American Oil and Gas Reporter - March 2017 - 30

rection it all may move, delegating more
authority to states is one suggestion Fuller
speculates could be included. He points to
BLM's hydraulic fracturing rule as a relevant example, noting that for decades the
federal government had let states set well
construction standards.
Expediting licenses to export liquefied
natural gas is another area where this memorandum could be useful, he projects, by
ensuring the responsibility shared by the
Department of Energy and the Federal Energy Regulatory Commission is structured
as effectively as possible.
"Another area I think you would be

30 THE AMERICAN OIL & GAS REPORTER

looking at, in general, is streamlining
NEPA rules," Fuller continues. "Some of
that could overlap into endangered species
determinations and delegation of authority to states."
Reducing Regulation
The "Presidential Executive Order on
Reducing Regulation and Controlling
Regulatory Costs," signed by President
Trump on Jan. 30, is perhaps his most
groundbreaking early action, although
Fuller points out, "These kinds of things
have been talked about quite a bit, but I
don't think anyone ever has done anything

as clear cut as what (Trump) is doing now."
He notes that the order has two parts.
The first states, "Unless prohibited by law,
whenever an executive department or
agency publicly proposes for notice and
comment, or otherwise promulgates a
new regulation, it shall identify at least two
existing regulations to be repealed."
The second part mandates that in fiscal year 2017, "The total incremental
cost of all new regulations, including repealed regulations, to be finalized this year
shall be no greater than zero."
Then in FY 2018 and beyond, the order stipulates that the Office of Management and Budget "shall identify to agencies a total amount of incremental costs
that will be allowed for each agency in issuing new regulations and repealing regulations for the next fiscal year."
Basically, Fuller characterizes, "There
will be a number each year that is the burden of regulation the federal government
can impose on the U.S. economy. Conceptually, you can't put new regulations in
place that add burden unless you are revising or eliminating old regulations that
are imposing a burden already."
Former U.S. Senator Lloyd Bentsen, DTx., introduced a regulatory budget act as
far back as 1978, Fuller recalls. "So the
idea has been around for a long time, but
obviously it tends to get resisted by most
presidents, and is very hard to get through
Congress as well."
As is the case with streamlining permits
and expediting environmental reviews,
Fuller and Guith say, reducing regulatory burdens is easier said than done.
For example, Fuller poses, "If EPA is
adding an air rule, do two air rules have
to be repealed? Or can you do one air for
two water rules? Can you do one air for
a health and safety rule? How does that
process work if you are an agency stepping
into another agency's turf, or even within laws under one agency?"
"You can't simply go around, willy-nilly, eliminating regulations," Guith affirms.
If a regulation was created through an
Administrative Procedure Act process, he
reasons, that same process must be used
to rescind it, including publishing notice,
accepting comments and seeking stakeholder input, and potentially doing an environmental impact analysis.
Anything less, Guith and Fuller agree,
makes repealing a regulation vulnerable to
the inevitable lawsuit by its proponents.
But while he allows that "it is impossible to tell what this executive order
means in real life," Guith responds, "It is
a positive step forward. It forces agencies
to think about regulations that perhaps are
past their primes. Regulations get passed
and almost never have clocks on them;

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American Oil and Gas Reporter - March 2017

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