Environmental Health Regulation in the Trump Era: How President Trump’s Two-for-One Regulatory Plan Impacts Environmental Regulation

This Article explores the Trump regulatory reform agenda and its potential impact on environmental determinants of health. The Article begins with a discussion of the Department of Commerce’s (DOC or Commerce) initial fact-finding investigation to evaluate the impact of federal regulations on domestic manufacturing. The Article next presents an overview of the Trump administration’s regulatory reform formula as announced in E.O. 13771 and the interim guidance explaining E.O. 13771 and E.O. 13777 (the executive order announcing the Trump administration’s plans to enforce the regulatory reform plan announced in E.O. 13771). The Article then examines the federal agency initiatives undertaken in response to the Trump directives, including both fact-finding dockets and regulatory action published in the federal register applying the executive orders. This Article concludes with concerns about the practical effects of the new policy on the future of environmental determinants of health and recommends that the policy be reevaluated after a year to understand the unintended effects of this means of deregulation

DRILLING FOR COMMON GROUND: HOW PUBLIC OPINION TRACKS EXPERTS IN THE DEBATE OVER FEDERAL REGULATION OF SHALE OIL & GAS EXTRACTION

Public interest in environmental and health impacts from shale oil and gas extraction (what the public calls “fracking”) is growing. Industry claims the public outcry against the new technology is not grounded in science. In February 2013, Resources for the Future (“RFF”) published a list of high priority “risk pathways” that experts from NGOs, academia, government, and industry all agreed were real concerns about fracking. This article used the risk matrix to evaluate whether public comments in dockets of federal agencies that proposed regulation concerning hydraulic fracturing tracked expert concern. The article found that the public tracked many of the experts’ shared concerns. The highest concern was water pollution in surface and groundwater from fracking fluids (or, “frac fluids”), flowback, and produced water. The public shared expert worry over cementing and casing failures and understood that these were the primary causes of most groundwater contamination. Damage to habitat was the third greatest concern raised by the public. Methane leakage into air and water was less cited. Concerns over technical matters were rarely mentioned by the general public but were often cited by self-identified experts. The article concludes that while the general public did not go into the detail about the regulatory mechanism that was often reflected by experts, the concerns raised by the public in comments to proposed rulemakings largely reflected the consensus themes of the experts. More significantly, the public writing overwhelmingly favored increased federal regulation to protect public health and the environment

Impact of Executive Order 13211 on environmental regulation: An empirical study

A great deal has been written about the Energy Policy Act of 2005 exempting oil and gas operations using hydraulic fracturing from the purview of certain federal environmental laws. Far less attention has been paid to George W. Bush’s Executive Order 13211 (EO 13211), entitled “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution or Use.” The executive order requires federal agencies to evaluate the impact of federal regulations on “supply, distribution and use of energy.” This study examined the impact of EO 13211 on United States environmental and conservation regulations proposed and promulgated by federal agencies. The study found that during rule making proceedings, EO 13211 had almost no effect on environmental and conservation actions taken by federal agencies. Most federal agency rules, both proposed and final, evaluating energy impacts pursuant to EO 13211 found no “significant energy action” and accordingly did not necessitate further regulatory review. In most cases, energy evaluation was routine, did not alter environmental or health policy and was reflected in brief, boilerplate language

Oil & Gas Drilling in National Parks

While a great deal of public attention addresses the Halliburton loophole of the Energy Policy Act of 2005 and Bureau of Land Management efforts to regulate hydraulic fracturing on public lands, less attention has been paid to the National Park Service “9B Regulations,” which provide a national regulatory framework governing the exercise of oil and gas rights in national parks. This article begins with a review of law pertaining to oil and gas drilling in national parks. The article examines the tension in striking a balance between environmental protection, conservation of national lands, and achieving energy independence, including National Park Service proposals to revise the 9B regulations. The article concludes that because it is impractical to purchase the mineral rights in NPS units, it is critical to revise the 9B rules to: (1) raise the bond and financial assurance requirements; (2) create protocols that bring exempt operations within the 9B regulations (3) create access and user fees that reflect fair use; (4) allow administrative fines to be assessed for minor violations; (5) ensure all drilling meets modern safety standards including measures to preclude park damage after well closure; (6) require a baseline environmental assessment as a permit condition; and (7) require operators to map both surface and subsurface operations and record in land records the exact location of all pipes and other equipment installed in the land

REGULATION OF RADIOACTIVE FRACKING WASTE

Natural gas extracted form shale reached record production totals in 2015 in the United States and the US Energy Information Administration (EIA) forecasts natural gas production will continue to increase. Wastes from shale gas extraction can contain the radioactive isotopes radium-226 (Ra-226) and radium-228 (Ra-228), which decay further into radon (Rn). Exposure to radon, a form of naturally occurring radioactive materials (NORM), is the leading cause of lung cancer in the United States, after smoking. This article explores how states handle the disposal of technologically enhanced naturally occurring radioactive materials (TENORM) and/or NORM waste from oil and gas operations to evaluate which states have developed the most protective practices when regulating NORM and TENORM waste from unconventional oil and gas operations to reduce adverse radiological health effects. The study concludes that although some states are regulating NORM and TENORM, other states may be inadequately addressing these wastes generated through oil and gas productions. Under-regulation is complicated by the fact that multiple agencies may have jurisdiction to handle wastes. Guidance, laws, and/or regulations may be needed to facilitate safety and health measures in states where inadequacies could potentially harm humans, animals, and the environment

Oil & Gas Drilling in National Parks

While a great deal of public attention addresses the Halliburton loophole of the Energy Policy Act of 2005 and Bureau of Land Management efforts to regulate hydraulic fracturing on public lands, less attention has been paid to the National Park Service “9B Regulations,” which provide a national regulatory framework governing the exercise of nonfederal oil and gas rights in national parks. This article begins with a review of law pertaining to oil and gas drilling in national parks. The article examines the tension in striking a balance between environmental protection, conservation of national lands and achieving energy independence, including National Park Service proposals to revise the 9B regulations. The article concludes that because it is impractical to purchase the mineral rights in NPS units, it is critical to revise the 9B rules to: (1) create protocols that bring exempt operations within the 9B regulations; (2) raise the bond and financial assurance requirements; (3) create access and user fees that reflect fair use; (4) allow administrative fines to be assessed for minor violations; (5) ensure all drilling meets modern safety standards including measures to preclude park damage after well closure; (6) require a baseline environmental assessment as a permit condition; and (7) require operators to map and record in land records the exact location of all pipes and other equipment installed in the land