A New Executive Order: 2 for 1
The week promises to see two important actions impacting federal environmental regulation. Continuing to churn out executive orders, President Trump signed the long-promised order requiring federal agencies to eliminate two regulations for every one proposed—starting in 2017.
The order is nearly the same as the “regulatory cut-go requirement” in section 808 of H.R. 26—otherwise known as the REINS Act. Having passed the House, the proposed legislation is in the Senate awaiting action.
The presidential order directs agencies begin following the 2 for 1 rule immediately. Trump boasted during the signing ceremony:
This will be the largest ever cut by far in terms of regulations… If you have a regulation you want…
we’re not going to approve it because it’s already been approved probably in 17 different forms. But if we do,
the only way you have a chance is…to knock out two regulations for every new regulation.
The order is not without its problems—possibly a lot of them. Experts are questioning both its constitutionality and mechanics.
The Administration’s purpose in issuing the order is to reduce the total number of federal regulations by 75 or more percent. It is also intended to keep the total cost of federal regulations down—requiring the two regulations recanted at least equal in cost to the one proposed.
Section 2 (c) states: In furtherance of the requirement of subsection (a) of this section, any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. Any agency eliminating existing costs associated with prior regulations under this subsection shall do so in accordance with the Administrative Procedure Act and other applicable law.
Offsetting the cost of a new regulations, through the elimination of existing ones, is ultimately going to run into trouble simply as a matter of mathematics. For example, the rule to limit methane emissions from new oil and gas operations put into effect last May was estimated to cost $530 million in 2025. This was against an estimated $690 million in projected benefits during the same period.
Had this rule been issued after today’s executive order, the required offsets could be hard to find—without jeopardizing the loss of other important regulations. The order does not say whether the cost of a regulation is “net” or “gross.” Neither does it indicate where the rules to be cut are to come from.
What if an agency doesn’t have rules under its jurisdiction that would equal the cost of the new one? Would the Energy Department have to ask Health and Human Services if it would mind retracting a few of its regs so that new truck mileage requirements could be issued?
The order directs the head of OMB to annually provide agencies with a cost allowance for new regulations. Agencies will not be permitted to exceed their incremental allotments. Even assuming that an agency can identify enough rules to cut, what happens if those rules were mandated in legislation? Congress would have to act to rescind.
If they were mandated, and came under the Administrative Procedures Act’s requirement that a major rule can only be undone by the same process—in reverse—that created them? Many major rules, e.g. the methane rule or the CPP, took years to finalize.
It is difficult to conceive of how OMB is going to be even able to carry out the President’s directive of coming up with the required agency allowances, either for this or the next fiscal year. Practically speaking there is a lot to consider, e.g. legally mandated or government or agency wide. Does that mean that NO regulations can be issued by agencies, until the details are worked out?
The order is unclear as to when the two existing rules are to be rescinded, i.e. before or a period after the new rule is to take effect. Exceptions to the 2 for 1 rule are made for regulations dealing with the military and national security.
Many-- on both sides of the aisle and on all sides of the business, environmental, energy transportation, health, and consumer sectors--are raising substantive questions about the President’s action. Wondering if, in the short-run, it will harm the very businesses Trump hoped to help by introducing a massive amount of uncertainty into the marketplace.
Added to the logistical problems of putting the order in-place, numerous lawsuits are likely to be filed either in advance of agency actions or, as new regulations are issued and existing ones slated for rescission.
Finally, the new executive order is likely to be raised at the remaining confirmation hearings and reflected in the written questions of cabinet and sub-cabinet nominees.
House Joint Resolution 22: Methane emissions on federal lands
The House is expected to rescind a recently published environmental regulation limiting methane emissions. The Resolution would have the immediate impact of striking the Department of Interior/Bureau of Land Management recently published methane regulation. (DOI/BLM)
The rule restricts venting and flaring of existing and future natural gas and methane from wells on federal and American Indian lands. The resolution is scheduled for an up or down vote on January 30th, after the allowed 1 hour of debate. By statute, no amendments or filibuster is permitted for actions brought under the CRA.
The resolution should easily pass the House, when it will then go to the Senate for consideration. Odds are in favor of approval by the upper chamber. Once passed by a simple majority of the House and Senate, it will be forwarded to President Trump for his anticipated signature.
The full text of the disapproval action is:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Environmental Protection Agency relating to “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources” (published at 81 Fed. Reg. 35824 (June 3, 2016), and such rule shall have no force of effect.
The rule was allowed to go forward after a federal court refused to grant petitioners request for injunctive relief. The basis for the challenge was the regulation's interference with state fracking regulations and a federal agency having exceeding its authority. Similar claims by many of the same plaintiffs that challenged the Clean Power Plan in the West Virginia v EPA case now pending an en ban decision by the D.C. District Court of Appeals.
Unlike EPA’s final rule published in May 2016, applying to all newly drilled wells around the country, BLM’s more narrow rule was finalized after the June 13, 2106 date determined by the Congressional Research Service as within the CRA’s 60 (legislative) days window.
Not directly dealt with by the resolution, methane rules finalized before the date—now under judicial review—may be impacted as the courts search for legislative intent. It should be noted that the challenge to EPA’s methane rule for new and modified oil and gas rules includes the states of Oklahoma and Texas, as well as West Virginia.
The case was filed on behalf of Oklahoma by Scott Pruitt. How his involvement will be dealt with should he be confirmed as EPA Administrator remains an unanswered question.
Regulation through litigation is wrong….
Hours after the swearing in ceremony, the White House released a directive to federal agencies ordering the withdrawal of all rules awaiting publication in the Federal Register and extending for 60 days the effective date of recently published regulations.
It is not unusual for an in-coming administration to postpone the release of lingering rules promulgated by a predecessor. Trump’s campaign promises and a recent statement by House majority leader Kevin McCarthy (R-CA) give a more ominous cast to an otherwise common practice, however.
McCarthy, in a Washington Post interview: criticized the volume of regulations under the Obama administration, adding that Congress will follow the Regulations from the Executive in Need of Scrutiny Act (REINS Act), which is designed to keep regulations and their costs down by forcing all new major regulations to be approved by Congress. How McCarthy’s claim will be implemented is unclear—his intention is not.
Although President Trump has yet to issue a blanket order cancelling all extant executive directives, Friday’s directive could freeze several new energy related standards, e.g. on uninterruptible power supplies; these were issued at the end of December but are unpublished in the Register.
Mr. Trump promised business leaders on his first full day in the Oval office that his administration intended reducing federal regulations by seventy-five percent. Evidently this was as surprising to the President as it was to others:
A bigger thing, and that surprised me, is the fact that we are going to be cutting regulation massively. Now we are going
to have regulation and it will be just as strong and just as good and just as protective of the people as the regulation we have right now.
Meeting with automakers on the second day in office, Trump used the occasion to repeat his intention to rescind major environmental rules. Adding to the gravitas of the situation were other announcements freezing contract activities at EPA and ordering a media blackout for other climate related offices, e.g. the Agricultural Research Service.
