Tuesday, November 22, 2016

WOTUS, EPA could be casualties of Trump administration

By Ken McEntee, Owner

Republished from Composting News, November, 2016.

The court-halted Clean Water Rule defining the “Waters of the United States” (WOTUS), and even the U.S. EPA itself could come to an end under the administration of President-Elect Donald Trump, according to experts who keep a close eye on environmental regulations.
In the wake of Trump’s election, Composting News asked several experts about what they think the next four years have in store for WOTUS and environmental regulations in general. They included:
* Jay Lehr, one of the architects of the EPA who has since become a critic of the agency. Lehr, science director for the Heartland Institute, a Chicago-based research organization, published a proposal two years ago to eliminate the federal EPA and secure environmental protection under the control of state agencies. Lehr said he is confident that at least portions of his plan will be adopted under the Trump administration.
* H. Reed Hopper, principal attorney with the Pacific Legal Foundation (PLF), the Sacramento, Calif.-based public interest legal organization that has represented plaintiffs in property rights, civil rights and other cases against governments, including a lawsuit opposing WOTUS. Hopper said he expects WOTUS to be overturned, but doesn’t expect EPA to be eliminated or substantially reduced in scope.
* Robert LaGasse, executive director of the Mulch and Soil Council, a trade association that represents soil and mulch producers. LaGasse said he is optimistic that Trump’s planned infrastructure improvements will make transportation more efficient, and that an improved economy will boost demand for soil and mulch products.
* Frank Franciosi, executive director of the U.S. Composting Council, the trade association that represents compost producers.
Lehr, who was the nation’s first Ph.D. in groundwater hydrology and was among the first advocates for the creation of the EPA almost 50 years ago, said he is confident that the agency will be dismantled under the Trump administration. His plan calls for a gradual dismantling of EPA over a five-year period.
“People are emailing me all over the place,” he said. “They think it can be done.”
Lehr believes that state control over environmental regulations will be improve the environment.
“100 percent of the work of the nation’s environmental protection is done by the 50 state agencies,” Lehr said. “The federal government does nothing. The EPA has 10,000 useless employees, and all they do is look over the shoulders of the 50 states that do all of the work. Anybody in any business knows that you don’t do your best work when you know some idiot is looking over your shoulder. The only time in recent memory that EPA actually got involved and got their hands dirty on the ground is when they sent several people to deal with a situation at a mining operation in Colorado (Gold King Mine, August 2015). They screwed it up and they contaminated the Animas River. EPA’s response was ‘we’re sorry.’ Anybody else would have been in jail.”
Lehr said he would retain EPA’s Office of Research and Development and reduce the agency’s budget from $8.2 billion to $2 billion.
“In two years since I introduced it, there hasn’t been a single person who has challenged me with regard to the logic of the plan,” Lehr said. “The EPA is made up of 14 separate offices, most of which are administrative. Only four of them actually deal directly with the environment. The Office of Research and Development is the only thing I would leave in the budget.”
Lehr believes WOTUS is dead on arrival of the new administration.
“The plan was to take over every drop of water in the United States,” he said. “Literally if there is a puddle on your farm and a bird lands in the puddle, the government would control that puddle. It’s dead. There is zero chance that it will go through.”
Despite Trump’s open skepticism about global warming, Lehr doesn’t anticipate a sudden reversal in Washington policy regarding climate change.
“So far I haven’t read a single word that makes me believe we are going to back up at all on climate change,” he said. “There is no question that Trump feels that it is a hoax, and it is the biggest hoax ever perpetrated on society, and I think he will stick with that. But I think it will take some time to slowly wind it down reasonably. Over a period of time, the more than $5 billion a year of research money that goes to support the climate models at the academic levels will dry up. The maximum of Trump’s backing off will be to assign a new committee of non-hoaxters to study the issue and come out with directives, the bottom line which will be that the climate is always changing, let’s keep our eye on it, let’s make sure that we are prepared for whatever happens.”
Despite reports that former Goldman Sachs investment banker Steven Mnuchin – the national finance chairman for Trump’s campaign – is a top contender for secretary of the treasurer, Lehr doesn’t anticipate a resurgence in carbon credits and carbon exchanges. Goldman Sachs was once a leading proponent of a Cap and Trade system through which it hoped to be the largest player in a carbon credit exchange that President Barack Obama once estimated to be a $646 billion business over seven years. Another major player in carbon trading was Generation Investment Management, founded by former Vice President Al Gore, with three former Goldman Sachs bankers.
“Carbon credits have never gotten off the ground,” Lehr said. “I think the money that has been wasted on carbon credits and carbon exchanges is going to be reduced.”
He believes tax incentives, including incentives for food waste processing technologies and green fuel production, will be eliminated under the Trump administration.
“I’ve always thought that turning food waste into fuel was a great idea,” he said. But it can never compete with fossil fuel. We don’t have 100 or 200 years of shale gas and oil in this country. We have 1,000 years. These (alternative) fuels are going to be a niche market. I don’t want to see them go out of business but  I don’t want to give them any tax breaks either. I can predict for sure than in the next four years we’re going to see a dramatic reduction in tax breaks on energy and a lot of things that have been around a long time.”
Lehr believes Trump’s cabinet will “make life better for every single industry. The people who read your magazine are going to positively influenced. If they live on tax breaks or they live on regulations that make their competitors lives more difficult, then they may not benefit. But in the long haul businesses will benefit by an economic boom.”
