Rebuilding Environmental Protection

It will take years to fully recover from the damage of the Trump era. We will need some new ideas.

After almost four years of Trump, federal environmental protection is in about the same shape as Western Europe at the end of World War II, filled with bomb craters and destruction.  If the election turns out in Biden’s favor, he will be faced with the task of rebuilding from the smoking ruins.

Here are some initial, somewhat tentative thoughts about “rebuilding better.”  One component of being “better” is “less vulnerable to being axed by conservative judges.”

Reconstructing Regulation

Executive orders can be easily undone, but regulatory change is a different matter. Rolling back regulatory rollbacks can’t be done overnight. Many of the Trump rollbacks with the largest environmental impacts also involve the most complex issues. undoing those rollbacks will take a lot of time and agency resources.

I think we should resist the impulse to think that the goal is to restore Obama regulations with some added oomph. The legal terrain has changed in some important ways in the past four years.  Mega-regulations — those that take on major issues in novel ways — are a riskier proposition due to the rightward shift of the judiciary (particularly the replacement of Kennedy by Kavanaugh).

More importantly, during the Trump years, the world itself has changed in important ways. Renewable energy, electric vehicles, and energy storage have all become cheaper and more widespread. Despite Trump, coal use will be a third lower in 2021 than it was in 2016 because it is no longer an economically appealing fuel. Artificial intelligence offers new ways of integrating technologies with the grid. Corporate strategies have shifted in reaction to these changes and to pressure from the public and investors. And the number of state governments embracing serious renewable energy and climate policies has grown dramatically.  Issuing stricter versions of Obama-era regulations may not be the way to go under changed circumstances.

We may want to consider a different suite of regulatory strategies if our goal is to accelerate the transformation that is already underway within the power industry. Here are some things we might want to be thinking about.

I wonder how much EPA could leverage the rules governing areas that violate federal air pollution standards (including many major urban areas) to foster transition to clean energy.  Given the availability of inexpensive renewables and electricity storage, those areas should be expected to clean their air more quickly. That would only work in certain areas, but might be useful in Texas, Pennsylvania,  and some midwestern states like Ohio. Strengthening regulation of cross-state pollution would also pressure some states, particularly in the midwest, to shift away from fossil fuels. Outside of EPA, FERC and DOE may play crucial roles in pushing states into opening their energy systems to renewables and helping them manage the transition.

In terms of a more frontal attack on carbon emissions by EPA, I’m inclined to think we shouldn’t put all of our eggs in one basket. The Obama regulation of carbon from power plants was based on section 111(d) of the Clean Air Act. It’s not clear whether the Supreme Court will accept that approach. As a hedge against the litigation risks, we may want to consider a second regulation under section 115, which deals with international pollution.  Both the Obama approach and use of section 115 have litigation risks, so it may be better not to rely on either one exclusively. The two regulations could be designed to complement each other.

Other aspects of Obama’s regulations seem legally unproblematic and should be readopted in stronger form. Those include restrictions on methane emissions in the oil and gas industry, fuel efficiency standards for cars and trucks; and energy efficiency standards for appliances and lighting.

Actions Other Than New EPA Regulations

We may also want to consider some approaches beyond enacting new regulations.  The most obvious is spending money on green infrastructure, á la the Green New Deal. Another nonregulatory option involves enforcement. Enforcement of environmental laws has virtually collapsed under the Trump Administration.  It should not only be jumpstarted again, it should be targeted at companies with high carbon emissions.  Trump’s EPA, of course, has no interest in enforcement of any kind. 

Private climate action could also be given additional substance. Corporate promises of emissions reductions could also be given more credibility — for instance, the FTC might set standards on how companies need to monitor and report emissions if they make such claims. Pressure could be put on utilities by rating their emissions against other utilities in the same region. The Clinton Administration’s efforts to promote voluntary action fizzled, but a lot has changed since then. Regulatory certainty and reputational capital are worth a lot to companies today.  I wonder whether the California’s deal with five major carmakers could be a model for similar kinds of agreements at the federal level with companies in other sectors.

I’m not suggesting that any of these ideas are substitutes for serious regulatory initiatives, still less that we should just let the Trump Administration’s rollbacks remain on the books. I’m only suggesting that we should develop a broad portfolio of climate actions, rather than being focused exclusively on restoring past regulations.  Given that the economics now favor more use of renewables, the biggest problem in many states is simply efforts to protect their prior investments in outmoded power plants. That’s a different situation than the Obama people faced when they were writing their regulations.