Like It Or Not
We are a nation of rules. How rules are crafted and implemented impacts everything from human health to trademark protection and the free flow of goods and services across state and national boundaries. When the system bogs down, so too does government.
The purported purpose of the reforms, introduced by Republican sponsors in Congress and the rescissions promised by the President, is to lighten the burden on business and pave the way for American producers to produce--bigly. The actual impact of the proposed actions may turn out to be something quite different.
OMB has predicted the REINS Act alone would replace a well-established frame-work with a blanket requirement of Congressional approval… throw[ing] all major regulations into…limbo. Given the combination of executive orders, recently proposed reform legislation, e.g., the RAA and agency-centric culling of existing rules, OMB’s estimate of limbo-time may be optimistic.
The breadth of the promised reforms and the number of regulations targeted creates numerous choke points. Knots that can only be undone by the courts or the passage of additional legislation. Either could take years.
In the following paragraphs, I will be focusing on the inevitability of legal challenges and what their basis may be.
So Sue Me
Plaintiffs are already lining up outside courthouses in America to bring environmental/energy law suits against the Trump administration. The asked for remedies will be varied and wide-ranging--from whether the EPA Administrator—once confirmed--must recuse himself from certain decisions to writs of mandamus, asking the court to order EPA to issue clean air regulations.
Add the prospect of dozens of new cases to the existing docket challenging EPA’s authority, and you have the legal equivalent of broken down cars in the Lincoln Tunnel at rush-hour--in all lanes and in both directions.
The same courts that just months ago were asked to halt issuance of clean air and water rules will now be asked to direct the Agency to issue them. Confusing and a bit perverse, isn’t it? In football this would be known as the double-reverse.
It actually gets stranger. Bear with me for a few more paragraphs.
Not all state and local jurisdictions were against EPA’s issuance of clean air regulations. In the West Virginia case, for example, over a dozen states and cities filed amicus briefs in support of the CPP. Other friend of the court filings were submitted by large environmental organizations like NRDC.
These groups and others have standing to sue through the Administrative Procedure Act (APA); it allows any interested person to petition a federal agency to make, change or repeal regulations. Several years ago, Massachusetts petitioned EPA asking them to set limits on greenhouse gas emissions from automobiles. EPA refused.
The case, Massachusetts v EPA, went all the way to the U.S. Supreme Court. In a narrow 5-4 decision, SCOTUS ruled: if the Agency found the public’s health and welfare were endangered, it was obligated to regulate CO2 emissions.
The decision meant that EPA had to determine if GHGs cause or contribute to air pollution and reasonably do harm to society. In 2009, EPA indeed declared that GHGs were an endangerment and put populations at risk. Perforce of the decision in the Massachusetts case, EPA was then obligated to regulate CO2 emissions.
The Massachusetts decision was used by the Obama administration as the trigger for the CPP. Enter AG Pruitt--stage left right, and potential conflicts begin to appear.
Pruitt is a leading lawyer in the West Virginia case questioning EPA’s authority in the matter of the CPP. Prior to this case, he had joined other attorneys general in the Coalition for Responsible Regulation. The Coalition unsuccessfully challenged EPA’s endangerment finding in the Massachusetts case.
The U.S. District Court of Appeals for the District of Columbia dismissed industry and state claims that EPA had overly relied on outside scientific bodies, i.e. the United Nations' Intergovernmental Panel on Climate Change.
The DC Court of Appeals is the same court whose decision was overturned by SCOTUS putting a hold on the CPP. The case was then sent back to the D.C. appellate court--where it now awaits an en banc decision before it is again appealed to SCOTUS.
Adding a bit more to the backstory. Justice Garland sits on the bench of the D.C. District Appellate Court. His nomination, by President Obama, to fill Justice Scalia’s seat was pigeon-holed by the Republican Senate and a major issue in the 2016 presidential elections. It should be noted that Justice Garland was not part of the en banc proceeding last September.
If the story were not already strange enough, the saga goes on. Once Pruitt becomes EPA Administrator, he will be in a positon to retract the endangerment finding made by EPA; a finding that SCOTUS had ruled appropriate and led to the CPP.
Marcus Peacock, a Deputy EPA administrator under President G. W. Bush, is on record saying:
It would be bold to undo the endangerment finding. You could do it. It would be difficult. It would take time.
Will Mr. Pruitt --as EPA Administrator—overturn the SCOTUS decision in the Massachusetts case? I don’t know.
It is not difficult, however, to anticipate that Mr. Pruitt’s prior involvement in cases challenging federal regulatory authorities and the EPA’s endangerment finding will raise the likelihood of legal challenges; actions that will inevitably choke the federal regulatory process until resolved.
The knot in the system will be tightened, as well, if a recent Axios report on the Trump Administration’s intentions towards the EPA is true. Based on an addendum to an EPA transition document, the Agency’s budget and powers are slated to be significantly curtailed going forward.
The beginning sentence of the document was:
EPA does not use science to guide regulatory policy as much as it uses regulatory policy to steer the science.
From this claim, flows the documents recommendations:
Trump’s administration is on record being dismissive of the findings. The President and his surrogates are suggesting bigly cuts in all federally supported scientific/climate-related research, e.g. NASA, the U.S. Department of Energy, the Agricultural Research Service and EPA.
The obvious question is: where does the evidence required for regulation come from? If from outside sources, what are the controls? Who’s going to pay for it? What if a proposed regulation requires research not being conducted by the private or university sectors? Does that mean no rule?
Traditionally the federal government—both the agencies and the Congress—have relied on and supported the research needed to regulate. If now EPA, DOE and other federal agencies must rely on the private sector, won’t this in and of itself create a conflict? If not a conflict, certainly a choke point.
I have written before asking the question what evidence and evidentiary proceedings would be acceptable arbiters in the eyes of deniers? The presumption of the Administration and Congressional reformers seems to conclude climate change is unimportant; and in any event, it gets in the way of business. Does this then endanger the health and welfare of society? What about the decisions in the Massachusetts case, by both the District Court of Appeals and SCOTUS, that CO2 does indeed endanger the health and welfare of society?
In the next installment of the series I will be discussing other choke points in the proposed regulatory reform structure, as well as problems associated with devolving primary energy/environment regulatory authority to the states.
Photo thanks to Pixabay
I’m never going to eat sausage again!
---J. Saft (upon hearing plans to reduce regulations by 75%)
An argument can easily and convincingly be made for the need of the federal government to take stock of its regulatory holdings. No system is perfect; the federal regulatory framework is no exception.
The ascendency of Republicans to the Presidency and majority status in both chambers of Congress has thrown the door open to pent up proposals for fixing a federal system believed bloated and top heavy; a system considered sharing impaired; a governing framework thought to lean further left than Pisa.
The introduction and passage by the House of the Regulatory Reform Act (RAA) and the Regulations of the Executive in Need of Scrutiny Act (REINS), days after the 115th Congress was called to order, marked the first foray of reform.
