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Trump and the environment: Taking stock of regulatory developments in the new administration

By Jessica Brandt

 

 

The Trump administration came out swinging against Obama’s environmental legacy. While early actions have been controversial, they are not altogether surprising considering the promises that Trump made on the campaign trail and the momentum that was expected from the newly politically aligned government. With his selection of Scott Pruitt to be 14th Administrator of the US Environmental Protection Agency (EPA), President Trump put the environmental community on high alert that the administration would be adopting an entirely different approach to federal environmental regulation.

Scott Pruitt’s nomination to lead the EPA has been controversial since rumors of his selection began circulating in December of last year. In the five years prior to his confirmation, Pruitt served as Oklahoma’s Attorney General. In this role, he questioned the degree of climate change and the extent to which anthropogenic activities contribute to global warming. He also established political ties to regulated industries on environmental matters; over the five year period, he filed 14 lawsuits against the EPA challenging regulations pertaining to climate change and water quality of which regulated industries were party to thirteen cases. Citing these among their reasons, 477 former EPA employees signed a letter to the Senate in advance of Pruitt’s confirmation process, urging they vote him down. On the other hand, conservative activists and fossil fuel interest groups broadly supported President Trump’s nominee, championing his defense of states’ rights and opposition to an “overreaching E.P.A.” Ultimately, Pruitt was confirmed by a 52 – 46 Senate vote on February 18, 2017.

Pruitt is seemingly aligned with the environmental platform Trump introduced on the campaign trail and his early actions as President. While it has been only two and a half months since inauguration and 6 weeks since Pruitt’s confirmation, a lot of early actions signal important changes for the agency charged with protecting human and environmental health. So far, these activities have been primarily directed at Obama-era efforts on climate change.

Trump and Pruitt move swiftly to dismantle Obama legacy on climate change

President Trump initiated plans to walk back recent measures on environmental and climate change issues with executive orders (EOs) advancing the construction of the Keystone XL (KXL) and Dakota Access (DAPL) oil pipelines prior to Pruitt’s confirmation. While the EOs do not grant the necessary permits for pipeline operation, they reflect an intention to advance extractive energy activities despite substantial environmental concerns. With DAPL, there are also considerable objections from, and on behalf of, the Standing Rock Sioux Tribe who maintain that the pipeline would threaten their water supply, ancestral burial grounds, and other sacred sites. In December of last year, President Obama delayed DAPL by calling for a comprehensive environmental impact statement before construction of the final pipeline sections could progress. While Trump’s administration lauds its actions as promoting  job creation and improving the economy, KXL was halted on the grounds of its climate impact and what it signified for the US’s international leadership on climate change. By one analysis, KXL could increase global demand for crude oil, thereby increasing the maximum estimated GHG emissions from oil sands production to 110 million tons of CO2 equivalents per year.[1] This emissions level is four times the level estimated by the US State Department in their final environmental impact statement.

The Trump administration argues that its approach to climate change policy favors economic growth and job creation. In his first speech at the EPA, Pruitt echoed that approach by advocating for environmental regulation that is “pro-energy and jobs, and pro-environment.” During his confirmation hearings, and in public statements since, however, Pruitt has also criticized federal regulations on air, water, and climate, and questioned the scientifically established role that CO2 plays in global warming as well as the EPA’s authority to regulate it as a pollutant: “I think that measuring with precision human activity on the climate is very challenging and there’s tremendous disagreement about the degree of impact. So no, I would not agree that it’s a primary contributor to the global warming that we see.” These statements reflect the larger partisan divide over how the federal government should balance environmentalism and industry interests and a willingness to overemphasize the scientific uncertainty that is inherent to climate change research.

The role of CO2 as a climate change-forcing compound is well established. Concerns about the pace of climate change were reinforced this March when NOAA issued a report that atmospheric CO2 levels continue to climb after setting record highs in 2016 and that the first exceedance of 406 ppm occurred in January; the 400 ppm level is a symbolic threshold that scientists have been warning against in order to avoid 2ºC temperature increase and climate change’s worst effects. By questioning this science, Pruitt prompted a tremendous outcry from Democratic leaders and environmentalists, as well as a call from the Sierra Club for an investigation into whether Pruitt had violated the EPA’s Scientific Integrity Policy.

