 (photo CNN/http://www.cnn.com/2013/10/08/worldsport/gallery/horseracing-day-at-the-races)
A little over a month into his administration and there is growing talk President Trump will be leaving office before the end of his four-year term, either voluntarily or with a little help from his Party. Have a $100 and willing to chance it? You’re in luck. Ladbrokes, the UK bookmaker, is running a Donald J. Trump special this week. They even take credit cards. If you think The Donald will serve his full term, you can get odds of 10/11, turning your c-note into $191. Not a huge return, I agree. Greater risk but better odds can be had betting your Benjamin against the Trump White House, especially if you’re willing to pick the year he will be replaced. Bet 2017 at 9/4 and earn $325. A wager on 2020 goes off at 16/1 and rewards you with enough for a three-night stay at the Trump International Hotel in Capital City (tax included). Ladbrokes is willing to pay even if Mr. Trump is replaced briefly. Which brings me closer to the questions of the day: who would replace The Donald and what would the impact be on the nation’s clean energy and environment sectors? To give the mendacious man from Manhattan his due, I rather doubt anyone could replace him in sheer star power. In terms of the US Constitution, however, that would be Vice-President Pence. There are basically two circumstances under which Trump could be relieved of the Oval Office, not counting violence. An act of which I would hope never to happen. Article 1, section 9, clause 8 of the paper our republic is written on states: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. The emolument clause is so obscure a provision of the Constitution as to have been referenced by the Supreme Court only three times in 240 years. None of which actually had anything to do with a then sitting president. Why an early Trump exit is being raised these days has nothing to do with leaks out of the White House that Trump suggesting an intention to crown himself king or, because Putin plans to award him the honorary title of A Hero of the Federation. It’s the appearance of using the Office to benefit the family businesses that has opponents buzzing. Parenthetically, I understand the emoluments argument; but personally, it’s low on my concerns for the country. Short of a 21st Century Teapot Dome scandal or worse, I would prefer our political leaders to focus on something more substantive and threatening to democracy. Which brings me to the 25th Amendment of the U.S. Constitution: Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President. Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. The Amendment was ratified in 1967 after President Kennedy’s assassination. Somewhat shockingly, the U.S. Constitution didn’t establish the line of succession should a president become disabled, dysfunctional or dead. The Amendment was added to assure an orderly and the peaceful transfer of power. Possibly the most notorious invocation of the Amendment occurred in the aftermath of John Hinckley having shot President Reagan and permanently disabling his press secretary, Jim Brady. It would not be an exaggeration to say what followed was a bit of mayhem in the intelligence community and within Congress and the cabinet. In the course of events there was a gaff more extraordinary than the one at this year’s Oscars, when Reagan’s Secretary of Defense erroneuosly declared himself in charge. An “oh, never mind” moment for which Alexander Haig will be forever remembered. The 25th Amendment applies to circumstances beyond a wounding. It can be invoked while a president is under-going surgery or because of illness. No—petulance is not a legitimate reason to call for a presidential time out. Somewhat ironically, the reason cited these days for the possibility of Trump’s departure—either temporarily or permanently—is Trump being Trump. The rambling, contentious and confrontational manner that earned The Donald the presidency may be the same things used to deny him access to the Oval Office. Face it. For many, Republicans and Democrats alike, President Trump’s distinctive style is unsettling. At some point, it may make them so nervous as to take the extraordinary step of calling for the elevation of Mile Pence to the presidency. Which brings me to Pence’s possible ascendency and what it might mean to the clean energy and climate change sectors. You should be asking yourself the same question your optometrist asks: better or worse? Vice President Pence is not exactly an unknown commodity when it comes to his views on clean energy technologies and the scientific and anthropomorphic causes of climate change. In 2014, for example, Governor Pence told Chuck Todd of MSNBC’s Chuck Todd called climate change a myth, the science behind it suspect and unresolved. Like many deniers, Pence sticks his head out his door in winter and claims the cold as evidence of weather as usual. To be fair, he did acknowledge during the 2016 campaign that what we humans do have some impact on the environment. He’s never really said, however, what the impact might be or whether it makes a difference in the overall scheme of things. A translator of Trumpisms, candidate Pence often cautions against any run to judgement that might negatively impact jobs in the fossil fuel sector. During one CNN segment, he explained: What