March/April 2017. Climate Law and Policy and UKELparis_agreement_.jpgA 

Climate Change and Energy. Trump’s climate and energy policies.

Sebastien Korwin, senior legal and policy advisor at Climate Law and Policy.

At a glance

• Much of President Trump’s campaign trail rhetoric on the environment, and more specifically, on environmental governance and regulation is fast becoming policy, from his selection of a pro-fossil fuel cabinet and administration, to his efforts to shackle the EPA and repeal and replace key environmental legislation.

• Despite the absence of a clear official position on climate change, the Trump administration has moved to drastically reduce the US’s engagement with international organisations, including the United Nations, fuelling fear of a US withdrawal from the Paris Agreement.

• While some of Trump’s more drastic campaign declarations (such as a pledge to dissolve the EPA) are unlikely to succeed despite Republican majorities in both houses, the White House is determined to push through a deregulation agenda that will sorely test the US’s procedural (legal) and democratic checks and balances.

Introduction

Throughout his election campaign, Donald Trump made numerous statements regarding his views on how the US should deal with environmental issues. This included climate change, which he famously claimed is not happening and/or is a hoax perpetrated by China. Trump even went as far as declaring that, if elected, he would withdraw from the United Nations Framework Convention on Climate Change (UNFCCC) Paris Agreement.

In his contract with the American voter, a key element of his election campaign, Trump outlined some of his policy priorities, including the future of US energy and environmental policy under a Trump administration. In the document, Trump pledged to ‘lift the restrictions’ on the production of shale, oil, natural gas and coal as well as on the development of infrastructure projects ‘like the Keystone Pipeline’. He also pledged to ‘cancel billions in payments to UN climate change programs and use the money to fix America’s water and environmental infrastructure’. Such declarations are consistent with Trump’s oft-stated desire for the US to play a lesser role on the world stage, instead focusing more on its domestic affairs.

Since his inauguration on the 20th January, Trump’s actions have given a clearer picture of where his allegiances lie, from a cabinet filled with billionaires and representatives of oil and gas companies, to the flurry of executive orders designed to prop up a declining fossil fuel industry. President Trump also pledged to eliminate all ‘regulations’ by up to 75%. It is however, still unclear to what extent he will succeed in achieving this. This article analyses the steps taken by Trump on climate change, energy and environmental regulation, the potential impacts of these steps, and the likelihood of them succeeding.

Climate change and the Paris Agreement

Consistent with his campaign rhetoric, it has been reported that President Trump is preparing to sign two executive orders to drastically reduce the US’s role in the United Nations. One executive order, entitled ‘Moratorium on New Multilateral Treaties’, will require a review of all current and pending multilateral treaties with a view to identifying which ones the US should leave. The scope of the order is intended to include all multilateral treaties that are not ‘directly related to national security, extradition or international trade’, which will likely include the Paris Agreement.

However, President Trump has recently stated that he now has an ‘open mind’ with regard to US involvement in the Paris Agreement and Secretary of State Rex Tillerson told the Senate Committee on Foreign Relations during his confirmation hearing that the US should ‘maintain its seat at the table’ in the climate negotiations. He also said that the threat of global warming was real, that it ‘requires a global response’ and that ‘no one country is going to solve this on its own.’ The result of this lack of a clear or consistent White House position on the Paris Agreement means that it is not yet certain whether President Trump will take the lead on a withdrawal.

This lack of consistency is not matched by the Republican Party, which, following the November 2016 elections, has acquired majorities in both Congress and Senate. The Party has regularly voiced its opposition to the Paris Agreement, and could be instrumental in nudging the Trump White House away from the multilateral process. The degree of congressional opposition to an attempt by the Trump administration to withdraw from the Paris Agreement would therefore depend on the Democrats.

Though it has been argued that leaving the Paris Agreement will be simple because it hasn’t been ratified by the Senate, the reality is not so clear-cut. The Paris Agreement officially entered into force on 4th November, which means that (according to Article 28 of the Paris Agreement) any Party seeking to withdraw from it must wait three years following its entry into force to communicate their intention to withdraw. Even then, the withdrawal would only take effect one year after that (for a total of four years).

One way to circumvent this procedural obstacle would be for the US to simply withdraw from the UNFCCC altogether, which would only take one year according to Article 25 of the Convention. As the UNFCCC is the parent treaty, of which the Paris Agreement is considered a Protocol, withdrawing from the Convention would automatically result in a withdrawal from the Paris Agreement. While legally possible, thelikely diplomatic repercussions of such a withdrawal could be severe, and could lead to an erosion of the US’s role as the leading force in international relations. This is supported by the stated intention of major players such as China and the European Union to drive coordinated climate action forward in the absence of the US.

Despite recent news of the US state department’s refusal to meet with UNFCCC executive secretary Patricia Espinosa suggesting a shift away from US diplomatic leadership on climate change, continued membership of the Paris Agreement and even of the UNFCCC is still on the cards.

