Environmental Law Under The Trump Administration June 24, 2017 James P. Rigano Rigano LLC 538 Broad Hollow Road, Suite 217 Melville, New York 11747 jrigano@riganollc.com

The Scream by Edvard Munch, 1893

E.P.A. Budget History President E.P.A Budget Range Richard Nixon (1969-1974) (R) $1 billion - $2.4 billion Gerald Ford (1974-1977) (R) $500 million - $700 million Jimmy Carter (1977-1981) (D) $2.7 billion - $5.5 billion Ronald Reagan (1981-1989) (R) $3 billion - $5.4 billion George Bush (1989-1993) (R) $5.1 billion - $6.6 billion Bill Clinton (1993-2001) (D) $6.5 billion - $7.5 billion George W. Bush (2001-2009) (R) $7.6 billion - $8.3 billion Barack Obama (2009-2017) (D) $7.6 billion - $10.3 billion

The Reagan Administration The E.P.A. and its central mission were criticized, regulations were viewed as an obstacle to growth, the agency was seen as bloated, inefficient, exceeding its congressional mandates and costing jobs. The Reagan administration promised to fix it all.

The Reagan Administration In 1981, Reagan chose Anne M. Gorsuch as the E.P.A Administrator. The Administration moved rapidly to slash budgets, reduce environmental enforcement and open public lands for mining, drilling, grazing and other private uses.  During her 22 months as Administrator (1981- 1983), she slashed the E.P.A. budget by 22%, reduced the number of cases filed against polluters, relaxed Clean Air Act regulations, and reduced the total number of E.P.A. employees.

The Reagan Administration There were many internal conflicts, resignations of key officials, complaints of documents being destroyed, and reports of secret meetings with officials of companies under investigation by the agency. When Congress charged the E.P.A with mishandling $1.6 billion the toxic waste Superfund, Gorsuch was forced to resign after she was cited for contempt of Congress for refusing to turn over the Superfund records.

The Reagan Administration In 1983, William D. Ruckelshaus, the E.P.A.’s first Administrator, returns as E.P.A. Administrator to restore stability. The public made it clear that it would not tolerate government backsliding on protecting American’s health and the environment. Ruckelshaus is widely credited for restoring public confidence in the E.P.A. and restoring the ability of the agency to carry out its legal mandate.

The Reagan Administration Year E.P.A Administrator Budget 1980 Walter Barber Jr. $4.7 billion 1981 Anne Gorsuch $3 billion 1982 $3.7 billion 1983 1984 William Ruckelshaus $4.1 billion 1985 $4.4 billion 1986 Lee M. Thomas 1987 $5.4 billion 1988 $5 billion

The Trump Administration Much like President Reagan and Anne Gorsuch, President Trump and his new E.P.A. Administrator Scott Pruitt, are firm believers that the federal government is too big, too powerful and too eager to issue regulations restricting business and growth. Taking the approach of downsizing federal agencies by delegating their functions and services to the individual states or eliminating them entirely.

The Trump Administration Trump’s recent budget outline included a 31% budget cut for the E.P.A. which could result in the loss of 3,200 E.P.A. jobs. Trump’s recent Executive Order instructs federal regulators to rewrite key rules curbing U.S. carbon emissions — namely the Clean Power Plan, which was intended to reduce greenhouse gas emissions from electric plants. The Order also seeks to lift a moratorium on federal coal leasing and remove the requirement that federal officials consider the impact of climate change when making decisions.

Will history repeat itself? Reagan v. Trump Will history repeat itself?

Traditional Environmental Programs and The Trump Effect Clean Air Act (CAA); Clean Water Act (CWA); Resource Conservation and Recovery Act (RCRA); and Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). CAA: Emissions Permits CWA: Pollutant Discharge Permits RCRA: Regulation of Hazardous Waste CERCLA: Liability imposed on Owners and Operators for surface and subsurface contamination. All are federal statutes administered by the E.P.A. Are big changes expected?

CHEVRON DEFERENCE Derived from the 1984 landmark United States Supreme Court case Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. Held that courts should defer to regulatory agencies when they interpret unclear laws passed by Congress, unless the agencies’ interpretations are unreasonable.

DIFFERING VIEWS ON CHEVRON DEFERENCE Anti Deference Views: Chevron say gives too much power to administrative agencies and has created a unaccountable fourth branch of government. Pro Deference Views: Judges are not as capable as administrators in interpreting laws that the regulators themselves put into effect and know on a daily basis. Chevron has become a legend in legal circles, it has now been cited more than 81,000 times.

CHEVRON TODAY The doctrine is now in the spotlight because one of its most prominent critics is U.S. Supreme Court Justice Neil Gorsuch. Gorsuch’s view on Chevron: “Whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies before them.”

THE FUTURE OF CHEVRON DEFERENCE Proposed bill called the “Regulatory Accountability Act of 2017” aims to end the long-established practice of Chevron deference. To date, the bill has been introduced and has passed in the House of Representatives on 1/11/2017.

GORSUCH, THE E.P.A. AND CHEVRON The doctrine may also be greatly affected by Trump’s choice for Supreme Court Justice Neil Gorsuch, who will likely seek to overturn the well established doctrine, or at least shift the ultimate power of interpretation to the judicial branch.