Trump’s Executive Order: Bad Policy and More Uncertainty

President Trump’s Executive Order on climate policy is an invitation to bad policymaking and legal uncertainty. The big-ticket item targeted by the Order, of course, is the Obama Administration’s Clean Power Plan and related rules on carbon dioxide emissions from power plants. The EO has limited immediate legal impact: none of the major rules can be rescinded or revised without following the process required by the Administrative Procedure Act, although a number of non-legally binding federal agency guidance documents, memoranda, etc. have been swept away. Aside from the call to review (and, one presumes, revoke) the Clean Power Plan, I think one of the EO’s negative consequences going forward will be even greater uncertainty, both for agencies in implementing environmental laws and for everyone, including regulated industries, that is subject to agency decisions. The Order removes the sort of guidance and coordination across federal agencies that is designed to promote a coherent policy on climate issues, and it will leave agencies without the tools needed to comply in a consistent manner with regulatory cost-benefit analysis requirements or with NEPA, which requires a rigorous assessment of the environmental impacts of major agency actions.

The EO strikes me as being cautiously drafted—deliberate and clear in its effort to undermine eight years’ worth of climate policy, but written largely within the confines of administrative law, which requires a process of reasoned agency decision-making. This means that rescinding Obama-era regulations like the Clean Power Plan and the Interior Department’s regulation of hydraulic fracturing on public and Native American lands will take a fair amount of time; it also seems to recognize that the law requires that any decision to undo those rules must be rational.

Because agency decisions to walk back climate regulations must be justified by a minimum standard—the “arbitrary and capricious” test of the Administrative Procedure Act—the Trump Administration will need to try and fundamentally change the terms of the debate, and construct its own set of criteria as to what evidence is relevant in supporting the policy change. This goes to the root of what the EO tries to accomplish, and why it may lead to legally problematic results.

The EO targets nearly every Obama-era policy, memo, guidance document, and regulation and piece of policy related to climate change—but does so within the framework of the Trump Administration’s approach to energy policy, and specifically the promotion of fossil fuel extraction and use. Section 1 of the Order addresses “policy.” The word “climate” does not appear anywhere in this section. Rather, the thrust of the policy is defined here solely in terms of promoting the development of U.S. energy resources. The key element of this is in Section 1(c)—it is worded not based on what is necessary or beneficial for public health or the environment, but instead on whether agency regulations “unduly burden” energy development:

(c) Accordingly, it is the policy of the United States that executive departments and agencies (agencies) immediately review existing regulations that potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law. (emphasis added)

The EO does not define what constitutes an “undue burden” on domestic energy development. It does state a policy that environmental regulations should have “greater benefit than cost” and that the “best available peer-reviewed science and economics” should be used in developing them. A natural reading of the phrase “undue burden” would suggest that it means a situation where the cost borne by those engaging in energy development in complying with a regulation is disproportionately large in comparison to the public benefit from the regulation.

Of course, major Obama-era regulations have already gone through and passed this sort of cost-benefit analysis, required by Executive Orders put in place by Ronald Reagan and reaffirmed (in essence) by every subsequent President up to Obama. What the Trump Executive Order seeks to do, then, is redefine what counts as a cost or a benefit in making that calculation.

Section 5 of the EO wipes out the Obama Administration’s effort to set a federal social cost of carbon to guide these sorts of cost-benefit analyses. The Order disbands the Interagency Working Group on Social Cost of Greenhouse Gases, and immediately withdraws the key documents that the group had worked on. However, Section 5(a) of the EO still calls on agencies to use “estimates of costs and benefits in their regulatory analyses that are based on the best available science and economics.” With no coherent statement as to what the estimated costs of climate change are (or the benefits of avoiding it), agencies are left on their own: bound to use the “best available science and economics,” and bound by general federal government guidance on how to consider discount rates associated with regulatory costs and benefits (an issue with incredible importance for long-term impacts like climate change), but with no consistent way to apply these mandates. As a result, it seems likely that this will lead to further uncertainty and litigation.

