Trump’s Environmental Assault Begins

Clean Power Plan, Waters of the U.S. Rules First on the Chopping Block But What Remains in Place Varies Dramatically

delayThe Washington Post is reporting that the Trump Administration will very shortly roll out two executive orders to curtail environmental protection. These rollbacks follow on the heels of the Senate’s confirmation of Scott Pruitt, who has made no secret of his antipathy for federal environmental regulations.  The first executive order, as widely expected, will tell the Environmental Protection Agency to redo the Clean Power Plan.  The CPP is at the heart of the Obama Administration’s climate policies, and requires the electric generating sector to cut greenhouse gases by more than 30 percent by 2030. Importantly, the CPP is also at the core of the U.S. commitment to reduce greenhouse gases by 26 to 28 percent by 2025 under the Paris Agreement.  The second Executive Order, also predictable, will instruct EPA and its sister administering agency, the Army Corps of Engineers, to withdraw the Waters of the United States Rule.

In some respects, the rollback of these rules will do very little in the immediate run. That’s because federal courts have already halted the implementation of both rules pending resolution of the merits of each case.  Here’s an explanation of the Supreme Court “stay” of the Clean Power Plan, which was a brazen and highly controversial decision handed down just before Justice Antonin Scalia passed away.  The WOTUS rule, as it is known, was stopped from going into effect by several courts, including the Sixth Circuit Court of Appeal,  on both substantive and procedural grounds.

But in one very important respect, the actual effect of the two executive orders is quite different for each rule.  By ordering that the CPP be withdrawn and redrafted, the Trump Administration allows existing power plants around the country to continue doing nothing to reduce their greenhouse gas emissions.  No backup regulations are in place and nothing currently on the books will require power plants to do anything (although several states, notably California and member states of the Regional Greenhouse Gas Initiative, have their own laws to require reductions and many states require their utilities to procure a certain percentage of their energy from renewable sources like solar and wind).   For this reason, I’ve been a bit puzzled over assertions that rolling back Obama-era climate rules and regulations will be a tricky, multiyear process. It is true that rolling back and rewriting the rules will take a long time.  But the immediate effect of withdrawing the rules will be to ensure that power plants need do nothing to reduce their emissions.  So the effect of withdrawing the rule is precisely what Pruitt and his fossil fuel-loving friends want:  no regulation.  Eventually, EPA will have to come up with a new rule to regulate the power sector. But delay is the friend of those who are anti-regulation here.  The multi-year process means that we will lose years in our fight to reduce carbon emissions.  And once a new rule is issued, lawsuits challenging the rule as too weak — almost certain to be filed — will not speed up the process.  Moreover, withdrawal of the rule signals to the rest of the world — even if not explicitly — that the U.S. does not intend to live up to its Paris commitment.

The effect of repealing the WOTUS rule is quite different.  To explain why requires some explanation of the rule itself.  As I have written previously:

Under Section 404 of the Clean Water Act, anyone seeking to dredge or fill wetlands by placing material “into the navigable waters” of the United States is required to obtain a permit from the Army Corps of Engineers (or a state to which EPA has delegated authority to issue wetlands permits).  Regulatory authority for regulating wetlands is split between EPA and the Army Corp, with both agencies having policy authority and the Army Corps issuing permits.  The question of what constitutes “navigable waters” is a contested one and the Clean Water Act itself gives very little guidance, defining “navigable waters” only as “waters of the United States.”

The  result of the lack of definition in the Clean Water Act is that the agencies have to decide (because Congress hasn’t been clear) which wetlands are covered by the Act.  This attempt to define CWA jurisdiction has been difficult, to say the least. The U.S. Supreme Court has weighed in on how far Clean Water Act jurisdiction extends over wetlands three separate times (as explained in more detail here).  Ironically, perhaps, Chief Justice Roberts has implored federal agencies to issue a new rule to define EPA and Army Corps jurisdiction and said that if the agencies did so the rule would be entitled to significant deference from courts.  After a number of years, the Obama Administration issued the WOTUS rule to answer Roberts’ call.

