American Oil and Gas Reporter - October 2020 - 66

pages 57-79_THIS ONE 10/13/2020 3:57 PM Page 66

Election2020: Industry Analysis
Regulation of energy production is evolving constantly. During the past
decade we have seen attempts to first tighten and then loosen many federal
regulatory requirements. How do you view (Biden's/Trump's) stance on
the state of federal regulations regarding hydraulic fracturing, methane
emissions, produced water management and U.S. waters subject to Clean
Water Act permitting? Which of these, if any, do you think (Biden/Trump)
believes are better regulated by the states than the federal government?
How do you think (Biden/Trump) views the concept of "cooperative
federalism" as it pertains to regulating oil and gas operations?
If Biden wins, look for the rules to change
again. For the most part, we think a Biden
administration would assert strong federal
primacy over the authorities of cooperating states,
but there are a couple of exceptions. Biden probably
would try to restore states' control over vehicle
choices and restrictions over infrastructure permits,
especially Clean Water Act Section 401. He would
have many tools to attempt these changes.
In cases where legal defenses of Trump-era rollbacks
are ongoing, a Biden administration could abandon
legal defenses by petitioning the courts to remand
the cases back to the agencies that issued the rules.
In cases of finished rules, Biden agencies could begin
the process of rewriting them.
Also, a Biden win seems likely to bring a Democrat-led House and Senate. That means Congress could
roll back some final rules with the Congressional Review Act. Trump showed the line on this putt: Republicans did it 16 times in 2017.
Going further in that scenario, if Democrats
eliminate the Senate filibuster, some previously untouchable environmental laws themselves could
change. That could be powerful, even if Congress
could not pass a sweeping climate bill because of resistance by producer-state Democrats.
Trump stocked the federal courts with judges who
read laws narrowly. The same judges who are inclined
to reject agency rules that take broad reinterpretations
of old statutes may also greenlight substantial changes
to the underlying statutes themselves.

66 THE AMERICAN OIL & GAS REPORTER

Where federal regulatory authority and regulations exist, the states working in conjunction
with the federal government (cooperative
federalism) always has been more effective, as envisioned by our Founding Fathers. All the statutes and
regulations referenced by the statement above have
been modified, based on real-world effects to improve
health, and environmental and economic outcomes.
Hydraulic fracturing has been practiced for more
than 50 years to produce energy more efficiently and
to drive prices down for American consumers. A
multitude of studies prove the technique is safe for
the environment and for public health.
Similarly, the industry has constantly sought better
ways to reuse and recycle produced water, the
disposal of which has represented a major portion of
production costs. Methane has never been proven to
be a pollutant under the Clean Air Act, and U.S.
methane emissions have declined steadily since 1990
without any federal regulation.
Over the past many years, the states-and private
individuals rolling up their sleeves to try new solutions-have proven to be much more effective at regulating this industry.

American Oil and Gas Reporter - October 2020

Table of Contents for the Digital Edition of American Oil and Gas Reporter - October 2020