LaGasse has the same hopes for a booming economy and a better business climate spurred by rolling back regulatory obstacles. He also hopes to see an end to tax credits and subsidies that favor some industries over others.
“They create inequities in the marketplace and support technologies that aren’t marketable or can’t survive in a free market,” LaGasse said.
Specifically, he says, subsidizing biomass energy diverts wood from mulch producers.
“Government subsidies - whether they are U.S. based or whether they are by foreign markets like the U.K., which subsidizes the import of millions of tons of wood pellets - take materials out of the historic wood fiber marketplace and redirect them. Instead of depending on a heavily subsidized foreign market we need to develop our own markets. America first is not a bad idea. If we spend our money here at home and improve our infrastructure and make the marketplace a stable place to do business, how is that bad?”
LaGasse hopes the Trump administration will “take a stronger look at EPA and correct some of the errors that it has made recently.”
That includes WOTUS, which LaGasse has said “presents a big problem for anybody who wants to make changes to their property.”
“We’re in the hopeful phases that they will be rolled back,” he said. “I think people have voted for the premise of returning regulatory agencies to being more regulators and less advocates. If (Trump) curtails some of the overreaching regulation like WOTUS, more development can proceed. Housing can expand. More jobs let more people afford housing, which creates more demand for our products.”
Hopper, lead attorney in the first lawsuit filed against the Obama administration to block implementation of WOTUS, said he is hopeful that the rule will be rolled back, along with climate change regulations.
“Trump has publicly stated his view that the WOTUS rule is unconstitutional, so it is likely he will pull the rule at some point,” Hopper said. “But it is equally likely the Justice Department will continue to defend the rule up until Trump takes office. The most likely outcome is that the new president will allow the Sixth Circuit (U.S. Court of Appeals) to decide the case, which almost certainly will go against the government given the Sixth Circuit’s nationwide injunction which held the rule was likely invalid statutorily and constitutionally. When that happens, Trump can pull the rule and refuse to defend it in the Supreme Court.”
Meanwhile, Hopper said he hopes Trump will roll back climate and carbon regulations, although he expects that it would take months before any changes are seen.
“I think Trump is serious about scaling back regulation, especially environmental and immigration regulations,” Hopper said. “In some cases, he may do so through an executive order, perhaps within his first 100 days.  In other cases, he may have to allow the agency to issue a new rule that withdraws or supersedes the existing rule. This could take a couple years. There is a lot of inertia in some of these agencies like EPA and it will take awhile for the new administration to move its agenda down the line.”
Unlike Lehr, Hopper doesn’t foresee the elimination or reduction of the size of EPA.
“Even curtailing the agency seems unlikely,” he said. “So much of what the agency does is the result of entrenched, unelected bureaucrats overstepping their enforcement power. I don’t see that changing no matter who is in charge at the top. Even small-government types seem to change their attitude when they get to Washington and start working in these immense agencies like EPA. I fear the most we can hope for, at least in the near future, is to hold the line on EPA or simply slow its growth.”
Hopper said Trump’s lasting legacy may turn on who he appoints to the Supreme Court.
“This more than anything will make or break our country,” he said. “If Trump appoints some like-minded individual to replace Justice Scalia, at least the current balance of power on the court will remain with ongoing protections for landowners, state’s rights, and individual liberty. If, perchance, he gets to replace someone else on the bench, like Justice Ginsburg, that could provide a safeguard against big government for decades, if not generations.”
Franciosi said he wants to wait until Trump takes office before making any projections as so whether the new president will be a friend or foe to the composting business.
“We don’t even know who the EPA (administrator) is going to be, so it’s too early to say,” he said. “I can tell you that the people in the EPA who are working in resource management have been extremely cooperative and they and the USDA want to see the food scraps problem taken care of from a number of levels. From the standpoint of permitting, everything is done at the state level, so I don’t see any impact there. There are some bills in the Senate on food recovery. Those bills have proposed language on infrastructure funding. It seems to me that the new administration is big on infrastructure and big on jobs, and if you look at composting compared to other waste disposal options it creates more jobs than landfilling and incineration. The Institute of Local Self Reliance has done some studies on that. So the message we need to get out is that we are a better option when it comes to building infrastructure and creating jobs.”
Franciosi said he is a “firm believer” in climate change, in contrast to Trump’s view of climate change as a hoax.
“But what we do as an industry benefits the environmental tremendously, not only from a greenhouse gas standpoint, but also when you look at all of the eco- system benefits composting provides, like water saving, less pesticide, less fertilizer, better healthy soil. Those all relate economically as well as environmentally. We have been through this before with prior administrations.”
Franciosi said the Trump administration isn’t likely to support green energy, which could impact USCC members who are involved in food to biogas projects. He said, however, that most green fuel incentives are offered at the state level.
Franciosi said that from the standpoint of federal regulations, the only area that directly impacts composters is in biosolids composting.
“It’s the states that are overseeing the regulations that allow composting facilities to operate, and many of them in are in the process of reviewing their regulations,” he said. “We’re here to help them. We have templates for composting legislation, and if any changes are going to be made, they should be science based, not based on hearsay.”

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