“Disregarding this political support for climate action, this administration has already acted to disassemble key regulations on GHG emissions.”

Such statements may also misjudge the positions held by President Trump’s voter base. In a collaborative study of Trump voters by Yale and George Mason’s programs on climate change communication following the 2016 general election, 49% of respondents reported that they think global warming is occurring, 47% reported support of US participation in the Paris Agreement, and 62% support the taxation and/or regulation of GHG pollution.[2]

Disregarding this political support for climate action, this administration has already acted to disassemble key regulations on GHG emissions. On March 15, President Trump announced an official request for reevaluation of a 2012 rulemaking concerning GHG emissions standards from light-duty vehicles. These standardswere designed to accomplish an average fuel economy of 54.5 miles per gallon (MPG), up from 36 MPG, by 2025, and reduce CO2 emissions from auto tailpipes. In an interview with Steve Curwood on Public Radio International’s Living on Earth, Dan Becker, of the Safe Climate Campaign, stated that these standards “save 12 billion barrels of oil, eliminate 6 billion metric tons of CO2 pollution, and save consumers over a trillion dollars at the gas pump over the life of their program. That’s a lot. That’s the biggest single step any nation has ever taken on cutting global warming pollution.”

Citing concern for the standards’ feasibility, projected compliance costs, and consumer preferences, the Alliance of Automobile Manufacturers requested reversal of these standards in a February 21 letter addressed to Administrator Pruitt. President Trump then made his official announcement just a few weeks later in a speech to auto manufacturers in Michigan. A month earlier, the Obama administration issued a final determination that the 2022-2025 corporate average fuel economy standards (aka CAFE standards) remain appropriate under Clean Air Act section 202 (a) (1). This review of the standards was completed ahead of schedule – the mid-term evaluation of emissions reductions standards’ feasibility and costs for model year 2022-2025 vehicles was expected to extend into 2018. Auto industry officials criticized the “hasty” review process, claiming that it failed to take the market changes into account – the price of gasoline has fallen by more than $1 per gallon since the 2012 CAFE standards were adopted and the auto industry reports that consumers are less interested in purchasing fuel-efficient cars under these conditions, which in turn affects whether automakers can reach their CAFE requirements.

EPA and the Department of Transportation (DoT) officials filed paperwork reopening the review after Trump’s announcement in Michigan. Should the EPA and DoT decide to rewrite the 2022-2025 standards, the EPA would have to draft a new regulation and undergo the formal rulemaking process which includes a public comment period and often takes years. This new regulation would also be subject to legal challenges and could face a subsequent judicial review.

In a similar vein, the EPA has also withdrawn an Obama-era request that would have required oil and gas companies to provide regulators with information about their methane emissions. This request was likely a preceding step to a rule that would have sought to limit methane emissions from these industries due to methane’s role as an even more potent GHG than CO2.

Water quality protections take a hit that favors fossil fuel interests

From early statements and actions, it seems that water quality will be another prominent issue on which the Trump administration seeks to lessen industry’s regulatory burden. The first move came the day before Pruitt’s confirmation vote when Trump signed legislation nullifying the Stream Protection Rule, a long-anticipated hallmark of President Obama’s environmental legacy, merely a month after it was intended to go into effect. This rule, which was intended to protect 6,000 stream miles and 52,000 forest acres from mining debris, “would have effectively made mountaintop removal uneconomical [..] especially when coal prices remain depressed amid competition from natural gas and renewable energy sources like wind and solar.” Senate Majority Leader Mitch McConnell was a prominent voice calling for its undoing under the Congressional Review Act (CRA). In a statement following the release of the final rule last December, he said: “The president’s eight-year war on coal has wrecked the lifeblood of the economy and the livelihoods of coal country workers and their families…I will (…) introduce a resolution of disapproval under the Congressional Review Act (CRA) to overturn this egregious regulation and work with my colleagues to use every tool available to turn back this regulatory assault on coal country.”

