Yesterday’s installment of the What Now: Momentum Slowed series addressed the likely first blasts of the Trumpeters to weaken the current federal framework of clean energy and environmental rules, policies and programs. Today I am continuing that discussion starting in the agency regulatory arena and moving on to the courts.
The final section of today’s installment is public engagement. Note that I am using the term engagement rather than education. The essence of communication is connection. Lobbying and legal challenges are important components of any successful strategy to maintain the pace of the transition to a low-carbon economy; however, what will ultimately win the day is engaging the public—defenders and deniers-- in a rational and resonating dialogue.
Once again, I have briefly stated what I believe is the appropriate reaction of clean energy and climate activists next to each heading.
Regulatory: Take advantage of the public input and transparency requirements for proposed regulatory actions—submit comments, encourage others to submit comments and support organizations filing legal challenges.
Rescinding regulations is not nearly as easy as the incoming administration would hope. Unlike regulations vulnerable under the CRA, an agency wanting to amend or rescind an existing regulation must go through all the procedures required for its issuance in the first place.
According to the Regulatory Studies Center:
These steps are governed by the Administrative Procedure Act of 1946 and include developing a legal record justifying the proposed change
(including technical and economic analysis), and seeking public comment on that record and the proposed regulatory (deregulatory) action.
The agency would have to respond to public comment, which may lead to modifications to the draft regulation, before it issues a final rule.
These steps generally take at least a year, but the story won’t likely end there.
When the final rule is issued, two records will exist, one developed to support the original regulation and a second that supports its elimination or modification. The revised rule will almost certainly be litigated, with parties that supported the original rule pointing to the earlier record to defend their objections.
Requiring an agency to reverse the process used to issue a regulation is an extremely powerful brake on efforts to roll back energy and environmental regulations. Although inapplicable to pending regulations like the CPP, the regulatory process itself will serve to slow precipitous actions by the incoming administration. Add to this follow-up legal action, a targeted regulation could stay on the books for years pending a final outcome.
Readers can check on the status of various regulations by going to: www.reginfo.gov and www.Regulations.gov. Anyone wishing to submit comments in pending regulatory proceedings can do so through the Regulations website.
Legal: Support organizations, e.g. NRDC and 350.org, with the resources and standing to challenge proposed rescissions, improper use of authority and failure to regulate harmful emissions.
Legal recourse is more problematic than other available options for maintaining environmental protections. Although clearly an avenue that will be well trod by many of the larger organizations, e.g. NRDC, Our Children’s Trust, Southern Environmental Law Center, et. al., suits are expensive and time consuming. Moreover, they require plaintiffs, who have standing to sue.
Legal standing requires a plaintiff who has sustained or is likely to sustain a direct harm as a consequence of the subject government action, e.g. rescission of a regulation, or inaction, e.g. a failure to regulate carbon. Generic citizen lawsuits have rarely been permitted. A potential exception is the case of Juliana v. U.S., in which a federal district court judge granted minor plaintiffs standing to sue the federal government for failing to protect them from the harms of climate change, i.e. having no CPP in place.
I have written before about the emergence of citizen lawsuits both here and abroad. Whether a favorable lower court decision will be rendered and ultimately upheld by SCOTUS is still a long shot—particularly if a Trump appointee fills the seat left vacant by the death of Justice Scalia before the case wends its way to the high court. A finding for the young plaintiffs in the Juliana case is still possible and would radically change the rules of the game to favor citizen players.
Public Engagement: Educate your communities, write op-eds and articles about real people who are positively impacted by environmental protections and clean power—but above all provoke the bear!
Engaging local communities in a dialogue about the value of clean energy options and the need for reasonable environmental regulation remains the greatest opportunity to maintain momentum in the transition to a sustainable economy. Effective communication—in the Age of Trump—requires recognition and response to today’s reality.
A reality that I understand is difficult for some to accept. Accept it we must, however, or risk losing the ground gained over the past decades.
Donald and his doyens describe environmental regulation as: stunting the growth of American industry; the source of lost employment; and, a contributor to constrained competitiveness. Moreover, they exhibit little, if any, comprehension of the economic viability or power of renewable energy technologies.
Whether fact or fabrication, what they are saying is currently accepted by a large swath of the electorate. W.C. Fields once said: if you can’t dazzle them with your brilliance, baffle them with bull***t --advice taken to heart by The Donald in his bid for the White House.
I would never encourage abandoning the facts. I do believe the clean energy and environmental communities need to make their messages more relatable to average people. Relatable messaging means telling stories about people and appealing to emotions—not moralizing or overwhelming with numbers.
Long-term, esoteric arguments—in support of dangers not blatantly apparent, that can presumably be explained away by anecdotes about it being cold outside, or softened by specious scientific arguments like carbonization will lead to the greening of America—simply will not succeed in today’s political environment.
I am sorry if this offends you. It is what it is; and, I for one am not going to waste time trying to teach porcine politicians to sing “kumbaya” or to believe what their eyes can see. Convince their constituents, however, and we regain needed support and momentum.
Facts, figures, precedents, economic and technological studies should dominate in the courts and before Congress. The popular case for renewables, however, needs to be reconfigured as near-term business opportunities, required community resilience in advance of disasters and protection from contaminants that kill a baby’s brain cells.
The clean energy and environment communities need to persuade first the public and then the politicians that continued reliance on subsidies and incentives are not the primary hallmarks of clean energy technologies, though they have been and continue to be for fossil feedstocks. Neither are clean energy technologies only viable in some future utopian society.
In today’s political marketplace the intrinsic value of clean energy and environmental safeguards lies in their immediate contribution to the health, welfare and security of society. I am not suggesting that government policies in support of science and innovation do not have value or should in anyway be abandoned. For the moment, however, they are white noise.
Examples of near-term targets of opportunity include:
The incoming administration has an obsessively myopic view of the role of government. Until it is shown that the Trumpian present is disastrous to a Republican future, debates focused on higher purpose and the preponderance of scientific evidence will not end well. Make no mistake, the value of tomorrow’s investment will be measured by the performance of today’s.
Prepare to hear a one word rebuttal to all the well-founded arguments in support of renewables: Solyndra! If the clean energy community cannot ground its arguments on what people want to hear, it will be ground down by them.
The response to Solyndra are pictures of children and grandparents in Detroit or West Virginia suffering respiratory ailments because of their local coal powered electric plant. Talk about solar subsidies should not be responded to with an Excel spreadsheet but with pictures of coal miners picketing mining companies that declared bankruptcy to avoid paying healthcare costs—while meeting their severance commitments to company executives.
Of the options available to prevent derailing the nation’s movement towards a clean energy economy, public engagement is both the most accessible and likely to result in a positive outcome. Effective engagement depends on neither brilliance nor bull***t—it depends upon making a connection. Let us not repeat the mistakes of the 2016 elections by forgetting that all politics are personal.
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.