Trump's First 100 Days: Environmental
At a high level, President-elect Trump is expected to issue executive orders to pause pending rules, use the Congressional Review Act to withdraw recently finalized rules, and halt agency activity while the administration develops its own environmental priorities. However, Trump has not yet specified how he will achieve deregulation while maintaining high environmental standards.
AT A GLANCE
- Trump has nominated former GOP Congressman Lee Zeldin to lead the Environmental Protection Agency (EPA). Zeldin has little experience in environmental issues or policies but voted against a Republican amendment that would have slashed EPA funding in 2020.
- For environmental initiatives currently in litigation, the Trump administration has various avenues to delay or reconsider rules themselves and/or rule implementation.
- While the Trump administration is unlikely to pursue PFAS regulation as aggressively as the Biden administration, the drinking water rule stands to benefit millions of people across the country with significant sources of PFAS. The Trump administration may seek to raise limits instead of a wider repeal.
President-elect Trump has promised to focus on "America First policies" while maintaining the "highest environmental standards, including the cleanest air and water on the planet." To accomplish this, we expect Trump to issue executive orders to pause pending rules and delay effective dates of newly finalized rules, work with Congress to use the Congressional Review Act to withdraw rules recently finalized and halt agency activity while the administration formulates its own environmental priorities. This will affect rules impacting the power, mining and oil and gas sectors, major federal actions, water quality certifications and the Endangered Species Act. In the first Trump administration, the rollout of new rules and replacement of Obama-era rules was, at times, chaotic. This time, the Trump administration is likely to act swiftly and be better prepared for legal challenges. One such scenario for the rollout is described in Project 2025.
From an enforcement perspective, we expect the Trump administration to pause pending matters while it determines its priorities to ensure consistent enforcement positions. In the early years of the Trump administration, enforcement numbers dropped more than 20% from Obama-level enforcement, falling as much as 35% during the pandemic. While enforcement has increased slightly under the Biden administration (an approximately 10% increase since the pandemic drop), numbers have not nearly rebounded to levels seen during the Obama administration. In addition, the use of supplemental environmental projects may again be limited despite widespread support from the industry as they allow inside-the-fence improvements or have community benefits.
Clean Air Act
The EPA's recently promulgated power plant rule, the Mercury and Air Toxics Standards Residual Risk and Technology Review and strengthening of the National Ambient Air Quality Standards are in various stages of litigation at the U.S. Court of Appeals for the District of Columbia. The Trump administration is likely to seek voluntary remand, initiate new rulemakings on the same topics with a focus on repealing or replacing the challenged rules, request to hold the cases in abeyance and/or change its defensive position for these cases. As a result, each of these rules could be significantly changed during the new administration. On a global scale, the United States' participation in the Paris Climate Agreement is also likely to be withdrawn.
Other key rules are final but have not yet been challenged, such as the methane rule for the oil and gas sector and the hydrofluorocarbons rule. For these, the Trump administration will have the opportunity to develop its own defensive positions if litigation is initiated, or to prolong the effective dates while they are reconsidered.
A number of other proposed and final rules, approvals and disapprovals are also in the hopper, including the new source performance standards for combustion turbines, dozens of state implementation plans under the regional haze rule, good neighbor ozone standard, and a variety of other air items. Just the reevaluation of developed rules stands to be a sea change for the agency. When combined with new enforcement priorities, the Trump-EPA is expected to be materially different, immediately, from the Biden administration.
Clean Water Act
The final rule for the steam electric power generating point source effluent limitation guidelines (ELG), which became effective in April 2024, tightened discharge limits for specified waste streams at ELGs. We expect reversion back to the Trump-era steam electric ELG rule issued in October 2020.
We also expect rollback of EPA's Final 2023 CWA Section 401 Water Quality Certification Improvement Rule.
We also expect the saga around the definition of "Waters of the United States" to continue its decades-long uncertainty, as the Trump administration is likely to repeal and replace the Biden-era Clean Water Rule.
Resource Conservation and Recovery Act
Also among the Biden administration's recently issued rules impacting the power industry is the Legacy Coal Combustion Residuals (CCR) Rule, made final in May 2024. We expect a withdrawal or reevaluation of the CCR Legacy Rule or, at a minimum, for the new administration to narrow the scope of CCR units regulated, remove the newly created coal combustion residual management unit category and exempt previously stated-approved beneficial use projects. We expect a change in enforcement position and implementation around the CCR rules, particularly with the CCR Legacy Rule currently in litigation.
PFAS
The Biden administration promulgated federal PFAS regulations, setting the first enforceable standards for nine PFAS in drinking water under the Safe Drinking Water Act (SDWA), and designating two PFAS, PFOA and PFOS as Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substances. We expect PFAS requirements to be reassessed, though the degree of re-evaluation may vary, and the Trump administration may seek to raise limits instead of a wider repeal.
The Trump administration is likely to slow or halt efforts under the current EPA's Effluent Guidelines Program Plan 15, which currently imposes monitoring and information collection requirements on large publically-owned treatment works and is designed to develop future ELGs and pretreatment standards for industrial users.
Regardless of the fate of the SDWA and CERCLA PFAS rulemakings, we expect PFAS litigation to continue at a feverish pace. Over the past year, litigation has significantly increased against companies that don't manufacture PFAS but use these chemicals in their products or processes. These claims are premised on traditional tort liability rather than environmental statutes.
Safe Drinking Water Act
While EPA's lead policies have previously had bipartisan support, we expect the new administration to revise the Lead Copper Rule Improvements and set stricter action levels than the prior Trump-era Lead Copper Rule Revision, mandating the removal of nearly all the nation’s lead service lines by 2037. If the Congressional Review Act is used to roll back the rule, the January 2021 Lead Copper Rule Revision would likely be substituted for EPA's most current policy on lead in drinking water.
National Environmental Policy Act
Responding to President Biden's rescission and replacement of President Trump's 2020 NEPA rules, our lawyers expect the Trump administration to, at a minimum, withdraw both phases of new the NEPA rules and revert back to 2020 rules, which eliminate cumulative effects analyses, narrow the scope of major federal actions and increase the role of project proponents in the review process.
This article is part of a broader analysis examining the anticipated challenges and opportunities created by an administration change. Attorneys from several different practice areas contributed to this series of article across multiple legal areas.