On the other hand, proponents of the rule point to the environmental impacts of surface mining and the environmental and human health benefits of the rule. Surface mining is the primary driver of land-use change throughout central Appalachia and its impacts range from ecosystem losses, permanently altered landscapes and hydrology, water contamination with metals, and increased pollution known to compromise human health.[3] Had the Stream Protection Rule gone into effect, the expected benefitswould have included increased carbon storage and reduced emissions, mitigated climate-change impacts, ecologically improved streams and forests, reduced human health effects of consuming contaminated water, and improved aesthetic and recreational value of affected areas.

A second change under the Clean Water Act came on February 28 when the President issued an EOcalling for a formal review of Obama’s Waters of the United States (WOTUS) Rule. This initiated an administrative process that could lead to substantial change of the rule or its elimination altogether. As it stands, the regulation would expand federal jurisdiction over wetlands, headwaters, and ponds under the Clean Water Act and require permits for activities that would compromise their quality. These tributaries are important sources of contamination to downstream waterbodies, on which an estimated 117 million Americans depend for their drinking water. Opponents of this rule hold that extending CWA regulation to non-contiguous or transient waters is over-regulation, places an undue burden on the economy, and is a matter of state rather than federal responsibility. Upon its release, the original rule was met with numerous lawsuits and it is currently stayed by the US Court of Appeals for the 6th Circuit. In this litigation, opponents of the rule argue that expanding federal jurisdiction to include these tributaries is at odds with earlier Supreme Court rulings on what constitutes the “waters of the US.” As Oklahoma Attorney General, Pruitt led one of these lawsuits.

The EO issued on February 28 declares that any replacement rule ought to adhere to a narrow interpretation of “waters of the United States” put forth by Justice Antonin Scalia in his opinion in Rapanos v. U.S. (2006), which limits federal authority to navigable waterways that are contiguous and continuous, such as a lake or stream. An EO cannot, by itself, rescind or revise an agency  rule; the agency must go through the rulemaking process to change or rescind the rule. However, a few hours after the EO was signed, Pruitt circulated a draft notice of publication for the Federal Register announcing the EPA’s intent to review and rescind or revise the WOTUS rule – initiating the procedural method via the rulemaking process under the federal Administrative Procedure Act. This process would also require the US Army Corps of Engineers to create an administrative record justifying the decision, which would likely be subject to numerous challenges. Because the current WOTUS rule is stayed in the courts, it is unclear how this EO and new rulemaking will affect the ongoing litigation, which could be headed to the Supreme Court later this year. The administration will likely attempt to keep the earlier rule from taking effect during the litigation, but whether to dismiss or conclude the litigation is up to either the 6th Circuit or the Supreme Court. The administration could also seek to use the budget process to block implementation of the rule during the rulemaking process, provided that Congress votes for such a budget request.

The 2018 fiscal year budget request asks for systematic changes at the EPA

On March 16, President Trump submitted his initial budget request for discretionary programs to Congress. Calling for a 31% agency-wide cut to the EPA by cutting the operating budget to $5.7 billion, this so-called “skinny budget” is symbolic of the administration’s broad rhetorical promises to reduce regulatory burden and transfer more environmental protection responsibilities to the state and tribe levels. Of the discretionary programs facing cuts under this proposed budget, the EPA faces the steepest cut; the budget also proposes notable cuts to agencies with related environmental science or health missions, including the NIH, DOE, NOAA, and NASA.

“Early analyses have already identified that these cuts will target vulnerable communities.”

Though this budget proposal lacks detail, it does call for a cut of 3,200 jobs and major reductions in funding or the full elimination of many programs. Among those losing support are the Hazardous Substance Superfund Account ($330 million less than expected), Categorical Grants ($482 million), and the Office of Research and Development’s extramural activities budget ($233 million less). The budget discontinues funding for the Clean Power Plan, international climate change programs, and climate research. Regional programs, including the Great Lakes Restoration Initiative and the Chesapeake Bay Program, are also up for elimination. Fifty nationwide programs including Energy Star, the Endocrine Disruptor Screening Program, and infrastructure assistance to Alaska Native Villages and the Mexico Border are also on the chopping block.

Early analyses have already identified that these cuts will target vulnerable communities. Foreseeing such a regressive approach in the Trump era, the head of EPA’s environmental justice program, Mustafa Ali, stepped down in March. Ali had been at the EPA for 24 years, where he had served as a champion for disproportionately affected populations.  He cited differences between his and the incoming leadership’s priorities in his resignation letter.

