When a federal court ruled the federal Bureau of Land Management skipped crucial steps in approving resource management plans for Montana last year, it reflected a trend tainting much of the environmental rule-making under the Trump administration.
“They’re having a remarkably low level of success,” Georgetown Law School environmental law professor Bill Buzbee said of the past four years’ regulatory court progress. “Their loss record is 70 to 90 percent under Trump. Those agencies usually win 70 percent of the time.”
He attributed the reversal to a consistent failure by policy makers to check all the boxes necessary to avoid appearing arbitrary and capricious — the standard federal rules get judged under the Administrative Procedures Act. To endure, a federal rule must show it had well-documented reasons for a change and went through a complete public review process.
“It’s a lot of work to change regulations,” Buzbee said. “So many of their actions had this flaw.”
This could have lengthy ramifications in Montana. Sandra Zellmer, director of the Natural Resources Clinics at the University of Montana’s Blewett School of Law, said she expected the Biden administration to revisit those BLM resource management plans, especially how they removed protections from 94% of the state’s Areas of Critical Ecological Concern.
Zellmer also expects greater scrutiny on the U.S. Forest Service’s use of categorical exclusions to streamline project approval, such as the one proposed to build rental cabins near the border of the Bob Marshall Wilderness. And the U.S. Fish and Wildlife could see a course change from aggressively delisting species to providing more protection for them.
That could affect the status of animals like the grizzly bear and bull trout, which each have threatened status under the Endangered Species Act, and the wolverine, which has been declared warranted but precluded from ESA protection.
During a meeting last October with Sen. Steve Daines in Great Falls on grizzly bear recovery, former U.S. Fish and Wildlife Service Director Aurelia Skipwith touted President Trump's anti-regulatory agenda.
“He pledged that for every one regulation that was going to come on board, we were going to take off two,” Skipwith said. “We blew past that — for every new one, eight came off.”
That tempo may have been counter-productive. In addition to rushing, Trump administration agencies apparently didn’t get other duties done, leaving them exposed to legal challenge. For example, in February, the Government Accountability Office reported the FWS improperly juggled its priorities and failed to complete basic functions like consulting with other agencies on environmental matters.
The GAO report found FWS “declined to provide an opinion for 18 of the 31 consultation requests … for fiscal years 2018 and 2019, even though (Coastal Barrier Resources Act) requires FWS to provide consultation when requested.” It found the FWS leadership had told its staff “not to respond to such requests due to competing priorities.”
The service had the task of updating maps of the coastal barrier regions along the Eastern Seaboard every five years. In 2015, it received extra funding and staff to meet that requirement. But during the Trump administration, the service failed to meet that requirement and didn’t have a strategy to meet it. Meanwhile, the Army Corps of Engineers had 51 active projects such as dredging canals and restocking sand on beaches that required consultation.
FWS Deputy Director Bryan Arroyo responded on Jan. 28, eight days after the official change of administration. In his letter, he pledged to re-establish the five-year review cycle starting in fiscal 2022, “assuming stable funding and capacity.” He also said the FWS would step up its consultation duties “contingent on available resources” and “to the degree practicable.”
In the first years of the Trump administration, Buzbee said agency leaders pushed a “stay and delay” strategy to block regulations created under the Obama administration. Later in Trump’s term, administrators in places such as the Environmental Protection Agency began pushing a controversial legal theory that they never had power to regulate activities where previous administrations claimed they did have such authority as the basis of their regulations.
For example, on June 19, 2019, EPA Administrator Andrew Wheeler announced the finalization of a new Affordable Clean Energy rule, “replacing the prior (Obama) administration’s overreaching Clean Power Plan with a rule that restores the rule of law,” according to an agency press release. The EPA claimed in the rule it could only regulate emissions at the generating plants — not across the power sector as a whole.
On Trump’s last day in office, a unanimous three-judge panel (including one Trump appointee) of the U.S. Court of Appeals for the District of Columbia struck it down, ruling it “rested critically on a mistaken reading of the Clean Air Act.”
Fellow Georgetown Law environmental law and policy adjunct professor Sara Colangelo said the Trump administration hit a record low point for regulatory enforcement and federal inspections. Criminal referrals of environmental violations reached a 30-year low.
“We’re seeing signs already of a significant shift in environmental enforcement,” Colangelo said. “But it’s not black and white. It’s always been more of a spigot than a switch.”