Although both bills sailed quickly through the House, they are likely to face rougher seas in the Senate.
Whether or not the bills garner the needed supermajority of 60 senators, their spirit will live on as probable priorities of the new Secretary of Energy (Rick Perry), and Administrator of the Environmental Protection Agency (Scott Pruitt). Both are from states noted for judicial challenges to federal environmental regulation.
As Oklahoma’s Attorney General, Pruitt often spearheaded the challenges and involving other states. Texas, despite its reliance on wind energy, has sued EPA on behalf of fossil fuels more often than almost any other state. It has regularly been a member of the Pruitt led coalitions.
Gaining familiarity with the issues surrounding H.R. 5 and H.R. 26 is to face the future. Today’s look at regulatory reform in the Trump Administration continues to focus on key provisions of the RAA and REINS.
What Might It Mean?
Key provisions of both bills are identified below, along with comments as to their impact. This is by no means a complete analysis. As these bills move through the Senate, amendments are likely to be made. I will be following them closely and making them the subject of future articles.
H.R. 5: The Regulatory Accountability Act of 2017 (RAA)
Establish an achievable objective that is to be met by the regulation;
These provisions seem straightforward. Expecting a clear statement of the why’s and wherefore’s of any proposed regulation is certainly reasonable. It is so reasonable in fact, I would recommend its application to Acts of Congress.
Much of the ambiguity of a regulation—often leading to a legal challenge-- can be traced back to the legislative language. The lack of specificity is sometimes deliberate as a strategic maneuver for getting the legislation passed. Less detail can mean less opposition.
Vagaries may also reflect the lack of expertise of the bill’s author(s) and the greater capacity of an agency to undertake the considerable process necessary to craft the actual regulation. An expert at NRDC has observed:
Congress did not do this because it was lazy or interested in abdicating power or responsibility. Instead, Congress rightly
concluded that some kinds of decisions required deep technical expertise and a balanced, judicious decision process
somewhat insulated from political horse-trading and power plays.
The problem, of course, is the onus is then placed on the agency to divine what the legislature had hoped to accomplish.
The requirement to publish in comprehensible language is not a change in existing practices. Agencies do publish draft rules, hearing notices and descriptions in the Federal Register and on agency sites. It is part of the reason the Federal Register is so voluminous. As well, this information and the opportunity for the public to comment is also available on sites like www.regulations.gov.
The problematic elements of the three requirements are the matters of metrics and the cost/benefit analysis. Neither is necessarily an objective or accurate measure.
Should members of Congress not credit the scientific basis used by an agency to define or develop the rule, the chosen metrics would be found wanting and used as the basis for voting the rule down. The cost/benefit requirement can suffer from the same theoretical difficulties.
Members of the in-coming administration and Congress, for example, are on record in opposition to the use of social cost benefits as part of the cost/benefit calculation. Their opposition is grounded in the work of conservative think tanks like the Heritage Foundation.
Cost/benefit calculations are particularly controversial when they seek to rationalize inherent value trade-offs and to place a value on benefits not traded in the market (e.g., health or lives). The Congressional Research Service categorizes this type of analysis as imprecise and incredibly difficult to estimate:
Inaccuracies in cost-benefit estimates conducted by agencies could have the effect of undermining public confidence
in the regulatory process. So, too, could a misunderstanding or over-reliance on estimates of the total cost of regulation
that are not intended to be considered precise findings.
That there is difficulty calculating costs and benefits is not to say they shouldn’t be factored in to a rule’s development. Because the courts are attentive to the cost/benefit equation in terms of the reasonableness of a regulation, e.g. Michigan v. EPA, additional research into this area should be made a research priority.
The Separation of Powers Restoration Act (H.R. 76) (as incorporated into RAA)
As discussed in the previous article of the series, these provisions are: major points of contention; will be challenged in court; and likely result in staying the Act’s implementation—perhaps for years. Consider, for example, the delays encountered in EPA’s efforts to finalize the Clean Power Plan.
H.R. 26/S. 23: The Regulations of the Executive in Need of Scrutiny Act (REINS)
Added to what I have previously written about the relationship of this provision to the separation of power clause, this directive allows for a Congressional pocket veto. Simply by not acting, the regulation falls. This type of inaction offers a certain amount of protection to members not wishing to be on the record in opposition.
Congress, however, has this power now. The Congressional Review Act gives a 60- day window to strike a regulation. It hasn’t often been used over the past 8 years because Congress was asking President Obama to allow them to strike a regulation he ordered.
There is nothing to prevent the Republican Congress from invoking the CRA in the future, as they have an ally in President Trump. What happens, if four years from now, Republican congressional majorities are maintained but a Democratic or Independent President lives on the Avenue?
Inserting Congress into each major regulatory action may also cause, in the words of David Goldston, lobbyists to descend on Congress with even greater fervor than is currently the case to pressure Members to take their side on individual regulations. He further believes opponents of a rule would simply lay in wait to oppose it in Congress--rather than engaging in a dialogue with the issuing agency.
If Goldston is correct, it calls the question whether the approach taken by Republican sponsors of the bills might not be on the wrong side of Mr. Trump’s promise to drain the swamp.
A rule is defined as major if it meets any of these three criteria:
· Having an annual effect on the economy of $100M or more;
· Resulting in a substantial increase in costs or prices for consumers, individual industries, federal, state or local government
agencies or geographic regions; or,
· Causing a significant adverse effect on competition, employment, investment, productivity, innovation or the ability of U.S.-based
enterprises to compete with foreign enterprises.
R Street, a major Republican policy group, believes these provisions will only impact 84 or so rulemakings. Others believe these criteria vague enough to leave the door wide open to a significantly greater number of proposed regulations. The bill doesn’t define phrases like substantial increase in cost or prices to consumers or a significant adverse effect on competition or jobs.
REINS’ requirement that any agency must amend or repeal existing rules in an amount equal to the cost of the proposed new rule reflects Trump’s promise to cut two old rules for every new one promulgated.
Whether one accepts or rejects the cut and go requirement, an agency will be sorely pressed to make it happen in consort with the new rule’s procedures. The initial problem is an agency cannot simply scratch a regulation off the books.
Current law requires an agency, in many instances, to follow the same procedures in removing/amending a rule as were used to create it. This could easily take months—or even years, pushing back the time when a new rule can be considered.
Putting the legal challenges aside, EPA took at least two years to draft and publish the Clean Power Plan. It involved research, soliciting expert opinions, rounds of public dialogue and literally having to way through thousands of comments. Not only was a massive amount of time required, but millions of dollars.
I will leave off this installment in the series with the question I began with: For Better Or Worse? You be the judge.
Click in to the next part of this Rulemaking series when I will identify and discuss the choke points in the proposed new energy/environment regulatory framework.