Donald Trump said was a hoax is that bureaucrats in Washington…can control the climate of the Earth. Vice President Pence was recently re-united with his ally Scott Pruitt. Governor Pence whole-heartedly supported state challenges to the Clean Power Plan going so far as writing the Indiana Congressional delegation asking that they defund the U.S. EPA. In June of 2015, he announced that Indiana would not be complying with the CPP unless major changes were made. He subsequently modified that position, but only if SCOTUS approved the Plan. Indiana is the 8th largest coal producing state in the Union. Pence sought to bring back the sector as governor and agrees with President Trump that the nation should follow an all-of-the-above energy strategy. Congressman Pence, in six-terms of service, achieved a lifetime score of 4 from the League of Conservation Voters. He missed an opportunity to veto a bill that killed a successful energy efficiency program and continues to ignore the importance of clean energy technologies to job creation--including for the rising tide of coal miners who have permanently lost their jobs because of natural gas. Returning once again to the question: President Pence, better or worse? Based on their words and actions, it might be called a toss-up. I would caution the clean energy and climate communities, however, and advise consideration of the bigger picture. Yes, President Trump has expressed many times his suspicion of the science behind climate change, a commitment to keep the coal industry alive and has shown little support or an understanding of the problems and the potentials. Although Trump and Pence may differ little in their words, the differ greatly in their political abilities and compatibility with the current Congressional Republican majorities. Trump’s charisma got him elected. Will mastery of the media serve to make good on his promises? Pence may appear just a supporting actor on today’s political stage--slow and steady. What about tomorrow? He is an accomplished politician and, to the leaders of Congress, a more acceptable leader of the conservative wing of the Republican Party. Does slow and steady trump charismatic? Time will tell. Here's hoping you bet wisely.
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 What? You hired me to keep the canaries quiet—you won’t hear a peep out of 'em. (Photo from Pinterest)
Scott Pruitt has now been sworn in as the new Administrator of the U.S. Environmental Agency. It is likely the dismantling of the Clean Power Plan (CPP), and ultimately much of the Agency itself, will begin in short order. Pruitt’s public record suggests he is the embodiment of President Trump and coal-state Republicans and Democrats ideal of what an EPA Administrator should be. His prosecutorial record is replete with challenges to the regulatory authority of the Agency he now leads; authority granted by Congress and confirmed by the courts. The air and water acts he has sought to limit are not the products of President Obama. They are long-standing laws of the land, dating back to the early 1970s. The years Richard Milhous was in residence at 1600 Pennsylvania Avenue. Notwithstanding the dirty tricks Nixon will be most remembered for, credit him for creation of the agency Trump is now intent on demolishing and enactment of the mandate that today protects the air we breathe. The 45th President is not alone in his desire to dismember. Diminishing EPA has been a decades long priority of the Republican Party, coal-state Democrats, right-leaning think tanks, the U.S. Chamber of Commerce, many manufacturers, the fossil fuel industry and a host of others; opponents, who have come into power in the wake of the 2016 elections. Pruitt is only the latest to don the leather mask of mayhem. How whittled EPA will become is still a question in need of an answer. Time will tell; but, clues abound. Nominee Pruitt testified that a significant revision—if not outright rescission-- of the CPP would begin with a rulemaking process, as prescribed by law. He assured Senator Sanders (I-VT) that he [Pruitt] believe[s] the EPA has a very important role at regulating the emissions of CO2. Whether the role is as regulator or conduit to the states was never made clear in his confirmation hearings. Attorney General Pruitt and a dozen or so cohorts from other states challenged EPA’s 2009 endangerment ruling and lost. Nominee Pruitt told Senator Marky (D-MA) the endangerment finding needs to be enforced and respected….and he [Pruitt] knew of nothing that could cause a review of that finding. It is fair to speculate, if still too early to assume, Administrator Pruitt believes protection of the environment a matter more for the states than the federal government. His record as Oklahoma’s lead lawyer strongly suggests his intention to pass through as much of the Agency’s regulatory responsibility as the law will allow. Additional confirmation for this conclusion can be found in the President’s own campaign promises, the 2016 Republican Platform, the oft mentioned motives of various members of the Trump transition teams and passage of recent Congressional joint resolutions striking from the books all the Obama-era environmental regulations unfortunate enough to have been published after June 13, 2016. Administrator Pruitt recently told EPA personnel that: We as an agency and…a