President Donald Trump and How His Administration Has Affected the EPA (Environmental Protection Agency)

The concept of public health has its roots in the recognition and appreciation of the critical role played by the environment in disease and human health. From the Great Sanitary Movement to the Paris Agreement and even the modern-day threat posed to the planet by climate change, the safeguarding of public health has always been anchored in environmental protection. In the United States, the protection of the environment is under the purview of the United States Environmental Protection Agency (EPA), which is a federal agency established with the objective of protecting the environment and human health through the writing and enforcement of regulations that are premised on legislation enacted by Congress. The EPA commenced its operation in 1970 after the signing of an executive order by President Nixon (Elkins, 2013).

The EPA as an entity operates under the direction of an Administrator who is a presidential appointee subject to Congressional approval. The primary duty of the EPA pertains to the maintenance and enforcement of national environmental standards established under the relevant laws, in conjunction with local, tribal, and state governments (EPA, 2018). Besides this, the EPA also engages in education, environmental assessment, and research while working with concerned industries and government agencies in the development and implementation of energy conservation and pollution prevention initiatives. Consequently, it is evident that the organization’s fundamental purpose is to serve as a regulator. However, the entity’s regulatory ability and the accomplishment of this duty are primarily dependent on its leadership and the direction followed by this leadership.

Since the assumption of power by Donald Trump, the Federal Government has consistently sought to pursue a policy of deregulation of environmental matters, as evidenced by the decision to exit the Paris Accord and the roll-back of several environmental laws and policies passed in the Obama era. Furthermore, the EPA, especially under the administration of Scott Pruitt, has witnessed drastic shifts in its priorities and policies that are out of tandem not only with the Obama administration era but with the entire history of the EPA. The changes initiated by Pruitt and his fellow Trump appointees seek to achieve a concept known as “electorally sanctioned pro-business governance,” as defined by the prominent policy expert David Carpenter (Carpenter & Moss, 2014). However, the EPA and Trump, through his administrators, have failed spectacularly in this objective. Instead, what they have accomplished is a phenomenon described by Carpenter and Moss (2014), among other scholars in the social science realm, as “regulatory capture,” which is defined as a phenomenon in which “regulation is…directed away from the public interest and toward the interest of the regulated industry” through both the “intent and action” of the concerned industries and their allies.”

Regulatory Capture and the Public Interest Theory

Various activists and scholars, for example the President of the Environmental Working Group, Ken Cook, have for several years directed criticism towards the EPA for its proneness to influence by key industry players. However, it is increasingly apparent that the rapidity, reach, and the ambition of Trump’s endeavors to inhibit the execution of the regulatory duty of the EPA far surpass that exhibited by the administration’s nearest pro-business comparisons, George W. Bush and early Reagan administrations. Predicating the argument on the theory of “public interest,” as stipulated in various judicial, scientific, and policy precedents, in addition to the agency’s historical practices, this paper posits that the Trump-era EPA has diverted from what could be considered as public interest and now primarily operates at the behest of and for the interests of the same industries it is meant to regulate. Thus, it is precipitating a scenario of full-blown regulatory capture that could have far-reaching repercussions for environmental and public health.

Regulatory Capture and the EPA

In the United States, regulatory capture is not a new phenomenon having manifested itself in 2008 when it was evident in the failed regulation of financial markets that ultimately occasioned the financial crisis. Another prominent example of regulatory capture was observed in the 1990’s when the financial boom caused the banking industry to obtain massive political power that was then utilized to bring about regulatory capture of the institutions charged with oversight (Baxter, 2011). In a similar vein, some states, like Oklahoma, have in recent times enjoyed a boom in gas and oil revenues, which can be directly linked to alliances made secretly between politicians and the organizations operating in that industry (Lipton, 2014). For example, during the period in which he served as the Attorney General of the state of Oklahoma, the former Administrator Pruitt initiated legal action against the EPA fourteen times (Baker, 2010). When determining whether public entities such as the EPAGovernment have changed course from their public obligations and instead become lackeys for the industry players, it is imperative to first develop and define the public interest model and subsequently demonstrate how the recent legislative and policy decisions have shifted towards special interest groups and industry players. Besides this, it is also essential to demonstrate how the industry itself has deliberately and actively motivated and influenced the regulatory policy shifts.