ENVIRONMENTAL AND ENERGY RULEMAKING IN THE AGE OF TRUMP/ REPUBLICANS TARGET FEDERAL REGULATION: RE-WRITING THE RULES
Shortly after the Speaker of the House gaveled the 115th Congress to order, two pivotal regulatory reform proposals were introduced, placed on the fast track and favorably voted upon by a substantial majority of the members present.
The Regulatory Accountability Act of 2017 (H.R. 5) and the Regulations of the Executive in Need of Scrutiny Act (H.R. 26) are re-runs of previously submitted legislation. Support for both initiatives largely followed party lines, with fewer than five Democrats joining the Republican majority in each instance.
Earlier efforts to enact similar legislation fell short, largely because of promised vetoes by President Obama. With the 2016 elections having resulted in Republican command and control of Congress and the White House, it is widely expected that this year’s efforts have a fighting chance to succeed. Mr. Trump has already indicated support for the legislation and promised signature.
Senate voting rules require a supermajority of 60 votes for approval of the pending reform bills. With only 52 Republicans, Senate passage will prove more difficult than the House. Parliamentary maneuvers are possible but speculative.
Regulatory reform is so central to the Republican agenda that continued efforts throughout the term of the 115th Congress are inevitable. Like so many other things happening in today’s political environment, change can come in 140 characters or less--or the twit of an eye.
The spectre of regulatory reform casts a wide shadow over renewables; potentially impacting their marketplace performance in myriad ways, including: how distributed generating systems are connected to the grid; where federal generating projects may be located; the sale of corporate securities; the balance between conventional and clean generating sources; consumer protections; tax credit implementation; fuel mixes and efficiencies; and more.
Don’t be confused by the separate submissions of the proffered proposals. They are parts of a more or less integrated reform package comprised of existing laws, e.g. the Congressional Review Act (CRA), authorities, e.g. OMB review, and discretionary practices, e.g. the decision of the Department of Justice to defend or settle legal challenges.
Before addressing key issues and potential consequences, a bit more detail about the specifics contained in H.R. 5 and H.R.26/S.23 is in order.
H.R. 5: The Regulatory Accountability Act of 2017 (RAA)
This Act is intended to dramatically restrict the government’s ability to enact any significant new regulations or safety standards and potentially
would hamstringing the efforts of every federal agency, from financial regulators to environmental watchdogs.
In the main, the legislation requires federal agencies to:
Included as part of the RAA is the Separation of Powers Restoration Act (H.R. 76):
H.R. 26/S. 23: The Regulations of the Executive in Need of Scrutiny Act (REINS)
The keystone provision of the REINS Act is: no major rule shall take effect unless the Congress enacts a joint resolution of approval and won't become law if Congress does not pass that resolution by 70 session or legislative days. (emphasis mine)
As defined by the Act, a major rule is determined by the Office of Management and Budget (OMB) as:
Section 808 of the Act requires an agency to identify a rule or rules that may be amended or repealed to completely offset any annual costs of the new rule to the United States economy. Termed the regulatory cut-go requirement this is the incarnation of The D’s promise: for every new rule two old ones must be removed.
A Bit More Context--
Both RRA and REINS are about the future. The present is covered by the Congressional Review Act (CRA/Act). As I have written before, the Act gives Congress 60 days to prevent a final regulation from going into effect.
CRA resolutions are subject to presidential veto. Understandably, they were little used over the course of the Obama presidency. With the advent of the Trump administration, Republican majorities in Congress can have confidence their resolutions won’t be hacked by the White House.
Some 200 regulations have been identified as potential fodder for repeal. The House Freedom Caucus, an ultra-conservative subset of Congressional Republicans, has targeted 148 of those for specific action.
Passage of resolutions under the CRA requires only a simple majority. For those already in effect, rescission requires legislation to be proposed and passed—a significantly wider moat to cross.
CRA actions are not the only route to rescission. The federal government is currently operating under a Continuing Resolution due to expire near the end of April. Through a variety of parliamentary machinations, it is possible to deny an agency the funding necessary for implementation. It is the type of legislative maneuvering being used in repeal of the Affordable Care Act.
Framing the Debate: The philosophical divide--
A remarkably complex set of consequences will be put in motion should this regulatory reform package be signed into existence. Not surprisingly opinions about both the desirability and workability of the proposed changes—procedural and substantive—differ dramatically.
The divergence of opinion is partially philosophical and partially experiential. It is important to recognize and to account for these disparities when considering the various elements of proposed reforms. They are an aid to understanding the respective points of view.
Taking a cue from the 2016 election cycle, I have chosen to frame the dialogue using OMB and the Heritage Foundation as surrogates. These institutions fairly bracket the spectrum of opinion.
Whether one leans towards the view of OMB or the Heritage Foundation, the potentially transformative nature of the proposed package of reforms is beyond question.
The Office of Management and Budget termed the REINS Act:
…a radical departure from the longstanding separation of powers between the Executive and Legislative branches…in many cases, thwart[ing] implementation of statutory mandates and execution of duly-enacted laws…. creat[ing] business uncertainty, undermin[ing] much-needed protections of the American public, and caus[ing] unnecessary confusion.
The Heritage Foundation agrees with OMB about the magnitude of the departure, if placing it in a significantly more positive light. The conclusion of the conservative think tank is: …the REINS Act would finally give a real bite to regulatory review by… reversing the burden of proof. According to the Foundation, the effect of the Act(s) is to reinforce, not to upset, the constitutional balance of powers.
It is hard to imagine these surrogates are describing the same legislation. I believe the primary source of the deep disagreements is to be found within the phrase: to reinforce, not to upset, the constitutional balance of powers.
As previously mentioned, a lynchpin of the batch of reform legislation was the Separation of Powers Act (H.R. 76). The Act authorizes courts to decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies.
Having a de novo license means a court need not defer to an agency’s authority and experience. The proposed authority is a legislative mandate overturning an established judicial precedent.
Pre-emptive authority, in consort with the REINS mandate of an affirmative joint resolution of Congress, is seen as presumptive evidence of an assault on Article I of the Constitution.
Cydney S. Posner writing for Lexology explains it this way:
This bill appears to represent an effort to repeal by statute the so-called “Chevron doctrine…a reference to the well-worn two-step test for determining whether deference should be accorded to federal administrative agency actions interpreting a statute,
…first articulated by SCOTUS in 1984 in Chevron v. Natural Resources Defense Council…the doctrine mandates…if there is ambiguity in how to interpret a statute, courts must accept an agency’s interpretation of a law unless it is arbitrary or manifestly contrary to the statute.
If our democratic republic had four legs—checks and balance would be two of them; if it had only two--it would be both. The separation of power is fundamental to the stability of the nation. Both on a philosophical and practical level, the proposed package of reforms seems to blur the lines between the four estates.
Is H.R. 76 a deliberate assault on the Constitutional separation of powers? I don’t know. I can understand, however, how others might think so.
In the next installment of this series I will be focusing on more of the specifics of the proposed legislation and offering some real-world examples of how they might play out.