nation can be both pro-energy and jobs and pro-environment….we don’t have to choose between the two. I think our nation has done better than any nation…protecting our natural resources and…environment, while also respecting the economic growth and jobs our nation seeks to have. Whatever the environmental achievements made to date, they were accomplished under a federal/state partnership at odds with that envisioned by Administrator Pruitt and promised by President Trump. A partnership historically characterized by a dominant federal partner with the authority to establish targets and compliance parameters, within which the states are required to operate. Accepting the conclusion our nation has done better than any nation, the question remaining is: can it continue to do so, even after the promised reforms are accomplished and the relationship of the partners radically altered? This is not a question of political philosophy, but of practical reality. A reality that must be considered within the current context of proposed reforms. There is nothing in my experience or judgement to suggest the only satisfactory federal/state regulatory relationship is as defined by the Obama administration and reflected in the CPP. I agree with Mr. Pruitt’s propositions that:
What gives me pause is understanding how rolling back federal regulations, rescission of federal funding for anything related to climate change and, returning regulatory authority to the individual states is pro-environment. States are certainly capable of protecting the health and welfare of their citizens. They do it every day through various laws, regulations, and standards, e.g. marriage, education and buildings. States are no strangers to the regulation of energy and the environment. Had it not been for enactment of state renewable portfolio standards (RPS) the market for clean energy technologies like solar and wind would not be the source of jobs and investment opportunities it is today—nor would the nation’s transition to a low-carbon economy be nearly as far along. Do not the states lead in fracking regulation? Why then shouldn’t the states take the lead in clean air regulation? The answer lies in Article 1 of the U.S. Constitution. Section 8 of the Article enumerates the powers of Congress, including regulation of inter-state commerce and weights and measures. Look not to the list of responsibilities reserved for the federal government; but, consider the reason why federal authority was given primacy in these instances. The foundation of President Trump’s posture on environmental regulation is interference with the smooth and profitable operation of business. DJT cites costs and job losses as examples of harms to the nation’s businesses caused by federal clean air and water rules. Quoting Administrator Pruitt: in this nation, we can grow our economy, harvest the resources God has blessed us with, while also being good stewards of the air, land and water. In the real world, good stewards must regulate; and, good regulators seek to protect the health and welfare of the nation on the basis of sound information and in conformity with the smooth operation of the marketplace. Passing federal responsibility for setting GHG emission standards to individual states and territories differs little from allowing each jurisdiction to establish its own system of weights and measures. How efficient is a business required to label a 16-ounce package of mac and cheese a pound in Pennsylvania and 2 pounds in California? Pruitt, himself, appears aware that differing standards for the same thing are neither good for business nor a regulatory model to be embraced. He has been evasive in responding to questions concerning California’s on-going authority to issue its own new car emission standards. California was granted a waiver as part of the 1970 amendments to the CAA. The seriousness of the state’s pollution required it to adopt more strident standards than either the federal government or other states in the union. California’s waiver experience portends some of the practical problems and consequences associated with single state establishments of environmental regulation, including:
Beyond the legal and operational problems raised by the Trump Administration’s implied regulatory scheme, rumored reductions in federal agency budgets will prove similarly problematic. Included in EPA's annual appropriations, for example, are grants for state and local air pollution control agencies to carry out their responsibilities under the Clean Air Act. In recent years, federal grants have approximated $200 million annually. These funds represent 60 percent of program budgets, as the states have matching requirements they must meet. The loss of $200 million of operating capital combined with significant reductions in federal environmental research will place onerous burdens on the states, further limiting their rulemaking capability. I cannot claim the CPP is a perfect regulatory scheme. It isn’t. It is, however, a starting point not to be dismissed out of hand. There are certainly ways to give states more latitude in their efforts to comply with national emission standards. Regulations that apply equally across all markets. More than five years of public discourse and 4 million comments offer President Trump and Administrator Pruitt a wealth of information. Surely that information should be mined for practical and politically acceptable reform of the CPP. Administrator Pruitt has promised to respect the 2009 endangerment finding. Why then start over, only to suffer repeating years of comments and likely decades of litigation? Whether one denies or believes the science of climate change, it cannot be doubted that the people of this nation are owed a modicum of continuing protection from pollution’s acknowledged harms. What was it again that Mr. Pruitt said? I remember: ...in this nation, we can grow our economy, harvest the resources God has blessed us with, while also being good stewards of the air, land and water. I couldn’t have said it better myself.   