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.
A Note About the Series: Life in Purge-atory
The task of the Canary series is to hone in on emerging political and legal trends impacting the clean energy and environment sectors. The first of the series discussed Governor Walker’s ordering the Wisconsin Department of Natural Resources to purge any references to climate change and its possible link to human activity.
Wisconsin’s governor is not the only censor of anthropogenic climate change and global warming information these days. Other states, e.g. Florida, and the Trump administration have also been exercising their erasers. The President’s people even went so far as to purge, from the Energy Kids/Energy Ant pages of the Energy Information Administration website, statements about coal’s contribution to climate change.
I am opposed to such editing in principle. When the censor’s scepter is waved by governments deliberately to limit—rather than to promote—understanding, I am inclined to consider it a crime against the citizenry. People have a right to know.
This second installment of the Canary series focuses on replacing the role of Congress with the rule of judges. Specifically, how executive orders and legal challenges are becoming the most sought after vehicles of policymaking.
Executive orders are inherently unstable, as they technically exist only as long as the president who signed them is in office, or by the sufferance of his successor. The litigiousness of today’s federal policymaking process corrupts the judiciary by assigning it a task for which it is ill-suited. It as well opens it to attack. Both procedures belie the inability of Congress to function as the deliberative body the nation’s founders had envisioned.
Two Piece Suits
I have been writing for months about the myriad environmental law suits filed in state and federal courts within the last decade. Some have charged the U.S. Environmental Protection Agency (EPA) of having a boarding house reach—grabbing at authorities beyond those they are entitled to, as spelled out in the Constitution and/or granted by Congress in legislation.
Other plaintiffs have accused this same government of timidity--failing to be as aggressive as the laws and Constitution will allow. Plaintiffs in the first category of cases contend overreaching by EPA and other federal agencies, e.g. Department of the Interior/Bureau of Land Management, abrogates the rights of states and drags on private sector profitability.
Those in the second group argue passivity exposes the population to undue health risks and devalues the inheritance of future generations. In some cases, establishing the right of the plaintiff to stand before the bar has proven as important as judicial validation of anthropogenic global warming and the harms caused.
Part of Trump’s inauguration day activities included putting pen to presidential paper. Since his inauguration, there has been a steady flow of executive orders directing federal agencies to: review; repeal; rescind and re-write various regulations and government practices.
Clean energy and environmental regulations are prominent targets of both the Trump administration and the 115th Congress in its efforts to invoke the Congressional Review Act. According to the Daily Caller: lawmakers have introduced at least 37 CRA resolutions to repeal Obama-era rules. As many as 150 regulations are eligible for repeal under the CRA....
The Caller’s count doesn’t include the soon to be released Executive Orders to EPA commanding rollback actions of the Clean Power Plan (CPP) or account for what Pruitt might do as EPA administrator on his own, e.g. rescinding the 2009 endangerment finding. (see sensiblesafeguards.org for regulatory updates)
Charles Krauthammer recently wrote:
Among the many unintended legacies of President Obama, one
has gone largely unnoticed: the emergence of a novel form of
resistance to executive overreach, a check-and-balance improvised
in reaction to his various presidential power grabs.
It's the revolt of the state attorneys general, banding together to sue
and curb the executive. And it has outlived Obama.
Krauthammer is right—at least about the trend outliving the eight years of the Obama presidency.
He fails to see the brewing onslaught of legal challenges to the Trump administration just over his horizon. Plaintiffs in these cases will be claiming an under-reach of presidential authorities that leaves them and the nation open to actionable harms.
With Trump in the White House and Republicans in command of Congress, these tug of war lawsuits will continue to escalate. All that has changed is relative position of the parties. Clean energy and environmental advocates are now the challengers and deniers the defenders.
The courts will continue to be well-trod battlefields for as long as politicians fail to arrive at some reasonable accord as to the nature of the threat posed by climate change and the defenses needed to combat it.
Divided We Stall
Once upon a time Congress came to understand the difficulty of enacting laws that were too specific. The federal legislature sought to solve the problem by writing loose and generic directives to federal agencies—leaving them to figure out how best to implement them.
There are practical and political reasons to keep language in legislation, like the Clean Air Act, vague. The more detailed a bill, for example, the more likely potential opponents will find something upon which to base their opposition. Even for supporters, the more detail the more likely some exception will be taken.
There are similarly valid substantive reasons for keeping proposed legislative passages a bit loose. Regulation, like knowledge, is a dynamic process for which the Congress is ill-suited to manage on a day-to-day basis.
There is nothing inherently wrong with Congress’ painting with a broad brush and requiring the requisite expert agencies to fill in the details. The cause of dysfunction is the disagreement between the parties. No longer perceived as partners but as adversaries, collaboration and compromise remains elusive.
Congressional opponents of the CPP would have the public believe they are being victimized by their own creation, i.e. the Clean Air Act (CAA). This isn’t a science fiction movie where a demented creator of some creature is overpowered by his own invention.
Congress never really loses control of the regulatory process. Even without the CRA or any of the recently proposed regulatory reforms, members can exert their influence over the regulatory process through: oversight hearings; agency budgets; legislative amendments; and, [my personal favorite] civil discourse.
The system is not at fault; the players are.
I’ll See You in Court
A clear consequence of Congressional dysfunction is the use of the courts to define, defend and/or dismiss inartful and vague legislation. Although I can’t prove it beyond a doubt, it is reasonable to suspect that litigation plays a deliberate role in the legislative and regulatory strategies of both proponents and opponents.
Courts once considered last resorts are now preferred venues for policy debates. Saber rattling headlines are common place:
“Clean Power Plan,” its plan to combat climate change by slashing carbon emissions from power plants.
Tactical lawsuits are certainly not new. Their prevalence, however, is both troubling and symptomatic of the larger partisanship problem.
With the passage of time, the partisan divide(s) gets wider and more pronounced. No longer is there just an aisle to cross, nor even a moat to swim.
I am talking about a wall here in Capital City. A divider that can be described only in Trumpian terms: an impenetrable, [meta]physical, tall, powerful, beautiful…wall. Only this wall is nowhere near the U.S. and Mexican border, it is between political parties; it is a barrier in need of destruction not construction. (addition of meta is mine)
Intransigent partisans keep kicking the can down the road. It is a damn poor way to run a railroad.
Washington gridlock has been responsible for the persistent practice of wedging the doors of government open with continuing resolutions and the failure to enact substantive energy and environmental legislation for over a decade.
Is it any wonder that alternative policy venues are sought? There are significant problems associated with such default policymaking, including:
The next installment of this article will describe how the option to sue is put into play. It will also highlight how even executive orders have become targets of litigation; a circumstance itself that can be called a canary in the coal mine.
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.