The “canary in a coal mine” is a metaphor originating from the time when caged birds were carried into the mines as an early warning system; the canary would die before methane and carbon gases reached levels hazardous to humans.
Deregulating the nation’s environment is proving more problematic for Trump and company than they anticipated. There is, I suppose, some consolation in that. Although at the same time, federal collaboration with states and the private sector to protect the environment and to move the nation toward a low-carbon future is pretty much at a standstill.
Defense has become the new offense, since The Donald’s settling into the Oval Office. Law suits asking the courts to prevent federal agencies from delaying implementation of various Obama-era regulations are commonplace. For those fond of counting, the enviros appear to have the edge on the administration when it comes to court victories.
As The Donald is discovering, winning is not always easy to define. It is often elusive long after an inning has ended. Yogi knew, and the environmental community would do well to remember: it ain’t over until it’s over.
EPA Administrator Pruitt has lost in court a number of times after attempting to delay implementation of existing regulations. His announced stays of rules governing both methane and mercury emissions were rebuffed by the U.S. Court of Appeals for the D.C. Circuit.
The same federal court also struck down EPA’s decision to lower renewable fuel standards. The Agency is successfully being challenged in court over its proposed actions including those on: pesticides; water; effluent discharges from power plants; and accidental chemical spills. Plaintiffs in these cases are most often states and environmental organizations.
The courts haven’t favored the plaintiffs in all cases. A recent ruling, for example, struck down EPA’s Obama-era effort to regulate hydrofluorocarbons (HFCs)-- declaring the action to have exceeded the Agency’s Clean Air Act authorities.
In April, a federal court in Florida upheld the National Park Service’s allowing a Texas company to expand its oil exploration activities in Florida’s Big Cypress Swamp.
At issue in most of these cases is whether:
To-date Trump and company have proven most vulnerable when attempting to circumvent procedures. The methane case(s) are typical. The justices in those cases agreed EPA had the authority both to issue and to revise the regulations.
Where Pruitt erred was in his effort to suspend their operation without going through the necessary steps. Rescinding or bigley revising a major environmental rule has consistently been considered by the courts as a new rulemaking. Rules are rules, after all; and, we are a nation of rules.
In these cases, an Agency must follow essentially the same procedures to change a rule as were required to create it. Trumpsters have found this to be a difficult lesson to learn; although, it is one they are coming to accept.
The administration has had the Obama-era smog regulation squarely in its sights since taking office. Pruitt had announced plans to delay its implementation, while the Agency made good on Trump’s orders to review and revise regulations thought to be unnecessary, costly and job killing.
Fifteen states, the District of Columbia and a number of environmental and public health organizations challenged the proposed suspension—as they have in other cases. A day after the suit was filed, EPA reversed its earlier decision and will presumably now play by the rules.
Pruitt’s announcement turned into an occasion for crowing and a bit of back-patting by the environmental community. An Earthjustice attorney, for example, was quoted as saying:
The EPA’s hasty retreat shows that public health and environmental organizations and 16 states across the country were right: the agency had no legal basis for delaying implementation of the 2015 smog standard.
And this from the director of the Center for Biological Diversity:
Pruitt’s lawless attempt to delay stronger ozone-pollution protections would have put thousands of lives at risk. It’s disturbing how much pressure it took to get this commonsense step from the guy in charge of protecting the air we breathe.
Strong rhetoric coming from the plaintiffs in the case.
Pruitt, for his part, dismissed the notion the case had influenced his decision. Saying instead the decision was simply reflective of the Trump administration’s commitment to work with the states through a cooperative dialogue.
Washington watchers were surprised by Pruitt’s willingness to accede to the demands of the plaintiffs, without further ado. This is not an administration known for quiet acquiescence.
The canaries are circling
I recognize it may be hard to tell where the canaries are hiding in all of this. I assure you they’re there; and, environmental advocates would do well to check on their health regularly.
Canary number 1 flew in a month before the ozone suit and Pruitt’s apparent acquiescence, when the House passed H.R. 806 by a vote of 229-199:
This bill amends the Clean Air Act by revising the National Ambient Air Quality Standards (NAAQS) program, including by: (1) delaying the implementation of the ozone NAAQS that were published in 2015; (2) changing the review cycle for criteria pollutant NAAQS from a 5-year review cycle to a 10-year review cycle; and (3) prohibiting the Environmental Protection Agency (EPA) from completing its next review of ozone NAAQS before October 26, 2025.
Prior to establishing or revising NAAQS, the EPA must obtain advice from its scientific advisory committee.
