A House Divided
The climate change executive order shows the signs of the bitter divisions within the White House.
Actually, there are two divided houses. One is the House of Representatives. The other is the White House. The divisions in the House of Representatives were on display in the abortive effort to pass a health care bill. Similar fissures in the White House are just below the surface of yesterday’s executive order on climate change.
Much of the executive order is entirely congenial to the radical Right and correspondingly horrifying to liberals: first, the repeal of Obama’s executive orders on climate change and second, Trump’s order that EPA reconsider its efforts to regulate CO2 and methane. But there were gaps in the Trump order, gaps that leave intact the basic premise that government has to take climate change into account.
Here are the gaps: First, Trump did not direct reconsideration of EPA’s finding that greenhouse gases cause harmful climate change. This was apparently due to lobbying by Scott Pruitt. His efforts have not been well-received by the radical Right — those who, like Bannon, want to deconstruct the administrative state. According to Politico;
Pruitt, with the backing of several White House aides, argued in closed-door meetings that the legal hurdles to overturning the finding were massive, and the administration would be setting itself up for a lengthy court battle.
A cadre of conservative climate skeptics are fuming about the decision — expressing their concern to Trump administration officials and arguing Pruitt is setting himself up to run for governor or the Senate. They hope the White House, perhaps senior adviser Stephen Bannon, will intervene and encourage the president to overturn the endangerment finding.
Trump actually didn’t say a word about climate change in his speech — nothing challenging its existence or its human causes or the fact that it will do harm.
Although it leaves the endangerment finding intact, the order wipes out the Obama Administration’s guidance on considering climate change in environmental impact statements. But the order doesn’t direct agencies to ignore climate change either. That’s probably because of the inevitable pushback from the courts. As with the endangerment finding, the order does not directly challenge the premise that carbon emissions harm the environment.
Similarly, the order wipes out the Obama Administration’s efforts to estimate the social cost of carbon (the harm caused by a ton of carbon, in dollars). But it doesn’t tell agencies to leave this out of their cost benefit analyses. Instead, it tells them to follow normal cost-benefit guidelines, with a strong hint to use a low discount rate and consider only the domestic effects of climate change. The result will be varying estimates from different agencies, and probably much lower estimates. But still, agencies will be taking climate change into account.
On the international level, the order is conspicuously silent about the Paris climate accord. By all reports, that’s due to lobbying by Rex Tillerson and Ivanka Trump. And Exxon itself had urged the Administration not to abandon Paris. It’s true that the order makes it unlikely that the U.S. will fulfill its pledges at Paris. But it’s not abandoning the process.
The order is also silent about another international agreement. This one is aimed at HFCs, a family of super-powerful greenhouse agents. The chemical industry actually favors this ban, because it has invested heavily in developing alternatives, and the Trump Administration is continuing to defend a regulatory ban in court.
Don’t get me wrong: this glass is not half full; it’s way more than half empty. But if Steve Bannon and the Freedom Caucus had their way, the glass would be completely empty. What we’ve gotten instead is an executive order that abandons crucial efforts to fight climate change but stops short of repudiating the goal. That’s because there are conflicting power centers in the White House, as in Paul Ryan’s House. The future of the Trump Administration, and of environmental law, will depend on whether the result is stalemate, and if not, which factions prove to be stronger.
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