July 24, 2017

Private: The Stealth Attack on the Environment

ACSblog’s Symposium on Regulatory Rollback, Daniel Farber

by Daniel Farber, Sho Sato Professor of Law & Co-Faculty Director, Center For Law, Energy & The Environment, University of California, Berkeley

*This is part of ACSblog's Symposium on Regulatory Rollback

While public attention has been focused on health care legislation, immigration and the Russia scandal, a lot has been happening under the radar in Washington. In numerous government agencies, Trump appointees are working to reverse years of effort by the Obama Administration.

The EPA is headed by Scott Pruitt, who made his name as Oklahoma Attorney General with a series of lawsuits against the agency. The LA Times calls him “Trump’s most dangerous and adroit hatchetman.” The NY Times reported that Pruitt “has moved to undo, delay or otherwise block more than 30 environmental rules, a regulatory rollback larger in scope than any other over so short a time in the agency’s 47-year history....” The title of the NY Times story was revealing: “Counseled by Industry, Not Staff, E.P.A. Chief is Off to a Blazing Start.” One of his great triumphs was successfully lobbying President Trump to withdraw from the Paris Agreement on climate change.

It says something about his tactics, as well as his approach to government, that he is trying to set up a televised debate between climate scientists and climate change deniers. Apparently, he thinks the media, rather than scientific journals, is the right place to decide scientific controversies. Contrary to the overwhelming scientific consensus, Pruitt himself does not agree that carbon dioxide emissions are the primary cause of climate change.

Pruitt has devoted considerable energy to dismantling regulation of greenhouse gases. He has issued orders that regulations of methane emissions be put on hold while the agency reconsiders them. One of these orders was reversed by the D.C. Circuit, which called the rationale “flimsy”. Another order is now in litigation. But the most important actions involve emissions of carbon dioxide, which is indeed the primary cause of climate change if one believes scientists rather than coal industry lobbyists.

The Obama Administration’s signature climate change regulation was the Clean Power Plan, which requires states to put limits on carbon emissions by electrical generators. The rule was stayed by the Supreme Court, but the oral argument in the D.C. Circuit before the election suggested strongly that the Supreme Court would uphold the regulation. Pruitt has asked the D.C. Circuit put the rule on hold indefinitely while EPA reconsiders it, while environmentalists have asked the court to remand the rule (which would dissolve the stay). Given that Trump issued an executive order for EPA to reconsider the rule, and that he signed the order flanked by coal industry workers and executives, there’s very little doubt about what the agency will ultimately decide. Even if he had decided not to explicitly disavow the Paris Agreement, regulatory actions like these would have guaranteed that the U.S. would have come nowhere near its emissions target.

Of the other regulations under attack, the most important is probably a rule generally called WOTUS, short for Waters of the United States. This rule, which was a response to a very muddled Supreme Court ruling, defines the scope of federal jurisdiction over wetlands and streams. Like the Clean Power Plan, WOTUS was mired in litigation and subject to a judicial stay when Trump ordered its reconsideration. The effect of WOTUS would be to expand EPA’s ability to protect wetlands and watersheds. When he ordered EPA to reconsider WOTUS, Trump directed the agency to consider adopting Justice Scalia’s interpretation of the statute, which would roll back pre-Obama regulations as well. For now, EPA is proposing to eliminate WOTUS and go back to the earlier regulations while it considers a regulation of its own (probably along Scalia’s lines).

The D.C. Circuit recently issued the first judicial ruling on Pruitt’s actions. The case involved an Obama regulation designed to limit leaks of methane, a potent greenhouse gas. Pruitt invoked a statute allowing him to suspend regulations if there are new issues that could not have been raised when the regulation was issued, but in fact the issues Pruitt cited had actually been raised when the rule was originally issued. It is heartening that the court refused to allow Pruitt to play fast-and-loose with the statute and the evidentiary record. Pruitt’s disdain for EPA’s staff will put him at a disadvantage in creating the carefully reasoned, detailed explanations that courts require to justify regulatory actions. He will surely win some of the cases, because administrative law is built on presumptions of deference to agencies. But an administrator can squander those presumptions by exhibiting indifference to statutory language and scientific evidence.

In assessing all these developments, it is important to keep in mind that the EPA’s mission is as much public health as the environment. For instance, while cutting carbon emissions, the Clean Power Plan would also reduce conventional pollutants. For that reason, EPA estimated that it would prevent ninety thousand asthma attacks, seventeen hundred heart attacks and thirty-six hundred premature deaths annually. But the effect on the planet of scuttling the Clean Power Plan will far outlive Trump’s presidency. His actions so far will result in increased carbon emissions estimated at 7-12 percent of 2005 emissions – which works out to an extra 400-700 million tons a year. Much of that carbon dioxide will still be in the atmosphere contributing to global warming two centuries from now.

The specific actions that I have discussed are only the tip of the iceberg. Do not forget the other 28 regulatory actions cited by the NY Times. We can only hope that the courts turn back many of them. And beyond regulatory action, there is much more: devastating proposed budget cuts for EPA, staff cuts, taking information on climate change off the EPA website entirely and wholesale elimination of independent science advisors. Not to mention the televised “debate” over the validity of modern climate science. It is going to be a long, hard fight to hold back this tide of anti-environmentalism – and when the political tides have turned, it will take a tremendous amount of work to get things back on the rails.