Who’s Responsible? It’s hardly surprising that many eyes are turning toward state capitals as Plan B targets of opportunity for maintaining the momentum of clean energy technologies and continued safeguard of the environment. Given the negativity surrounding the future of federal environmental regulation and President Trump’s tapping of on the record doubters and deniers to fill key cabinet posts, it is easy to appreciate the motivation behind this bifurcated strategy. The obvious question is: will such a strategy succeed? It is a question, I fear, without an entirely satisfactory answer. Success at the state level may prove more elusive in the future, given the current political environment, than in the past. This is not to say the news is all bad. It is to suggest that clean energy and environmental advocates need to consider various factors as they develop their priorities and strategies. It is also a warning not to be surprised by any inconsistency between popular support and political will. Climate change and clean energy were secondary issues in the November elections. It should not be surprising, therefore, that doubters and deniers at the state level appear unconcerned and emboldened by the goings on in Capital City. Cooperative Federalism Over the past decade or more, the role of the states has been expanding, as it has needed to. There is little question that important benefits accrue from well-designed synergistic state/federal partnerships. An example of beneficial collaboration—deliberate or otherwise—is the symbiotic relationship between federal tax credits and state renewable portfolio standards. Local mandates, when accompanied by federal incentives, are certainly more easily met and politically more palatable when existing together. Equally, the connection between environmental regulation and clean energy and environmental technologies has repeatedly proven advantageous--both to the environment and the marketplace. Renewable energy systems are not simply stand-alone sources of heat and power. They are solutions employed to meet carbon reduction targets, increase community resilience, a source of new jobs and investment opportunities. The state-federal regulatory relationship is traditionally referred to as cooperative federalism. The term is the guiding principle of multiple federal environmental Acts, including Clean Air, Clean Water and the Surface Mining Control and Reclamation. According to the American Bar Association: Congress purposefully allocated varying levels of regulatory and enforcement responsibility to the states, in recognition of the states’ historic role as the traditional protectors of local lands and waters and the geographic differences between states that must be taken into account in environmental regulation. Conceptually cooperative federalism seems a simple—if at times unbalanced—equation. Federal regulators establish certain targets, i.e. parameters, within which the states are free to choose how they wish to meet them. In practice, the federal-state relationship has proven extremely contentious. Nowhere has the hoped for purposeful partnership proven more argumentative than in recent efforts to regulate GHG emissions from new and existing electric generating units. Federal authors of the Clean Power Plan (CPP) believed it to be a shining example of cooperation between federal regulators and state decisionmakers. The attorney generals and governors of 27 states, however, saw the Plan as commandeering the right of the states to mind their own business and, considered the word cooperative a euphemism for co-option. Plaintiff states in the case of West Virginia v EPA argued: …the Clean Power Plan commandeers States in violation of the Tenth Amendment because it leaves States no choice but to alter their laws and programs governing electricity generation to accord with and carry out federal policy, and is unconstitutionally coercive because it threaten[s] to disrupt the electricity systems of States that do not carry out federal policy. Regulatory resistance, by the Trump administration and a majority of U.S. senators and representatives, promises to have a deleterious impact on the concept underlying major federal environmental laws. The collaborative relationship obviously fractures once either or both of the partners no longer wants to play. Will the states choose to soldier on without their federal partner? Some will—others won’t. We’ve seen evidence of this in wake of the ordered stay of the CPP. Despite SCOTUS’ suspension of the Plan pending the outcome of the multiple legal challenges, nearly 20 states continued to develop carbon reduction plans. An