200 Days & Counting: Environmental Threat Assessment
The Trump Administration presents a barrage of threats to the environment. Which threats are worst?
This is the last in our series on the state of play concerning U.S. environmental protection at this point of the Trump Administration. We can classify threats along three dimensions: the likelihood of harm, the seriousness and irreversibility of the harm, and the irreversibility of the institutional or legal change.
Here’s an assessment of our topics on that basis. Links to the earlier posts on each topic are at the end.
Federal Legislation Because of gridlock, it could be very difficult to reverse legislative changes, and they could really rip the guts out of our environmental laws. But the same gridlock offers protection. It now looks very unlikely that there will be radical changes in the statutes, barring some major political shift in the Republican direction in the next few years. We might, however, see some less consequential changes via riders on other legislation, in particular temporary bans on using funds for some particular purpose. Low probability, potential high degree of harm, potentially difficult to reverse.
Budget Many budget changes can be reversed later. Severe cuts that damage an agency institutionally may be very hard to reverse, since they may result in loss of institutional memory and under the best of circumstances will require a lengthy hiring process to reverse. And some budget cuts – say, for enforcement of the Endangered Species Act – may result in irreversible environmental harm. Loss of vital information is also a problem, especially with cuts for environmental and energy research and of environmental monitoring. The risk of loss of continuity in monitoring data (particularly climate data) and loss of time in developing climate science are irreversible and very high risks from budget cuts. High probability, moderate to high harm, probably reversible with important exceptions.
Pollution & Climate Change. Eliminating major regulations or issuing new ones is a time-consuming, labor-intensive process subject to substantial judicial review. Given enough time, there’s a lot agencies can do to eliminate regulations, Agencies are slowed down by procedural requirements of the Administrative Procedure Act, and they have to work within the confines of the pollution or energy laws they are supposed to implement. But given enough time, significant rollbacks are possible. These could result in significant harm to public health, especially in terms of air pollution and toxic substances. Carbon emissions are nearly irreversible. Other actions, such as loosening pollution regulations on a particular industry, are generally reversible. Medium probability, potential high degree of harm, medium reversibility.
Enforcement. This is an area where the executive branch has huge discretion. These are retail-level decisions, so the harm is cumulative but potentially substantial. Usually, the harm can be reversed by later enforcement actions, and citizen suits provide some backstop against low enforcement. High probability, medium harm, high reversibility.
Executive Orders. Except in foreign affairs, Presidents can generally do little more than direct agencies to undertake actions such as regulation, which are then limited by the legal rules governing the agency. The next President can always reverse an order. Medium probability, low-to-medium harm (except foreign affairs), high reversibility.
Public Lands. There are many different issues involving public lands, governed by many different laws. So generalizations are difficult. Many of the statutes give the agencies a lot of discretion but there are often procedural obstacles the government must overcome. High probability, medium harm, mostly reversible.
State and Local Action. Here it is the environmental side that has opportunities. There are legal limitations, but a lot that can be accomplished at the state and local level. By their nature, these actions have less impact than a similar action at the federal level, but they can have significant positive effects. Unfortunately, they can also be reversed by political changes in the jurisdiction or by federal actions to override them. High probability, Medium benefit, Medium-to-High Reversibility.
The Bottom Line.
State and local actions are clearly the most promising avenues for forward motion during the Trump Era. The most likely threats are budget and enforcement efforts, but the slower and more difficult regulatory changes are likely to cause more harm if they succeed. Legislation making major changes in federal environmental laws has the most serious potential for harm. Fortunately, such legislation seems unlikely at present, barring a major political shift in favor of the GOP in 2018 or 2020.
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