The first week of the Trump administration has been eventful to say the least. We are providing this analysis as a benefit of ACRA membership. We also invite you to join us for a Members-Only webinar to discuss ACRA’s advocacy strategy and to answer your questions about the latest policy issues on February 10 at 2:00pm Eastern. Registration is free; sign up here. Registration is limited to the first 100 members to sign up.
Congress Moves Quickly on Regulatory Reform
The House of Representatives passed two regulatory reform bills in the first days of the new Congress that have the potential to affect the CRM industry.
Background: The Constitution establishes three branches of government with checks and balances: Congress makes the laws, the Executive enforces them through federal agencies and regulations, and the Courts interpret the laws. Many members of Congress have long expressed disapproval of a “runaway regulatory state” and have been trying to put more power in the hands of Congress to influence federal agencies. Others have expressed concern that putting regulatory authority in the hands of Congress, rather than the Executive, would undermine Constitutional separation of powers. Members of Congress have also been concerned that the Courts are deferring to the agencies too much and not providing a check on agency rule making. Long-standing jurisprudence calls for courts to defer to agency expertise when Congress is silent on an issue. This deference to agency interpretations of the law is called the Chevron doctrine, after a court case from the 1980s in which Chevron Corp. was a party.
The Regulations from the Executive in Need of Scrutiny (REINS) Act requires federal agencies to submit their existing regulations to Congress for approval or disapproval. Each federal agency would submit 10% of its regulations to Congress each year for 10 years. If the REINS Act becomes law, it would bog down Congress in review of existing regulations and create great uncertainty as to whether existing regulations, like 36 CFR 800, would be approved by Congress.
The Regulatory Accountability Act (RAA) would repeal the Chevron doctrine, constrain agency development of guidance, require Congressional approval of certain new regulations, and delay implementation of major regulations until court challenges are exhausted. The result would be a clogged court system and a dramatic slowdown in any new regulatory activity at the agencies. The Act would also require agencies to consider indirect impacts, as well as direct costs, of proposed regulations on small businesses— and require all federal agencies to convene panels of small business representatives to review rules that have a significant economic impact on small firms.
Our Analysis: While ACRA is pleased to see an emphasis on regulatory relief for small businesses in the RAA, we are concerned that these bills would dramatically slow down federal permitting of critical infrastructure, causing delays in construction by subjecting agencies’ compliance with NEPA, the NHPA, and other federal laws to interminable litigation. Necessary energy, transportation, and other critical projects will languish and may be shelved for lack of schedule predictability and financing that relies on timely federal permitting decisions.
Next Steps: The REINS Act and the RAA have been transferred to the Senate for consideration. ACRA is circulating an organizational sign-on letter to our preservation partners that we will send to Senators. We will be asking ACRA members to call their Senators in the next couple of weeks to express concern about these bills if it looks like the bills may get the 60 votes needed to pass the Senate. Stay tuned for detailed instructions and talking points.
President Trump Issues Executive Orders on Infrastructure Reviews, DAPL, Keystone, and New Regulations
President Trump has issued several executive orders and memoranda in his first week that are of concern to ACRA members. Executive Orders are expressions of administration policy. They cannot make new law, or contradict laws that have already been passed by Congress. The text of the executive orders reveals that they are primarily political statements that do not radically change the status quo.
Order on Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects: This order establishes a way for agencies to designate projects as “high priority” and receive expedited review schedule from Council on Environmental Quality, within existing NEPA practice. If they don’t keep to the schedule, agencies will have to explain why not. Note that the order does not waive any provisions of NEPA or NHPA— both laws still must be complied with fully. This designation of “high priority” projects is quite similar to the approach that President Obama took in his 2012 executive order establishing the federal infrastructure permitting dashboard for high priority projects. The likely result of this executive order is more emphasis at permitting agencies on finding efficiencies and strategies for completing the NEPA and Section 106 process so that they can meet deadlines on high priority projects. Read the text of the order here.
Presidential Memorandum Regarding Construction of the Dakota Access Pipeline: While news outlets reported that this memorandum green lights the Dakota Access Pipeline, the President does not have the authority to waive NEPA and order the pipeline be built. In the text of the memorandum, the President states that he believes the project is in the public interest and urges the USACE to reconsider its call for an EIS on the project and to review and approve the project in an expedited manner. USACE must still comply with NEPA. Note that USACE, Energy Transfer Partners, and the Standing Rock Sioux are still parties to ongoing litigation on the project. While USACE will be under great political pressure to reverse course and approve the project, it will take some time for the pipeline approvals to be sorted out. Read the text of the memorandum here. Read the text of the memorandum here.
Presidential Memorandum Regarding Construction of the Keystone XL Pipeline: In this memorandum, the President invites Transcanada to re-apply for permits for Keystone and orders the Secretary of State to reach a permitting decision within 60 days of receipt of the application. He urges the State Department to consider the Final EIS that was issued in January 2014 to satisfy NEPA requirements (and not require updating.) Note that agencies must still comply with NEPA, and it is likely that such an expedited review would expose the agencies to challenges in court. Read the text of the memorandum here.
The President also issued a freeze on any new regulations from the agencies. Such a freeze is somewhat expected as a new Administration comes in with new priorities, and to give time for new political leadership to be installed. It is not clear how long the regulatory freeze will remain in place.
The President also directed Homeland Security to begin building the southern border wall he called for during the campaign. Existing law allows the administration to waive NHPA and NEPA for construction of the border wall.
Congress will use its authority pursuant to the Congressional Review Act to rescind some of the regulations issued in the waning days of the Obama administration. For a list of rules at risk, see here. ACRA is particularly following the fate of BLM’s Planning 2.0 rule, which ACRA commented on last year.
The Trump Administration is putting together its promised $1 trillion infrastructure package. A list of projects the administration is considering has been leaked, and it includes road, bridge, and ports projects. The funding mechanism for such an infrastructure initiative remains unclear; during the campaign, the President supported funding through tax credits to the private sector. We will be monitoring the infrastructure proposal closely to make sure that Section 106 and NEPA are not circumvented.
President Trump is also putting together his budget proposal. We have heard that he plans to call for elimination of the National Endowment of the Humanities and the National Endowment of the Arts. He also plans major cuts to domestic spending, especially at the Departments of Transportation, State, and Justice. We expect the budget will be released in mid-February if the administration keeps to regular schedules.
What You Can Do
1. Sign up for ACRA's Advocacy Strategy Session Webinar to be held Feb. 10 at 2pm Eastern
2. Contribute to ACRA's Advocacy Fund
3. Join us in Washington for Preservation Advocacy Week, March 14-16: ACRA members will join together with NCSHPO, Preservation Action, the National Trust, and others to take our message to the Hill. Register here. ACRA has a room block at the Fairfax Embassy Row ($245/night). We will send the link for booking at the hotel when it becomes available early next week.
4. Follow us on Facebook and Twitter (@acracrm) for the latest updates!
5. Watch your email Inbox for calls to action!