Trump policy changes face challenges

One of the highlights of my July each year is attending the Rocky Mountain Mineral Law Institute because mining lawyers and landmen from across the continent gather to hear presentations of interest to those of us who closely follow changes in resource development law. Each topical session of the presentations typically begins with a survey of new statutes, regulations and cases that affect mining law, oil and gas law, water law, public land law and environmental law. Primarily due to the extensive promises made by the Trump Administration regarding bureaucratic costs and delays associated with permitting resource development projects over the past several decades, the status of many of the proposed and pending changes were especially interesting this year.

The first successful major changes related to the Congressional Review Act, a long-ignored statute that requires agencies to submit regulations to Congress for review prior to promulgation. This law allows Congress, by a resolution, to declare a proposed regulation inconsistent with the underlying statutory intent and, when endorsed by the President, precludes the agency from adopting any similar regulation thereafter. Early in his administration, President Trump signed 15 recessions, including two that directly affected the mining industry – the Stream Protection Rule and BLM’s Planning 2.0 rule.

In addition, the President issued several Executive Orders (E.O.) of interest, including E.O. 13771, which requires for every one regulation issued, two regulations must be identified for elimination; E.O. 13776 “Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects,” which provides a path for fast-tracking certain environmental approvals; E.O. 13807, which requires the Council on Environmental quality to identify actions that will enhance the environmental authorization process; E.O. 13783, which was intended to end the “war on coal”; and E.O. 13868, which is intended to streamline rights-of-way renewals over public lands.

E.O. 13807 is of special interest because it was immediately followed by Interior Secretarial Order 3355 that directs new environment impact statements not to exceed 150 pages in length and not to take more than one year to prepare. This E.O. also facilitated approval of Donlin Gold, LLC’s project and the issuance to Donlin of a right-of-way for a natural gas pipeline and fiber optic cable.

The Department of the Interior has been especially active in implementing these E.O.’s, and that has precipitated numerous judicial challenges by environmental non-governmental organizations (ENGO’s). Challenges in the Northern District of California and the D.C. Circuit have decreed that repealing administrative rules and the lifting regulatory burdens will be closely scrutinized.

In addition, the Trump Administration was able to reduce the size of two National Monuments established by President Obama and to cause the greater sage grouse landscape conservation plan to be reconsidered. Challenges to the Monument re-designations are pending before the D.C. District Court on the theory that the President’s power to designate a National Monument does not include the power to reduce the size of a Monument.

Most frequently, ENGO litigation over the past fifty years has depended on the Roosevelt era Administrative Procedure Act (APA) that was originally intended to be a bill of rights for Americans whose affairs are regulated by federal government agencies. The standard for sustaining an action under the APA is that the government action is arbitrary, capricious or without basis in fact. Since the early 1970s the APA has been used by ENGOs successfully in innumerable cases, especially in the left-leaning Ninth Circuit. However, with changes that have been implemented by the current administration in the staffing of both the Ninth Circuit and the U.S. Supreme Court, it is possible that some of the more onerous precedents will be vitiated.

The APA was a good enactment at the time because the then-existing agency fiefdoms were out of control. It took a decade of hard work by Congress for the legislation to be drafted and enacted into law. On the other hand, the judicial overlay that has resulted from seventy-five years of interpretation has highlighted two specific difficulties. The bureaucratic morass that has ensued has made it much more difficult than ever for the average regulated citizen to get reasonable relief in an expeditious and economic fashion; and it has fostered substantial abuse by well-heeled ENGO’s that are quick to challenge any action that does not square with their narrow agenda.

Unless and until the APA is revisited by Congress with the intent of making government more even-handed and available to the general public, we shall have to rely on the courts to make more balanced judgments.