Pub.1 2019-2020 Issue 3

Energy and Environmental Law and Policy Under the Trump Administration (and Beyond) F racking, the Clean Air Act (CAA), the Clean Water Act (CWA), the Endangered Species Act (ESA) and the National Environment Policy Act (NEPA) are all regulatory policies that affect the petroleum industry. The last three years of the Trump administration and the possibility of an administration change beginning in 2021, signals the likelihood of signifi- cant changes for the oil and gas industries, among others impacted by Environmental Protection Agency (EPA) policies. A Review of the Last Three Years Fracking Fracking has been allowed to continue full-bore at the federal level, but the industry has had to fight off impediments at the state and local levels. Frack- ing would continue under a second Trump term. That might not be true if a Democrat is elected. Of the remaining candidates, both Joe Biden and Bernie Sanders would oppose fracking to show their climate-change bona fides. On Dec. 19, 2019, the U.S. Chamber published a study showing that a fracking ban would eliminate 19 million jobs. The study noted that oil and gas production employed approximately 470,000 people in 2018. The Labor Department estimates their wages at about $54 billion. If the Republican Party continues to control the Senate, it is unlikely that a legislative ban could be passed. However, if a Democrat is elected, the administration would write new executive branch regulations, issue new executive orders, curtail leasing opportunities, and reduce the industry’s tax advantages. These actions could make life difficult for the oil and gas industry. The effect of a ban would ripple out from the Rocky Mountain States. Gasoline prices would increase, tax revenues would decrease, and utility bills for heat and electricity would go up. The potential for severe consequences involving fracking make it the most significant priority nationwide for the oil and gas industry. As a result, how the party nominees position themselves about fracking matters. Clean Water Act During the 2009-2016 period, the Obama admin- istration expanded the federal government’s scope of the CWA through regulations and judicial enforcement. This expansion was possible because the statute does not define “navigable waters of the United States.” That leaves this important phrase open to interpretation. As you would expect: • Progressives view the phrase expansively. If two raindrops kiss on the top of a mountain and eventually form a trickle that leads to a creek and then to a stream, a navigable river and a navigable gulf, lake or ocean, then the entire path comes under federal regulation. As a result, permits have to be obtained if a project could impact the Waters of the United States (WOTUS). • Conservatives take a more limited view. The Congress that passed the CWA meant for the federal process to apply only when a water body was “navigable” in the sense of commerce. Under that perspective, federal 16 UP DATE