Eight Setbacks for Trump
Trump hasn’t had things all his own way. Not by any means.
The Trump Administration has begun some bold initiatives but it’s too soon to know how they will fare. It also had some early success with blocking Obama’s regulation in Congress. But it has also had some significant setbacks, with courts or Congress rejecting positions it had embraced. Those setbacks make it clear that, bad as Trump is, he’s not likely to have things all his own way. Here are some of the major setbacks.
- The Tenth Circuit held that the government was required to consider climate change impacts when issuing coal leases. This ruling will make it harder for the Administration in other issues involving fossil fuels. The agency argued that denying the coal leases would not affect global emissions because they would simply substitute for coal mined elsewhere. In rejecting the agency’s analysis, the court that ”it was an abuse of discretion to rely on an economic assumption, which contradicted basic economic principles.” The court also went out of its way to rebut the agency’s claim that climate change is an issue “on the frontiers of science,” entitling the agency to special deference. WildEarth Guardians v. United States Bureau of Land Management, 870 F.3d 1222 (10th Cir. 2017).
- In a case involving approval of a pipeline, the DC Circuit took the same position about consideration of climate impacts and then at the end of January refused the Trump Administration’s request to soften the remedy.
- The D.C. Circuit reversed the Trump Administration’s suspension of an EPA rule limiting methane emissions from oil and gas operations. This ruling is noteworthy because it limits the Administration’s ability to get rid of existing rules without going through a formal rule-making process. The court rejected EPA’s arguments that it had inherent authority to suspend rules and that its attempt to base the suspension on a specific provision of the statute was flatly contradicted by the record. Clean Air Council v. Pruitt, 862 F.3d 1 (D.C. Cir. 2017).
- The Ninth Circuit demanded that EPA move promptly to resolve a rule making regulating lead paint. Since delay is one of the most insidious forms of deregulation, this decision is significant as an indication that judges are unwilling to tolerate indefinite foot-dragging. The court put heavy pressure on the agency to move forward, directing it to issue a proposed rule within ninety days and a final rule within six months.” In re Community Voice, 878 F.3d 779 (9th Cir. 2017).
- FERC rejected Rick Perry’s proposal for consumers to subsidize coal-fired power plants. The agency said Perry’s proposal failed to satisfy clear and fundamental legal requirements.” Federal Energy Regulatory Commission, Order Terminating Rulemaking Proceeding, Initiating New Proceeding, and Establishing Additional Procedures, Docket No. RM18-1-000 (Jan. 8, 2018).
- The Senate rejected the effort to use the Congressional Review Act to overturn stricter controls on methane leaks and flaring in oil and gas operations on federal lands. According to the Washington Post, “the rule would prevent roughly 180,000 tons a year of methane from escaping into the atmosphere and would boost federal revenue between $3 million and $13 million a year because firms only pay royalties on the oil and gas they capture and contain.”
- Trump’s 2017 budget proposal had draconian cuts for environmental programs, ranging from EPA to the Department of Energy’s research programs. Some modest cuts came out of Congress, but the proposal seemed to be mostly ignored by Congress. As a result, Trump has been unable to use the President’s role in budgeting as a method of setting policy.
- Just this week, Trump was forced to withdraw the nomination of climate denier Kathleen Hartnett White to head the Council on Environmental Quality. In 2016, she said that rather than being a pollutant, carbon dioxide is “the gas of life.”
As Pruitt and Zinke try to implement environmental rollbacks, we can only hope that more of these setbacks will confront them. Given that a President’s influence is typically largest in the first year after the election, this isn’t a bad start for the effort to resist his policies.
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