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Environmental Regulation in the Age of Trump: The Endangerment Zone

You’re traveling through another dimension… not only of sight and sound but of mind. A journey into a wondrous land whose boundaries are that of imagination….your next stop, the  ENDANGERMENT ZONE!  [Twilight Zone] — Rod Serling (with a bit of editing)

The first installment of this two-part series focused on judicial decisions and precedents leading up to EPA’s 2009 finding that GHGs contribute to climate change and endanger the health and welfare of citizens and ultimately to the Clean Power Plan (CPP).
 
The CPP has been a significant source of contention between climate defenders and deniers.  President Trump and many in the Republican Congressional majority have targeted these regulations for rescission. The Donald, his cabinet nominees, transition staff and personal staff have all alluded to the significant reductions in federal environmental programs and policies that lie ahead.
 
Given the CPP’s executive branch history and the multiple judicial findings leading up to today, President Trump’s reform options are limited. This second installment focuses directly on the two most likely choices the President and his new EPA Administrator will face.
 
What ”R” The Available Options?
 
The administration has two basic options for dealing with the extant endangerment declaration and the CPP: rescind or replace. Neither is likely to be easily or quickly accomplished. Of the two, replacing, either in whole or part, is the more expeditious and, perhaps, prudent. It is likely they will both prove more problematic than the President and the new Administrator of EPA would prefer.
 
Rescind the CPP by Executive Order
 
An Executive Order rescinding the CPP is well within Trump’s presidential prerogatives. It would not, however, free the federal government of its obligation to protect the American people from the causes and consequences of climate change.
 
Federal responsibility is based upon the constitution, various laws, e.g. the Clean Air Act, and judicial recognition of the preponderance of scientific evidence strongly suggesting climate change harms people and GHGs are a contributing factor. The CPP is not a right, but a means.
 
It is debatable whether cancellation of the order would nullify the proposed CPP regulations. Obama’s directive to EPA was to write the regulations. The regulations themselves are not part of the order. Now that they have gone through extensive public review, published in draft form and made the subject of numerous law suits, pulling them back may require specific action by the president, Congress or the courts.
 
Rescission of the directive will serve to move the administration’s anti-environmental leanings and tepid support for clean energy technologies to number “1” on the docket of the court of public opinion.
 
Pro: Rescission of the Obama order would fulfill the administration’s campaign promise.
 
Con: A rescission is unlikely to be of any legal or practical consequence, i.e. halting judicial consideration of the pending cases of West Virginia v. EPA and North Dakota v EPA.
 
Rescind EPA’s 2009 Endangerment Finding
 
In the abstract, outright reversal of the endangerment finding would significantly diminish judicial pressure to regulate GHG emissions. Outright rescission is not likely to be considered favorably by the courts, as they are almost certain to view this as an arbitrary action and invalidate the ruling. Decisions in the series of suits filed by then Attorney General Pruitt and other members of the Coalition for Responsible Regulation should serve as a reminder to the incoming Administrator that his is not a favored opinion.
 
Presumably a Trump/Pruitt EPA would base its reversal on various studies and reports faulting the work of the IPCC, NOAA and many mainstream climate research centers. Organizations like the Competitive Enterprise Institute, the Heritage Foundation and the Texas Public Policy Foundation have devoted significant resources to cast doubts on the research generally relied on by EPA and of climate advocates.
 
Recent hearings by the House Committee on Science, Space and Technology are also likely to be added to the list of authorities questioning the veracity of the claims that are the foundation of the 2009 endangerment finding.
 
An absolute reversal of the endangerment finding would certainly be challenged in court—opening the debate about whose science sources are better. Courts have previously indicated they are going to look at the preponderance of the scientific evidence and are willing to accept a great deal of uncertainty:

…the existence of some uncertainty does not, without more, warrant invalidation of an endangerment finding. If a statute is “precautionary in nature” and “designed to protect the public health,” and the relevant evidence is “difficult to come by, uncertain, or conflicting because it is on the frontiers of scientific knowledge,” EPA need not provide “rigorous step-by-step proof of cause and effect” to support an endangerment finding.

In a head-to-head contest, claims of uncertainty or falsehood are not likely to prevail. To prove the rescission was not arbitrary the government would be held to a fairly high standard—at least as high as EPA was held to in the Massachusetts decision. Whether the Administration wants to risk yet another opinion, by the courts validating the conclusions of climate defenders, is for the administration to answer.
 
Pro: Rescinding the endangerment finding would significantly weaken arguments in support of environmental regulations like the CPP and other parts of the Clean Air Act.
 
Con: Overturning the 2009 endangerment finding will unleash numerous legal challenges, highlighting the differences between climate defenders and deniers and asking the court to reverse their own previous decisions.

