Much of what the White House claims to have accomplished in the first 170 days 19 hour 03 minutes and 12 seconds* since Trump was sworn into office--by both supporters and opponents—is only partially correct. Not necessarily because the claims of executive action are untrue, but because many are subject to judicial review and cannot be counted as having been completed until the courts rule.
Hardly record-setting for the number issued--Presidents FDR and Truman far exceeded The Donald’s pace of papering over the federal government early in their administrations—the Trump White House leads the pack in number of executive orders struck down by the courts. The U.S. Court of Appeals for the District of Columbia Circuit recently added to the string of struck federal executive actions when it overruled an attempt by the Environmental Protection Agency to delay Obama-era methane regula-tions, rejecting claims by the EPA that the oil and gas industry wasn't allowed to comment on the rules.
The decision is important in and of itself, of course, but it also offers possible insights into what the judicial fate of other administration efforts to rollback Obama-era environmental regulations might be, including: Corporate Average Fuel Economies (CAFE), the Clean Power Plan (CPP), the Waters of the U.S. regulations (WOTUS) and a growing host of others.
Some of the rollback attempts, e.g. CPP and WOTUS, are deliberately named in one or another executive directive. Others are implied under the March 28, 2017 action headed the Energy Independence Executive Order.
If the revision of CAFE standards serves as an opportunity for the Trump regime to preempt state authorities, the Clean Power Plan (CPP) represents an opportunity to render unto the states what the administration would like them to be responsible for—or perhaps what they don’t want the federal government to bear the responsibility of.
The CPP was the intended path by which the Obama administration was to achieve the promised Nationally Determined Contributions (NDC) to global decarbonization as part of the Paris Accord. Although finalized late in President Obama’s second-term, the legal groundwork was laid during the G.W. Bush administration.
W’s refusal to regulate greenhouse gas emissions (GHG) from car tailpipes led to the decision in Massachusetts v EPA. As discussed throughout, the case established EPA’s authority to regulate greenhouse gases (GHGs) it determined were contributing factors to global warming. The 5 to 4 decision further established such regulation as obligatory, if the Agency also determined that global warming/ climate change was indeed harmful to human life and the welfare of the planet.
Justice Stevens writing for the majority included such phrases in the opinion as:
The harms associated with climate change are serious and well recognized.
EPA overstates its case in arguing that its decision not to regulate contributes so insignificantly to petitioners’ injuries that it cannot be
ha[u]led into federal court, and that there is no realistic possibility that the relief sought would mitigate global climate change and remedy petitioners’
injuries, especially since predicted increases in emissions from China, India, and other developing nations will likely offset any marginal domestic
decrease EPA regulation could bring about.
While regulating motor-vehicle emissions may not by itself reverse global warming, it does not follow that the Court lacks jurisdiction to decide
whether EPA has a duty to take steps to slow or reduce it. (emphasis mine)
Because greenhouse gases fit well within the Act’s capacious definition of “air pollutant,”EPA has statutory authority to regulate emission
of such gases from new motor vehicles. That definition—which includes “any air pollution agent …, including any physical, chemical,
… substance … emitted into … the ambient air … ,” §7602(g) (emphasis added)—embraces all airborne compounds of whatever stripe. Moreover,
carbon dioxide and other greenhouse gases are undoubtedly “physical [and] chemical … substance[s].
EPA’s reliance on post enactment congressional actions and deliberations it views as tantamount to a command to refrain from regulating greenhouse
gas emissions is unavailing. (emphasis mine)
The case led directly to EPA’s subsequent endangerment finding. Finalized on Pearl Harbor Day 2009, it gave President Obama the needed legal basis to order EPA to regulate power plant emissions—principally CO2--pursuant to the Clean Air Act. The regulation is now generally referred to as the Clean Power Plan. The Plan was a cornerstone of the larger Obama Climate Action Plan that endeavored to combat global warming on multiple fronts, e.g. stringent CAFE standards, promoting American leadership in clean energy, boosting the resilience of buildings and infrastructure to natural disasters, etc.
Candidate Trump had promised the auto industry and his supporters that he would get Detroit working again by deregulating the industry. On the Ides of March 2017, The Donald started to make good on that promise. In an executive order, The Donald directed EPA and the Department of Transportation/National Highway Transportation and Safety Agency to re-open the Midterm Evaluation (MTE) completed just prior to President Obama’s leaving office.
The MTE led to EPA’s finalizing the 2022-2025 CAFE for cars and light trucks at 54.5/mpg**. The Auto Alliance had written both Trump and EPA Administrator Pruitt, early in 2017, asking them to reopen what they thought to be a flawed rulemaking process. It was, in their opinion, a rush to judgement and violative of their 2009 agreement with Obama
CAFE standards were introduced to the nation in 1975 as part of the Energy Policy and Conservation Act (EPCA). Motivating the new standards was the 1973 oil embargo. Congress and President Ford sought to lower reliance on foreign oil to decrease the impact of any future embargos. The environment received little more than a nod from lawmakers at the time.
This is part 4 of the Paris Yearning series examining events occurring in the wake of President Trump’s decision to rescind U.S. participation in the Paris Climate Agreement.
Chancellor Merkel Lowers G20 Expectations
Sean Spicer isn’t all that’s hiding in the bushes these days. Spicey is increasingly seen in the company of warning signs facing the world on the road to the sustainable kingdom(s).
The result of the UK election is also leading to an increase in the number of pundits seeking refuge in the greenery. The surprise outcome was not the only current event casting shade over international aspirations for keeping global warming within the bounds of considered safety.
German Chancellor Merkel recently struck a cautious note concerning the outcome of next month’s G20 meeting in Hamburg. A committed climate defender, Ms. Merkel was on a pre-summit tour to discuss the upcoming meeting with the leaders of member nations.
