The nation remains closely divided in its view of President Trump. Many on the Right tout him a savant—wise in a way no other chief executive has ever been. An anti-establishmentarian for our time, if you will. An almost equal number on the Left question his intellect and wonder how he ever managed to pass civics class, let alone, how he became the 45th President of the United States.
Whatever your view of The Donald, his innate understanding of where loopholes in the governance system reside and how to capitalize them to his advantage should not be under-estimated. His perception and use of a president’s national security powers is unprecedented both in terms of frequency and the variety of applications. They are, as well, only vaguely defined in law and practice.
Trump has invoked them to impose tariffs on foreign aluminum and steel, threaten restrictions on the import of foreign autos and slow immigration. “National security” has been used by his administration, both successfully and unsuccessfully to justify suspension of environmental regulations and maintain uneconomic coal and nuclear-fueled electric generating units.
The reticence of a Republican Congress to check or even challenge his use of national security has in the words of Peter Harrell, an adjunct senior fellow, at the Center for a New American Security:
…upended longstanding international agreements and stretched the definition of “national security”
beyond the intent of Congress in the decades-old statutes that Trump has relied on. Congress needs to
restore its historic role on trade and economic policy and by reforming national security authorities to limit their use to pursue economic policy.
I would add to Harrell’s statement the use of these powers to justify overriding environmental protections, including turning over large tracts of federal land to the private sector for commercial exploitation, e.g., Bears Ears and Grand-Staircase-Escalante.
Not for the first time, Trump ordered Energy Secretary Perry to take immediate action to stem power plant closures, arguing that a decline in coal and nuclear electricity is putting the nation’s security at risk. This most recent order follows an unsuccessful earlier attempt by Perry to convince the Federal Regulatory Commission (FERC) to require power plants to maintain 90-day on-site supplies of coal and nuclear fuels to assure the reliance of the power grid in emergency situations. A requirement neither FERC nor anyone else beyond Trump’s minions believed necessary.
Trump’s June directive was announced in an email by the White House’s Press Secretary Sarah Sanders. The announcement was made following the leak of a “confidential memo” to Bloomberg.
The memo begins:
The Nation’s electricity grid has operated with a high level of reliability historically and continues to do so today. However, in light of the current threat environment and the evolving nature of the electricity system, reliability in the conventional sense is not sufficient…The Nation’s security and defensive capabilities, as well as critical infrastructure, depend on an electric grid that can withstand and recover from a major disruption, whether from an adversarial attack or a natural disaster. (emphasis added)
Increasingly, however, due largely to regulatory and economic factors, too many of these fuel-secure plants have retired prematurely, and many more have recently announced retirement. Although the lost megawatts of power often are replaced by new generation from natural gas and renewable energy sources, this transition comes at the expense of fuel security and resilience.
The nature of the current threat referred to in the memo’s Overview is never clearly defined.
The document continues:
To promote the national defense and maximize domestic energy supplies, federal action is necessary
to stop the further premature retirements of fuel-secure generation capacity while DOE, in collaboration with other federal agencies, the States, and private industry further evaluates national security needs and
additional measures to safeguard the Nation’s electric grid and natural gas pipeline infrastructure from
current threats. (emphasis added)
The memo’s authors cite the Defense Production Act of 1950 and the Federal Power Act as authority to [temporarily] delay retirements of fuel-secure electric generation resources, i.e., coal and nuclear. The delay is to be used by DOE and other federal offices to undertake the analysis needed to make final recommendations. An interim of 24 months seems to be anticipated, during which time System Operators are to purchase or arrange the purchase of electric energy or electric generation capacity from a designated list of generating facilities to forestall any retirements.
The Administration appears not to be looking for any involvement by state regulators—at least for now. Assistant Energy Secretary Walker ducked out at the last minute from his scheduled appearance at the Summer Policy meeting of the National Association of Regulatory Utility Commissioners (NARUC). Walker, head of the Office of Electricity, claimed he missed a connecting flight and was unable to get to the conference in time to participate. A similar dog-ate-my-homework excuse for not accepting their invitations to speak was given by the heads of DOE’s Offices of Nuclear and Fossil Energy.