Photo: Washington Post Company
ACCOUNTABLE TO WHO(M) EXACTLY? REPUBLICANS TARGET FEDERAL REGULATION: ENVIRONMENTAL AND ENERGY RULEMAKING IN THE AGE OF TRUMP
(The first in series on proposed federal regulatory reforms.)
It comes as no surprise that mere days into the new year, the 115th Congress officially convened and condemned the regulatory practices of the still sitting Obama administration. On its way to fulfilling President Trump’s campaign promises and the Republican Party’s longing desire to limit congressional delegation of rule-making authority, the House passed two pivotal pieces of reform legislation: H.R. 5 (Regulatory Review Act) and H.R. 26 (Regulations of the Executive in Need of Scrutiny Act).
The link between environmental and energy regulation and market demand for alternative energy sources like wind and solar is well established. Although the march towards decarbonization will continue with or without imposition of further federal limits on greenhouse gas (GHG) emissions by power generators, regulatory roll-backs are likely to have a softening influence on near-term demand for clean energy alternatives.
Neither the legislation nor the sentiment is new. Republican House majorities have previously ushered such bills through the lower chamber only to be thwarted in the Senate or promised a veto by the Obama White House. Although the 2016 elections may not have totally cleared the way to wholesale regulatory reform, they have widened and graded the road.
All that stands in the way of passage of the proposed reforms is the Senate’s requirement of a supermajority of 60 votes. Should the voting rule change or an alternative route be found, e.g. attachment to a budget bill, it is pretty much guaranteed the proposals will become law.
The Congressional regulatory debate has become a surrogate battleground for opposing political ideologies and an evidentiary hearing on the science of climate change. Its rancor hides regulatory other objectives. Specifically, too little is said of protecting human health.
Congressman Goodlatte (R-VA), the lead sponsor of H.R. 5 and chair of the Judiciary Committee, stated after the House voted largely along party lines in favor of his proposal:
All regulations come with a price tag and hardworking Americans,
as well as businesses, large and small, must cover those costs. As more regulations add up, American businesses become less competitive,
prices increase, job opportunities and wages decrease for struggling Americans, and our country is less competitive.
Environmental standards and practices, however, are also about:
Neither in principle nor practice, can it rationally be claimed the current set of federal regulatory policies and procedures are perfect. Nor, should it be said there is no need for the establishment and enforcement of federal protections.
Reasonable reform is one thing--ideological snap-back another. One cannot help but think political payback is the motivating force behind the recent House votes. Phil Kerpen, president of the conservative think-tank American Commitment and a leading advocate of regulatory roll-back, recently quoted The Donald as having said:
I will sign the REINS Act (H.R. 26) should it reach my desk as President and more importantly I will work hard to get it passed….
The monstrosity that is the Federal Government with its pages and pages of rules and regulations has been a disaster for
the American economy and job growth.
Steve Horn, writing for DeSmogBlog, reported that Speaker Ryan feels his party has a mandate to pass legislation such as the REINS Act. Horn goes on to quote Ryan’s description of Republican command and control of both the Congress and the White House as a once-in-a-lifetime opportunity…the kind of thing that most of us only dream about. I know — because I used to dream about it….
Conservatives have indeed dreamt long for the chance to roll-back federal regulations as a matter of principle. The 2016 Republican platform gave voice to the Party’s resentment of federal rules in general and expressed a particularly passionate dislike of any having to do with environmental protections or climate change. The Party left Cleveland promising to:
…shift responsibility for environmental regulation from the federal bureaucracy to the states and to transform the EPA
into an independent bipartisan commission…with structural safeguards against politicized science. We will strictly limit
congressional delegation of rule-making authority….
The platform alludes to the notion that the market—when left to its own devices—cleans itself:
The central fact…is that, year by year, the environment is improving. Our air and waterways are much healthier than they
were a few decades ago. As a nation, we have drastically reduced pollution, mainstreamed recycling, educated the public,
and avoided ecological degradation. Even if no additional controls are added, air pollution will continue to decline for
the next several decades due to technological turnover of aging equipment.
The problem with the position is its failure to credit federal rule-making for its contribution to improved air and water quality or, as a stimulus for technological innovation. It must be asked and answered: absent federal regulation would the environment have improved to an equal degree over the past decade or more on its own initiative?
There is sufficient evidence suggesting the unwillingness of industries to appropriately self-regulate in matters of environmental harms to validate the rationale for government action. Whether accident or negligence, the cost of corporate environmental mishaps is measured in the trillions of dollars—even with covering regulations.
I am not condemning the corporate community out of hand for recklessness or indifference. I am respectful of and encouraged by the growing number of socially responsible businesses.
Reality is such, however, that absent uniform regulatory requirements, it can be difficult for an individual company to assume responsibility--when its competitors will not. Uniform regulation serves to level the corporate playing field, while protecting the health and safety of people and their environment.
I am wary of the evidence cited by some regulatory reformers in support of arguments to rescind and to limit federal authorities. For years, they have suggested their arguments should be measured in feet rather than lives saved, accidents avoided or investors protected.
The in-coming Secretary of Housing and Urban Development offers as evidence of his call for regulatory reduction and reform the Federal Register:
Last year , there were an additional 81,000 pages of government regulations…. If you stack that up, it would be a three-story building.
Dr. Carson is not alone in erroneously using page numbers printed in the daily diary of federal activities to support his claim. The Competitive Enterprise Institute—home to the EPA transition team leader Myron Ebell—has reported:
Tens of thousands of pages stream from America’s departments, agencies, and commissions….at the end of 2015,
the number of Federal Register pages stood at 80,260. This count is…the third-highest level in the entire history of the Federal
Register…. The 79,435 count in 2008 under President George W. Bush holds the title for fourth-highest level.
Should digits, rather than need, substance and effectiveness, be the measure of effective governance? If so, the President-elect may have reason to worry.
My discomfort with the largely Republican reform measures of H.R. 5 and H.R. 26/S.21 is the seeming refusal to undertake a dispassionate and measured review leading to proposed recommended revisions. The presumptions—that federal regulatory actions are capricious, dismissive of the costs incurred by the private sector and more appropriately the purview of the industries being regulated—are an over generalization.
Agencies cannot properly act on their own. They are directed by Congress to develop and issue regulations as the means for implementing legislation. The Clean Power Plan was drafted at the direction of the President based on legislation passed by the Congress.
Was that a correct interpretation by White House counsel? Possibly not—but that is the basis for the West Virginia v. EPA legal challenge now awaiting a federal appellate court decision and, perhaps, the opinion of the U.S. Supreme Court.
To the matter of agency indifference to costs, it is a well-established, judicially-reviewed precedent that agencies must factor in the financial impacts of their regulatory proposals compared to the potentially derived benefits. Should the cost-side of the equation unreasonably outweigh the benefits side, the courts will send the rule back to an agency’s drawing board.