  • Case law strongly suggests the courts will invalidate actions it considers capricious. The majority in the Massachusetts case considered EPA’s refusal  to regulate as arbitrary—given the doctrine of stare decisis outright reversal of the finding is likely to suffer a similar fate.
  • Given that 4 million comments were submitted in the development of the CPP regulations, replacement would require a similarly lengthy and contentious period of public debate and transparency.

Replace (amend) Portions of the CPP by Executive Order
Replace (amend) EPA’s 2009 Endangerment Finding
 
(As the pros and cons of both these options are similar, I have chosen to treat them together.)
 
President Trump could issue a new order directing EPA to amend the published CPP regulations, based on new information questioning prior conclusions concerning the nature and cause of the harm to people caused by climate change and global warming.
 
EPA Administrator Pruitt could call for a review of the Agency’s earlier endangerment finding based on the new executive order; and, newly available research suggesting the climate is not changing as rapidly or as harmfully as previously thought.
 
A replacement order might also serve as grounds for the administration to request of the U.S. District Court of Appeals for the District of Columbia a voluntary remand back to the agency. If permitted, the current draft rule could be rewritten and replaced.
 
Pro: A new order could have several positives in the eyes of the Administration and many conservative organizations, e.g. CEI and the Texas Public Policy Foundation:

  • It suspends finalization of the current draft CPP regulations.
  • It arguably causes the review courts, e.g. the U.S. District Court of Appeals for the District of Columbia, to suspend their consideration of the existing and new source performance standards, pending formulation of the revised rules.
  • It could be cast as an avoidance of over regulation, based on legitimate on-going debate within the scientific community, thereby defending against the charge of total denial.
  • The position would be consistent with the testimony of Tillerson, Perry, Zinke, Sessions and to a lesser degree Pruitt and the president.
  • Strategically, it could create a long enough delay to fill Justice Scalia’s seat on the SCOTUS bench, possibly tipping the balance of the court to the right.

 Con: Admission, or at least the inference, that climate change is real could prove objectionable to the base of the Republican Party and counter to the 2016 platform and promises of candidate Trump:

  • It could open the door to a debate of degrees of change and endangerment, entrapping the Administration on the wrong side of deniers’ argument, without any appreciable benefit.
  • The position may lead to greater compromise on the budgets of EPA, DOE, NASA and other federal agencies engaged in climate-related research.
  • Given that 4 million comments were submitted in the development of the CPP regulations, replacement would require a similarly lengthy and contentious period of public transparency.

The Operation of the CRA
 
The Congressional Review Act has already been brought to the floor of Congress more times so far this year than in the previous eight years of the Obama administration. Prior to the opening of the 115th Congress the CRA has only been used successfully once. President G.W. Bush used it in 2001 to scrap an ergonomics regulation issued by the Clinton administration.
 
I have written before that with Republican control of the Congress and White House it would be used to prevent a number of regulations enacted by the Obama administration, including the Interior Departments stream protection rule finalized in December.
 
The Act promises to come into play here, as any major amendment(s), e.g. rescission or replacement, would trigger the expedited CRA requirements. The Act carries its own consequences, concerns and considerations.
 
Should whatever be proposed by EPA fail to be approved by a Joint Resolution, for example, some serious questions would arise. The Act prohibits a federal agency from reissuing the same regulation again or from promulgating a regulation that is substantially similar, unless the new or reissued regulation is supported by a new statute adopted after the joint resolution of disapproval. It is not clear how different a new regulation must be from a disapproved old regulation to pass muster.
 
Moreover, the Act provides that any determination, finding, action, or omission made pursuant to the CRA cannot be challenged in court.  It is hard to imagine the courts would allow the public’s health and welfare to go unprotected because of the operation of CRA procedures.
 
Trump’s 2 for 1 Executive Order
 
It is unclear at this point how the administration intends to enforce the White House’s recent 2 for 1 executive order. A reissuance of CPP type regulations would surely come under its aegis.
 
A principal question to be answered—most likely by the courts—is whether the new regulations are required by law. If so, then the judiciary is likely to give them safe-haven.
 
A recent suit by green groups is challenging the order. Whether the court will rule favorably or not in the case, it is the opening round in what is surely to be just the beginning of a litigious four-year term for Mr. Trump.
 
All that is clear at this point in the Trump administration is that conflict and confusion awaits—not just the CPP but all current federal clean energy and environment programs, policies and laws.  Perhaps the motto of the Trump administration is a paraphrase of Shakespeare:

The first thing we should do is to hire all the lawyers.

It almost makes me want to renew my legal license—almost. Stay tuned, more is sure to follow.

This article was originally published by CivilNotion.com and was republished with permission.