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.