Energy

With the upcoming election cycle right around the corner, it is useful to explore the potential ways new leadership could shape energy and environmental policy. Democratic candidates for president have been campaigning on how they plan to change how the government handles the environment and the energy industry, especially Elizabeth Warren (D-MA) who has stated that on her first day in office, she plans to “ban fracking every-where”. With the potential for a new president and a democratic controlled congress, big changes could be in store for the energy industry.

In looking at a change in the White House, one of the key powers the President has is through executive actions. Executive orders enable the president to tell the entire executive branch to begin taking certain actions, such as to develop policies and proposed regulations or administer federal contracts in a particular way – provided that the instructions do not conflict with federal law. Executive orders are not legislation and cannot take the place of legislation, but executive orders do serve as an effective form of direct communication from the President to federal agencies.

Statements regarding fracking, such as those made by Senator Warren on the campaign trail, have raised concerns over whether or not a president could actually ban fracking via executive order. Despite these remarks, Senator Warren recognizes that banning fracking on federal land would require congressional legislation. Specifically, she has said she would fight for legislation to ban fracking nationwide and that she would build on the Obama administration’s methane rule and use executive authorities, not an executive order, to regulate contaminants to our air and water as a result of fracking and other natural gas operations.

That said, many federal and state agencies do play a role in regulating aspects of drilling and waste disposal, even on private lands. A motivated President could therefore use executive orders and executive power to make it economically challenging to engage in fracking, even if fracking itself was not banned.

In the case of private lands, the use of hydraulic fracturing of underground formations is governed primarily by state law, but the use and disposal of water is governed by the Underground Injection Control federal statutes that reside at EPA. Oil and gas producing states have been widely granted lead agency status by EPA to use their authority to regulate this. However, EPA still maintains its governing authority and has the power to pull back a state agency’s oversight. A change in a political party’s control of the White House can surely impact that decision.

Who controls the White House is especially true in oversight of federal lands. In 2015, the Bureau of Land Management under the Department of Interior, issued a series of fracking regulations that were meant to protect water resources and force companies to disclose the chemicals used in fracking. Wyoming and Colorado filed petitions for judicial review on the new rules and in 2016 a federal district court judge held that the administration’s regulations were unlawful. But this was in limbo, until a change in the Administration from President Obama to President Trump, and a Trump appointed Interior Department on December 29, 2017, rescinded the 2015 rule because it “[believes the rule] imposes administrative burdens and compliance costs that are not justified.” Therefore, who controls the White House matters.

A new president can suspend new leasing and impose new environmental regulations on all federal land leases. However, the president cannot change an existing lease for production unless it is somehow declared illegal or is part of the terms of the lease. In regards to Tribal lands, there is a statutory responsibility to consult with the Indian Tribes, but the BLM does have much of the same statutory authority over Indian lands as over federal lands.

Executive orders can be unpredictable as there is no set timeline for when they are allowed to be issued. In fact, executive orders can be issued on the new president’s first day in office, as President Trump did over matters such as orders expediting permitting of Keystone XL and the Dakota Access pipeline. But, as agencies implement these new presidential directives, judicial review, through legal challenges, have and are likely to occur. President Trump has systematically undone by Executive order what President Obama did on the Clean Power Plan, Waters of the U.S., and other major Obama energy and environment policy initiatives.

So a determined new president can essentially undo what President Trump has done through executive action. They can slow down cross border permitting, limit pipeline construction, and increase environmental permitting hurdles by eliminating the expedited reviews and concurrent reviews by federal agencies. If you review what President Obama did through executive orders on climate, energy and environmental policy, most all of those policies can be reinstated.

As the election cycle draws near, we have to remind ourselves that candidates often make promises that fall outside the scope of presidential power. As such, the next president wouldn’t be able to impose an outright national ban on fracking, drilling or pipeline construction. However, through executive orders and actions, the next president could significantly impact the regulations that are imposed on such activities as well as the leases that are granted on federal land, which is what we have seen happen under the Trump Administration.

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