Should the bill become law, it will accomplish legislatively what the administration had hoped to accomplish via executive action—and more. Pruitt has made a deliberate move to clear the Agency’s Board of Scientific Counselors (BOSC) of appointees of the previous administration. The BOSC functions as an advisory board for the EPA’s Office of Research and Development, and helps the office make sure that it is using sufficiently rigorous science in its research and development programs.
He appears willing to move against the Agency’s Science Advisory Board as well. By requiring the science advisory committee’s advice, the legislation’s sponsors are putting the fate of the rule in the hands of scientists known to deny the existence and the threat of climate change.
Pushing enforcement back a year would mean years during which we would have 230,000 extra childhood asthma attacks every year, along with higher levels of other serious lung diseases and premature deaths, according to Elizabeth Thompson of the Environmental Defense Fund. This detrimental impact would be multiplied by the other of the Act’s provisions.
A similar bill has been introduced into the Senate. Among its sponsors are Democrat Joe Manchin (D-WV) and Republicans Capito (R-WV), McCain (R-AZ) and Flake (R-AZ). Supporters in the House included four Democratic Representatives.
Canary number 2 came on the scene as a provision buried in a Defense Department spending bill hundreds of pages long. The legislation, The Make America Secure Appropriations Act (H.R. 3219), would allow:
The Administrator of the Environmental Protection Agency and the Secretary of the Army may
withdraw the Waters of the United States rule without regard to any provision of statute or regulation that establishes a requirement for such withdrawal.
These few lines give federal executives a license to ignore the Administrative Procedures Act in the case of the Waters of the United States Rule (WOTUS). They would, if enacted, establish a broader precedence for legislative limitation of judicial review in all environmental regulation.
Not for the first time
Congressional efforts have been made before to free the executive of constitutional and procedural constraints:
Since the 111th Congress, a number of EPA’s regulatory actions have been the subject of legislative proposals, including stand-alone bills that would have delayed or prohibited EPA actions, resolutions of disapproval under the Congressional Review Act, and potential riders on EPA’s appropriation. In the 112th and 113th Congresses, criticism of EPA actions increased, and several bills to prevent or delay EPA action passed the House but were not considered in the Senate. Some proposals were broad in nature, targeting all regulatory agencies or a lengthy list of specific regulations, while others focused more narrowly on individual rules or actions.
Many of these efforts targeted the ruling in the case of Massachusetts v EPA. It was this case that established EPA’s authority, ultimately its obligation, to regulate the root cause of climate change--greenhouse gas emissions. The case led to the endangerment finding upon which the Clean Power Plan and other Obama-era environmental protections were justified.
Other direct attempts have been made to weaken the Clean Air Act. In 2011, the House of Representatives passed a bill to excise federal authority over greenhouse gas emissions. The attempt failed because the legislation was rejected by the U.S. Senate. Would it fail again, if introduced in the 115th Congress?
Three branches of government
Legislative, executive and judicial—the three branches of government upon which our government was founded. The doctrine is rooted in a political philosophy that aims to keep power from consolidating in any single person or entity, and a key goal of the framers of the Constitution was to establish a governing system that diffused and divided power.
Though separate in principle, the branches are neither divided nor insulated in practice. As evidenced by the earlier referenced court cases, the judiciary may reverse orders of the executive thought to exceed legislatively granted authorities and the decisions of both Congress and the president violative of the Constitution.
Executive actions often straddle the line between creating laws and applying them. The Clean Power Plan, for example, was created by an order of President Obama. As long as such power is executed within the framework of properly enacted legislation and the U.S. Constitution, these applications are allowed.
Who appoints federal judges and who approves? Are these appointees not chosen and confirmed for their conformity with the political philosophies of their makers? 
The nation is fortunate. Previous efforts by Congress and the President to limit judicial oversight have rarely, if ever, succeeded. The past, however, is not always prologue to the future. In an era of rank political conflict, partisanship is replacing principles.
The sustainability of democracy is contingent upon the maintenance of appropriate checks and balances between the branches of government. When the lines blur, the union weakens; its health and welfare are jeopardized.
Trump and company have expressed—against a growing preponderance of scientific evidence--their disdain of climate change theory. They daily demonstrate their commitment and authority to roll back all federal climate change-related programs and policies.
Together they can and will—if allowed to go unchecked--weaken and delay needed national efforts to:
When I look to the skies over Capital City, I see canaries circling. Fortunately, their chirping can still be heard. I wish them long life and promise myself to check on them regularly.
This is the latest installment of the irregular Canaries in the Coal Mine series.
 There are currently: 112 available federal district court judgeships; 19 open U.S. court of appeals vacancies to be filled; and, 3 SCOTUS justices over the age of 79.
Joel B. Stronberg
Joel Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.