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Environmental lawyers say two new White House directivesdesigned to greatly expand executive power to strike down federal energy and environmental regulationsare not likely to hold up in court and represent an attempt to move far beyond the established boundaries of presidential authority. I do not think this even comes close to passing the test for legality, said Andres Restrepo, a senior attorney in the Sierra Clubs Environmental Law Program, of the April 9 executive order, Zero-Based Regulatory Budgeting to Unleash American Energy. This executive order directs the Environmental Protection Agency, the Department of Energy, and other key federal agencies to incorporate a sunset provision into their regulations governing energy production. Once inserted, the provision would repeal that regulation within one year unless an extension is granted. Among those targeted are rules authorized under the Endangered Species Act. In a press release, the Center for American Progress, a public policy group, warned that enacting this order would create chaos, uncertainty, and a nightmare of administrative procedures to justify almost every individual regulation relating to energy and environment. To just arbitrarily have a cutoff date for all regulations issued, regardless of what the statute says, and regardless of whether theres an evidentiary basis for itthat is simply unlawful, Restrepo said. This is really just not how our laws work. Restrepo said the order may be inspired by an Idaho law that includes a sunsetting provision stating that regulations expire automatically after one year unless they are extended by the state legislature. But the Administrative Procedure Act, which governs how federal agencies write and enforce regulations, contains no such language. Federal agencies create regulations based on laws passed by Congress. It makes no sense. It is impossible to implement. It reflects a complete lack of understanding of how government works, said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program. Peskoe theorized that the administration is enshrining a misguided quote from billionaire Trump donor Elon Musk about his support for applying a zero-based budgeting framework to the federal government. Zero-based budgeting is a financial strategy Musk employed at Twitter that forces an organization to constantly re-justify its expenses. When reached for comment about the legality of the order, a White House press representative pointed to an administration fact sheet for Zero-Based Regulatory Budgeting. That says the order will unleash American energy innovation, which has been frozen in the 1970s. Regulations from the Carter Administration should not govern energy production today. From the fracking boom to advances in solar and wind technology, the American energy landscape is very different today than it was 50 years ago. Existing regulations didnt stop those innovations. A presidential memo also released Wednesday, Directing the Repeal of Unlawful Regulations, refers to an earlier executive order, Ensuring Lawful Governance and Implementing the Presidents Department of Government Efficiency Deregulatory Initiative. That order required agencies to identify certain categories of unlawful and potentially unlawful regulations within 60 days and begin plans to repeal them. The memo lists several recent Supreme Court decisions and directs agencies to prioritize repealing any regulation in conflict with those decisions. You cant do that. You cant just repeal a regulation thats on the books without holding a notice and public comment process, Peskoe said. If they want to do this, theyre going to inevitably lose in court. Under the Administrative Procedure Act, agencies must follow a specific process in order to repeal a regulation. That process involves writing a proposal based on the administrative record for that regulation, soliciting public comment on the proposal, and then incorporating that feedback. The memo says agencies can use the good cause exception in the Administrative Procedure Act to dispense with notice-and-comment rulemaking. The good cause exception has been narrowly defined by the courts to apply only to emergency or urgent situations where delay could result in serious harm, Restrepo said. What this presidential memorandum does is it just provides the administration with a nuke button to get rid of any rule it doesnt like, said Erik Schlenker-Goodrich, an attorney and the executive director at the Western Environmental Law Center. He is concerned about what could happen if legal battles over this memo and the related executive order reach the current Supreme Court, with its conservative majority that has upended precedent before. The Supreme Court justices have proved very willing to use their own values to determine what the law is, rather than reading the plain language of a law and applying it to the facts of a particular situation, Schlenker-Goodrich said. Theres a risk, once it rises to the Supreme Court, that they will interpret what the federal government did as perfectly lawful. It will essentially expand the power of the federal government. If the sunsetting provision were somehow to be upheld in court, it would be a complete free-for-all on public health and the environment, Restrepo said. A huge amount of the work that has been spent to protect the public health and welfare will be erased. He thinks thats unlikely, but he does foresee the federal government wasting time and money to defend these directives with little likelihood of succeeding. Restrepo and Schlenker-Goodrich both questioned how the agencies would even be able to carry out the work outlined in these directives, given the drastic staffing cuts the new administration has made across the government. Schlenker-Goodrich said the order and memo were part of the administrations broader efforts to dismantle the federal government and consolidate power away from federal agencies and into the hands of the president. Ive been practicing law for going on 26 years, and no administration in my lifetime has exercised authority in the abusive and wild way like the Trump administration is doing now, he said. The administrations policies would take the United States back to a world before landmark environmental legislation like the Clean Air Act and Clean Water Act, a world of burning rivers, smog-filled cities, and polluted public lands, he said. It is truly a five-alarm moment, Schlenker-Goodrich said. By Kiley Bense, Inside Climate News This article originally appeared on Inside Climate News, a nonprofit, non-partisan news organization that covers climate, energy and the environment. Sign up for its newsletter here.
