Federal environmental requirements and regulations have been relaxed (or are proposed to be relaxed) since President Trump was elected, but those environmental regulatory changes have not yet realized benefits for renewable energy and transmission project permitting.

As mainstream media sources like the New York Times have reported, the Trump administration’s efforts to weaken environmental laws has been somewhat substantial; to date, 67 environmental actions have been targeted by the administration, including 33 that already have been overturned, 24 with rollbacks in progress, and 10 regulations in limbo. However, most of those regulatory changes are unrelated to transmission or renewable energy project permitting. And even those regulatory changes that are loosely related to permitting haven’t yet impacted the speed with which permits are issued by federal agencies (or state agencies with delegated authority to implement federal programs), or the number of permits issued (versus denied). However, the key here is that the impacts haven’t been realized yet; permit processing efficiency and issuance are likely to improve as time goes on, particularly since some of the changes are directly intended to speed up permitting.
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The U.S. Environmental Protection Agency (“EPA”) and the U.S. Department of Justice (“DOJ”) have recently issued memoranda concerning civil enforcement of violations, including violations of environmental laws.

The January 22, 2018 EPA memorandum, entitled “Interim [Office of Enforcement and Compliance Assurance] Guidance on Enhancing Regional-State Planning and Communication on Compliance Assurance Work in Authorized

The announcement of the Office of the U.S. Trade Representative (“USTR”) on January 22, 2018, that the Trump Administration is granting relief for the domestic solar panels and modules industry under section 201 of the Trade Act of 1974, confirmed the fears of many consumers that substantial additional duties would be imposed on those products. USTR announced that the relief would come in the form of a tariff increase of 30% in the first year, decreasing to 25% in year two, 20% in year three, and then to 15% in year four. On January 23, 2018, President Trump signed the Proclamation implementing the relief. The relief will go into effect on February 7, 2018.

Despite the above tariffs, the relief announced provides that the first 2.5 gigawatts of imported cells are excluded from the additional tariffs. The use of the exemption for the first 2.5 gigawatts makes the relief a form of a “tariff rate quota,” meaning that tariffs only apply if imports rise above a certain quota amount. This type of relief has been imposed in the past, including on certain steel products. The ITC Commissioners made various recommendations to the President in this case, some of which included types of tariff rate quotas.

The nature of the relief will mean that exporters now are likely want to rush to import their products in order to be within the 2.5 gigawatt exclusion. The Proclamation states that the quota of 2.5 gigawatts “shall be allocated among all countries except those countries the product of which are excluded from such tariff rate quotas…” While this statement seems to imply that there will be a base time period used to determine different market shares within the total quota for different countries, our discussions with government officials indicate that this was not what was intended. Instead, the intention was to have one worldwide quota of 2.5 gigawatts that will apply to all countries, without any allocation among countries. Regardless of whether allocations are made among countries or there is just one overall quota, if shipments are made in the hope that they will fall within the exclusion but the 2.5 gigawatt quota already is filled at the time of entry, the 30% tariff that then will be applied may change the economics of a deal if the possibility of a tariff has not been taken into account. It is not clear at this time whether there will be some kind of pre-clearance for such imports before the time of exportation, or whether there will be a free-for-all at the time of entry.
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Horn_Robert sachs_adam2016In the name of job creation, the Trump Administration is attempting to single-handedly bring back the coal industry via executive action.  But while the president may be scoring political points in coal country, as a practical matter that’s really not where energy sector job growth will come from in the next few years.

Nevertheless, the past several months have seen a resurgence of the long dormant coal industry.  Hampered by a number of factors
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Environmental_Protection_Agency_logoA memorandum issued by the U.S. Environmental Protection Agency’s acting chief financial officer proposes program cuts to accommodate the Trump Administration’s proposed 31% budget reduction for FY 2018. The memo states that this resource level will require evaluating EPA’s priorities and “thinking differently about the best ways to accomplish [its] core statutory responsibilities.”

The proposed cuts make it clear that regulation of climate change or carbon pollution is no longer
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Robert Horn
Adam Sachs
Adam Sachs

During his confirmation hearing to become Secretary of Energy, former Texas Governor Rick Perry sensibly walked back his 2011 recommendation that the Department of Energy (DOE) be eliminated. After a few weeks on the job, it is now apparent that the secretary not only thinks the DOE should continue to exist but recognizes it’s an essential element of our national security.

President Trump’s inaugural address called for an “America First Energy Plan.”  Although admittedly short on details, the Trump plan seems to
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No RegulationsAs we reported in a previous blog post, President Trump’s Chief of Staff Reince Priebus issued a memorandum entitled “Regulatory Freeze Pending Review” to all federal executive departments and agencies implementing a regulatory freeze on new and pending regulations.  This post provides some further information and insight into the freeze and the specific impacts it has had and will have on final and proposed environmental, health, safety, and pipeline regulations.

Technically speaking, the directive is not an executive order and does not have the effect of law.  Thus, federal agencies are left with considerable discretion regarding how to implement it.  The directive was issued with the intent of
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Bob Horn
Adam Sachs
Adam Sachs

I’m Adam Sachs, a partner in Husch Blackwell’s energy practice and a registered DC lobbyist. I will be joined in these semi-regular blog posts by my colleague and longtime Washington lawyer, Bob Horn.  Bob served in the Ford administration, ran Detroit Edison’s federal affairs operations, co-founded the Republican National Lawyers Association, and most recently served as a member of the Trump transition team.  I have extensive Capitol Hill experience, having served in senior policy and legal positions since the mid-1980’s.  My most recent Hill gig was serving as committee counsel to now assistant Democratic leader James Clyburn of South Carolina.
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