Trump’s Frontal Assault on Climate Policy

The true victims aren’t you and me. It’s our descendants who will pay the price, long after Trump is gone.

We live in a time of contrasts. Yesterday, scientists reported more evidence that climate change will intensify heat waves and droughts in temperate zones through changes in the jet stream. Today, however, the Trump Administration initiated the process of eliminating federal climate policies. In a pointed insult to EPA staff who have worked long and hard on those policies, Trump made the announcement at EPA headquarters.

The Administration’s actions have been long-expected, since Trump has never made any secret that he views climate change as a chimera. Sadly, many of the people whose lives will be most affected are young people who passed up the chance to vote in November and will feel the impact after mid-century.

The Executive Order strikes out in many different directions.  I’ll discuss only the most significant. [The current version is updated in light of the actual text of the Executive Order]

The headline action is Trump’s directive that EPA reconsider or rescind the Clean Power Plan, which regulates carbon emissions from existing power plants.Apart from the impact on climate change, the Clean Power Plan would also sharply reduce conventional pollution from coal-fired plants, saving thousands of lives.  (You can find a compendium of resources about the rule here.) EPA will need to begin a new rule making process to accomplish this. It has several options that track the legal attacks on the current rule: it could argue that a drafting glitch eliminates its authority to address this issue at all; it could argue that it can only engage in minor tinkering of operations at individual fossil fuel plants; or it could fine tune the rules to reduce the burdens on individual states. In the meantime, Attorney General Jeff Sessions is supposed to ask the D.C. Circuit Court of Appeals, which is currently reviewing the plan, to return the regulation to EPA for further consideration, rather than ruling on its legality. Odds are good that the court will grant this request, but maybe not if it was close to issuing a ruling anyway. In any event, Trump’s announcement is only the beginning of a multi-year round of rule making and litigation over emissions from power plants.

In connection with reconsideration of the Clean Power Plan, Trump also directed the agency to reconsider the corresponding rule for new fossil fuel power plants. Presumably the result will be a rule that is more lenient toward coal. This is purely a PR stunt: no new coal plants are currently planned or likely to be planned in the near future, due in large part to coal’s inability to compete with natural gas.  Ironically, the executive order reduces regulations on fracking, helping to seal the doom of the coal industry.

Trump also rescinded the government’s current estimate of the social cost of carbon  and disbanded the interagency working group responsible for the estimate. The executive order seems to acknowledge that the impact of climate change cannot be ignored in cost-benefit analysis.  Instead, it calls for individual agencies to do their own estimate, consistent with the general government guidelines for conducting cost-benefit analysis.  To the extent those cost-benefit analysis are subject to judicial review, in order to avoid being struck down as arbitrary and capricious the analysis will have to explain why a methodology other than the interagency working group’s was adopted.  Presumably, the effect will be much lower estimates of the social cost of carbon — but still, the government will be acknowledging that climate change exists and causes harm.

To complete his sweep, Trump also rescinded a guidance document about how agencies should address climate change in environmental impact statements. That’s a subject where the courts will have the last word.  There are already some ruling on the books, most notably from the Ninth Circuit Court of Appeals, requiring consideration of climate change in environmental impact statements.  Impact statements that leave out climate change face an uncertain legal fate and litigation that could delay projects substantially.

There are some notable bells that haven’t rung so far. First, no mention of the Paris Climate Accord. This was apparently due to lobbying by Jared Kushner, Ivanka Trump, and Rex Tillerson, who as Secretary of State and former head of Exxon should know what he’s talking about. And Exxon itself has requested that the U.S. stay in the agreement. Second, as Ann Carlson noted in a post earlier today, another international agreement dealing with HFCs (super greenhouse gases) has also been left out of the cross-fire.  Third, despite pressure from ultra-conservatives, the order does not call for reconsideration of EPA’s endangerment finding, apparently due to Pruitt’s resistance.  It’s extremely doubtful that the courts would have upheld such an effort in any event, given the overwhelming scientific evidence of seriousness of climate change.

Trump’s actions will play well with his base, but not with the majority of Americans. Polls show strong majorities for protecting the environment and seven in ten say they prefer development of renewables to fossil fuel development. And experts agree that his actions will do little to further independence or revive the coal industry, making today’s executive order all the more senseless. In the meantime, of course, it’s only making climate change worse by ignoring the issue. In fact, the whole theme of the executive order is that federal agencies should close their eyes to the reality of climate change.

Apparently, ostriches don’t really bury the heads in the sand when confronted with danger.  They’re smarter than that. Are we?


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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

READ more