Defining the EPA’s Public Interest

The public interest of the EPA is encompassed in its legal mandate to safeguard the environment and ensure the protection of human health. Prior to January 2017, the EPA’s mandate was apparent in its rule-making and its issuance of directives in matters pertaining to health matters, for instance, pesticides and greenhouse gas emissions. However, even during this period, the EPA was still incapable of living up to its mandate on a variety of key issues, which prompted criticism from environmental activists, the communities affected by the environmental concerns, and prominent scholars in this area (Coglianese & Nash, 2014). Some of the problems experienced during that period still persist today, even under new leadership with some examples of these being the misaligned responsibilities among the local, state, and federal governments and the outdated hierarchal model of regulation operated by the EPA. Thus, rather than improve on the deficiencies of the EPA, the agency’s new leadership under Trump has comprehensively undermined many of its programs and operations while severely reducing its budgetary allocation thus hampering is operations even more.

Political Appointees and Industry Connections

One prime example of the EPA’s reorientation towards aligning with and even favoring industry interests under President Trump is in the nature of the appointees to key offices in the agency and the affiliations of these individuals with the industries. By and large, the Trump appointees have a demonstrable history of close association with the industries whose designations would put them in charge of regulating thus calling into question their ability to be free of bias and operate without favoritism. One such appointee is Myron Ebell, who headed the EPA transition team and is associated with the Competitive Enterprise Institute (Eilperin, 2013). Besides Ebell, the former EPA administrator, Pruitt, before his assumption to office, was in close contact with the fossil fuel industry and even indirectly received funding from the conservative groups to bar the same EPA regulations that he was expected to enforce. The current acting administrator, Andrew Wheeler, another Trump appointee, is a vehement fossil fuel proponent and has even served as a staff member to Senator James Inhofe, a member of the climate-change denial bandwagon. Consequently, for environmentalists, these Trump appointees represent the epitome of conflict of interest and under their leadership, the EPA becomes little else than a subsidiary of the oil and gas industry.

Withdrawal from the Paris Accord

The Paris Climate Accord refers to an agreement enacted by nearly all of the world’s nations to cut down on the greenhouse gas emissions that are generally agreed to precipitate human-attributable changes in climatic conditions. During the Obama era, the US, in compliance with the terms of the accord, had begun to design regulatory strategies for the reduction in carbon dioxide emissions, which was to be overseen by the EPA under what eventually became the Clean Power Plan. However, President Trump, as part of his campaign promises, had committed to rescinding this agreement, which he did in a June 2017 announcement. Trump’s basis for withdrawal from the accord was that the economic and financial burden imposed on the country by the implementation of the accord was unfair especially given that the reduction in global temperatures attributable to this implementation would be negligible. Besides withdrawing from the Agreement, Trump announced that the US would cease to provide funding to the Green Climate Fund, which is a plan managed by the United Nation with the objective of financing emission reduction and mitigation measures in developing nations (Rucker & Johnson, 2017). Instead of the Paris Accord, the Trump Administration aimed to negotiate an entirely new agreement that would favor the US interests or to renegotiate the existing one for the benefit of his country.

Whereas the Trump Administration claimed that the decision to exit the accord amounted to do what was in the country’s best interest, it is evident that it is merely further evidence of the regulatory capture of the EPA. The USA’s withdrawal from the Paris Accord served no practical purpose since the Agreement does not impose or necessitate any specific changes concerning climate change but instead, it proposes that states have “Nationally Determined Contributions” and there are no penalties for defaulting on these contributions or revising them downwards (Herz, 2017). The absence of consequences indicates that the negative effects that the Trump Administration blamed on the signing of the treaty were not factual. Instead, withdrawing from the treaty was a cover to target the EPA by removing one source of its legitimacy with regard to the enforcement of anti-climate change regulations. By stripping away the international backing and pressure to conform that came with being a signatory of the accord, the US could stifle the operations of the EPA thus permitting coal mining to continue unhindered and without the negative international attention it would otherwise attract.