During a news conference in Argentina the German head of state signaled a narrowing of expectations in key areas. Trump’s announced U.S. exit from the climate agreement and his lukewarm embrace of NATO and the G7 cast shadows over continued cooperation on global warming, trade and migration.
The UK election appears to have thrown yet another spanner into the workings of British government. Having suffered the loss of an outright Parliamentary majority in last week’s vote, Prime Minister May is on the prowl for a governing partner.
Live long enough in Capital City and you can’t help but gain a feel for what Alice must have felt as she tumbled down the rabbit hole. Had Lewis Carroll been born a century and a half later and needed a city to use as the inspiration for his Wonderland Washington, in the Trump era, might just have filled the bill.
I can hear Donald J. Trump wistfully wishing:
If I had a world of my own, everything would be nonsense. Nothing would be what it is,
because everything would be what it isn't. And contrary wise, what is, it wouldn't be.
And what it wouldn't be, it would. You see?
Yes Donald, I see. I don’t understand, but I see.
As I sat down to write Part 3 of Paris Yearning I had a fairly clear idea of where I would be heading. I made the mistake of checking the evening news stories and, now like Alice, I am a bit disoriented.
Today in Trumpland three events of interest to the clean energy and environmental sectors took place.
“Secretary of State Rex Tillerson visited New Zealand today, where despite torrential rains,
his motorcade was greeted by a flock of birds—not of the fine feathered variety.”
Part 1 of the series looked at the theatre of President Trump’s decision to pull the U.S. out of the Paris Climate Agreement and discussed the growing partisanship of the climate change debate. Readers were cautioned that facts, figures and legal arguments held less import for Trumpeters than they might otherwise hope.
Part 2 focuses on several of the issues most salient to Trump’s announcement and suggests how they might be addressed going forward by clean energy and climate advocates. It begins by pointing to a way around the dilemma of Trumpsters refusing to be swayed by facts.
It would be difficult to get through life without the capacity to consider various options and to decide what to do. The lack of any decision criteria has caused many a donkey caught between two bales of hay to starve to death.
The alternative to weighing facts—at least for a politician--is to weight the importance of an issue to a voter/constituent or to the party’s leadership.
Prioritization is a key alternative decision criteria often employed by elected officials trying to determine whether to support or to oppose a particular initiative. For elected partisan representatives, consideration goes beyond the voters.
As members of an organized and hierarchical party, a balance must be achieved between the demands of party leaders and voters Prioritization works well in both instances.
A lot has been written these last several days about the meaning, motivation and consequence of Trump’s decision to pull the U.S. out of the Paris Climate Accord; much more will be. The decision is unfortunate at many levels--not, however, at all levels.
The near-term notoriety of an issue central to life on earth—whoever you are and wherever you might be living—is a good thing. It and its many subtexts, e.g. environmental justice, federal support of energy and climate research, the reach of federal environmental regulations, etc., are topics needing to be discussed regularly by the global community—not simply after black swan events.
In these few days away from Trump’s decision, I want to address several of the issues I think most salient to Trump’s announcement and to consider how they might be addressed by clean energy and environmental advocates going forward. It is impossible to cover all the issues involved in a single blog column—actually, in a thousand columns. Still, we must start somewhere.
Scratching out notes for this article, it became clear my starting point for a post-pull-out discussion was not going to focus on hard science and statistics—nor even much on legal issues. Laws—whether of Nature or societies—are of course integral to finding workable solutions to global warming.
The disciplines of physics, engineering, materials research, economics, law and others guide us in what to use in our efforts to combat climate change. They do not, however, tell us much about why anyone chooses to combat global warming.
Have you ever played musical chairs? It was pretty much mandatory at any birthday party I ever attended growing up.
Of course, given where I grew up and the friends I grew up with, it was a contact sport--not for the faint of heart. Still, bruises were badges of honor worn proudly and not to have played was unthinkable.
There came THE TIME at every party when someone would start arranging chairs—every other one facing in the opposite direction---while someone else set about finding just the right song to mayhem by.
It was then the rest of us would start limbering up, knowing when the music started flowing elbows would be flying. Let the pushing and shoving begin!
Oh, how we circled those chairs in frantic anticipation of when the music would suddenly stop—then just as suddenly begin again—but with one less chair and one less player.
Boy or girl, it made no difference—all that mattered was who’d be the last one sitting in that last chair standing.
A zero sum game this was. You were either on the chair at the end or you weren’t—no style points, no second-place trophy, no going home with the title Ms. Congeniality. Possession was all that mattered.
We played hard and forgot quickly. It was a game—a few bruises here and there, no grudges, no worries one of the losers—the victory challenged, for you PC’ers among us—looking to get even.
Friendships were as strong after as before—stronger even for the shared experience.
I hadn’t thought of those parties in quite a while. Then there was the other evening, watching our 45th president—the Apostate Donald John—speaking only for himself--and Russia, of course—denying any collusion, conspiracy or culpability.
It’s hard to tell the players, even with a program
Walk into any ball park in the nation and you’ll hear the hawkers refrain: programs, get your programs, you can’t tell the players without a program.
Here in Capital City, as of May 22, 2017, the players’ program is written mostly in blank verse. According to the Washington Post’s tote board: of the 557 key Trump administration positions requiring Senate confirmation, 33 have been filled, while only 56 have been nominated.
This compares to the same date in prior administrations rather poorly:
Nominations Sent to Senate 20 May
The Donald’s accusations, notwithstanding, the sparsity of key agency personnel cannot be blamed on Senate Democrats. The President himself is to blame for languorous pace
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.