The same sort of problems come up elsewhere in the EO. Section 3(c) of the Order rescinds the White House Council on Environmental Quality’s guidance document for agencies on how to consider GHG emissions and climate change impacts in environmental assessments and environmental impact statements under NEPA. Although the CEQ’s guidance was not legally binding on agencies, getting rid of it only creates further uncertainty. Agencies cannot simply ignore climate-related impacts without running the risk of litigation; they are environmental impacts, and NEPA documents that fail to consider important pieces of the puzzle will likely have a difficult time surviving review by the courts.

Much more ink will be spilled on the implications of the Executive Order in the coming days. It is full of symbolic swipes at the climate policy efforts of the Obama Administration, but will also hinder agencies’ efforts at making informed, rational decisions about what policies to pursue—something that is likely to lead to greater uncertainty and bad policy.

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Reader Comments

11 Replies to “Trump’s Executive Order: Bad Policy and More Uncertainty”

  1. Dear Nick,
    Someone on this forum recently repeated the erroneous claim from the EPA that the Clean Power Plan would save thousands of lives. Now that the CPP has been stopped and will never be implemented, these thousands of lives cannot be saved and therefore many innocent people (women, minorities and children) must therefore perish.

    Given the enormity of this catastrophe we should be seeing numerous deaths everyday all across America as the grim reality sets in. How long will ordinary citizens be able to ignore this slaughter? When will we rise up and demand an end to murder? (I jest)

    The truth is that innocent people will not die, there will be no mass murder. This is just another example of the false and misleading junk science and hysteria spewed by climate fanatics (another example is so-called “climate mitigation”). This claptrap propaganda will soon be yesterday’s news, no longer relevant. We need to focus on real and substantial environmental problems that we are capable of solving.

    1. Dear bqrq,

      MIT estimated that 52,000 people in the United States die each year due to air pollution from electricity generation — on average, these people die around 10 years before they otherwise would. So every day that means close to 150 deaths.

      It may surprise you to know that the Clean Power Plan is justified as a matter of cost-benefit analysis, even excluding benefits whatsoever from mitigating climate change, because shifting away from coal would save a significant number of these lives.

      1. Nicholas said;
        “….So every day that means close to 150 deaths…..”

        Dear Nick,
        How can 150 people die everyday in America from air pollution, yet we never read about this in the newspapers, no reports on local TV news, there are no names, dates, medical records, autopsy reports, death certificates, air pollution data, and other such common and routine evidence of these so-called “deaths.” How does the federal government sanction the systematic murder of so many innocent citizens and get away with it?

        We know that Hitler killed thousands of people because we saw films of emaciated bodies in concentration camps so we know that he really did kill thousands of people. When ISIS kills people they publish videos of their atrocities so we know that ISIS really does kill people and this is not just speculative environmental rhetoric.

        But when the Trump administration authorizes the cold-blooded murder of 55,000 people we never see the dead bodies, we don’t know their names, there are no photographs, the medical community is silent, no one seems to be reporting these murders to local law enforcement, there are no public records, no news reports, no distraught families, just some outrageous spoof that 150 people are being murdered everyday. So our skepticism is reasonable – we do not believe this is actually happening.

        Nicholas – as an Emmett/Frankel Fellow in Environmental Law, you should carefully consider your personal integrity and professional reputation. Dedicate your life to the pursuit of truth. Otherwise, we may be tempted to believe that you are the type of man who recklessly spreads malicious lies and slander. Think about this.

        1. Bqrq, our comment policy states: “The Legal Planet team appreciates your comments, and reserves the right to remove any abusive or off-topic remarks as it sees fit.” Questioning the integrity of our contributors – especially from an anonymous commenter- is abusive and off-topic. Please refrain from doing that.

        2. bqrq, you should educate yourself before expressing views on issues you know little about. Your argument ignores an enormous body of scientific and medical knowledge, or- if you actually know more than you’re letting on- it’s sophistry.

