Last week the Trump administration issued two executive orders that could undermine environmental regulations and consolidate power in political appointees. The two orders, one on “Transparency and Fairness” and one on “Improved Agency Guidance,” authorize the current administration to quickly and quietly revoke longstanding conservation policies; require future policies to secure approval from political appointees; and put up roadblocks for federal agencies seeking to enforce environmental laws.
Analysts suggest that the orders are “mostly symbolic” and difficult to implement and their impacts will be limited. Some have even speculated that the orders might “backfire” by eliminating key guidance documents that the administration’s industry allies rely on to ensure regulatory certainty.
Nevertheless, the orders have the potential to seriously undermine federal agencies’ ability to implement and enforce environmental protections. Considering the fanfare surrounding their enactment, a closer examination is in order.
Importantly, the two new orders limit how agencies interpret and enforce the federal statutes and regulations they are responsible for implementing.
For example, they prohibit agencies from relying on so-called “guidance documents” — a broad category of agency documents that includes legal opinions, technical manuals, handbooks and instruction memos — unless those documents are first published in the federal register or on the agency’s website.
For example, the Bureau of Land Management (BLM) has a guidance document called the “Sensitive Species Manual” designed for plants and wildlife so rare they are in danger of extinction. It directs the agency to “manage . . . sensitive species and their habitats to minimize or eliminate threats” and “improve” habitat conditions.
This has been BLM policy for decades, and has helped shield wildlife species like sage grouse and bighorn sheep from some of the worst impacts of commercial development on public lands. The Trump administration could effectively eliminate this policy simply by choosing not to publish it.
Generally, open-government policies are a good thing; it allows the public to know what the government is up to, and can help deter unfair or inconsistent enforcement by agency personnel.
But these new orders do not simply call for the publication of guidance documents — they allow politically appointed agency leaders to pick and choose which policy documents get published, and thus choose which policies go into effect, and which do not.
The orders also require “approval on a non-delegable basis” of new guidance documents by an agency head “appointed by the President,” putting political appointees in control of which standards get enforced and which don’t.
These changes could have far-reaching consequences, depending on how the administration chooses to implement the orders. Many agency guidance documents articulate long-standing, uncontroversial policies that help protect public health and the environment.
The BLM and Forest Service for example, rely on a number of guidance documents called to implement their conservation duties, including the Forest Service’s “handbook,” which provides agency personnel with guidance on managing and protecting wilderness areas, imperiled fish and wildlife species, and watersheds
It’s not hard to see where this leads, given the administration’s open hostility toward environmental protection, and the same officials’ close affinity to the industries they’re nominally charged with regulating.
And considering who was on hand for the signing ceremony last week, it’s not unreasonable to expect the administration to use these new orders to target environmental policies generally and public lands in particular. Among those standing behind Trump as he signed the orders were Kevin Lunny, a California rancher who once violated the Wilderness Act while running a commercial oyster farm within the boundaries of Point Reyes National Seashore, and J.J. Goicoechea, a county commissioner from Nevada who has often expressed sympathy for antigovernment “sagebrush rebel” types in his home state.
So while these orders may claim to promote government transparency and public involvement, their real purpose appears to be giving regulated industries — like the livestock industry and fossil fuel producers — preferential access, and undermining policies and standards that protect our public lands and wildlife.
The orders explain that they are designed to ease regulatory burdens and improve access for “regulated parties,” a legal term of art that includes extractive industry but does not include environmental watchdog groups or other public-interest organizations.
The orders also fit within a broader administration pattern of transferring policy-making power to the President and those loyal to him. The orders are to be implemented by the Director of the Office of Management and Budget (OMB), who answers directly to the president. The current director of the OMB is Mick Mulvaney, also the acting White House chief of staff.
As a member of Congress, Mulvaney had a lifetime environmental score of 6 percent according to the League of Conservation Voters. He consistently voted against endangered species, clean energy and public lands.
Government transparency is essential to a functioning democracy, and if these orders were truly about improving transparency and encouraging greater public involvement, they would deserve support across the political spectrum.
But the “transparency” provided under these orders appears to cut one way — in favor dirty industries like livestock and fossil fuels — and against clean air, clean water and healthy wildlife populations.
Of course, the true impact of the orders remains to be seen. Perhaps they are merely “symbolic” gestures, and perhaps their impacts will be limited, as some have predicted. On the other hand, when regulations or policies are ambiguous, agency officials frequently use their discretion to interpret them as loosely as possible.
Under the “unleashing American enterprise” spin that this administration placed on these executive orders, the prospect for protecting lands and wildlife is grim indeed.
Scott Lake is the Idaho director of Western Watersheds Project, an environmental conservation organization working to protect and restore western watersheds and wildlife.