You can’t always get what you want

The Trump administration’s treatment of the EPA in its first two months has been combative.  But there are important limitations and challenges that the administration will face as they pursue this aggressive agenda. Much of the work EPA carries out is mandated by statutes such as the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, the Resource Conservation and Recovery Act, the “Superfund” Act, and the Toxic Substances Control Act.[4] Environmental groups are likely to challenge each policy change in court, which may substantially delay or hinder the administration’s efforts. In addition, the budget request is largely symbolic. Its purpose is to communicate the President’s spending priorities to Congress, which will subsequently spend months setting agencies’ spending levels through a process established by the 1974 Congressional Budget Act. The final budget must pass both houses of Congress and be signed into law.

While these processes unfold, Congress may take further steps to change environmental law and regulation.  Earlier in March, the House Committee on Science, Space, and Technology advanced to the full House of Representatives two bills with broad implications for how the EPA conducts its scientific research. The first, introduced by Chairman Lamar Smith (R-TX) on March 8, requires the EPA to release the data it uses to design regulations. The bill passed the house on March 29 and proceeds to the Senate. The second is a repeated attempt by Rep. Frank Lucas (R-OK) to change the make-up of EPA’s Science Advisory Board to include more industry positions, generate more public input, and require disclosure statements from its members; it is expected to be considered by the House in early April. Democrats interpret these bills as serving to increase outside influence over EPA’s ability to regulate environmental activities, and will oppose them in the House and Senate.

Latest developments on climate change

The Trump administration issued another EO on March 28, signifying that it plans to pull back on key climate policies and potentially change the US commitments under the 2015 Paris Agreement. The order includes a call for the EPA to review and potentially rewrite the Clean Power Plan (CPP), the EPA’s leading climate regulation under the Clean Air Act. The CPP sets standards for GHG emissions from existing as well as new, modified, or reconstructed stationary electricity plants.  The EPA estimated that the CPPwould avoid a billion tons of CO2 emissions by 2030 and produce public health benefits valued at $55-93 billion per year in 2030, while costs in 2030 would range from $7.3-8.8 billion per year. The CPP is a major component of the US’s Nationally Determined Contributions (NDC) under the Paris agreement. Currently, the CPP is stayed by the Supreme Court while litigation is pending before the US Court of Appeals for the DC Circuit, challenging EPA’s authority under the CAA. Should the courts uphold the CPP, the EPA would be required to propose a new rule in order to rescind or revise it, a process that would include a period for public comment. A new final rule would also be subject to legal challenge, predictably under the so-called State Farm doctrine requiring consideration of ‘whether the agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choices made.”’[5]

The March 28 EO also calls for reconsideration of rules pertaining to federal land management, restrictions on methane emissions from oil and gas development sites, and fracking regulations. EPA will need to review the scientific and policy justifications underlying these rules and regulations, and potentially draft new ones. As with the WOTUS rule, this process can take years and involve opportunities for public comment and legal challenges.

More immediately, the March 28 EO undoes the latest CEQ guidance on federal agencies’ assessments of climate change in their environmental impact assessments under the National Environmental Policy Act of 2016. It also calls for changes with how the “social cost of carbon” (SCC) is estimated to evaluate policies that affect greenhouse gas emissions by revoking the government-wide SCC estimates developed by the Obama administration and, instead, leaving it to each federal agency to develop its own SCC. Additionally, the EO rescinds six memoranda from the previous administration pertaining to climate change, and calls for the Bureau of Land Management to lift its 15-month-old moratorium on federal coal leasing.

Pruitt approves pesticide, going against EPA’s scientific conclusion of safety

A significant decision with immediate implications also came directly from the EPA in late March, when Pruitt ruled against the scientific conclusion reached by his own agency on the safety of a chemical insecticide, chlorpyrifos. Drawing on decades of scientific evidence, EPA scientists concluded the chemical should be banned because of the significant health risks it poses to agricultural workers and susceptible populations exposed primarily through drinking water. The insecticide is not scheduled for a new safety review until 2022, but environmental groups have already pledged to challenge the finding in the Court of Appeals.