Many at the conference suggested--strongly—that the Department deliberately meant to avoid questioning by regulators—many of whom opposed Perry’s earlier effort to keep uneconomic nuclear and coal generating units online through a FERC order. In responding to the “suggestion,” DOE’s spokeswoman did mention that it would have been premature for DOE to discuss what was being done behind closed doors, suggesting that state commissioners would be told about the decision when the Administration thought it appropriate.
The White House isn’t alone in its efforts to undermine environmental protection in defense of the nation. The House version of the 2019 National Defense Authorization Act included provisions to suspend portions of the Endangered Species Act for the next ten years.
Republicans have been accusing the Greater Sage-Grouse and lesser prairie chicken of impinging on military readiness, at least since 2015. An accusation, it should be said, never made or substantiated by the military.
This species of grouse has also found itself squarely in the sights of Secretary of the Interior Zinke—the Administration’s oldest Boy Scout. Early in his tenure, Zinke published a notice of his intent to amend the current plan to conserve the endangered Greater Sage-Grouse. A plan pointed to as proof of what is possible when conflicting interests, e.g., federal and local governments, mining interests, hunters, conservationists, and others, sit down in good faith to find workable solutions.
Secretary Jewell, Zinke’s predecessor at Interior, called the agreement of historical importance. According to Jewell, it demonstrated that:
[the] Endangered Species Act is an effective and flexible tool and a critical catalyst for conservation–ensuring that future generations can enjoy the diversity of wildlife that we do today. The epic conservation effort will benefit westerners and hundreds of species that call this iconic landscape home while giving states, businesses, and communities the certainty they need to plan for sustainable economic development.
The Greater Sage-Grouse, often mocked for its portly body and strange mating dance, is an indicator species. Protecting this particular bird is to protect the American West’s Sage Brush Sea and the 350 species that call it home. More than anything else, Greater Sage-Grouse need space to survive and prosper. Fragmentation of sagebrush habitat caused by roads and other manmade developments interferes with their annual life cycles.
Unfortunately for the bird its expansive territory contains rich deposits of fossil energy mineral resources, lumber stocks and is highly prized as vacation and recreational areas. Some 60 percent of the Greater Sage-Grouse’s habitat is owned by the federal government and involves lands Zinke has undoubtedly thought of in terms of his quest to shrink national monument holdings like Bears Ears and Grand-Staircase-Escalante—opening them up to commercial exploitation.
Trump’s unprecedented use of national security as THE LOOPHOLE through which he keeps pushing his America-first agenda should come as no surprise to anyone. How many times has Trump described himself as a warrior? It’s an image he cultivated before becoming president. It has since become his image of the presidency.
Months after being sworn in, Trump’s National Security Strategy to Advance America’s Interests was announced. It was based on “four pillars;” the second reads:
II. PROMOTE AMERICAN PROSPERITY: A strong economy protects the American people, supports our way of life, and sustains American power.
When speaking of almost any national policy, whether it be energy, immigration, foreign trade, the domestic economy, or the environment, Marshal Trump uses words of war--power, competition, protection, dominance, security, and resistance to exploitation. He refers to military leaders as “his generals.”
A nation at war must naturally and at any cost become reliant on itself. If self-reliance in defense of the nation requires preservation of non-competitive and uneconomic domestic industries, e.g., coal, steel, and aluminum, destruction of the environment, suspension of constitutional rights, or the payment of $12 billion to farmers hurt by a trade war—then so be it. We are, after all, a nation at war; our security demands no less.
Supported by members of Congress, administration actions to lower environmental protections are being stepped up. No longer focused on rewriting or rescinding Obama era regulations like the Clean Power Plan and auto emission standards, efforts to amend their underlying legislation, e.g., the Clean Air and Water Acts and the Endangered Species Act (ESA), are being increased—directly and indirectly as in the case of the Greater Sage-Grouse.
Virtually behind closed doors Trump and company are getting more practiced, sophisticated, and secretive in their environmental battle plans. Had the memo leading to Trump’s June directive to Secretary Perry to keep uneconomic and polluting coal plants online not been leaked to Bloomberg, state utility commissioners would have had much less notice of what the Administration is planning. A similar situation regarding national monument lands has also occurred in recent weeks.
