Changing Federal Regulations under President Trump
By Jannelle Combs
The North Dakota Law Review held its symposium “ Moving Forward : What the Future Holds for North Dakota Energy ’ s Sector ” at Bismarck State College on March 16 . The next issue of the North Dakota Law Review will contain transcriptions of all the panels that presented . This article strives to provide an overview of several of the panels ’ presentations on federal regulations for nonoil and gas attorneys .
Planning or Pushing ?
Assistant Attorney General Maggie Olson provided information on litigating environmental rules . During President Obama ’ s tenure , 25 new “ mega-rules ,” a sweeping set of multiple changes to multiple regulations , were promulgated , of which nine were environmental protection rules . The primary focuses of many of these rules were climate change and fossil fuels . Many of these rules were met with strong state opposition , including from North Dakota , that the rules infringe on state rights under the 10th Amendment to the U . S . Constitution .
The most controversial of the new rules was the Clean Power Plan ( CPP ). This requires coal- and gas-fired power plants to reduce carbon dioxide emission by 2020 , and a numerical 2030 goal was assigned to each state . The proposed rule had a reduction goal of 10.6 percent for North Dakota ; however , in the final rule , North Dakota must reduce emissions by 37.4 percent to 44.9 percent , depending on the basis used to calculate the change . CPP has become the most litigated environmental rule in history , with more than 200 attorneys and 42 separate petitions in the federal District of Colombia Circuit . CPP is stayed until the litigation is complete .
A illustration from Straley ’ s presentation on the cost and benefit analysis under CPP .
temperature by 0.018 Celsius degrees by 2050 and reduction in sea level rise by 0.3 millimeters ( less than three sheets of paper ) by 2050 .
In the energy field , coal is an extremely long-view planning industry . The industry views coal leases and reclamation plans with decades in sight . The CPP has created uncertainty , which can harm any industry and stifle innovation and investment for companies who plan that far ahead . Twenty-seven coal companies have filed for bankruptcy in the last five years , representing about half of the United States ’ coal production .
Mega Rules Micro Impact
David Straley , director of government and public affairs with North American Coal Corporation , presented the “ Regulatory Affects on Coal ( All of Us ).” He provided the more immediate effects and meager results from CPP , which include a likely doubling of North Dakota ’ s power costs , and the retirement of reliable coal generation capacity prematurely with benefits of a reduction in global
Jannelle Combs is a solo practitioner in Bismarck focusing on oil and gas , real estate and estate planning . A 1999 graduate of the University of North Dakota Law School , she has over a decade of legal experience in litigated and transactional matters .
Your Water Is My Water
Assistant Attorney General Jennifer Verleger ’ s , P . E ., presentation was titled , “ Trump , EPA and the Corps-Oh My !” The Waters of the United States ( WOTUS ) Rule . The rule would have subjected much of North Dakota ’ s land to the rule , even where there is not significant collected water present . The impact to not just energy development , but also farming and ranching endeavors , is significant . The state of North Dakota claimed this rule was unconstitutional under the 10th Amendment , the Commerce Clause and Due Process protections under the U . S . Constitution . This regulation was also stayed pending resolution of jurisdictional issue .
Another federal impact to North Dakota was the May 2010 action by the Army Corps of Engineers to trump the state over access to water from Lake Sakakawea and Lake Oahe from within a taking boundary by requiring a Corps water supply agreement . The state believes the agreement is only needed when water is taken out of storage from the reservoir and that natural stream flow water is
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