I really want to stress again the major “if” surrounding all this.  The idea of the U.S. government fighting climate change could be nothing but a pipe dream come November. If climate deniers remain in control of the federal government for another four years, an entirely different set of strategies will be required.

However, if advocates of climate action do end up in power, they’ll need to be smart and creative as well as dedicated and politically astute.  I admire the efforts made by the Obama Administration.  In a few short years, however, we find ourselves in a very different situation, and we need to be open to different solutions.


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Reader Comments

7 Replies to “Rebuilding Environmental Protection”

  1. State and local efforts to create an all-EV future are hindered by preemption clauses in the CAA, EPCA, and the F4A. Modifying these statutes to exempt state and local EV requirements from their preemption clauses should be a priority for a Biden Administration.

    The changes would, for example, open doors for cities to experiment with EV-only zones, and electrification requirements for delivery vehicles and transportation networks such as Uber, Lyft and taxis.
    States would be able to enact electric vehicle mandates and go beyond California’s ZEV program requirements at the pace of their choosing without fear of preemption.

    If a federal vehicle electrification mandate is ever passed, it is likely to aim for a least common denominator timeline of 2040 or later. Some ZEV states, including California, Washington, and Massachusetts are on a much faster path towards electrification than states such as Mississippi and Kentucky, and should be permitted to legislate toward a more aggressive goal.

    Freeing state and local governments to enact EV requirements will speed the transition of environmentally-forward state and cities away from gasoline and diesel, and pave the way for more aggressive federal standards once the public has confidence that an all-electric future is feasible and that the kinks of the transition are worked out.

    1. You make a good point about the preemption issue. There’s only a limited ability to affect this administratively, but it might be helpful for agencies to issue rules interpreting the preemption clauses narrowly.

  2. I agree with your observation “I think we should resist the impulse to think that the goal is to restore Obama regulations with some added oomph.”

    Then you go on to recommend just that: Clean Power Plan Redux (Section 111(d)) and adding Section 115. How will this survive the inevitable court challenges with the changed makeup of the courts? And how will a piecemeal approach address a global systemic problem?

    We need legislation with bipartisan support–a carbon dividend approach that can survive court challenges and future legislative changes. If the Senate doesn’t change in this election it will in 2022 when 2/3 of the 34 seats contested will be Republican incumbents.

  3. You make a good point about the preemption issue. There’s only a limited ability to affect this administratively, but it might be helpful for agencies to issue rules interpreting the preemption clauses narrowly.

  4. I totally agree about the need for legislative action. Like you, I’m hopefully about the 2022 Senate races. However, I think continued “piecemeal” action is going to be required until new legislation is in place.
    As to 111(d) and 115, I think narrower 111(d) rules might have a better chance of surviving judicial review. Using 115 at the same time also presents risks, but doing both at the same time does provide a different source of authority. The idea is to hedge against litigation risks as much as possible.

  5. Indeed, “It will take years to fully recover from the damage of the Trump era. We will need some new ideas.” IF we still have time!

    The tragedy is that even if we didn’t have Trump to destroy so much of the progress we had made to protect future generations from an unacceptable quality of life, current environmental disasters like California firestorms and escalating temperatures, Gulf of Mexico and Atlantic hurricanes, polar ice melting, sea level rise, etc. are already out of control because we have run out of time due to the human mental defect of wired- in myopia that fails to consider the future, as we were warned in 2006 by the CALIFORNIA Magazine Special “Global Warning” issue Tragically, even our best and brightest academics ignored this warning at our increasingly out of control peril.

    NOT SO NEW IDEA: Academics must stop hiding behind your shield of academic purity that had eliminated any possibility of the best minds in the world (Yes, I’m speaking about academics) from informing, educating and motivating the public before time ran out even before Trump became America’s Fuhrer v.21C. And Trump isn’t the root cause, the fact of life is that the constitutional balance of power in Washington failed us due to the Power of Money, which even affected far too many academics by the way (as documented by Ike in his 1961 Farewell Address and Sir John Maddox in his 1998 book “What Remains to Be Discovered” in the chapter on “Avoidance of Disaster”).

    So the disaster is upon us, NOW WHAT!!!

  6. If we don’t combat Climate change NOW, a hundred years from now people will be learning about people and governments that are here today just as we do now with the millions that came before us.

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About Dan

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…

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