Rush Of Federal Policies Back In Discussion That Affect Western Energy Landscape Prior To Election

Aug 7, 2020

Hana Vizcarra, staff attorney at Harvard Law School's Environmental & Energy Law Program.
Credit Hana Vizcarra

Several policies that affect the west and the energy landscape here are back in the news, including proposed changes to the National Environmental Policy Act, the Bureau of Land Management Waste Prevention Rule, and the Great American Outdoors Act.

On August 4, President Trump signed the Great American Outdoors Act into law. On July 29, three coalitions of environmental groups filed lawsuits challenging the final NEPA regulations. On July 29, the EPA made changes to how coal ash will be treated, including extending a deadline for discarding the waste in unlined ponds. On July 23, EPA the Nuclear Regulatory Commission signed a Memorandum of Understanding hoping to boost production of uranium.

Hana Vizcarra, staff attorney at Harvard Law School's Environmental & Energy Law Program, spoke with Wyoming Public Radio's Cooper Mckim about why so much action is happening right now.

Hana Vizcarra: Well, this is really the culmination of a three to four year long effort by this administration to review, rescind and revise prior rules, and it's a long process to do that. It takes some effort. And so some of these things are really just now coming to fruition and some of them had some false starts along the way.

EPA [U.S. Environmental Protection Agency] and Department of Interior both sort of went through these processes of suspending, attempting to suspend, delay and revise rules very quickly when new appointees came in, but the courts didn't necessarily like the process they took. And some of the rules now that are really just now getting substantively revised, or if they were finalized earlier in the term, are just now getting through the litigation process.

Cooper McKim: Is there any aspect of everything happening so quickly that has to do with the end of a four year term and getting closer to November?

HV: There's certainly an incentive for any administration to try to complete their biggest priorities early enough in the process to hopefully withstand challenges and get through some of the legal wrangling before they leave office.

CM: Right. Speaking of litigation, the BLM waste prevention rule has been pretty much wrapped up in it nearly since it came around in 2016. It looks to limit greenhouse gas emissions, specifically methane from oil and gas production. For those who don't know, it's now back in discussion after a judge reinstated the rule. Do you think that it's settled here, or will we continue seeing it in limbo?

HV: It's not fully settled yet. The most recent action was that a federal district court judge vacated the rule that the Trump administration put in place instead of the methane waste prevention rule, which was, you know, a near complete rollback of the prior rule. The Obama-era methane waste prevention rule had significant changes in requirements for oil and gas operations around controlling their venting and flaring of gas and requiring new technical reviews and inspections for leaks and… a whole host of things. The rule that was put in place by this administration rolled back much, nearly all of those requirements.

The recent... district court judge just reviewed the roll back, the Trump-era BLM rule and vacated it, which essentially puts back in place the 2016 rule. But it's not over yet, because that rule was in court as well in Wyoming actually, and the case that was challenging the original Obama-era rule has now restarted. So, parties are going to have an opportunity to also consider the the scope of the original rule and whether there is any legal basis to vacate that rule.

CM: And changes to NEPA are obviously, as wonky as it may seem, are very impactful. From energy producers saying they're being weaponized: this policy to slow down projects... to conservationists saying it's the bedrock environmental rule. Can you explain why recent moves were significant and give a little context to this story?

HV: Sure, yeah. NEPA is an incredibly important statute. It underlies our principles for requiring agencies and the government to consider the environmental impacts of their actions. And it's been around for a long time. It's been around since the [19]70s. And it has not had a lot of it really hasn't had a lot of updates. So what's happened recently is that the this administration and the Council on Environmental Quality… they've put out a final new NEPA regs, and they've made some significant updates. There's a number of changes that really attempt to narrow the scope of what an environmental review would look like from an agency. I think it remains to be seen how it's going to be applied. If they significantly narrow the scope of what they include in their environmental reviews, you're going to see advocacy groups challenge them as insufficient. And if that happens, a court will have to consider whether the new NEPA regs restrict environmental reviews to such an extent that they no longer fulfill the mandate of the NEPA statute.

CM: And then finally, and real quickly, the Great American Outdoors Act, which is widely considered a major step to help repair national parks and help conserve public lands. How do we parse this one in concert with all the other things we're talking about here?

HV: It's long overdue, and it's a reassuring result… it's reassuring that there are still opportunities for bipartisan efforts to move forward on important environmental issues. You know, I think it's gonna benefit our outdoor spaces and our parks. And, you know, it's good to see different factions of Congress were able to come together to support that.

Have a question about this story? Contact the reporter, Cooper McKim, at cmckim5@uwyo.edu.