What we’re continuing to watch

Notably absent from Trump’s March 28 EO on energy and climate are the answers to two questions concerning the extent to which the Trump administration will attempt to walk back Obama era climate policies. The first is whether the EPA will revoke the “endangerment finding.” This finding, issued in 2009, defined CO2 as a pollutant that, in combination with five other GHGs, “threaten the public health and the public welfare of current and future generations.” This rule empowered the EPA to regulate the emissions of CO2, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride under the Clean Air Act and paved the way for the CPP. Pruitt, who sued the EPA over the endangerment finding as Oklahoma Attorney General in 2012, is now facing political pushback from conservatives for keeping the endangerment finding out of this EO. Having withstood numerous legal challenges in the past (see Coalition for Responsible Regulation v. EPA (DC Cir. 2012)),  the endangerment finding will be difficult to dislodge: EPA revocation would require overcoming significant hurdles through a long-term scientific, administrative and judicial process. Pruitt, realizing this, has cautioned the Trump administration against picking this particular fight.

“…even if the President has the power to withdraw the United States from the agreement, doing so will require a four-year withdrawal process…”

Second, since the issue was not addressed in this recent EO, it remains unclear how the Trump administration will proceed with respect to US participation in the Paris Agreement. On the campaign trail, candidate Trump promised to “cancel” the Agreement, but the topic is divisive within the administration. As president, Trump cannot cancel the entire accord (to which 194 countries are parties) outright, nor can he pull the US out immediately; even if the President has the power to withdraw the United States from the agreement, doing so will require a four-year withdrawal process under article 28 of the agreement. In the meantime, though, the US could fail to satisfy the promises of its NDC by relaxing or undoing the GHG emissions-reducing regulations put in place under President Obama. The president’s initial budget request additionally eliminates US funding for the Green Climate Fund and its precursor Climate Investment Funds, by which the United Nations assists developing countries with their climate change mitigation and adaption efforts. US participation in the Paris Agreement is also a symbol of US leadership on climate change, which was crucial to the Agreement’s success in the first place, as US emissions represent the second largest (after China) annual contribution to global warming, and still the largest cumulative contribution over time. US withdrawal could seriously undermine international cooperation in addressing this global problem.

Further steps may be forthcoming.  A decision on the Paris Agreement could yet be announced.  On another front, EO 13771, issued on January 30, may require agencies to offset the costs of new rules by revising or repealing older rules; its effects will depend on OMB implementation.  We will have to wait to see the extent to which the Trump administration is successful in unravelling President Obama’s environmental legacy. Those opposing the new administration’s environmental policy changes will likely have their hands full.


Jessica Brandt is a 4th year Ph.D. Candidate in the Environmental Health Program at Duke University. Her research focuses on the impacts of coal ash waste streams in freshwater lakes in North Carolina.


[1] Erickson, P and Lazarus, M. 2014. Impact of the Keystone XL pipeline on global oil markets and greenhouse gas emissions. Nature Climate Change, 4: 778-781.

[2] Leiserowitz, A., Maibach, E., Roser-Renouf, C., Cutler, M., and Rosenthal, S. (2017). Trump Voters & Global Warming. Yale University and George Mason University. New Haven, CT: Yale Program on Climate Change Communication.

[3] Palmer, M.A., Bernhardt, E.S., Schlesinger, W.H., et al. 2010. Mountaintop Mining Consequences. Science, 327 (5962): 148-149.

[4] The Toxic Substances Control Act (TSCA) was recently updated by the bipartisan Lautenberg Chemical Safety Act in June 2016. More information available at: https://www.epa.gov/laws-regulations/summary-toxic-substances-control-act (accessed 04/07/2017).

[5] Rosenberg, LD and Re, RM. Basic legal doctrines frequently arising in the D.C. Circuit. Available at: https://www.americanbar.org/content/dam/aba/administrative/litigation/materials/sac_2012/34-basic_legal_doctrines.authcheckdam.pdf (accessed 04/07/2017); Motor Vehicles Manufacturers Association v. State Farm, 103 S Ct. 2856, 463 U.S. 29.