I could go on at length about how important wetlands are for coastal protection, flood control, species protection and so forth.  For all of those reasons every President since George H.W. Bush has committed to a policy that we should have no net wetlands losses.  But for now, my point is a different one.  Without the WOTUS rule in place, EPA and the Army Corps will still be required to make determinations about which wetlands they have jurisdiction over and which ones they do not.  The repeal of the rule does not mean that wetlands will not be regulated. Instead, the question will continue to be which wetlands are covered by the Clean Water Act.  And to make that determination, EPA and the Corps will not have the benefit of having a rule in place.  So how are they to determine jurisdiction?  The agencies will have to be guided by a single voice, that of Justice Anthony Kennedy.  In the most recent wetlands case to reach the Supreme Court more than ten years ago, Rapanos v. United States,  the justices split three different ways in trying to decide which wetlands the Clean Water Act covers.  The four conservatives then on the Court would have restricted jurisdiction significantly. The four liberals would have upheld expansive jurisdiction.  Justice Kennedy authored his own opinion which included a more expansive definition of jurisdiction than the four conservatives. When you add Justice Kennedy’s vote to the four liberals on the Court, you get a majority that would uphold Clean Water Act jurisdiction as long as, in Justice Kennedy’s words, the government can show that wetlands have a ‘significant nexus’ to waters “that are or were navigable in fact or that could reasonably be so made.”  Since Justice Kennedy authored that opinion more than ten years ago, agency employees responsible for determining whether a property owner must get a wetlands permit have been left to determine — with some guidance but no rule — on a case by case basis whether the wetlands at issue have a “significant nexus” to waters “that are or were navigable in fact or that could reasonably be so made.”  The withdrawal of the WOTUS rule will leave the Army Corps employees with significant discretion to continue to determine what that standard means until EPA and the Corps can issue a new rule. That process will be tricky and cumbersome.  And if the rule is too weak, legal challenges will continue to cause uncertainty (and might even cause a new rule to be halted in its implementation).  And jurisdictional questions will remain difficult and uncertain and subject to individual legal challenge.

As the Trump Administration continues its assault on environmental protection, then, each rule rollback will raise an important question about what remains in its place.  Sometimes, there will be nothing left at all.  If the Senate follows the House of Representative’s lead in repealing the new rule regulating methane releases from oil wells on federal lands, for example, there will be no rule left in its place (though some states provide some regulatory backstop).  Drillers will not have to do anything to stop methane releases. By contrast, if Pruitt’s EPA withdraws federal automobile standards to regulate greenhouse gas emissions for 2017-2025 passenger year automobiles, nothing will remain in place at the federal level but California’s standards, which are identical, will remain in effect and other states can choose to follow California’s rule.  If Pruitt’s EPA also attempts to withdraw its permission to allow California to issue its standards, then no standards will remain in place (unless a court orders EPA to keep the standards in place pending a ruling on whether withdrawal of the permission is legal).   When nothing remains in place, then there is nothing tricky at all about the Trump/Pruitt strategy.  They will have succeeded in eviscerating the policy.  Delay effectively means no regulation for many years.

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Reader Comments

12 Replies to “Trump’s Environmental Assault Begins”

  1. The Trump Administration is not beginning an “assault” on the environment. The Administration
    is simply adopting an approach to environmental protection which relies more heavily on the
    States to manage their own affairs, including environmental affairs.

    It is ironic that liberals, who successfully fought so hard in the ’60’s to ensure State governments are
    selected democratically (one man, one vote; voting rights laws) now essentially favor
    environmental rule by unelected bureaucrats farthest removed from democratic
    influence. (While it is true that elections provide the people who enact the broad contours of
    federal environmental regulation, it is also true that, as a practical matter, the specifics of
    such regulation are established by an unelected bureaucracy at the level of government
    –federal–that is farthest removed from the people).

    As Ms Carlson’s article itself points out, States are free to continue –or increase–
    strict environmental regulation should the States wish to do so, either alone or in combination with
    with other States. Believing in rule by Washington as the prime solution to environmental
    problems is neither mandated by the Constituion nor by the spirit of democracy.