A pro-fossil fuel extraction administration

Domestically, with the support of Republican majorities in both houses, Trump has been less ambiguous regarding his environmental and energy priorities. His cabinet nominations, represent a clear positioning on the side of the fossil fuel industry, and against environmental regulation.

His picks (all since confirmed by Congress and the Senate) include Rex Tillerson, CEO of ExxonMobil for Secretary of State, and climate change deniers Rick Perry for Department of Energy and Ryan Zinke for Department of the Interior. His proposed attorney general, Senator Jeff Sessions has come under scrutiny for failing to disclose that he leases land to an oil company, while Scott Pruitt, Trump’s pick for
administrator of the EPA (a key sub-cabinet position), has been involved in 14 lawsuits against the Environment Protection Agency (EPA) during his time as Attorney General of Oklahoma, including an attempt to revoke the Clean Power Plan. Not only that, since his confirmation as head of the EPA, Pruitt has denied the link between carbon dioxide and climate change, a position that is clearly at odds with that of the EPA he is now running.

Finally, Trump’s likely pick for science advisor (not yet confirmed), Princeton Physicist, William Harper, is also a notorious climate change denier with suspected links to the fossil fuel industry.

An ‘America first’ energy plan

President Trump has also released his ‘America First energy plan’, which commits to eliminating ‘harmful and unnecessary policies such as the Climate Action Plan and the Waters of the US rule’.

The 2013 Climate Action Plan, introduced by President Barack Obama, presents a three-pronged approach to tackling the climate challenge, namely:

• Reducing carbon pollution in the US through measures including: the development of pollution standards for power plants and fuel economy standards for heavy goods vehicles; stimulating investment in energy efficiency projects and support for research and development in lowcarbon technologies; increasing the number of renewable energy installations on public land and military bases and improving the energy efficiency of buildings. The plan also created a mandate to develop strategies to tackle highly potent greenhouse gases (GHG), including methane, and to protect forests and critical landscapes.

• Preparing the US for the impacts of climate change through measures including: supporting climate-resilient investment; developing flood-risk reduction standards; improving the climate resilience of agriculture through additional research and by expanding and prioritising forestand rangeland restoration efforts.

• International efforts to address climate change. The final component of the Climate Action Plan calls for the United States to lead in addressing global climate change internationally, including by: expanding major new and existing international initiatives, including bilateral initiatives and leading global sector public financing towards cleaner energy.

President Trump has yet to repeal the Climate Action Plan, but has acted on the second pledge of his energy plan, signing an executive order to begin the repeal of the Clean Water Rule. The order itself does not repeal the regulation, but it instructs the EPA to reconsider the rule, also known as Waters of the United States. The rule defines which rivers, streams, lakes and marshes fall under the jurisdiction of the EPA and the Army Corps of Engineers, a definition which was sorely needed as the Clean Water Act only mentions that the jurisdiction applies to ‘waters of the United States.’ When the rule was published in June 2015, it was strongly contested by farm and industry groups, who have labelled it a power grab by Washington, expanding the EPA’s jurisdiction to ‘swoop in and penalize landowners.’ The rule however, has not taken effect yet and is still subject to court proceedings.

Given that this rule has been in place since 2015 it will cannot be considered ‘recently finalized’, and therefore cannot be repealed under the 1996 Congressional Review Act, a law that allows the House and Senate to overturn any ‘recently finalized’ regulation with simple majority votes in both chambers, provided the president agrees. In the absence of such an option, the process to replace the Clean Water Rule could take months if not years, given its highly technical nature and the federal rulemaking process.

Although President Trump’s energy plan notes that satisfying the need for energy ‘must go hand-in-hand with responsible stewardship of the environment’ and that ‘protecting clean air and clean water, conserving our natural habitats, and preserving our natural reserves and resources will remain a high priority’, his actions suggest otherwise. Recently signed executive orders to ‘facilitate the expeditious review’ of the permit application for the Keystone XL and Dakota Access pipelines, (which had previously been put on hold by the Obama administration following major public protests) are major concerns, not only in terms of CO2 emissions, but also for the future of the US environment as a whole, as 7 million gallons of crude oil were spilled in more than 1,000 pipeline leaks between 2010 and 2015 alone.

The Trump administration has also committed to ‘reviving America’s coal industry’ which includes a commitment to ‘clean coal technology.’ Apart from the disputes over whether coal can ever be truly clean, according to a 2016 report by Case Western Reserve University, the US coal industry’s decline can be attributed to the recent abundance of cheap natural gas, a product of the US hydraulic fracturing boom (a process for extracting previously inaccessible natural gas from underground shale formations, also known as fracking), rather than excessive regulation by the EPA. Thanks to the abundance and low price of natural gas, electric power companies (major clients of the coal industry) are using more of it to generate electricity.