According to a report by Juliet Eilperin, senior Interior Department officials dismissed evidence that these public lands boosted tourism and spurred archaeological discoveries, according to thousands of pages the Department of Interior inadvertently emailed out in response to a Freedom of Information Request (FOIA). A day after the release the documents were recalled, and the damaging information was redacted.
What kind of information was subsequently blacked-out? Again, from Eilperin’s article:
The inadvertently released documents show that department officials dismissed some evidence that contradicted the administration's push to revise national monument designations, which are made under the 1906 American Antiquities Act. Estimates of increased tourism revenue, analyses that existing restrictions had not hurt fishing operators and agency reports that less vandalism occurred as a result of monument designations were all set aside.
The article continues:
Department officials also redacted the BLM's (Bureau of Land Management) assessment that "it is unlikely" that the Obama administration's establishment of the 1.3 million-acre Bears Ears National Monument "has impacted timber production" because those activities were permitted to continue.
The inadvertent release of documents demonstrates the Administration’s continued and arguably wanton disregard of the rule of law.
Interior is continually finding new ways to sacrifice the nation's natural resources in the name of security. In recent days the Department announced it would no longer require oil drillers, miners, land developers and others to pay to replace or maintain wildlife habitats on public lands. The payments, known as compensatory compensation, are part of the Endangered Species Act. According to a spokeswoman, the Department has not revoked existing plans but simply how it enforces the ESA. Payments will now be voluntary. I imagine the Department's distinction between revoke and revise will be appreciated by Greater Sage-Grouse, the hundreds of other species whose habitats may be destroyed, or conservationist and environmental organizations.
The most obvious suspension of environmental laws in the name of security is occurring along the nation’s southern border. Although Trump has yet to receive the billions of dollars he has requested to build his wall, already constructed sections of the wall are already having a profound impact on endangered plant and animal habitats.
More than 2,700 scientists have sent a letter to Trump detailing the threat to survival that is currently being faced by more than 1,000 species. Since 2005 when the Department of Homeland Security was given broad legislative authority by the Real ID Act to waive 37 environmental laws and regulations to expedite border wall construction.
Stanford University professor Paul Ehrlich co-authored the letter and termed Trump’s beloved impermeable southern wall a crime against bio-diversity.
To rid the government and industries of responsibility for assessing the impacts of projects on and off federal lands, the Trump administration has requested public comments on “potential revisions” of the National Environmental Protection Act (NEPA). In past, such euphemistic requests portend gutting of major environmental laws. NEPA, dates back to the Nixon administration, is a cornerstone of the nation’s entire environmental protection framework.
These stepped-up assaults on the environment will, like those that went before, end up in court. In many cases, Trump and company will be brought up short—but only after many of the deeds will have been done and likely years of litigation.
When combined with the growing number of lifetime federal judicial appointments being made by Trump, especially at the federal appeals court level, the power of this presidency to deregulate the nation’s environment appears more achievable—at least temporarily.
Trump’s genius is his phrasing of situations and himself in ways his core supporters continue to see him as the defender and not the aggressor in the wars he starts—by blunder or design. Whether those wars are against the nation’s traditional allies like Canada, Mexico, Great Britain, France, and Germany or establishment politicians and the media here at home, 40 to 45 percent of the nation continues to see Trump as their defender.
Whether the sound of Trump’s war drums will be dampened by Republican losses in November is a matter of considerable speculation. What should be most concerning to climate advocates than who wins in November is how to get clean energy and the environment back on the priority lists of constituents and voters.
Despite polls showing a general concern for the environment, climate and energy are consistently at or near the bottom of voter priority lists—in some cases, they are not even on the tote board. The lack of constituent concern is reflected in the platforms and public statements of both Republican and Democratic congressional candidates.
Messaging remains a problem. Attacking Trump, at least in the court of public opinion, seems barely to move the needle. It is incumbent on the climate community, therefore, to communicate with voters, particularly Republicans, in terms they can relate to. Today, effective communication means convincing constituents and their political representatives that in Trump’s war a sustainable environment is essential to the defense of the nation.
Photo credit: AP Photo/Steve Helber/Trump addressing the National Boy Scout Jamboree July 24, 2017, Secretary Zinke is on Trump’s right, Secretary Perry on his left.
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.