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In an emergency directive issued late last week, U.S. Department of Agriculture Secretary Brooke Rollins announced her departments plan to expand logging and timber production by 25% and, in the process, dismantle the half-century-old environmental review system that has blocked the federal government from finalizing major decisions concerning national forest lands without public insight. Under Rollinss direction and following an earlier executive order signed by President Donald Trump, the U.S. Forest Service would carry out the plan that designates 67 million acres of national forest lands as high or very high wildfire risk, classifies another 79 million acres as being in a state of declining forest health, and labels 34 million acres as at risk of wildfire, insects, and disease. All told, the declaration encompasses some 59% of Forest Service lands. Rollins made no mention of the role climate change plays in escalating wildfire risk or intensity, or how warming contributes to spreading plant diseases and expanding invasive species ranges. Climate change, it seems, has also been overlooked in the development of the Trump administrations proposed solutionto cut forests down. Healthy forests require work, and right now were facing a national forest emergency. We have an abundance of timber at high risk of wildfires in our national forests, said Rollins in a press release. I am proud to follow the bold leadership of President Trump by empowering forest managers to reduce constraints and minimize the risks of fire, insects, and disease so that we can strengthen the American timber industry and further enrich our forests with the resources they need to thrive. While it may seem intuitive that cutting down high-risk trees will lead to less organic material that could incinerate, environmentalists say the administrations plans to increase timber outputs, simplify permitting, and do away with certain environmental review processes are likely to only escalate wildfire risk and contribute more to climate change. Chopping down vast tracts of trees releases tremendous amounts of greenhouse gases into the atmosphere, exacerbating warming, which supercharges wildfire risk and causes blazes to burn faster and hotter. Though the climate science of timber management is complex, with techniques like prescribed burns considered widely effective in mitigating blaze-prone areas, the administrations aim to rapidly ramp up deregulated logging under the premise of lessening wildfire risk is poised to backfire, not least because of the carbon costs of cutting down forests. A map accompanying the memo from the Department of Agriculture, or USDA, indicates the stretches of forest that the agency has identified under the emergency designation. California, Colorado, Idaho, and Arizona appear to have the largest swaths of forest lands affected. Parts of the South, around the Great Lakes, and New England are also included. The USDA has not specified how many acres will be impacted per state. The agencys emergency order and push to expand logging to mitigate wildfire risk, ineffective as it can be if done haphazardly, is not a new strategy, said Lisa Dale, a lecturer at Columbia Universitys Climate School who has researched wildfire policy for decades. Similar declarations have been passed in multiple former administrations as a way to shortcut the time-consuming and onerous review processes under the 1970 National Environmental Policy Act, or NEPA. What is new about this particular directive, however, is the USDAs explicit intention to remove NEPA processes. Trump imposed multiple limitations on the rule in his first term, most of which the Biden administration later revoked. In his second term, the president has sought to unravel how the sweeping environmental legislation is implemented, decentralizing how it has been governed and leaving it up to individual agencies to develop their own guidelines. Dale said this rings an alarm bell as the proposed elimination of NEPA processes at the USDA would mean that, in theory, a logging company could come into a forest and extract timber without having to first evaluate the environmental impacts of its actionslike when timber production overtakes endangered species habitats. Im a little skeptical about the premise of this memo, said Dale, who has been a longtime proponent for streamlining NEPA. The idea that were going to increase timber production by 25% and that that will be the equivalent of reducing wildfire risk? Thats the disconnect. As Dale noted, most of the really valuable timber is located only in a couple of states, in areas that are very difficult and expensive to access. Moreover, she said, none of those types of timber sales have much of an impact at all on wildfire risk. The USDA declined to comment for the story, but a spokesperson sent Grist a public letter issued by Chris French, the acting associate chief of the Forest Service. In the letter, French first directs all officers to use innovative and efficient approaches to meet the minimum requirements of NEPA, and later notes that the agency will soon release direction for using emergency NEPA to streamline and simplify our permitting process. The agencys emergency declaration comes even as it continues to cull federal funding for food and farm programs, and has attempted to substantially shrink the very workforce that manages forest health and wildfire management. Anna Medema, Sierra Clubs associate director of legislative and administrative advocacy for forests and public lands, said that the move will benefit industrial logging operations and create a negative climate feedback loop. She called the decision a boon for the logging industry and a disaster for our national forests. Other advocacy organizations, like the nonprofit Center for Biological Diversity, have vowed to use every legal tol at our disposal to halt the Trump administrations implementation of this order. Jack Algiere, director of agroecology at Stone Barns Center for Food and Agriculture, a nonprofit farm and research center in New York, is holding out hope that agroforestry solutions will be included in how the Forest Service carries out the new emergency order. The thing with agriculture is that its working with living systems. It doesnt matter if youre in a forest or a vegetable field, said Algiere, who flagged there is no mention of a long-term implementation in the memo. Not all of these places are abandoned forests. Many of them already have management plans, and maybe this is going to disrupt that. Algiere also took note of how the language in the memorandum includes what he considers a lot of the right wordssuch as mentions of the Forest Service working toward land stewardship together with federally recognized tribes. And yet he cant help but think about how, at the same time, the USDA is freezing and cutting funding for food programs and scrubbing diversity, equity, and climate tenets from applications. This could have been written in a lot of different ways, he said. Not unlike the rest of the USDA, there seems to be a little bit of both sides getting played out. By Ayurella Horn-Muller, Grist This article was originally published by Grist. Grist is a nonprofit, independent media organization dedicated to telling stories of climate solutions and a just future. Learn more at Grist.org.