Trump Executive Orders

Another key pointer to the Trump Administration’s weakening of the EPA’s regulatory role is evident in the executive orders he has issued on environmental matters since his assumption of office. Trump’s orders undoubtedly undermine the existent legislations and guiding rules on matters environment without consideration of the effects on the environment and people’s health. An example of this situation is the Executive Order 13783, which pertained to the promotion of economic growth and energy independence. In this order, Trump apparently targeted regulatory burdens that were deemed to place unnecessary encumbrances on the production of energy thus inhibiting the creation of employment (The White House, 2017). The operationalization of this executive order at the EPA entailed the initiation of a review of the National Ambient Air Quality Standards as well as the stipulations put in place at power plants regarding air pollution. Furthermore, compliance with this order also encompassed an employment evaluation to single out the specific EPA regulations that were inhibiting the expansion and development of business entities.

Ideally, the system of internal agency checks whereby a peer review framework would facilitate the provision of external input by independent sources would have provided the best strategy for identifying the superfluous regulations, if there are any. However, the then EPA Administrator, Pruitt instead embarked on the elimination of scientists whose research was funded by federal grants provided by any of the EPA’s science boards citing the existence of a conflict of interest. Ironically, the replacements for these scientists were sourced from the industry (Reilly & Bogardus, 2017). This move evidences the argument that the fundamental purpose of the executive order is the protection of industry interests and not the removal of encumbrances, which is a sign of regulatory capture.

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Rolling back of the Clean Power Plan

In March 2017, President Trump through the signing of an executive order instructed the EPA to initiate measures to do away with the signature CPP, which sought to bring about a 32% drop in greenhouse gas emissions emanating from power plants before the lapse of the year 2030. However, the operationalization of the plan had been a matter of contention with the matter pending before the courts after a lawsuit initiated by 24 states and various industry entities thus resulting in a stay order against the plan issued by the Supreme Court pending the determination of the matter by a lower court (Nolette, 2017). During his campaign, President Trump had expressed sharp criticism relating to this plan and had promised to eliminate it if elected. After the signing of the executive order and the subsequent initiation of a review of the plan by the EPA, the DC Court of Appeal approved the Trump Administration’s prayer for a suspension of all pending litigation on the plan.

Whereas it would appear that the elimination of the CPP is Trump Administration policy targeted at the provision of economic benefit, it is merely a demonstration of the regulatory capture of the EPA by industry players. Since the CPP was a final rule, it is mandatory for its reversal to be subjected to the ordinary rulemaking process and only then can the reversal be finalized. Some of the steps involved in this rulemaking process include the provision of an explanation as to why it is necessary to repeal this rule plus the provision of a comment period during which the public can give its opinion. Furthermore, according to the ruling in Massachusetts v. EPA, 549 U.S. 497 (2007) in which it was held that the regulation of greenhouse gases by the EPA is mandatory in situations where they threaten human life, the Trump Administration is required to introduce a replacement of the CPP. However, it is apparent that the Trump Administration has no immediate plans to introduce a new law but only seeks to repeal the existing one. Thus, in such a circumstance, the legal status of the EPA as far as regulation of greenhouse gases is concerned will remain undetermined thus hindering its operations to that end.

Even supposing that the EPA did seek to introduce another law in place of the CPP, its regulation would encounter similar legal challenges. The legal premise for the CPP is contained in the Clean Air Act (CAA), 42 U.S.C. § 7521 section 111(d), whereby the agency is authorized to establish regulatory standards for existent pollution sources (Cornell Law School, n.d.). However, a clerical mistake during the Act’s amendment in 1990 resulted in the approval of two differing wordings of the law in that specific section. The lack of reconciliation between the two versions provided a loophole through which anti-CPP litigants such as Pruitt relied on to argue that according to the House version, section 111 (d) cannot be relied upon by the EPA to create regulation for carbon emissions since under section 112, the agency already possesses regulatory power over the facilities mercury emissions (Richardson, 2017). Since the Senate version lacks such an objection and it is not immediately clear which version prevails, the EPA could opt not to introduce a replacement arguing that section 111 (d) denies it the required authority. With firm fossil fuel proponents at the helm of the EPA, it is thus a reasonable supposition that the state of limbo in which the EPA exists with regard to fossil fuel regulation is deliberately facilitated by those industry sympathizers at the agency’s head for the benefit of fossil fuel producers and is thus a case of regulatory capture.