Putting ideology and the euphoria of electoral victory aside, Congress should be asking of itself:
Will the rulemaking process established by the package of reforms result in sound and timely environmental safeguards,
striking an appropriate balance between the health, welfare and safety of individuals and the competitiveness of American businesses?
In the next part of this series of articles I will be discussing in greater detail both RAA (H.R. 5) and REINS (H.R. 26/S.21) in an attempt to answer that very question.
CANARIES IN THE COAL MINE: Governor Walker Tells Wisconsin Department to Stop Blaming People For A Changing Climate
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.
There’s Something in the Air
Wisconsin—the home of House Speaker Ryan, Governor Scott Walker and Senator Ron Johnson—is having second thoughts about the cause of climate change. Once convinced human activity had something to do with global warming, the state’s Department of Natural Resources (DNR) has now decided--maybe not!
The Department was confident up until December 20, 2016, that:
Earth’s climate is changing. Human activities that increase heat-trapping
(greenhouse) gases are the main cause.
Then, on the 21st of December, the DNR changed its mind and its webpage to read:
As it has done throughout the centuries, the earth is going through a change. The reasons for this change at this particular time
in the earth’s long history are being debated and researched by academic entities outside the Wisconsin Department of Natural Resources.
The effects of such a change are also being debated ….
The DNR has yet to identify with any specificity just what those reasons for its change of heart might be. I rather suspect it had more to do with politics than science; and, the outside academic entity it referred to was a certain Washington-based organization, under the leadership of Myron Ebell?
Ebell is “director of the Center for Energy and Environment at the Competitive Enterprise Institute (CEI) and chairs the Cooler Heads Coalition (CHC), which comprises representatives from more than two dozen non-profit organizations based in the United States and abroad that challenge global warming alarmism and oppose energy rationing policies.” Many CHC members are supported by the Brothers Koch and other climate conservatives.
The Institute and Cooler Heads Coalition is allied with the obscure Washington policy group, the American Energy Alliance, founded by a former Enron executive and captained by Thomas Pyle. Pyle also leads the Trump energy transition team and is a favored advisor of Speaker Ryan’s.
Ebell, the doyen of deniers, has been tasked to lead PEOTUS’s EPA transition team. A pace of mendacious minds whose recommendations will undoubtedly be favored by Scott Pruitt--should he be confirmed as the Agency’s new administrator.
According to Ebell’s CEI blog:
...global warming could pose challenges over the long term. But there is much evidence that the mild global warming that has occurred
since the end of the Little Ice Age in the mid-nineteenth century has been largely beneficial for humanity and the biosphere. Earth is greening,
food production has soared, and human longevity has increased dramatically.
Let’s hope the “greening” of which he speaks isn’t that depicted below of a dead zone in Wisconsin’s Green Bay. A blight caused by algae blooms fueled by the runoff of contaminated waters and warmer summer temperatures.
(And, I thought the only dead zone in Green Bay was the portion of Lambeau Field defended by my beloved Chicago Bears. Estúpido me!)
Why a Canary in the Coal Mine?
I’m calling Wisconsin’s action a canary in the coal mine not for the scientific fallacy I believe it is based on, but for the actions it could portend in other states and at the federal level—revanchist rewrites of science. That is: replacing credible conclusions flowing from a preponderance of evidence with those based on a much smaller series of suspect studies, conducted by a fringe element of the scientific community.
I can accept that 99 people out of a 100 believing something is true--when it is false--doesn’t make it so. I can even accept that there are legitimate questions concerning the conclusions of a large majority of scientists still to be answered.
What I have trouble accepting—in fact and principle-- is DNR’s retraction of a sound conclusion and legitimatization of the bantering between climate deniers and defenders, as an honest scientific debate. It’s not—at least as currently constituted by deniers.
The reason climate change is an issue at all is because of the epochal nature of the threat it poses to the health, safety and welfare not just to the nation but to the world. Governments are routinely expected to respond appropriately to such threats. Climate change is no different in kind than terrorism or great recessions.
Do we wait to know with certainty which terrorist group or cell is responsible for the threat? Does Donald Trump wait for Ford or Carrier to move to Mexico before he Twits? He does not.
Why then do the deniers want to wait until all evidence--of the cause of pending climate calamity--is in to act? I can’t say for sure. I think, however, that it is not the shadiness of the science but the motives of the messengers.
As defined by the deniers, the debate is rigged to insure protection of the status quo, not to guide constructive action. Society acts every day on the basis of incomplete knowledge and understanding. It must, to operate.
Guiding actions are acceptable decision frameworks. Coming from a legal background, I see this in how justice is dispensed every time I go to court. The law doesn’t demand certainty, it sets reasonable standards. In capital criminal cases a jury is asked to determine guilt beyond a reasonable doubt. In civil and lesser criminal cases, the measure is a preponderance of the evidence.
Are these measures of culpability foolproof? Of course, not. They do, however, allow the system to work. I would credit the denier’s arguments if accompanied by some rational decision criteria. Would they accept a conclusion based on a preponderance of evidence or even beyond a reasonable doubt, the debate would prove constructive.
As it is, it is not even a debate. It’s an endless dialogue that supports stasis and quite possibly could threaten life on Earth as we know it. At best, it denigrates on-going scientific discoveries and hamstrings preventive government actions.
Climate change cannot be responded to in the 11th hour. Simple prudence requires a response to the ravages that are increasingly being documented. Even the Wisconsin Department of Natural Resources is hedging its bet. The rest of the paragraph quoted above clearly qualified the Department’s position:
…but whatever the causes and effects, the DNR’s responsibility is to manage our state’s natural resources through whatever event presents itself; flood, drought, tornadoes, ice/snow or severe heat. The DNR stands ready to adapt our management strategies.
Having once caved to the “science” of politics, the DNR is unlikely to receive the resources needed to make good on its promise of readiness. I may be missing something, but all I see having changed between the time the DNR believed in and then questioned anthropogenic climate change was the emergence of The Donald and Republican Congressional majorities.
If anything, the preponderance of evidence in support of anthropogenic climate change is greater with each passing day. Recent release of new research results has indeed cast doubt on earlier conclusions—not about the fact of warming but the rate at which it is occurring.
Analysis in the journal Science Advances concluded that scientists under-estimated ocean temperatures over the past two decades. This latest report confirmed earlier findings by the US National Oceanic and Atmospheric Administration (NOAA) published last year in Science magazine and counters a theory that, until recently, was held by the IPCC.
Efforts to censor sound scientific statements from the pages of government documents—both educational and decisional—have been made before. All that was accomplished was retardation of government’s response to a recognizable threat, jamming up of judicial dockets and the need to make up lost ground.
The danger lurking in the DNR’s revanchist rewriting is that other governments will point to it as evidence of growing scientific uncertainty. It is not. It was required to reflect the opinion of politicians--not credible conclusions reached by scientists.
Climate defenders are not opposed to honest and open debate. Reasonable decision criteria will lead to rational proactive responses by government. I urge all to follow the advice of the President-Elect of the United States:
Now, to solve a problem, you have to be able to state what
the problem is or at least say the name.
