and will do so in the future, unless revised. This concept assigns values to the damage caused or avoided by each additional ton of carbon-equivalent greenhouse gases emitted. The federal Interagency Working Group on the Social Cost of Carbon developed a uniform estimate in 2009 and updated it in 2016. In 2017, President Trump issued Executive Order 13783, disbanded the Interagency Working Group, and withdrew the documents it had produced. The Order instructed federal agencies to prepare their own estimates under general OMB procedures. EPA and other federal agencies have produced “interim” estimates for social cost of carbon for use in rulemakings, resulting in far lower numbers than those produced by the IWG.

Regulatory cost calculations are also significant in the context of the continuing effect of 2017’s Executive Order 13771, which requires agencies to repeal two existing regulations for every one adopted, and to achieve a specified level of regulatory cost savings each year. OMB instructed EPA to achieve net cost reductions of $40 billion in FY 2020, a huge deregulatory goal.

Executive Orders have played a major role in Trump administration policy management. EO 13777 directed federal agencies to identify existing rules for repeal, replacement, and modification. EO 13807 set in motion the proposal by the Council on Environmental Quality to replace the NEPA regulations. If implemented, these will remove many federal actions from environmental impact assessment, limit consideration of alternatives, and severely limit the array of impacts to be evaluated.

EO 13875 directed federal agencies to terminate one third of their advisory committees and conferred on OMB greater authority to determine the need for committees. EPA’s former Administrator ordered that the agency’s advisory committees exclude any member that benefits from any EPA grant. Members of the scientific community objected that this would result in exclusion of many of the most knowledgeable academic researchers. Several courts have ruled the order procedurally invalid. EPA also eliminated and downsized several of its scientific panels, and in February 2020 it removed the ability of its flagship Science Advisory Board (SAB) to determine its own docket. Just in the last year and a half, SAB has questioned the scientific bases for several of EPA’s high-profile regulatory rollbacks, including the redefinition of waters subject to the Clean Water Act, and the SAFE vehicle fuel economy standards, as well as EPA’s withdrawal of the “risk finding” underpinning the agency’s regulation of mercury and air toxics emissions.

In 2018 EPA proposed a rule to preclude the agency from relying on scientific data or models unless the data and models could be shared with the public. This proposal led to substantial concern, especially where data (including health data) had been collected under conditions of confidentiality. EPA’s supplemental proposal will result in similar limits and will be litigated.

In the enforcement area, the Justice Department determined that the federal government cannot legally accept Supplemental Environmental Projects in negotiated settlements despite a 35-year history of doing so. SEPs are agreements by an alleged violator to fund environmental benefits to communities and ecosystems affected by an alleged violation. Other forms of agreement are favored. EO 13892 required federal agencies to create procedures that link self-reporting of violations in exchange for waivers and reductions in civil penalties, and requires agencies to provide pre-enforcement rulings to regulated parties. In January 2020, citing the Executive Order, OMB issued a request for information seeking additional options to “protect Americans against the unjust or arbitrary exercise of governmental power.”

There’s a lot to keep up with, but the procedural changes are as profound and perhaps longer lasting than the substantive ones.