    Stephen Holzer
    [email protected]

    1. No rationale policymaker or economist would argue that it is preferable to have states regulate carbon emissions. Climate change is a global problem (even if it has local effects). States can’t solve it alone. That’s why we need national governments cooperating globally to attack it.

      Moreover there are reasons to believe that Pruitt’s EPA is going to limit California’s ability to regulate greenhouse gases from mobile sources. So much for states being free to continue regulation. This is not about states’ rights or democracy; this is an assault on our environment and we should recognize it for what it is.

      1. There may be “reasons to believe” that the EPA is going to limit various States’ rights to pursue their own environmental polices, but until the EPA actually acts, belief is not a substitute for facts.

        Also, it is almost always an overstatement to say that “no rational” person could hold a different position. Such an assertion rules out any reasoned discussion of any given topic and seeks to make opposing viewpoints illegitimate–even where rational people can, and do disagree. This is the opposite of what is supposed to take place in a liberal environment of free-flowing ideas.

        As far as assuming the EPA is better than the States to regulate most environmental issues, such assumption rests on the mistaken premise that addressing local problems from a distant, centralized authority necessarily results in better solutions. One of course should not categorically rule out centralization but, given the advantages in a democracy of local control over local destinies, once should have a just presumption against taking government away from the closest level to the people.

        As we see in the immigration debate, where people once advocating that federal governance preempts localities and are now arguing that local jurisdictions should be able to ignore the feds, advocating for more or less central control often depends on whose ox is being gored. The EPA absolutely has a role to play, but arguing that democratically-elected State governments should in most instances not control their own destinies is an alien concept in a society founded on democratic and republican principles.

    2. The entire reason the government (headed by a Republican president, I might add) created the EPA is that the states were not effectively protecting public health and the environment. The temptation to reduce or avoid regulation to attract business is too strong. It’s the same for workplace safety standards, food safety standards, etc.

      1. Respectfully, you are comparing 1970 to 2016; the comparison does not work. Local and State sensitivity to environmental issues is far different than when the EPA was set up half a century ago.

        Moreover, the idea that business has too much say over State and local governments pales before the idea, now routinely advocated by many of the same people, that business controls the federal government. Please recall all the criticism of President Trump’s cabinet as being big-business billionaires.

        Regulation by the federal government is often promoted by some because they are happy with how the central authority is regulating. But when the federal government is regulating in a way such people don’t like, all of a sudden the virtue in local regulation becomes apparent (case in point–the present debate over immigration). One should fear lobbying and influence at the federal level, where the effect is nationwide, more than such activity at the State and local level, where the effects of such lobbying and influence are relatively isolated.


        1. I don’t think that is true in some states, re: improved sensitivity to environmental issues, particularly when it comes to climate change. There are a number of states that are openly hostile to any climate change mitigation.

          I did not say that businesses have less or no influence over the current administration – quite the opposite. But I am saying that the federal government is better equipped to resist the race-to-the-bottom instinct many states have because they are regulating the whole economy, not just a piece of it. But they still have to choose to resist it, which the Trump administration is not doing.

          The duality pointed out in your third paragraph is just the nature of politics. That’s just how it works – each view point uses whatever means it has available. One cannot say that state-level regulation is always better – it will always depend on who controls the federal government and that state government and whether you agree with them. We should not have to pretend that we or others do not have certain values and priorities.

          1. What are the States to which you are referring that favor a “race to the bottom”? Do the Supreme Court-mandated democratically-elected governments of the States really want their people to drown in dirty air and dirty water? If so, Governors and Legislators approving the drowning won’t be in power long.

            In any event, I’d appreciate specifics as to which States we have to fear would poison their people if given the chance.

            Also, I did not say, and do not subscribe to the proposition, that State-level regulation is “always better.” Pease see my above exchange with Professor Carlson, where I said “One of course should not categorically rule out centralization but, given the advantages in a democracy of local control over local destinies, one should have a just presumption against taking government away from the closest level to the people.” The “just presumption” rule has been a part of Western political discourse since Edmund Burke.