Green Bay/Val Klump/University of Wisconsin-Milwaukee/ Milwaukee Journal Sentinel/ December 28, 2016/www.jsonline.com/news/ Lee Bergquist
Yesterday’s installment of the What Now: Momentum Slowed series addressed the likely first blasts of the Trumpeters to weaken the current federal framework of clean energy and environmental rules, policies and programs. Today I am continuing that discussion starting in the agency regulatory arena and moving on to the courts.
The final section of today’s installment is public engagement. Note that I am using the term engagement rather than education. The essence of communication is connection. Lobbying and legal challenges are important components of any successful strategy to maintain the pace of the transition to a low-carbon economy; however, what will ultimately win the day is engaging the public—defenders and deniers-- in a rational and resonating dialogue.
Once again, I have briefly stated what I believe is the appropriate reaction of clean energy and climate activists next to each heading.
Regulatory: Take advantage of the public input and transparency requirements for proposed regulatory actions—submit comments, encourage others to submit comments and support organizations filing legal challenges.
Rescinding regulations is not nearly as easy as the incoming administration would hope. Unlike regulations vulnerable under the CRA, an agency wanting to amend or rescind an existing regulation must go through all the procedures required for its issuance in the first place.
According to the Regulatory Studies Center:
These steps are governed by the Administrative Procedure Act of 1946 and include developing a legal record justifying the proposed change
(including technical and economic analysis), and seeking public comment on that record and the proposed regulatory (deregulatory) action.
The agency would have to respond to public comment, which may lead to modifications to the draft regulation, before it issues a final rule.
These steps generally take at least a year, but the story won’t likely end there.
When the final rule is issued, two records will exist, one developed to support the original regulation and a second that supports its elimination or modification. The revised rule will almost certainly be litigated, with parties that supported the original rule pointing to the earlier record to defend their objections.
Requiring an agency to reverse the process used to issue a regulation is an extremely powerful brake on efforts to roll back energy and environmental regulations. Although inapplicable to pending regulations like the CPP, the regulatory process itself will serve to slow precipitous actions by the incoming administration. Add to this follow-up legal action, a targeted regulation could stay on the books for years pending a final outcome.
Readers can check on the status of various regulations by going to: www.reginfo.gov and www.Regulations.gov. Anyone wishing to submit comments in pending regulatory proceedings can do so through the Regulations website.
Legal: Support organizations, e.g. NRDC and 350.org, with the resources and standing to challenge proposed rescissions, improper use of authority and failure to regulate harmful emissions.
Legal recourse is more problematic than other available options for maintaining environmental protections. Although clearly an avenue that will be well trod by many of the larger organizations, e.g. NRDC, Our Children’s Trust, Southern Environmental Law Center, et. al., suits are expensive and time consuming. Moreover, they require plaintiffs, who have standing to sue.
Legal standing requires a plaintiff who has sustained or is likely to sustain a direct harm as a consequence of the subject government action, e.g. rescission of a regulation, or inaction, e.g. a failure to regulate carbon. Generic citizen lawsuits have rarely been permitted. A potential exception is the case of Juliana v. U.S., in which a federal district court judge granted minor plaintiffs standing to sue the federal government for failing to protect them from the harms of climate change, i.e. having no CPP in place.
I have written before about the emergence of citizen lawsuits both here and abroad. Whether a favorable lower court decision will be rendered and ultimately upheld by SCOTUS is still a long shot—particularly if a Trump appointee fills the seat left vacant by the death of Justice Scalia before the case wends its way to the high court. A finding for the young plaintiffs in the Juliana case is still possible and would radically change the rules of the game to favor citizen players.
Public Engagement: Educate your communities, write op-eds and articles about real people who are positively impacted by environmental protections and clean power—but above all provoke the bear!
Engaging local communities in a dialogue about the value of clean energy options and the need for reasonable environmental regulation remains the greatest opportunity to maintain momentum in the transition to a sustainable economy. Effective communication—in the Age of Trump—requires recognition and response to today’s reality.
A reality that I understand is difficult for some to accept. Accept it we must, however, or risk losing the ground gained over the past decades.
Donald and his doyens describe environmental regulation as: stunting the growth of American industry; the source of lost employment; and, a contributor to constrained competitiveness. Moreover, they exhibit little, if any, comprehension of the economic viability or power of renewable energy technologies.
Whether fact or fabrication, what they are saying is currently accepted by a large swath of the electorate. W.C. Fields once said: if you can’t dazzle them with your brilliance, baffle them with bull***t --advice taken to heart by The Donald in his bid for the White House.
I would never encourage abandoning the facts. I do believe the clean energy and environmental communities need to make their messages more relatable to average people. Relatable messaging means telling stories about people and appealing to emotions—not moralizing or overwhelming with numbers.
Long-term, esoteric arguments—in support of dangers not blatantly apparent, that can presumably be explained away by anecdotes about it being cold outside, or softened by specious scientific arguments like carbonization will lead to the greening of America—simply will not succeed in today’s political environment.
I am sorry if this offends you. It is what it is; and, I for one am not going to waste time trying to teach porcine politicians to sing “kumbaya” or to believe what their eyes can see. Convince their constituents, however, and we regain needed support and momentum.
Facts, figures, precedents, economic and technological studies should dominate in the courts and before Congress. The popular case for renewables, however, needs to be reconfigured as near-term business opportunities, required community resilience in advance of disasters and protection from contaminants that kill a baby’s brain cells.
The clean energy and environment communities need to persuade first the public and then the politicians that continued reliance on subsidies and incentives are not the primary hallmarks of clean energy technologies, though they have been and continue to be for fossil feedstocks. Neither are clean energy technologies only viable in some future utopian society.
In today’s political marketplace the intrinsic value of clean energy and environmental safeguards lies in their immediate contribution to the health, welfare and security of society. I am not suggesting that government policies in support of science and innovation do not have value or should in anyway be abandoned. For the moment, however, they are white noise.
Examples of near-term targets of opportunity include:
The incoming administration has an obsessively myopic view of the role of government. Until it is shown that the Trumpian present is disastrous to a Republican future, debates focused on higher purpose and the preponderance of scientific evidence will not end well. Make no mistake, the value of tomorrow’s investment will be measured by the performance of today’s.
Prepare to hear a one word rebuttal to all the well-founded arguments in support of renewables: Solyndra! If the clean energy community cannot ground its arguments on what people want to hear, it will be ground down by them.
The response to Solyndra are pictures of children and grandparents in Detroit or West Virginia suffering respiratory ailments because of their local coal powered electric plant. Talk about solar subsidies should not be responded to with an Excel spreadsheet but with pictures of coal miners picketing mining companies that declared bankruptcy to avoid paying healthcare costs—while meeting their severance commitments to company executives.
