American Oil and Gas Reporter - November 2021 - 28

Biden Changing NEPA, WOTUS, ESA
Federal Regulations
By Del Torkelson
WASHINGTON-Political promises
may be famously flimsy, but it is hard to
dispute that President Biden has met campaign
promises to reverse many of President
Trump's policies. With few exceptions,
Biden has made a concerted and
well-publicized effort to zig almost everywhere
Trump zagged.
Chances are, the country's independent
oil and natural gas producers are training
a particularly wary eye on a trio of additional
regulatory reversals regarding some
prominent environmental statutes:
· Earlier this year, the Environmental
Protection Agency and the U.S. Army
Corps of Engineers announced plans to
revise the definition of " waters of the
United States " (WOTUS) for purposes
of federal regulation under the Clean
Water Act. Based on remarks EPA Administrator
Michael Regan made this autumn,
the agency aims to revive the Obama-era
interpretation the Trump administration
sought to end.
· The White House Council on Environmental
Quality in early October proposed
a rule about federal agencies' environmental
reviews under the National
Environmental Policy Act. Whereas
Trump-era NEPA reforms focused on efficiency
and cutting through " mountains
and mountains of bureaucratic red tape, "
under Biden, the CEQ's plans emphasize
regulatory thoroughness.
· In a move with implications for
federal Endangered Species Act enforcement,
the U.S. Fish & Wildlife Service
and the National Marine Fisheries Service
in late October proposed rescinding two
critical habitat regulations finalized in
the final weeks of the Trump administration.
The Trump-era changes included a
requirement that a threatened or endangered
species actually had to occupy land
that the government designated as critical
habitat for it (AOGR, Oct. 2020, pg. 87).
October also featured Capitol Hill
wrangling among Democrats about the
shape of an infrastructure bill and budget
reconciliation package. Both had served
as possible vehicles for provisions that
could harm the oil and gas industry
(AOGR, Sept. 2021, pg. 28). Early autumn
also saw numerous press accounts attesting
to Biden administration murmurs that
EPA was on the verge of releasing stricter
methane standards for oil and gas wells,
but that regulation had not been unveiled
as of press time.
28 THE AMERICAN OIL & GAS REPORTER
POTUS Changing WOTUS
The administration's WOTUS move was
precipitated in part by an Aug. 30 ruling by
the U.S. District Court for the District of
Arizona, in which Judge Rosemary Márquez
scuttled the Trump administration's Navigable
Waters Protection Rule and changed
the timeline by which Biden sought to act.
Amy P. Wang in the National Law
Review notes that the Biden administration's
regulatory proposal amounts to a
new definition of WOTUS that reverts to
an older one.
" In this latest installment, we have, in
effect, time-traveled back to 2008, " she
suggests. " The EPA and Corps recently
wrapped up virtual public meetings to
receive input from interested stakeholders
to revise the long-debated WOTUS definition
under the 2020 NWPR. The 2020
rule replaced the 2015 Clean Water Rule.
But only one week after the meetings
concluded, the agencies (have) announced
they are halting implementation of the
2020 Rule and will interpret the WOTUS
definition 'consistent with the pre-2015
regulatory regime until further notice.' "
Wang goes on to report that the administration's
about-face was prompted
by Márquez's Aug. 30 decision to vacate
the NWPR rule, which prevents EPA and
the Corps from retaining the Trump regulations
until a new WOTUS definition is
authored, as they indicated they would in
the June 2021 " Notice of Public Meetings
Regarding Waters of the United States. "
" Instead, the EPA and the Corps folded, "
Wang assesses.
According to media reports, the administration
is vowing a collaborative approach
that will incorporate stakeholder input. In
remarks at a virtual appearance before the
National Association of State Departments
of Agriculture in late September, EPA Administrator
Michael Regan predicted the
agency would release a proposal in November
that would reflect the pre-2015
regime, but which also reflected Supreme
Court rulings, and by next winter hoped to
issue a second rule based on that foundation.
Regan also said the agencies sought to
craft a WOTUS definition that would prove
more durable to legal challenges.
Even so, media accounts note, Kentucky
Commissioner of Agriculture Ryan Quarles,
who serves as president of the National
Association of State Departments of Agriculture,
voiced concern and frustration
on behalf of many who did not want to
see the Biden administration reverse
Trump's NWPR regulation. " Farmers and
ranchers need certainty, and they shouldn't
have to hire a team of lawyers or environmental
experts to understand if they are
subject to this rule or regulations for how
to comply with it, " Quarles is quoted.
Pacific Legal Foundation senior attorney
Tony Francois says Obama's 2015 WOTUS
definition created a groundswell of extensive
opposition and generated more than a
dozen lawsuits challenging its legality that
resulted in at least five federal court rulings
that unanimously struck it down. The definition
never was enforced, he notes.
" When it repealed the WOTUS rule,
EPA just went back to the rules that predated
the rule, " Francois recounts. " And
the sad truth is that these older rules are
just as unconstitutional and illegal as the
WOTUS rule, as the Supreme Court
found in 2006.
" The WOTUS rule worked a little differently
than the pre-WOTUS rules, but
both extend federal authority far beyond
the limits of the CWA, and far in excess
of congressional authority under the constitution, "
he clarifies.
New In NEPA
Regarding the White House's NEPA
proposal, the Council on Environmental
Quality on Oct. 6 announced it was proposing
the first of two regulations on the matter. It
claims the " Phase 1 " rule seeks to restore
three core NEPA procedural provisions that
were in effect for decades before being
modified for the first time in 2020.
" The 2020 changes caused implementation
challenges for agencies, and sowed
confusion among stakeholders and the general
public, " CEQ asserts. " These reforms
would restore durability and regulatory certainty,
cut down on conflict, deliver sounder
results on the ground, and aim to get more
American workers on the job building our
next generation of infrastructure. "
" Patching these holes in the environmental
review process will help reduce
conflict and litigation and help clear up
some of the uncertainty that the previous
administration's rule caused, " argues CEQ
Chairman Brenda Mallory.
The administration says the proposal
would change the 2020 rules by:
· Restoring the requirement that federal
agencies evaluate all the relevant environmental
impacts of the decisions they make;
· Restoring the full authority of agencies
to work with communities to develop
and analyze alternative approaches that
American Oil and Gas Reporter - November 2021

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