            I certainly agree with you that “We should not have to pretend that we or others do not have certain values and priorities.” The value and priority that I am espousing is ensuring that the people, not nameless bureaucrats often 3,000 miles away, control the people’s destiny.

            Thank you for the frank exchange of views.

          2. For starters: North Carolina, Oklahoma, West Virginia, Arkansas, Kentucky, Louisiana.

            It’s also interesting that over a dozen states have specifically disavowed, through the legislative process, their authority to regulate to a more stringent level than federal standards.

            I guess those states disagree with the idea that states know best, and prefer to rely on “nameless bureaucrats” in Washington – but only where the nameless bureaucrats would protect state residents less than the government agencies at the closest levels to “the people.”

            Also, several states have specifically preempted local environmental regulation, which is even closer to the people, when local regulation exceeds state standards.

            What all these state laws have in common – those that involve lax state regulation imposed by statute, those that tie the hands of state regulators to regulate no more strictly than federal law, and those that tie the hands of local governments to regulate no more strictly than state law – is that industry lobbyists lobbied for their passage.

            I’m not holding my breath that the governors and legislators who voted in favor of these laws will be voted out.

  2. I’m not sure that undoing the CPP will allow power plants to do what they want with respect to carbon emissions.

    First, the regulatory world post-Mass v. EPA and pre-CPP was already quite jumbled. Under In re Deseret, at least some state air permitting agencies (who share Clean Air Act jurisdiction with the feds) were requiring stationary sources to use BACT to control carbon emissions, even in the absence of any enforceable carbon pollution standards.

    Second, Mass v EPA still being the law of the land, EPA is required to regulate carbon emissions if they have the potential to endanger public health and welfare. I do not think undoing the endangerment finding will be easy, given basic administrative law standards and common sense. So if EPA undoes the CPP and doesn’t act with haste to replace it, wouldn’t it be in contempt of court? Which could make for an interesting constitutional crisis.

    Third, in the absence of the CPP, doesn’t the underlying displacement rationale that has shielded carbon emitters from common law liability go away? Courts threw out the claims in Conn v AEP and Kivalina because, since the EPA was addressing carbon emissions under the Clean Air Act, common law claims were displaced. There would be some irony if the rolling back of the CPP actually exposed emitters to greater liability.

    1. I didn’t mean to suggest that power plants won’t still be theoretically subject to regulation. The endangerment finding will remain in place as will BACT for modifications and new plants. BACT won’t affect existing plants though. The point here is that withdrawing the rule will create delay and during the time that EPA is drafting a new rule — a long and cumbersome process – nothing will be in place to require reductions. As long as EPA is making strides toward issuing a new rule I don’t see how nuisance claims are resurrected.

  3. As far as the WOTUS rule is concerned, if this memo by the top environmental attorney at USACE before the release of the rule is correct (which I think it may very well be), undoing the WOTUS rule may ironically keep more lands under CWA jurisdiction that would have been under the rule – An article here explains it briefly

    While Congressional Committees tried to color this memo as critical of the final rule in a way that said the rule was going to far, what the Corps really was saying is that the rule as proposed was giving up jurisdiction over lands that would be covered by the Kennedy significant nexus standard, in favor of an bright line 4000 ft rule that the memo argues was arbitrary – perhaps fatally arbitrary. It’s possible this memo actually pointed out that the WOTUS rule was possibly doomed in court for not going far enough, and the administration should be careful what they wish for…at the least, it will just mean more litigation over the virtually unworkable status quo – Rapanos.

  4. What will happen to West Virginia v. EPA when the Clean Power Plan rule is revoked/reworked?
    (And when might we expect to hear further in West Virginia v. EPA?)

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About Ann

Ann Carlson is currently on leave from UCLA School of Law. She is the Shirley Shapiro Professor of Environmental Law and was the founding Faculty Director of the Emmett I…

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About Ann

Ann Carlson is currently on leave from UCLA School of Law. She is the Shirley Shapiro Professor of Environmental Law and was the founding Faculty Director of the Emmett I…

READ more