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As the Trump administration has set its sights on dismantling diversity, equity, and inclusion efforts in the workplace, the prevailing narrative has been that private-sector companies are retreating from DEI programs. That’s true to some extent: Major employers have made notable changes to their DEI efforts, altering language in public filings and slashing or pausing career development programs for underrepresented groupsand corporate leaders have said they are losing sleep over the threat of DEI-related litigation. Still, it seems that many companies are continuing to invest in diversity programs, according to a benchmarking survey that culture and inclusion platform Paradigm released today. On the whole, federal contractors and large companiesthose with more than 10,000 employeesappear to be the most likely to make significant changes to their DEI work in response to the heightened scrutiny by the Trump administration and risk of legal action. (The survey polled more than 400 employers of different sizes across a range of industries, including some of the largest U.S. companies by revenue.) What DEI policies are changing Its true that employers are moving away from certain types of DEI initiatives. Many companies are, in fact, eliminating representation goalssomething that leading tech employers like Meta and Google have already done. Paradigm found that 38% of companies surveyed had either stopped using representation goals or are planning to do so. The vast majority of employers who still use representation goals92%said they plan to stop sharing those goals publicly, while 77% said they would not even disclose them internally. As the terminology of DEI has grown more polarizing, 39% of companies have also changed the language they use for their programs. What DEI policies are staying the same Even as employers pull back on some of these efforts, however, the budget for DEI work has not radically shifted at many companies, per Paradigms findings: Only 19% of employers said they are decreasing funding for DEI efforts. More than half claimed they are not making any changes, and 23% said they actually plan to increase funding. Given that the pushback to DEI has been brewing since the Supreme Courts 2023 ruling on affirmative action, its possible some of these companies had already made changes to how they allocated funding for diversity effortsor cut back on them altogether. As Fast Company has previously reported, plenty of companies were already reevaluating their financial commitments even prior to that ruling, and in some cases trimmed headcount for teams that were dedicated to DEI-related work. Joelle Emerson, cofounder and CEO of Paradigm, also posits that some companies may have just reallocated funding or outsourced certain aspects of their DEI work to organizations like hers. Weve worked with Fortune 500 companies that have a team of five learning designers building trainings from scratch on inclusive leadership or inclusive hiring, she says. Weand Im sure other [platforms]have really great content that doesn’t need to be reinvented for every single organization. The state of external rankings Over the past year, many companies have made headlines for pulling out of the Human Rights Campaigns Corporate Equality Index, an annual survey that measures workplace inclusion for LGBTQ+ employees and is often touted by companies that are looking to attract more diverse employees. But the Paradigm report indicates that even amid public pressure, many companies have not changed their stance on those rankingsat least not yet. Only 18% of respondents said they had already paused their participation in external rankings that measure inclusion or planned to do so. Emerson points out that many of the companies who, for example, pulled out of the Corporate Equality Index, were being pressured to do so by right-wing activists. But the companies that seem to be staying the course may not be talking about it openly or getting media attention. If you’re a company that’s not evolving away from these things, there would be no reason anyone would hear about it, she says. By and large, youre not going to be announcing that. Reducing legal risk Nearly all the companies surveyed by Paradigmat least 90%say they have already embedded DEI practices into their talent strategy, which includes continuing to source diverse talent. Most of them are also continuing to collect demographic data on employees and invest in inclusion trainings. Employee resource groups and DEI-related benefits like parental leave and trans healthcare coverage have also remained largely unchanged (though some companies are opening affinity groups up to all employees to mitigate legal risk). Emerson adds that the Equal Employment Opportunity Commissions recent guidance on DEI has actually helped clarify what could constitute unlawful discrimination for some employers, which had sparked widespread confusion when Trump first introduced executive orders targeting DEI. I don’t agree with a lot of the guidanceI think a lot of the things that they’re saying are essentially illegal DEI are, in fact, not, she says. But the guidance has given the companies we work with more confidence to continue with the things they’re doing.
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