With President Trump in office and a Republican Congress, it would appear that opportunity exists to improve the regulatory system, as well as the compliance and enforcement process. As previously reported, AGC shared a comprehensive federal agency regulatory, compliance and enforcement plan with members of Congress and the Trump Presidential Transitional Team calling for changes to reduce barriers to investment in infrastructure. Building on the plan, AGC has prepared two additional documents to help keep AGC members -- and political leaders -- abreast with key developments and focused on the construction industry’s priorities. These documents chart a path forward for meaningful reform.
1. Make Federal Agencies Responsible Again
AGC has shared with members of the Trump Presidential Transitional Team a comprehensive document that calls for the repeal of dozens of unnecessary and overly burdensome executive orders, presidential memoranda, and federal regulations that have made it more difficult for construction contractors to safely, efficiently and effectively build the nation’s civil and social infrastructure – see Make Federal Agencies Responsible Again (December 2016). Below are a few highlighted entries and AGC recommendations that are particularly relevant to a discussion on the future enforcement of environmental laws.
- Criminal Prosecutions of Worker Safety and Environmental Law Violations - AGC recommends that the incoming Attorney General withdraw this guidance and MOU and revisit the scope of this initiative.
- Individual Accountability for Corporate Wrongdoing - AGC recommends that the incoming Attorney General withdraw this guidance.
- Citizen Enforcement Lawsuits (All federal environmental statutes, except pesticides act, allow “any citizen” to bring a “civil action on his own behalf” against “any person” who is alleged “to be in violation” of a standard or order issued under the statute) - AGC recommends amending the Citizen Suit Provisions – Federal rules and regulations are complex and cumbersome and should be enforced only by trained staff of government agencies. Potential reforms include: limiting citizen suit penalties to violations of objective, numeric limitations rather than subjective, narrative standards; extend “notice period” beyond the current 60 days (giving reg. agencies more time to review notice of intent letters and initiate formal actions); clarify definition of “diligent prosecution” of alleged violations, thereby allowing fed/state authorities to exercise their primacy in enforcement and preventing unnecessary citizen suit intervention.
- Next Generation Compliance/Enforcement - AGC recommends that the agency revisit and revise the implementation and transparency aspects of the NextGen Strategy.
- Inspect and Correct: Cooperative Approach to Enforcement - AGC recommends that the agency develop reforms to help companies discover and promptly correct environmental problems. Ideas include: reintroducing a process/protocol for making a Voluntary Disclosure under EPA’s Small Business Compliance Policy; reintroduce Expedited Settlement Offer Policy under NPDES stormwater permit program; and expand "Right to Cure" protocol that's currently being used under SPCC Program.
- Compliance Assistance - AGC recommends bringing back agency-industry partnership and recognition programs (e.g., Sector Strategies, Performance Track, C&D Recycling Partnership). A recent Environmental Council of States report finds that approximately half of all regional compliance assistance centers are underfunded or about to close.
2. The Regulatory Road Ahead
Over the last couple of months, AGC has fielded many questions about what possible courses of action the Trump Administration has to undo these and other controversial federal environmental rules or policy actions implemented over the last eight years of the Obama administration. AGC has put forth a document entitled The 2017 Regulatory Road Ahead (updated, February 2017) to help AGC members understand the regulatory state of play – see also an AGC’s Environmental Observer article with an environmental focus.
As AGC explains, some actions can be instituted rather quickly under the authority of the executive branch, see third document below. Others may face time consuming statutory and institutional challenges. Questions remain as to where traditional business interests and the President’s message will overlap and diverge. We will gain further insight as agency heads are confirmed by the Senate--- as we are learning more since Scott Pruitt’s confirmation on February 17 as EPA Administrator. (See related Observer article this issue.)
3. President Trump’s Executive Actions
President Trump is quickly moving to implement his agenda via executive order, presidential memoranda and other directives. AGC has published a third document, President Trump’s Executive Actions (updated, February 2017), analyzing important executive directives – such as those on streamlining permits and environmental reviews and the construction of the Keystone and Dakota access pipelines – and how they may impact AGC-member businesses. It is important to note that the details of implementation of many of these actions remain to be seen, as federal agencies will have to write them. Note this document does not include President Trump’s most recent orders on Enforcing the Regulatory Reform Agenda and on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the "Waters of the United States" Rule, issued February 24 and 28 respectively.
AGC intends to continue to update these documents as needed, so keep an eye out for updates.
In addition to charting a regulatory reform path forward, AGC calls for the Trump Administration to implement a critical paradigm shift within federal agencies. Specifically, the association calls for construction contractors to be treated as industry partners and not "industry opponents;" a term that can categorize the attitude many agencies have taken with the construction industry. To do so, AGC calls for agency enforcement initiatives to focus on bad actors, rather than lumping innocent contractors in with bad actors. Additionally, AGC recommends a return to federal agencies helping construction contractors comply with the law through reestablishing industry partnership programs and developing educational materials.