almost equal number suspended planning, while the remainder are assessing the situation. The 2016 election has changed things. Some states, like California, New York and Ohio, have already given some indication they will continue to promote clean energy technologies and to limit GHG emissions. Other states, including Florida, Wisconsin and Oklahoma, will not be supporting low-carbon alternatives and may in fact rollback policies now on their books. Even states continuing to address harmful emissions and wanting to deploy clean energy alternatives will do so differently—some more aggressively, others less. Writings on the Wall? (no, not that wall) This early in the new year there are already caution signs emerging to suggest state governments may not be as friendly a field upon which to continue the battle against climate change and for supporting deployment of clean energy technologies. With all the sturm un drang surrounding Washington and the White House, it is easy to forget the 2016 elections were also about state capitals and governors’ mansions. The world woke up on November 9, 2016 to large lettered headlines declaring Donald’s defeat of Clinton/Republicans maintain control of Congress! It also rose to discover the President-elect’s party captured 25 state govern-ments—lock, stock and barrel. In total, Republicans now rule 31 state governing structures, while the Democrats can claim only 6. I am loathed to painting with too broad a brush and understand Republican state officials may not hold the same opinions as the President or members of their Congressional delegations. Neither are Republicans within a state necessarily of the same mind. Governor Kasich is currently battling Republican colleagues in the legislature over efforts to maintain the state’s mandate in support of renewables. National party platforms and positions will influence the design of state policies and programs, as well as defining the state/federal relationship. Denial by a growing number of sitting governors simply cannot be ignored. I have previously written about Governor Walker’s directive to the Wisconsin Department of Natural Resources to purge its website of language validating climate change and suggesting human culpability. Governor Walker is not alone in his efforts to erase any suggestion that the global climate might be suffering at the hands of we humans. Add to the list the names of Governor Scott in Florida and 20 other governors and state attorneys general identified by the Center For American Progress Fund in 2016 denying anything is amiss. It should be noted the list includes the name of Scott Pruitt—the possibly soon to be Administrator of EPA. Had this list been drawn up earlier, it would have undoubtedly included the name of the ex-Governor of Texas--now Trump’s nominee for Secretary of Energy--Rick Perry. Their move to Washington means the highly aggressive state challengers they left behind now have sympathetic federal ears in which to whisper their opposition to top down regulation—giving new meaning to the phrase collaborative federalism! The map was created by the folks at Think Progress. It is an interactive illustration of what is going on in the states. Should you wish to, click on this link. It will provide some very good information detailing the goings on in the various jurisdictions. In the next installment of this series, I will be discussing in more detail some of the writings on the wall. The ones I see suggesting that resistance to environmental regulation at the federal level may now be trickling down to the states. I hope also to discuss how support for environmental activism and the transition to a low-carbon economy might also be bubbling up. Click back in a day or two for more on energy and environmental rulemaking in the age of Trump. PS : A [very serious] word before I go State level opposition to climate and clean energy policies and programs must be considered in a larger and connected context. There is a correlation to be made between the rise of today’s conservatism and tomorrow’s understanding of the existence and consequences of climate change. Conservative control of state houses and governors’ mansions also means capture of educational systems. Is there reason to think: once climate deniers dominate boards of education, the textbooks our children and grandchildren will be reading in school will be as purged of references to global warming as websites in Wisconsin, Florida and the U.S. EPA, NASA, Departments of Energy, Agriculture and Interior? I don't actually know but in the words of the 45th President of these here United States: I’ve heard many people saying……………… Lest I be tarred with my own brush, I am just as worried about the left editing textbooks to reflect their world visions as I am the right. To be politically correct-is to be honest and unafraid of open debate. The future of our world depends upon it.  You're traveling through another dimension… not only of sight and sound but of mind. A journey into a wondrous land whose boundaries