          Do you doubt that cigarette smoking causes lung cancer? In that situation, similarly, you will not find “cigarette smoking” on death certificates nor law enforcement reports or news reports about individual deaths.

          But just as with cigarette smoking, causal impact of pollution on mortality is real, as documented by scientists and by medical researchers.

          Here are some places to start (among thousands of research publications in many countries worldwide):

          http://www.nejm.org/doi/full/10.1056/NEJMsa0805646
          http://link.springer.com/article/10.1007/s13181-011-0203-1
          https://open.library.ubc.ca/cIRcle/collections/facultyresearchandpublications/52383/items/1.0074703
          http://www.nature.com/jes/journal/v27/n1/abs/jes201614a.html
          http://www.sciencedirect.com/science/article/pii/S0160412014002141

          Whether your stance is borne of ignorance or ill will, your lack of understanding or engagement with the fruits of scientific and medical research reflects only upon you, and not upon these researchers or the policymakers who rely on that research.

          1. Professor Hecht said;
            “…..Do you doubt that cigarette smoking causes lung cancer?….”

            Dear Professor Hecht,
            We have no doubt that cigarette smoking causes cancer because there is plenty evidence to prove it. But we continue to have reasonable doubts about dubious climate propaganda which makes the preposterous claim that human exposure to atmospheric carbon dioxide causes 55,000 deaths per year in America (approximately 150 deaths/day).

            This bombastic claim of 55,000 human fatalities is incredulous and demonstrably false. We challenge the integrity of anyone who makes such a claim without providing firm, undeniable evidence and proof. Show us the corpses and we will believe. What’s so hard about that? Where are the corpses?

            In the absence of dead bodies, and faced with calumny and public fraud at the EPA, the President did the right thing and stopped the Clean Power Plan. We are grateful and hopeful that the Trump Administration will continue to restore integrity and common sense in federal regulatory agencies. Let us depart in peace.

          2. bqrq, you appear to be arguing against a claim that no one here has made. I would be very interested to see where anyone has made the claim that “human exposure to atmospheric carbon dioxide causes 55,000 deaths per year in America.” I have never seen anyone make that claim, here or anywhere else. On the other hand, the facts about conventional air pollution – including the relationship between fossil fuel use and air pollution, and the increased morbidity and mortality from that pollution (including much pollution from coal-fired electricity generation, as Nick pointed out above) – are well-documented.

          3. Dear Professor Hecht,
            I went your link and reviewed the paper in Atmospheric Environment and it clearly states that the deaths in question are “premature deaths” which are merely statistical and mathematical parameters on paper, but are certainly not real and actual human fatalities, as the term implies.

            Premature deaths are a statistical gimmick that was used by the EPA prior to the Trump Administration, and will likely be demoted or abandoned going forward to improve the efficiency and core mission of the agency.

            Premature deaths are fake deaths that have been utilized to incite public fear and spread climate propaganda. Premature deaths do not have names, corpses, medical records, death certificates, corresponding pollution data, lab tests, obituaries, funerals, grief, internment, cremation, probate and other such things which are commonly associated with real death.

            “Premature deaths” and “climate mitigation” are two major fallacies which have been exposed, and these fallacies exacerbated the demise of the Clean Power Plan.

            The California Environmental Bar continues to endorse the use of premature deaths to promote climate mitigation schemes, but most folks have by now abandoned this practice.

          4. bqrq: You seem to have fallen prey to the dreaded Dunning-Kruger Effect. Scientists, medical researchers, and epidemiologists know their fields even better than you do, and they universally disagree (that paper and others I cited are just a few of the thousands of examples). As Neil deGrasse Tyson has said, “The good thing about science is that it’s true whether or not you believe in it.”

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Nick Bryner

Nick Bryner is an Emmett/Frankel Fellow in Environmental Law & Policy at UCLA Law. Follow on Twitter: @bryner_nick…

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