WASHINGTON, Nov. 16, 2016 - If one thing appears certain about the Trump administration, the “waters of the United States” (WOTUS) rule, which has been relentlessly criticized by farm groups since it was published about 18 months ago, is on the way out. “The Clean Water rule is DOA,” says Patrick Parenteau, senior counsel and law professor at Vermont Law School and a former regional counsel for the Environmental Protection Agency.
Implementation of the rule already has been blocked by the 6th Circuit Court of Appeals until that court decides whether the far-reaching regulation passes legal muster. But that process, now in the brief-filing stage, could be short-circuited by a new administration, which could simply ask the court to send the matter back to EPA and the Army Corps of Engineers. Then those agencies could repeal it and replace it with something else – or do nothing at all, which would leave the existing regulatory regime in place.
Killing the WOTUS rule would restore 2008 guidance that was widely criticized for not providing clarity on the crucial question of when waters and wetlands fall under EPA or Corps jurisdiction. The agencies' response was to develop the WOTUS rule, but with that stayed, the agencies have continued to use existing regulations and their previous guidance.
WOTUS critics are confident that it’s history. Don Parrish, senior director for regulatory relations at the American Farm Bureau Federation, noted that House Speaker Paul Ryan singled out the WOTUS rule in remarks the day after the election, when he said that farmers in Wisconsin were being “harassed” by EPA. “This rule is clearly a target of the (new) administration and one of the first things noted by Speaker Ryan,” Parrish said.
2. Trump’s biofuel support to be tested with oil-friendly EPA
Trump’s early interest in the ethanol industry is giving biofuels supporters a strong sense of confidence heading into the next administration. Before he had even announced his candidacy, Trump toured Iowa ethanol plants and spoke in no uncertain terms about his support for the Renewable Fuel Standard.
Iowa Gov. Terry Branstad and the state’s two U.S. senators, Chuck Grassley and Joni Ernst, were early, vocal supporters of Trump, helping him carry that swing state, and they’re certain to push his administration to boost biofuel mandates. Renewable Fuels Association President and CEO Bob Dinneen told Agri-Pulse last week that he expects Trump’s RFS “support will continue.”
But President Obama also backed the RFS as a senator and as a candidate, and it took a lawsuit to force his EPA to release the annual volumetric requirements on time. Trump’s EPA is likely to get as much pressure as Obama’s to hold down the mandates. Oil refiners are likely to have more influence with Trump’s EPA than Obama’s, and Trump’s EPA transition leader is Myron Ebell, a climate change skeptic who has been critical of the RFS.
Tim Cheung, a biofuel industry analyst at ClearView Energy Partners, said in an email to Agri-Pulse that Trump could use his waiver authority more broadly than Obama has, potentially leading to “lower conventional and advanced biofuel targets under the RFS.”
3. Growers hope for labor relief, but fear new crackdowns
Growers who rely on immigrant labor are facing shortages and wage increases that will be difficult for the new administration to address, given the time required to develop new regulations to liberalize the H-2A guest worker program and Trump’s commitment to crack down on illegal immigration.
Trump has backed down on his threat to deport all illegal immigrants. Since August, he has said the focus would be on removing criminal aliens from the country, not law-abiding ones. But Trump is still sending mixed signals. Kris Kobach, the Kansas secretary of state and well known hard-liner on immigration policy, has joined the transition team.
Kobach who helped write Alabama’s tough immigration law, which created problems for farmers, has told Fox News that no illegal immigrants will get a “free pass.”
"The jobs are going to dry up, the welfare benefits are going to dry up, and a lot of people who may not be criminal illegal aliens may decide, hey, it's getting hard to disobey federal law, and may leave on their own," Kobach said.
Trump’s agricultural advisers have promised that he’ll address problems with the H-2A program, but that could require a lengthy, new rulemaking process. One thing Trump could do is restore a rule that the George W. Bush administration implemented on the way out of office in 2009, easing the documentation and inspection process for H-2A applications. Obama immediately killed the rule.
Restoring it might help farms some, but growers may have bigger concerns than H-2A. Frank Gasperini, executive vice president of the National Council of Agricultural Employers, worries that with Kobach advising the transition, the Trump administration will increase I-9 audits (checking whether employers are verifying employee information) and the Congress will pass mandatory E-Verify. “Without some bridging mitigation for agriculture, I see much more severe labor shortages in 2017,” he said.
Expanding H-2A usage won’t help in the near future, Gasperini said. Federal agencies don’t have the resources to significantly increase the processing of H-2A applications, and farms don’t have the required housing, he said.
4. Trump could have sweeping impact on biotech regulations
There are few issues where Trump could have a bigger impact than in the regulation of agricultural biotechnology – the Obama administration and Congress have made sure of that.