are that of imagination….your next stop, the ENDANGERMENT ZONE! [Twilight Zone] ---Rod Serling (with a bit of editing) The first installment of this two-part series focused on judicial decisions and precedents leading up to EPA’s 2009 finding that GHGs contribute to climate change and endanger the health and welfare of citizens and ultimately to the Clean Power Plan (CPP). The CPP has been a significant source of contention between climate defenders and deniers. President Trump and many in the Republican Congressional majority have targeted these regulations for rescission. The Donald, his cabinet nominees, transition staff and personal staff have all alluded to the significant reductions in federal environmental programs and policies that lie ahead. Given the CPP’s executive branch history and the multiple judicial findings leading up to today, President Trump’s reform options are limited. This second installment focuses directly on the two most likely choices the President and his incoming EPA Administrator will face. What ”R” The Available Options? The administration has two basic options for dealing with the extant endangerment declaration and the Clean Power Plan: rescind or replace. Neither is likely to be easily or quickly accomplished. Of the two, replacing, either in whole or part, is the more expeditious and, perhaps, prudent. It is likely they will both prove more problematic than the President and the new Administrator of EPA would prefer. Rescind the Clean Power Plan by Executive Order An Executive Order rescinding the Clean Power Plan is well within Trump’s presidential prerogatives. It would not, however, free the federal government of its obligation to protect the American people from the causes and consequences of climate change. Federal responsibility is based upon the constitution, various laws, e.g. the Clean Air Act, and judicial recognition of the preponderance of scientific evidence strongly suggesting climate change harms people and GHGs are a contributing factor. The Clean Power Plan is not a right, but a means. It is debatable whether cancellation of the order would nullify the proposed CPP regulations. Obama’s directive to EPA was to write the regulations. The regulations themselves are not part of the order. Now that they have gone through extensive public review, published in draft form and made the subject of numerous law suits, pulling them back may require specific action by the presidential, Congress or the courts. Rescission of the directive will serve to move the administration’s anti-environmental leanings and tepid support for clean energy technologies to number "1" on the docket of the court of public opinion. Pro: Rescission of the Obama order would fulfill the administration’s campaign promise. Con: A rescission is unlikely to be of any legal or practical consequence, i.e. halting judicial consideration of the pending cases of West Virginia v. EPA and North Dakota v EPA. Rescind EPA’s 2009 Endangerment Finding In the abstract, outright reversal of the endangerment finding would significantly diminish judicial pressure to regulate GHG emissions. Outright rescission is not likely to be considered favorably by the courts, as they are almost certain to view this as an arbitrary action and invalidate the ruling. Decisions in the series of suits filed by then Attorney General Pruitt and other members of the Coalition for Responsible Regulation should serve as a reminder to the incoming Administrator that his is not a favored opinion. Presumably a Trump/Pruitt EPA would base its reversal on various studies and reports faulting the work of the IPCC, NOAA and many mainstream climate research centers. Organizations like the Competitive Enterprise Institute, the Heritage Foundation and the Texas Public Policy Foundation have devoted significant resources to cast doubts on the research generally relied on by EPA and of climate advocates. Recent hearings by the House Committee on Science, Space and Technology are also likely to be added to the list of authorities questioning the veracity of the claims that are the foundation of the 2009 endangerment finding. An absolute reversal of the endangerment finding would certainly be challenged in court--opening the debate about whose science sources are better. Courts have previously indicated they are going to look at the preponderance of the scientific evidence and are willing to accept a great deal of uncertainty: …the existence of some uncertainty does not, without more, warrant invalidation of an endangerment finding. If a statute is “precautionary in nature” and “designed to protect the public health,” and the relevant evidence is “difficult to come by, uncertain, or conflicting because it is on the frontiers of scientific knowledge,” EPA need not provide “rigorous step-by-step proof of cause and effect” to support an endangerment finding. In a head-to-head contest, claims of uncertainty or falsehood are not likely to prevail. To prove the rescission was not arbitrary the government would be held to a fairly high standard—at least as high as EPA was held to in the Massachusetts decision. Whether the Administration wants to risk yet another opinion, by the courts validating the conclusions of climate defenders, is for the administration to answer. Pro: Rescinding the endangerment finding would significantly weaken arguments in support of environmental regulations like the Clean Power Plan and other parts of the Clean Air Act. Con: Overturning the 2009 endangerment finding will unleash numerous legal challenges, highlighting the differences between climate defenders and deniers and asking the court to reverse their own previous decisions.