Trump’s support for the coal industry is further evidenced by his plan to end the moratorium on new coal mining on federal land, in place since early 2016 and his support for the repeal of the ‘Stream Protection Rule’ in February. This rule increased the procedural requirements that should be met to obtain permits for the development of new coal mines. The intention behind the rule was to ensure that the ‘hydrological balance’ of local waterways would not be affected by new coal mine developments. The Stream Protection Rule was only finalised in late 2016, making it eligible for repeal under the Congressional Review Act.

Shackling the EPA

Another sign of Trump’s commitment to the coal and fossil fuel industry is his attack on the EPA. During a Fox News debate, Trump declared: ‘Department of Environmental Protection [sic]—we’re going to get rid of it in almost every form.’ However, President Trump cannot eliminate the EPA on his own—he needs Congress both to introduce and pass legislation. Even with Republicans in control of the House and Senate,he likely would not have enough votes to survive a filibuster.

In addition to his appointment of a vocal opponent of the EPA as its head, the Trump administration has:

• Stated that all future studies or data from scientists at the EPA must undergo review by political appointees before they can be released to the public.

• Imposed a media blackout on EPA staff.

• Temporarily suspended all new business activities at the department, including the provision of grants (such as those that support environmental testing and innovation projects) and contracts (including hazardous waste handling and drinking water quality testing).

• Declared that the EPA will start operating in a way more favourable to the agricultural industry and the business community as a whole. 

Trump is also planning to significantly cut the EPA’s budget, with cuts to programmes such as grants for clean-up work at industrial waste sites, the Energy Star energy efficiency programme, climate change efforts and funding for Alaskan native villages. Unfortunately, while Trump may not be able to dissolve the EPA outright, he can significantly affect its ability to fulfil its mandate by cutting its budget with the support of Congress.

The Clean Power Plan

While not a foregone conclusion, many observers fear that the Republican congressional majority will assist the White House in pushing these measures through. Republicans in Congress are famously hostile to environmental regulation, particularly attempts to limit GHG emissions. Republicans have for instance introduced a bill to rewrite the Clean Air Act, which if passed, would seriously constrain the EPA’s ability to regulate carbon pollution, a key component of the Clean Power Plan. This measure aligns with Trump’s intention to sign an executive order to repeal the Clean Power Plan.

The controversial element of the Clean Air Act is the lack of clarity surrounding the term ‘air pollutant’, whose regulation is part of the EPA’s mandate. In 2007, 12 states, led by Massachusetts, sued the (Bush-era) EPA for its failure to act to mitigate the effects of climate change. The Supreme Court ruled that the EPA had to determine whether GHG emissions endanger public health and welfare. In the event of a positive finding (of endangerment), carbon dioxide and other GHG would qualify as ‘air pollutants’ and must be regulated according to the Clean Air Act. In 2009, the (Obama-era) EPA issued an endangerment finding that GHG do pose a threat to the public via climate change.

The current Republican proposal is to explicitly define the term ‘air pollutant’ to exclude carbon dioxide, water vapour, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, or sulphur hexafluoride. The bill also explicitly excludes action on climate change or global warming from the scope of the Clean Air Act ‘or any other law,’ effectively blocking any and all action on climate change if passed. So far, this bill has been assigned to four House committees, and at least three of those have no plans to take up the bill. In general, this bill is likely to be almost unanimously rejected by Democrats, with even some moderate Republicans potentially also opposing it.

Conclusion

So far, less than two months into his term, President Trump has backed up much of his anti-environmental regulation campaign rhetoric. The biggest immediate threat to US action on the environment is that Trump, supported by Congress, will refuse to take the lead or even attempt to undermine the international climate regime. While the withdrawal of US support (particularly funding to poor and vulnerable countries to mitigate, and adapt to climate change), would hinder efforts to implement the Paris Agreement, the willingness of major players such as China and the EU to collaborate to drive coordinated climate action forward means that it will not suffice to kill the Paris Agreement entirely, nor is it likely to cause a domino effect of withdrawals.

At home, despite enjoying Republican majorities in Congress and Senate, attempts to repeal or replace primary environmental legislation such as the Clean Air Act, are likely to be strongly contested by the Democrats and are far from guaranteed. Regarding secondary legislation, apart from those regulations that fall under the scope of the Congressional Review Act, rescinding and replacing EPA rules and regulations is a lengthy process, which will include public consultations and is likely to be further delayed by litigation.

Both at home and abroad, Trump faces significant procedural, judicial and diplomatic challenges to his agenda of total deregulation of environmental rules. It will take sustained opposition both within Congress and from civil society, but the full implementation of the Trump agenda is not inevitable.

This article was first published on UKELA. (March/April 2017). Climate Change and Energy. e-law issue 99