The Waters of the United States (WOTUS) Rule

In February 2017, an executive order signed by President Trump came into operation, and in it he instructed the EPA as well as the U.S. Department of the Army to begin a review and reconsideration of the WOTUS rule with a view to its elimination. According to the Clean Waters Act, the regulation of pollution of ‘navigable waters’ falls under the purview of the EPA whereas the issuance of permits for dredging or filling of those waters falls under the U.S Army’s Engineering Corps. However, ever since its enactment over four decades ago, both the courts and the two concerned agencies have been unable to conclusively define the waters falling under this jurisdiction. In crafting the WOTUS rule, the Obama administration sought to settle this issue with its interpretation primarily premised on the Rapanos v. United States, 547 U.S. 715 (2006) decision in which the majority opined that waters deemed to have a “significant nexus” to the navigable waters could be included under the purview of the Act. However, 13 states immediately moved to challenge the decision in court prompting the issuance of a stay on the implementation of the rule until the determination of the case.

The Trump Administration, however, sought to introduce a new WOTUS rule to replace the Obama one with the proposed replacement also premised on Rapanos v. United States, albeit on a dissenting opinion, provided by Justice Scalia, which suggested a much more limited scope for the EPA and the US Army with their jurisdiction limited to those waters and wetlands considered “relatively permanent” and which were continuously connected to larger streams and rivers. The institution of this new rule would potentially eliminate protection for millions of miles comprising of streams as well as millions of acres that contain the valuable wetlands that are the primary source of drinking water for one in three Americans (Sneed, 2017). Furthermore, a WOTUS rule along the suggested standards would undoubtedly face legal challenges from coalitions such as the states that were in support of the previous rule. Additionally, the process of developing the new rule and working out its modalities is highly complex and will take a reasonable amount of time, which means that for the time being, there will be no clarity on either the meaning of navigable waters or the extent to which the regulatory power of the EPA under the CWA extends. The absence of clarity on these important issues means that the EPA is in essence unable to act and is thus at the mercy of the industries it is meant to regulate since they may sue the agency for overstepping its mandate if it acts on them.

The CRA as an Aid to Regulatory Capture

Besides the use of the executive orders to reverse and undo the Obama-era policies, thus weakening the EPA, President Trump has also utilized the Congressional Review Act (CRA), a previously disused federal law to repeal several other policies. The CRA is a federal legislation that permits the rescission of any rule instituted by a federal agency with the requirements for the rescission being a win through a simple majority in a vote conducted in both chambers of Congress as well as the president’s signature. However, the CRA is only applicable within a period of 60 legislative days from the date when Congress was made aware of the concerned legislation. In its over twenty-year history, this law has only been employed once successfully since it is very difficult to use at any other time other than during the initial days of a presidency when a unified Congress of the party in power exists.

Despite the CRA’s unenviable record of use, the Trump Administration has, since ascending to power, managed to enact a whopping fourteen laws that have formally overturned regulations instituted in the Obama era, a substantial amount of which relate to the environment. One of the prominent examples of regulations reversed using this Act include the Stream Protection Rule that mandated coal mining companies to prevent pollutants from their mountaintop mines from getting into local waterways and which was reversed following Trump’s signing of H.J. Res 38 after its passage by both houses (115th Congress, 2017). This unfettered use of the CRA to overturn regulations has significant long-term ramifications from a policy perspective and this may hinder the EPA’s operation while facilitating regulatory capture. One of the key provisions of CRA is that no executive agency can institute a rule that is ‘substantially similar’ to the one repealed in the future (Carey et al., 2016). The fact that that provision has yet to be challenged legally is among the reasons why the use of the CRA has potentially long-term implication on policy. With no clear definition on what qualifies as “substantially similar” the assumption is that any rule relating to that topic would be covered (Grunwald, 2017). Consequently, such an interpretation would mean that the EPA has no jurisdiction to make legislation prohibiting pollution of water bodies by mining companies. Allowing these entities to release pollutants at will into streams and rivers is not only severely detrimental to the environment but is also a hallmark of regulatory capture in that legislation or administrative policy has been applied to render the EPA, a regulatory body, powerless to the evident benefit of an industry player that would ordinarily have been answerable to the regulatory body.

