June 26, 2017

Trump seeks to uproot the Obama climate change agenda, but can he succeed?

President Trump is critical of climate regulation. During the 2016 elections, then-candidate Trump promised to end the “war on coal,” kill the Clean Power Plan, and pull the United States from the United Nations Paris accord. He appointed as U.S. Environmental Protection Agency (EPA) administrator Oklahoma Attorney General Scott Pruitt, who led state efforts to overturn the Clean Power Plan and other regulations. But the president’s most comprehensive effort to reverse course on climate regulation came in his March 28 Executive Order 13783, Promoting Energy Independence and Economic Growth (EO). In that EO, President Trump went beyond his campaign promises, rooting out nearly all his predecessor’s measures to integrate climate-related mitigation and adaptation into federal policy. This article focuses on the major elements of the EO and how these may play out, particularly with respect to the Clean Power Plan.

Main elements of the EO

The EO directs all agencies to “review all existing regulations, orders, guidance documents [and] policies” that “potentially burden the development or use of domestically produced energy resources,” including oil, gas, coal, and nuclear. EO, Sec. 2. “Burden” is defined to mean “unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilizing, transmission or delivery of energy resources.” Id., Sec. 2(a). Agencies are to issue final plans within 180 days, with recommendations on how to reduce these burdens.

The EO then turns to President Obama’s regulatory program, calling on EPA to review the Clean Power Plan (established under Clean Air Act (CAA) § 111(d)), the Clean Power Plan federal plan proposal, the related new source performance standards (NSPS) for power plants (promulgated under CAA §111(b)), and the new source performance standards for oil and gas, which directly regulates methane leaks. In each instance, EPA is to consider suspending, revising, or rescinding the rule, and the attorney general is directed to inform the courts of such measures where litigation is pending.

The EO revokes a series of presidential orders, statements, policies, and reports on climate mitigation and adaptation, as well as the White House Council on Environmental Quality’s greenhouse gas guidance, issued to implement the National Environmental Protection Act (NEPA). The EO withdraws the social cost of carbon guidance, which fleshed out a measure used by agencies for several years in rulemakings to quantify the costs to society of climate change.

The EO also calls for the Interior Department to lift the moratorium on coal leasing on federal land and to review several Interior regulations of oil and gas development on public lands, including a controversial hydraulic fracturing rule.

Impacts on the Clean Power Plan and NSPS for new plants

Administrator Pruitt wasted no time in complying, immediately issuing Federal Register notices informing the public that EPA would be reviewing the specified regulations. Justice Department lawyers then filed motions to hold in abeyance the litigation of each rule. Those have been opposed by the state and environmental groups that initially supported the rules. The highest profile of these cases is the Clean Power Plan. That case had already experienced several unexpected twists and turns, with the Supreme Court staying the rule pending a decision by the D.C. Circuit (in an order issued just four days before Justice Scalia passed away) and that court in turn deciding to hear initial oral argument en banc in a marathon seven-hour session last September.

But rather than ordering that the case be held in abeyance indefinitely, as courts have done with other rules the Trump administration is reconsidering, the D.C. Circuit held the case in abeyance for only 60 days, asking the parties for further briefing on whether it should continue to hold the case in abeyance or remand it. West Virginia v. EPA, No. 15-1363 (D.C. Cir. Apr. 28, 2017) (per curiam order). This raises interesting issues for the court and parties. It has been over eight months since argument before the full court, and it is uncertain what the court will do next. Through its order, the court was clearly probing EPA’s intent. While the D.C. Circuit generally prefers to avoid issuing advisory opinions, it appears to be looking for the most appropriate way to resolve the litigation in view of EPA’s likely decision to change the rule, while at the same time ensuring that the Supreme Court’s extraordinary stay does not continue indefinitely.

Hence, the key question is what EPA will do next. EPA clearly intends to undo the Clean Power Plan, but how and when? Unlike the Clean Water Act Waters of the United States rule, which EPA is seeking to “repeal and replace,” EPA might do no more than dismantle the Clean Power Plan now and put off any new regulation for the future. It could do so in several ways, e.g., modifying its interpretation of CAA § 111 to reject the agency’s authority to regulate “beyond the fenceline” or how § 111(d) interacts with § 112. Further, while much of the focus is on the Clean Power Plan, a successful attack on the NSPS could effectively repeal the Clean Power Plan. CAA §111(d)—which authorizes the regulation of existing sources—requires regulation under §111(b) first, through an NSPS. If the NSPS challengers were to succeed in their companion litigation challenging the NSPS (also presently held in abeyance) or EPA were to withdraw the NSPS, there would be no legal basis for the Clean Power Plan. Whichever route EPA takes, it must proceed through the notice-and-comment rulemaking process, which will require a full record and legal analysis supporting its action. Any such final action will lead to challenges by supporters of the present Clean Power Plan, who may also eventually challenge any EPA failure to set replacement standards for new and existing plants. Resolution of all this activity could take up most of the next four years, or more.

Climate change assessments

While the Trump EPA ultimately controls the fate of the Clean Power Plan and other climate-related rules, subject to judicial review, the administration will find it harder to fully extricate climate policy from federal agencies’ agendas. Even as the White House withdraws the Council on Environmental Quality guidance and social cost of carbon guidance, agencies will still need to address climate impacts in the inevitable challenges to regulatory decisions, permitting, planning, and infrastructure projects. Courts have required agencies to at least address climate change and its potential costs in their NEPA documentation, see, e.g., EarthReports v. FERC, 828 F.3d 949, 956 (D.C. Cir. 2016); High Country Cons. Adv. v. US Forest Service, 52 F. Supp. 3d 1174, 1191-93 (D. Col. 2014), and they may press the government to explain why the matter is no longer relevant to these assessments. The president might root out climate policy from executive branch decision-making, but he cannot unilaterally remove the issue from judicial consideration. Without common guidance or a way to measure costs, agencies will need to develop their own positions, which could conflict with one another. The time necessary to calculate and explain such costs on a rule-by-rule basis could significantly slow the very deregulatory process the administration seeks. If agencies must compute cost impacts for each rule, potential intervenors would have a point to argue on every rule issued that has potential climate impacts, which could further bog down the administration’s agenda.

Long-term prospects

Predicting how President Trump’s climate efforts will play out is difficult. He has ordered his agencies to act, but those actions will be heavily scrutinized by litigants and the courts. As with some of his other policies, Trump’s penchant for quick and decisive action may actually result in a less effective, or at least slower, implementation process. His efforts to end the “war on coal” may be stymied by economic forces that currently favor cheap, abundant, and comparatively “clean” natural gas. Indeed, the administration’s own policies encourage further gas development. Many businesses are expressing a preference for cleaner energy alternatives and are acting on those views even without regulation. Public opinion, state regulation, and other factors may continue to drive the economy toward greater energy efficiency, cleaner fuels, and lower demand. Multinationals may continue to call for international climate engagement. And climate-related impacts are likely to become ever-more apparent. In the end, the president’s efforts to root out the climate policies of his predecessor may be undermined by the sheer forces of a changing world.