Every president rushes to lock in his agenda before leaving office: Bill Clinton protected tens of millions of acres of national forest from logging just before stepping down, and Barack Obama finalized a slew of rules on everything from energy efficiency to the disposal of toxic waste by dental offices.
But Trump has managed to usher through an unusually large number of energy and environmental policies in just a single term, according to a Washington Post analysis, and has finalized more than two dozen since he lost the election in November.
“Trump is the most anti-nature president in U.S. history, so it comes as no surprise that his administration is doubling down by selling off anything and everything before they leave office,” said Jenny Rowland-Shea, a senior policy analyst for public lands at the Center for American Progress, a liberal think tank. “What we’re seeing right now is a last-ditch, desperate effort by the Trump administration to rubber-stamp as many permits, sign as many contracts and cut as many protected areas as it can to make a mess for the incoming Biden administration.”
In the past week, for example, the Interior Department overturned an Obama-era measure that increased royalties that oil, gas and coal companies pay the federal government; cut 3.4 million acres in critical habitat for the northern spotted owl, which faces extinction; expedited approvals to lease more than 550,000 acres of the Arctic National Wildlife Refuge for energy development; and approved a four-lane highway through Utah’s Red Cliffs National Conservation Area, which had been permanently protected as a wildlife reserve 25 years ago.
In an email, Interior Department spokesman Nicholas Goodwin said, “The Department continues to implement its mission and statutory obligations for the American people.”
The oil, gas and mining industries stand to gain the most from these final rule changes.
On Friday, the Energy Department granted the natural gas industry’s petition to ensure less energy-efficient furnaces and water heaters remain on the market. The American Gas Association cheered the move for giving consumers more choices.
But Andrew deLaski, executive director of the energy-efficiency advocacy group Appliance Standards Awareness Project, said it could lock in pollution for years to come from home heating, a big if underappreciated source of greenhouse gas emissions.
“It’s a legal trick that is designed to tie the hands of the Biden administration,” he said. “This really matters for the climate.”
The U.S. Forest Service on Friday issued a final environmental impact statement and draft decision that would pave the way for a subsidiary of two mining giants, Rio Tinto and BHP Billiton, to develop the Resolution Copper Mine on an area in Arizona’s Tonto National Forest that is sacred to the San Carlos Apache tribe.
Also on Friday, Interior Secretary David Bernhardt signed an order to allow mineral leasing across 9.7 million acres in western Alaska, including on the Seward Peninsula and between the National Petroleum Reserve-Alaska and the Arctic Ocean.
And the Environmental Protection Agency finalized a rule Tuesday that exempts oil refiners, steelmakers and landfills from future carbon emission limits. EPA Administrator Andrew Wheeler said in a statement that the decision to exclude those industries “adheres to the specific requirement laid out in the Clean Air Act” that sectors contributing less than 3 percent of total gross greenhouse gas emissions nationally are not “significant” sources of pollution.
David Doniger of the Natural Resources Defense Council said that threshold is arbitrary and the decision could be legally vulnerable since it came “out of the blue,” without public comment.
Federal judges will likely decide the fate of that and many other policies.
In the case of the northern spotted owl, for example, U.S. Fish and Wildlife Service officials determined last month that the Pacific Northwest’s iconic bird should be upgraded from threatened to endangered under the Endangered Species Act. But the agency declined to do that, citing resource constraints, and on Wednesday it cut the owl’s protected habitat by more than a third, to 3.4 million acres.
Bernhardt and Interior Deputy Solicitor Karen Budd-Falen personally pushed for the move over the objections of agency scientists, according to two individuals familiar with the matter who spoke on the condition of anonymity to describe internal deliberations. As recently as August, officials indicated in court that they would scale back the habitat designation by 205,000 acres; the rule indicates Bernhardt exercised “his discretion” in expanding it.
In a statement, Fish and Wildlife Service Director Aurelia Skipwith called the changes “common-sense revisions.”
American Resource Forest Council President Travis Joseph, whose group challenged the Obama administration’s move to expand the owl’s protected habitat to 9.5 million acres in 2013, said in an interview that the decision reflected recent changes in the law and a 2018 Supreme Court decision. “This has been a 30-year conversation about balance in forest management, and frankly this is just the latest chapter,” he said.
But Susan Jane Brown, staff attorney at the Western Environmental Law Center, said the secretary had overstepped his bounds given the fact that the northern spotted owl’s numbers are declining due to land clearing and other threats. “You don’t have that kind of discretion,” she said.
Litigation is not the only route to overturning these decisions. Biden’s allies in Congress are already eyeing rules they can abolish under the Congressional Review Act, which nullifies regulations within 60 legislative days of enactment by a simple majority vote and the president’s signature.
Sen. Brian Schatz (D-Hawaii) said in an interview that they need to be careful because once repeal is enacted, the law prohibits issuing a rule that’s substantially similar to it. “Part of what we have to do is coordinate very tightly with the Biden administration,” he said.
But it may take Democrats years to overturn some rollbacks. On Friday, the EPA formally abandoned plans kicked off under Obama to restrict the use of three toxic chemicals used to remove paint, degrease machine parts and remove spots through dry cleaning.
Richard Denison, a lead senior scientist at the Environmental Defense Fund, said the agency’s decision to scrap the rest of the proposed restrictions “will make it hard for the Biden administration to resuscitate those actions.”