How the Trump administration is obscuring the value of wetlands protection from the Clean Water Rule
In 2015, the Environmental Protection Agency and Army Corps of Engineers revised the definition of the “waters of the United States” as part of the Clean Water Rule. This revised definition was expected to increase the wetland area subject to protection under the Clean Water Act, and an economic analysis conducted by the agencies at the time showed that the benefits of the rule would substantially outweigh the costs. Under the Trump administration, the agencies now propose to repeal the 2015 Clean Water Rule and have issued a revised economic analysis in support of that decision. In the new analysis, the agencies now claim that the majority of the benefits in the 2015 analysis cannot be quantified, making it appear that the Clean Water Rule is not cost-benefit justified. The agencies have violated many of their own requirements for conducting economic analysis to arrive at this conclusion, and a more comprehensive assessment of the evidence shows that the 2015 Clean Water Rule is still cost-benefit justified. Repealing the 2015 Rule would forgo substantial environmental and economic benefits.
Historical Uses and Justifications
Royalties have been used as a policy lever to influence behavior and meet national goals for centuries. For example, royalties have been set at specific rates in order to: encourage resource production; encourage westward expansion; maintain the incentive to create new inventions; and deter socially undesirable behavior, to name just a few. This report concludes that it would be reasonable for Interior to adjust coal royalty rates to account for negative externalities that are not otherwise addressed by regulation. Historical uses, accepted economic justifications, legislative history, and examples of royalty use by private actors and in other industries discussed in the paper all support the determination that it would be reasonable for Interior to increase coal royalty rates to account for externality costs and to better align the federal coal program with national climate change priorities.
Recommendations for Reform
Federal law requires coal companies to reclaim and restore land and water resources that have been degraded by mining. But at many sites, reclamation occurs slowly, if it all. Mining companies are required to post performance bonds to ensure the successful completion of reclamation efforts should they become insolvent, but regulators have discretion to accept “self-bonds,” which allow many companies to operate without posting any surety or collateral. As the coal industry experiences financial distress and coal companies declare bankruptcy, the viability of future reclamation work is endangered. This report offers recommendations to help regulators better assess coal companies’ financial health and take steps to curtail self-bonding.
Published in the Alaska Law Review
In this article, we argue that fundamental reform is necessary and highlight a series of key themes and topics that must be addressed to improve the regulatory process and promote better, more consistent management outcomes. While the article draws on examples from frontier areas-in particular the U.S. Arctic Ocean-the recommended changes would apply to and benefit all areas of the OCS.
Twelve Policy and Procedural Goals for the Programmatic Review
This report highlights twelve policy and procedural recommendations for the review of the federal coal program. These reforms are intended to help modernize program and so that it can provide maximum net benefits to American taxpayers. The programmatic review should identify opportunities to increase revenue, reduce greenhouse gas emissions, and align federal land management with U.S. climate change goals, paying enormous dividends to the public.
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