Hurdles seen for new-build oil, gas infrastructure, even in second Trump term

Even with its continued focus on "American energy dominance," a second Trump administration could face hurdles to infrastructure development and its deregulatory agenda, a lawyer with a top Washington lobbying group said July 29.

"The challenge for the Trump administration, if they have a second term, is how they're going to move forward with new-build infrastructure," said Hilary Tompkins, a partner with Hogan Lovells, during a webinar on 2020 election issues facing key industries.

The pandemic has delivered a blow to the economy, the oil and gas industry, and the viability of new projects, she noted.

Another major challenge for a second Trump administration would be how to "extract itself from all the litigation" that has ensued as it pursued regulatory rollbacks, according to Tompkins. "We recently saw a really tough loss for the Trump administration in the Dakota Access [pipeline] litigation, where that project has been put on hold" amid an appeal, she said.

Deregulation snags

In another example, on the deregulatory front, a recent decision coming out of California ruled that the Trump administration failed to adequately consider the social costs of carbon in a climate change case involving its new rule on methane emissions, she noted.

On top of those court battles, if Congress flips to further Democratic control, she expected to see the use of the Congressional Review Act to repeal new rules the Trump administration has been undertaking.

The administration has, in her view, lived up to its promise to have a deregulatory agenda in the environment and energy sector, pursuing the rollback of over 100 rules, including oil and gas fracking rules, methane rules, and regulation of power plant emissions.

Rules aimed at streamlining permitting also have advanced; for instance, the administration recently finalized a National Environmental Policy Act reform rule, she noted. Analysts have suggested timing of that rule could subject it to Congressional Review Act attempts, and environmentalists are already filing suit to block the regulation.

Tompkins also highlighted state and local and corporate initiatives on climate change and sustainability as another factor tempering the direction the White House set.

Divergent ideologies

Overall, Tompkins cast the 2020 election as teeing up "a battle between very divergent ideologies:" Trump's focus on energy dominance and supporting the fossil fuel industry, and the campaign of former Vice President Joe Biden's focus on climate change and the need to protect the environment for future generations.

The Biden campaign, she noted, has already put out promises to rejoin the Paris climate accord, and set ambitious goals of net-zero emissions by 2050, she said. A Biden administration is likely to be strong on clean energy and renewables, and big make a push for innovation related to electric vehicles and carbon capture technologies, she said.

Delays in offshore wind in the Atlantic likely would be replaced by the fast-tracking of such projects, she suggested.

LNG reviews

A new focus on environmental justice also is likely under a Biden administration, she said, and that could factor in more heavily in reviews of LNG projects on the Gulf Coast, she noted. Questions about impacts on low-income, minority communities were recently debated in permitting disputes over LNG projects along the Brownsville Ship Channel.

She also expected greater overall attention to environmental impact and climate change, in LNG and infrastructure reviews, under a Biden administration.

While Biden will be supportive of infrastructure across the country, he will be wary of putting any kind of conventional energy infrastructure at the top of his list, in her view. Rather, his expressed goal of preserving 30% of America's lands and waters by 2030 puts front and center a focus on lands for conservation to combat climate change, she said.

Overall, the lawyers and lobbyists on the firm's webinar advised clients to be prepared for both a Trump or Biden presidency and the need to engage in a bipartisan fashion.

Still, former Senator Norm Coleman, Republican-Minnesota, senior counsel at Hogan Lovells, offered a political point, noting that the Senate hinges on a number of very tight races.

"Don't hesitate to engage politically where you can to try to ensure that there is a continued balance, so bad things don't happen to you," he said, worrying an end to the filibuster could allow passage of a Green New Deal or other challenges to certain energy companies and other industries.