Of the options available to prevent derailing the nation’s movement towards a clean energy economy, public engagement is both the most accessible and likely to result in a positive outcome. Effective engagement depends on neither brilliance nor bull***t—it depends upon making a connection. Let us not repeat the mistakes of the 2016 elections by forgetting that all politics are personal.
If your opponent is of choleric temper, irritate him.
---- Sun Tzu
I try, often as not, to refrain from raising problems without suggesting something by way of useful answers. There are those times, of course, when anything approximating an upbeat response is simply beyond the ken or need wait for events to catch up. Regarding the incoming Trump administration, any definitive answer to WHAT NOW for clean energy and climate sustainability will require patience.
While waiting, I thought it beneficial to review some of the options available in the interim for responding to the challenges The D and his denizens will pose to the clean energy and climate communities come the afternoon of Jan. 20. I previously outlined where the incoming Trump administration would likely strike its initial blows, e.g. the CPP; clean energy programs, e.g. Department of Energy budget; and monitoring activities, e.g. NASA. This installment and the next two will focus on the several defenses available for maintaining national regulatory and policies/program frameworks contributing to the transition to a low-carbon economy.
Strategic advantage currently rests with Trump and the Republican Congressional majorities. Their energy/environmental themes of deregulation and all of the above, are playing well from Maine to Nevada; and, they allow the newly nominated heads—of the Environmental Protection Agency, the Departments of State, Interior, Energy and likely Agriculture—to cast climate change as a collateral and inconsequential consequence of economic growth.
Notwithstanding polls and pundits, neither the threat to the global environment nor the significant economic and social benefits attendant to decarbonization is viewed by the incoming Administration as warranting curtailment of its promised assault on Obama era initiatives. The current political reality is the Trumpeters have fairly won the opportunity to govern their way—at least for the moment. History suggests the first two years of a newly elected administration affords the greatest opportunity to make good on campaign promises—particularly when coupled with Congressional majorities.
The debate over decarbonization will not be decided in the early rounds of the Trump administration. Although the administration’s opening gambits will require response, the clean energy advocates and climate defenders must not let themselves be cast only in the negative.
An exclusively defensive posture will be viewed by many as evidence of bad faith and elitism on the part of the liberal establishment. These accusations were successfully levelled at the Clinton campaign and, undoubtedly, contributed to the electoral loss.
Ultimately the transition to clean energy and a sustainable environment depends upon broad bipartisan support. A singularly defensive strategy will be viewed as obstructionist, alienating those who will be needed in the future to re-establish the pace and direction of the national transition to sustainability. As will become clear later in this series, a successful advocacy strategy demands playing both offense and defense—at all levels of government.
Below are my thoughts and a bit of background on actions the Trump administration and Congress will likely undertake within the first six to nine months of 2017. Next to each heading I have briefly stated what I believe is the appropriate reaction of clean energy and climate activists.
Executive Orders: Realistically, no action is possible.
Rescission of all extant Executive Orders and Memoranda having to do with clean energy, climate change or the issuance of environmental regulation, e.g. CPP, will begin the day The Donald becomes the 45th President of the United States.
Article II of the Constitution gives a president the power to write or rescind directives to his administration. Over 13,000 executive orders/memoranda have been issued since George Washington took office. In that time, two have been over turned by the courts, although numerous others have been rescinded or amended by presidential successors.
As a practical matter, there is no check on a president’s exclusively executive actions. The best Congress can do is to deny implementation funding. The CPP and the authority to sign the Paris Accords owe their existence to the power of the president—not acts of Congress. What one president wrote, another can erase.
Presidential Appointments: Encourage members of your Congressional delegation to ask tough questions
of nominees needing Senate confirmation and to oppose those on record as wanting to abolish the agencies they have been nominated to lead.
A sitting president is faced with the task of choosing his personal White House staff and nominating nearly 4,000 individuals to serve—at his pleasure—in federal agencies and on various committees and commissions, including on the benches of the federal judiciary.
Personal staff, e.g. press secretary, White House chief of staff and various special advisors, are purely within the purview of the president. Nominees for some 1,200 positions, however, are subject to Senate confirmation. These include: C-suite department/agency executives like Secretaries of State, Energy and Interior, the Attorney General and Administrator of EPA, all assistant secretaries, the budget director, senior economic advisors and various members of boards and commissions.
Subject to Senate questioning, nominees can—and should—be asked their opinions/philosophies, about prior experiences and any other information likely to influence their job performance. On the basis of the top nominees already announced, the Trump administration will be heavily tilted towards the fossil fuel industry.
To weigh in on the process, contact your Senators and Representatives to suggest questions that may be put to the nominees, either at the confirmation hearing and/or in writing at any time before a final Senate vote.
If you have any information you believe pertinent, pass that along. If you have an opinion as to whether an appointee should be confirmed, it’s your right to express it.
Early Congressional Actions: Keep informed and communicate with your Congressional delegation, registering your opinions on the content of legislation and proposed actions. (www.house.gov and www.senate.gov)
The 115th Congress will be sworn in several weeks before Trump takes office. Much of its early agenda will be focused on confirmation hearings and queuing up legislative proposals in support of promises made during the 2016 campaign.
High on the list of conservative legislative priorities will be repeal of nearly 200 regulations—ranging from a ban on the sale of anti-bacterial soaps to stricter truck fuel efficiency rules. Repealing pending regulations can be legislatively accomplished under the Congressional Review Act (CRA/Act).
The Act gives Congress 60 days to prevent a final regulation from going into effect. Because CRA resolutions are subject to presidential veto, they were little used over the course of the Obama presidency. With the advent of the Trump administration, Republican majorities in Congress can be fairly certain their resolutions won’t be denied by the White House.
Passage of resolutions under the Act requires only a simple majority. For regulations already in effect to be rescinded, legislation must be proposed and passed—a significantly wider moat to cross.
Beyond cabinet confirmations and blockage of pending regulations early, priority attention will be turned to amending Obamacare and federal spending—leaving little time to act on any new stand-alone energy/environmental legislation. Congress must contend with raising the budget ceiling by March 16, and enact a FY 2017 budget or face a government shutdown. It will be possible to impact existing energy and environmental programs in either of these actions—so vigilance is necessary.
The budget battles will offer a clear glimpse into the intentions and working relationship of the Republican Congress and The Donald. They are also likely to show stress fractures within the Republican Party; tensions that could result in bipartisan support for maintaining minimum environmental protections and continued support for clean energy technologies.
Members of both the House and the Senate will undoubtedly draft and introduce a variety of energy/environment legislative proposals in the first months of the new Congress. Many will be referred to the appropriate committees for consideration in due course. Readers can keep informed of where these proposals are in the legislative process through any number of internet sites, such as Govtrack.us and Congress.gov.
Beyond what the White House and Congress will be doing are the actions of the agencies themselves. Agency actions and activist reactions will come primarily in the form of regulatory proposals and law suits. Click in tomorrow, when I will be addressing these two areas, as well as what I consider the most accessible and likely successful advocacy tool of all--public engagement.
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.