Replace (amend) Portions of the Clean Power Plan by Executive Order Replace (amend) EPA’s 2009 Endangerment Finding (As the pros and cons of both these options are similar, I have chosen to treat them together.) President Trump could issue a new order directing EPA to amend the published CPP regulations, based on new information questioning prior conclusions concerning the nature and cause of the harm to people caused by climate change and global warming. EPA Administrator Pruitt could call for a review of the Agency’s earlier endangerment finding based on the new executive order; and, newly available research suggesting the climate is not changing as rapidly or as harmfully as previously thought A replacement order might also serve as grounds for the administration to request of the U.S. District Court of Appeals for the District of Columbia a voluntary remand back to the agency. If permitted, the current draft rule could be rewritten and replaced. Pro: A new order could have several positives in the eyes of the Administration and many conservative organizations, e.g. CEI and the Texas Public Policy Foundation:
Con: Admission, or at least the inference, that climate change is real could prove objectionable to the base of the Republican Party and counter to the 2016 platform and promises of candidate Trump:
The Operation of the CRA The Congressional Review Act has already been brought to the floor of Congress more times in the last two weeks than in the previous eight years of the Obama administration. Prior to the opening of the 115th Congress the CRA has only been used successfully once. President G.W. Bush used it in 2001 to scrap an ergonomics regulation issued by the Clinton administration. I have written before that with Republican control of the Congress and White House it would be used to prevent a number of regulations enacted by the Obama administration, including the Interior Departments stream protection rule finalized in December. The Act promises to come into play here, as any major amendment(s), e.g. rescission or replacement, would trigger the expedited CRA requirements. The Act carries its own consequences, concerns and considerations. Should whatever be proposed by EPA fail to be approved by a Joint Resolution, for example, some serious questions would arise . The Act prohibits a federal agency from reissuing the same regulation again or from promulgating a regulation that is substantially similar, unless the new or reissued regulation is supported by a new statute adopted after the joint resolution of disapproval. It is not clear how different a new regulation must be from a disapproved old regulation to pass muster. Moreover, the Act provides that any determination, finding, action, or omission made pursuant to the CRA cannot be challenged in court. It is hard to imagine the courts would allow the public’s health and welfare to go unprotected because of the operation of CRA procedures. Trump’s 2 for 1 Executive Order It is unclear at this point how the administration intends to enforce the White House’s recent 2 for 1 executive order. A reissuance of CPP type regulations would surely come under its aegis. A principal question to be answered—most likely by the courts—is whether the new regulations are required by law. If so, then the judiciary is likely to give them safe-haven. A recent suit by green groups is challenging the order. Whether the court will rule favorably or not in the case, it is the opening round in what is surely to be just the beginning of a litigious four-year term for Mr. Trump. All that is clear at this point in the Trump administration is that conflict and confusion awaits--not just the CPP but all current federal clean energy and environment programs, policies and laws. Perhaps the motto of the Trump administration is a paraphrase of Shakespeare: The first thing we should do is to hire all the lawyers. It almost makes me want to renew my legal license—almost. Stay tuned, more is sure to follow.  There is a lot of speculation surrounding the Trump administration’s intentions toward clean energy and environment policies and programs. Rumors abound of slashing budgets, firing personnel, gagging anyone left standing and ultimately dismantling EPA and federal renewable energy programs at the Department of Energy and elsewhere.
IMHO-- the fate of EPA and of various federal climate-related programs may well depend upon the answer to a single question: How will the Administration deal with the Agency’s 2009 declaration that GHGs threaten the public health and welfare of current and future generations and contribute to greenhouse gas pollution that threatens public health and welfare? The answer—or rather, the presumed response of the Trump administration—may not be what you think. There is often a great divide between what candidates promise and victors deliver. Trump’s triumphal march down Pennsylvania Avenue and promise to drain the swamp conjures images of Alexander’s entrance into the Phrygian city of Telmissus and cutting the Gordian knot. Reality, however, may paint quite another picture. Opponents of President Obama’s climate action initiatives are quick to point out the Clean Power Plan (CPP) is a creature of executive action and, therefore, within the power of President Trump to deal with as he sees fit. Although executive orders and memoranda can be rescinded with the stroke of a successor’s pen, it is not nearly as easy to dismiss the legal and scientific precedents upon which the directive was based. Neither, would overturning the endangerment finding come without complication or consequence. Decades of legal precedents can trump political wishfulness and keep unilateral executive actions within constitutional bounds. The following paragraphs highlight key judicial precepts and procedures likely to confront, influence and possibly confound administration efforts to rescind the CPP and other clean energy and environmental regulations. Massachusetts v. EPA EPA’s 2009 endangerment finding followed the decision of the U.S. Supreme Court (SCOTUS) in the case of Massachusetts v EPA. Events leading up to the 2007 decision started late in 1999, when a group of private organizations petitioned the Agency, asking it to exercise its authority under the Clean Air Act (CAA) by regulating carbon emissions from new motor vehicles. EPA denied the petition. Its refusal was based upon two core conclusions :
