Ted Niblock

June 7, 2017 | General

BioEnergy Outlook: Complicated Governing — Who Knew?

Ted Niblock

Ted Niblock
BioCycle June 2017

With a fiercely divided House of Representatives, and a Senate usually unable to muster 60 votes in favor of any significant legislation, the White House is left to hope it can advance its policies with executive orders, lengthy and complicated regulatory reform, and special legislative actions only requiring a simple majority. Sound familiar? That sentence has been repeated, in one form or another, since 2010. It is, however, more than a bit surprising to see it is still true after last November’s election results.
There was good reason to fear that a Congress and White House controlled by the same party would march in lockstep and throw their coordinated efforts into dismantling many policies with which they disagreed. There was a lesser but real risk that policies helpful to biogas might be among those targeted. While things obviously could change, it seems for the moment opponents of the green economy have gotten bogged down.
Efforts, such as they have been, to attack the basic policy structure of the previous government have been limited to three areas, none of which have been very effective. They are the Congressional Review Act, Executive Orders, and regulatory reform.

Congressional Review Act

Passed into law in 1996, this law allows a new Congress to overturn regulations from the final six months of the previous administration, but only for a short time period in the beginning of the new session. The argument for this law was an outgoing administration should not be able to put out large numbers of “midnight” regulations before leaving office. In reality this doesn’t happen because, as discussed below, creating and finalizing regulations is complicated. Nonetheless, for the first 60 working days of a new Congress, a simple majority of both houses can repeal any regulation from the final six months of the previous President, and if the new President signs the bill then the regulation is gone.
This is a very important tool right now (or was, since the 60 working days expired on May 10) because it does not require Senate Republicans to get 60 votes, just a simple majority. It also bypasses a rule change process, which takes a long time.
It sounds like something out of a game show, really, conjuring an image of Mitch McConnell running through a Costco® grabbing regulations off the shelf and tossing them in a bucket of fire while the crowd counts down the clock. Given how horrible the Obama administration supposedly was from the GOP’s perspective, you’d think there would have been dozens and dozens of rules thrown in the fire, but they only managed 13. Although many had significant impact on protections for the environment, labor, consumers, and public safety, none of the changes will directly affect biogas.
There was one failed attempt, in fact the last just before the deadline, which might be of passing interest. It was an attempt to repeal an Obama-era rule that limited the amount of methane allowed to leak or be vented into the atmosphere during oil and gas production. It failed to obtain even a simple majority in the Senate, losing 51-49, with Republican Sens. Susan Collins of Maine, Lindsey Graham of South Carolina and John McCain of Arizona joining Democrats in voting against.

Executive Orders

The President’s Executive Orders to date have been, with few exceptions, essentially press announcements bearing his signature. They are often touted as “undoing” some key Obama policy, but in fact almost always simply create some new task force or study, not substantive change. In other cases the orders simply instruct his cabinet secretaries to look into the issues at hand, which he could just ask them to do in a meeting instead of signing an Executive Order.
There have been a few which were substantive (and within his power, see below) such as reimposing the “global gag rule” that denies U.S. foreign aid to overseas groups that provide family planning advice, and reversing of the rejection of the Keystone pipeline. But by and large the power of an Executive Order to undo a final rule or regulation (to say nothing of a law) is pretty limited.
To understand this limitation, it is instructive to look at the experience the new President had with one of the few orders that did have teeth, his controversial “travel ban.” What happened was he got sued, a lot, and even now there is no ban in place. It turns out that most of the Obama-era policies were actual regulations or rules, which means … regulatory reform.

Regulatory Reform

As close watchers of federal policy know, the promulgation of regulations and the making of rules, or what we generically refer to as the “rulemaking process,” is a giant hassle. There are notices of proposed rulemaking, and then comments, and then sometimes the whole thing gets tossed to a task force for two years, or a stakeholder group, then there is a proposed rule, then more comments, then finally, sometimes years later, there is a rule or a regulation, at which point there is a giant maelstrom of litigation by all affected parties.
To undo, weaken or change any of these requires the same set of procedures. In fact, even this column mistakenly reported that the Obama Clean Power Plan (CPP) limiting carbon emissions might be undone by an Executive Order. That was wrong. The Trump transition team claimed they had such an order ready, but in retrospect, it should have been obvious that the CPP was a rule enacted by the Environmental Protection Agency, so Trump’s EPA will have to go through a new rulemaking process to rescind or even revise it. This will require the same process, filled with legal, scientific, and procedural challenges.
In general, weakening regulations will be a grinding war of attrition. The EPA recently asked for public comment on potential rules it could roll back, and there are already over 30,000 comments, (incidentally nearly all opposed to rolling back any rules). Once they finally pick the regulations they want to attack, the career staff will fight them every step of the way, and then the agency will likely get sued. In fact, the ultimate irony of the Pruitt EPA will be that the man who sued the EPA at every opportunity will now be sued whenever he tries to neuter it.
If the new administration wishes to govern as hostile to green economy issues as it said it would on the campaign trail, it can still do things like order people to stop working, deny the agencies resources, etc. so there is real harm that could be done. However, the real policies in place will require significant effort and expertise in government to change, and neither effort nor expertise seems to be in abundance these days at 1600 Pennsylvania Avenue.
Ted Niblock develops anaerobic digester projects in the U.S. and abroad.

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