Obama last year launched a government-wide review of federal biotech regulations aimed at updating them to take account of the new techniques scientists are now using, such as gene editing, and the new products on the horizon, including gene-altered insects.
That review of what’s known as the Coordinated Framework appears to be a long way from completion. But in the meantime, USDA is separately moving ahead with a proposal for overhauling its Part 340 regulations that is intended to streamline the process for reviewing and commercializing new biotech traits. That proposal, now at the Office of Management and Budget, could be released before Obama leaves office but there is no way it will be finalized.
This is a political minefield for the new administration not just because of public concerns about GMOs but also because of divisions between biotech and agribusiness sectors.
The new agriculture secretary will want to take a second look at the Part 340 plan, especially since, as Agri-Pulse has reported, there are significant concerns from grain and oilseed exporters that the proposed changes will go too far in easing oversight.
The new secretary also will have to implement the GMO disclosure law enacted this summer. The industry will want USDA to follow the intent of the bill’s Senate authors and write tight definitions that exclude gene editing from the disclosure requirement as well as products such as vegetable oil that don’t contain biotech material. USDA is expected to issue an advanced notice of proposed rulemaking, but it’s not clear if that will be released before Trump takes office.
5. Dietary guidelines, nutrition rules sure to get new scrutiny
Trump also could put his stamp on a range of nutrition issues. His administration will be developing the next update of the dietary guidelines, due in 2020, and the meat industry will be counting on USDA and the Department of Health and Human Services to steer clear of any considerations of environmental sustainability.
The Obama administration’s scientific review panel recommended including sustainability in the nutrition advice, but it was ultimately left out. Trump’s administration will be selecting a new set of scientists for the 2020 guidelines. Industry interests also will be looking to the Trump administration to require more evidence for recommendations in the 2020 guidelines, an issue that the National Academy of Medicine would have to review.
Several nutrition rules or ongoing initiatives could be targeted, including the FDA’s effort to reduce sodium in processed foods, according to Richard Frank, founding principal attorney at OFW Law. “The Obama administration has been extremely busy the past eight years adopting new and, at times, onerous and unfair regulations for the food industry,” Frank said in a blog.
FDA in June released voluntary recommendations to food companies for reducing sodium.
FDA could delay compliance dates for several rules that have already been issued, including nutrition labeling; it could also consider revisions.
Companies have until July 2018 to comply with revisions to the Nutrition Facts Panel. The new requirements are mostly noncontroversial except for one mandating disclosure of added sugars. Frank, whose firm represents the Sugar Association, argues that the added sugars requirement was not based in science.
6. Interior likely to shift on species enforcement
Farmers and ranchers can expect to see a friendlier Interior Department, regardless of who is secretary. One name being mentioned is Lucas Oil founder Forrest Lucas, who started the group, Protect the Harvest, to fight animal rights laws. Interior includes the Fish and Wildlife Service (FWS), which has primary responsibility for U.S. species except marine wildlife, as well as the Bureau of Land Management (BLM), which controls millions of acres of public lands across the West that can potentially be opened up to energy exploration and extraction.
Parenteau, the Vermont law professor, predicts that areas protected from oil and gas drilling in BLM plans developed to conserve greater-sage grouse habitat when the bird was left off the Endangered Species Act list last year will be opened up to energy companies. That seems to be a reasonable prediction considering that the GOP platform opposes the potential listing of the lesser prairie chicken and the sage-grouse.
The prairie chicken was removed from the list last year after a federal judge in Texas found that the original listing was flawed. A new listing petition has been filed, however.
How to consider the impacts of climate change will be a key question moving forward on endangered species listing decisions. Trump has consistently questioned the science behind climate change, and, as mentioned earlier, a climate skeptic is leading Trump’s transition effort.
If the federal government no longer considers climate change to be reality, it could force federal agencies to ignore its potential impacts when deciding whether to list certain species or approve projects. The National Marine Fisheries Service, for instance, listed the bearded seal after determining that melting sea ice would shrink its habitat, a conclusion upheld by the 9th Circuit Court of Appeals. And, the Obama administration recently issued guidance laying out how agencies should consider climate change in National Environmental Policy Act reviews.
7. EPA could ease up on pesticide restrictions
EPA’s Office of Pesticide Programs (OPP) could turn out to be more business-friendly, but the notion that EPA will be dismantled or eliminated is unlikely, said Jim Aidala, senior government affairs consultant at Bergeson and Campbell in Washington and a former high-ranking official at EPA.
For now, Obama’s EPA has to perform “triage,” Aidala said – deciding which regulations now in the pipeline should be pushed ahead and which can wait until a new administration takes office. One regulation being watched closely by the crop protection industry is a new rule on certification of pesticide applicators. It’s currently under review by the Office of Management and Budget, and an EPA official recently predicted it would be sent back to the agency soon, but many other regulations may now be in the same boat, with various agencies pushing OMB to get their regulations out the door.
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