SCOTUS disagreed, believing EPA underestimated its CAA authority and inadequately accounted for the magnitude of the problem, in relation to the ambiguity of the science. Justice John Paul Stevens, writing for the majority, summed the situation as follows: Calling global warming ‘the most pressing environmental challenge of our time,’ a group of States, local governments, and private organizations, alleged…that the Environmental Protection Agency (EPA)…abdicated its responsibility…to regulate the emissions of four greenhouse gases, including carbon dioxide. EPA considered the links--between human activity, the presence of greenhouse gases (GHGs) and climate change-- more casual than causal. It based its refusal to regulate primarily on the National Research Council’s (NRC) conclusion that: …there is considerable uncertainty in current understanding of how the climate system varies naturally and reacts to emissions of [GHGs]…. Justice Scalia accepted the Agency’s judgement, believing it appropriate and well-grounded on the scientific knowledge of the day. Others on the bench, however, agreed with the plaintiffs’ position that the profundity of the problem outweighed the uncertainty of the evidence. In a narrow 5-4 decision, the majority declared: EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore “arbitrary, capricious, … or otherwise not in accordance with law.” The majority opinion ended by stating: We need not and do not react the question of whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA's actions in the event that it makes such a finding. We hold only that EPA must ground its reasons for action or inaction... (emphasis mine) The case was shipped back to the lower court for further proceedings, consistent with the majority’s opinion. EPA read the decision as a directive to re-review the science surrounding climate change, with focus on the causal relationship between GHG emissions and global warming. Since SCOTUS had shown itself unwilling to accept the singular findings of the NRC, EPA expanded its inquiry. The Agency considered numerous scientific studies—including IPCC’s assessment and by incorporation the 18,000 peer-reviewed papers in support of the its climate conclusions. Upon reconsideration of the scientific data, the Agency found sufficient evidence to conclude the public’s health and welfare were at-risk from climate change; and, GHG emissions from motor vehicles were a contributing factor. The endangerment finding and other of the proposed regulations issued following the Massachusetts decision, e.g., Cross-State Air Pollution Rule (CSAPR), were quickly challenged by coalitions of state attorneys general and allied industry organizations. (EESI timeline) The U.S. District Court of Appeals for the District of Columbia, in a series of rulings, dismissed these challenges to EPA’s authority. It further denied plaintiffs’ claims that the endangerment finding was based on flawed or inconclusive scientific evidence. In the wake of the Massachusetts decision and dismissal of the subsequent challenges, President Obama released his Climate Action Plan, directing EPA to move expeditiously to regulate carbon emissions from both new and existing power plants. Stare Decisis Executive directives may have the weight of law, they are not superior to it. Can Trump dismiss, declare illegal or delineate limits around Mr. Obama’s clean power memorandum? Indeed, he can. What he cannot do is to order federal courts to ignore decades of decisions and precedents. American justice is a continuum largely because it adheres to the doctrine of stare decisis—to stand by things decided. The doctrine is multi-directional. Horizontal stare decisis refers to a court’s adherence to its own precedents; it is vertical when it applies those that are established by a higher court, e.g. SCOTUS. The doctrine is neither flawless nor immutable. There are times when a court will decide the precedential basis of prior decisions is unworkable or so unjust as to warrant being abruptly overturned: …the Constitution precludes the Court from exercising its overruling power as a matter of unbridled discretion… [and]constrains a Court’s power … as it constrains every other exercise of governmental power. To put the strength of the stare decisis doctrine into some perspective, consider Roe v. Wade. The 1973 landmark abortion rights decision by SCOTUS has faced political and legal challenges since before the ink was even dry. Largely due to stare decisis, the decision still stands. Perforce the combination of several factors, EPA’s authority to regulate GHG emissions is currently without question. These factors include:
The Trump administration is facing limited options to effectuate its goal of rescinding the Clean Power Plan and reducing federal regulatory responsibility for the protection of citizens from environmentally caused harms. In the next installment, I will identify and discuss what those options might be and highlight some of the pros and cons of each. |
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. Archives
December 2018
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