Delayed Implementation of Statute as a Facilitator of Regulatory Capture

The regulatory capture of the EPA under the Trump Administration is also evident in its active employment of the delayed implementation of already instituted regulations from the Obama era as a strategy to impede the operations of the EPA. One example of this strategy in operation is the EPA’s June 2017 announcement of a one-year deadline extension for the states’ compliance with ambient ozone concentration standards instituted in October 2015 during the Obama era (Davenport, 2017). The delayed implementation of the rules stifled the operations of the EPA by rendering it powerless to move against entities that do not adhere to these standards. This reduction of the EPA to a mere bystander only served the interest of the industry players who were permitted to continue operating unregulated. However, the delay in implementation has been challenged in court with sixteen states suing the EPA over this issue forcing it to backtrack on the decision in August 2017 (Friedman, 2017). Nevertheless, the EPA still failed to meet the implementation deadline set for two months later, which further evidence of a deliberate absence of the will to implement legislation, which is indicative of regulatory capture.

Reduction in Federal Participation in Environmental Law Enforcement

Another measure undertaken by the Trump Administration to entrench regulatory capture in the EPA is a shifting of enforcement responsibility from the federal body to states. The underlying idea behind this policy direction is supposedly a back-to-basics return to the EPA’s core mission, which is the protection of the environment through the engagement of tribal, local, and state partners in the creation of sensible regulations that help to spur growth (EPA, 2018). However, such an idea is in direct conflict with the agency’s stated mission, which entails human health and environmental protection but makes no mention of economic growth. Thus, it is apparent that the fundamental focus here is on partnership with state and local governments as opposed to the actual enforcement of legislation.

One tool employed by the Trump Administration in the shifting of responsibility to states is a reduction in the budgetary allocations for the EPA. For example, in the premier budget blueprint released under the Trump Administration’s, a 31% spending cut was proposed for the EPA with the budgetary allocation slashed by a massive $2.6 billion and budgetary reductions spread across all operational areas of the EPA (EPA, 2017). Whereas the slashing of budgets for all EPA programs is, on the face of it, an indicator of the federal government’s commitment to an increased focus on empowering states to enforce regulations. However, upon closer scrutiny, the government’s insincerity in the pursuit of this objective is evident. For example, aside from the proposed cuts to the EPA’s spending, the budget also called for a 19% reduction in the grants offered to states to finance their environmental programs as well as the funding for both federal and state programs targeting environmental protection activities in areas such as the Great Lakes (EPA, 2017). Consequently, it is evident that the Trump Administration’s interests only lay in the clipping of the EPA’s powers to reduce its effectiveness and not in the transfer of federal responsibilities to states as purported. The ultimate beneficiaries of policy decisions that lead to an underfunded and less effective EPA are the industry players whose activities would be subjected to less scrutiny, which is a concrete proof of regulatory capture.

Conclusion

For a long time now, environmental activists, policymakers, and even scholars have questioned the level of influence that corporate bodies and other industry stakeholders have on the EPA. During the Trump Administration, it is apparent that the answer to this question is that regulated industries exert massive pressure on the EPA and have a strong and undeniable influence on the EPA’s activities and policies. Right from the initial days of the administration, a pattern of systematic and overtly exercised influence on the operations of the EPA has been evident. The raft of political appointments made by Trump at the EPA and their deep ties to the industries they were meant to regulate; the flurry of executive orders that seek to dismantle Obama-era environmental legislations; the decreased budgetary allocations, and the exiting of international agreements point to a common theme. The theme in this case is that Trump’s administrative policies have served to cripple the EPA’s ability to confront pollution and execute its mandate of environmental and health protection thus providing compelling evidence exists of the regulatory capture of the EPA by regulated industries. If left unaddressed, this situation has potentially serious health ramifications for American populace who could end up with a blind watchdog that exists only to serve industry interests but offers no protection to the citizens.

 

References

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