By Bernadette M. Rappold, The Legal Intelligencer.
Millions of Americans are coming to grips with the broad social and political ramifications of Donald Trump's stunning upset victory in last Tuesday's presidential election. And while the president-elect's policy pronouncements to date have been short on detail, one thing is clear: those concerned with environmental protection and climate change had better buckle up for a wild ride.
As a 15-year veteran of the U.S. Environmental Protection Agency (EPA) and former agency enforcement official, I served under both Republican and Democratic administrations and played key roles in briefing incoming political leadership during transitions. As I know up close, for better or worse, federal agencies are not nimble and do not steer on a dime, a fact that often frustrates new political leadership.
While the rhetoric of campaigns does not always translate into the actions of governance, Trump's environmental policy appears to rest on the twin pillars of deregulation and fossil fuel promotion. While Trump's economic focus during the campaign was on trade deals and lower taxes, he also believes that over- regulation, particularly by the EPA and Department of Interior, is responsible for the loss of good-paying manufacturing jobs in the United States. He has pledged to place a temporary moratorium on new rulemaking early in his administration and has stated two regulations will be withdrawn for every new regulation promulgated during his term.
Trump has stated his intention to counter the "war on coal," which, he claims, has shuttered mines, cost jobs and left valuable natural resources in the ground. He plans to lift the Department of Interior's moratorium on coal leasing and has pledged to open additional federal lands and waters to energy extraction.
The president-elect once called for the EPA's eradication, but has more recently suggested that while vast portions of the agency should be cut and its ranks reduced, some small pockets should remain. (He plans to impose a federal governmentwide hiring freeze to reduce employee ranks through attrition, "exempting military, public safety and public health.") Trump does not believe in anthropogenic climate change, often calling it a Chinese hoax.
Trump has pledged to "cancel" the 2015 Paris climate accord. Since the climate accord is not a treaty ratified by the Senate, the president-elect can withdraw from it via executive action. But Trump's pledges on regulation, however, are not so readily fulfilled.
He has repeatedly promised to withdraw President Barack Obama's Clean Power Plan, which would impose limits on greenhouse gas emissions from power plants. Further, he has promised to pull another key rule, the EPA and Army Corps of Engineers' Waters of the U.S. rule (WOTUS), which was designed to eliminate uncertainty in the wake of several confusing and contradictory U.S. Supreme Court decisions and which, like the Clean Power Plan, is currently being challenged in federal court.
Both the Clean Power Plan and WOTUS are final agency regulations, and the president-elect cannot simply undo them with the stroke of a pen. He can, however, elect not to defend the regulations in the pending litigation or ask the courts to vacate the rules pending further agency action. Or he can undertake a new notice- and-comment rulemaking to withdraw the rules—rules which would themselves be subject to litigation. The Trump administration is likely not to enter "friendly settlements" with the plaintiffs who bring this almost certain litigation.
The net effect? Federal regulation of greenhouse gases from power plants will likely be significantly delayed, and the United States looks destined to default on its international promise to submit "nationally determined contributions" by 2018 under the Paris accord. With the United States as the world's second largest emitter of greenhouse gases, developing economies may balk at their commitments and the Paris accord itself could unravel.
Trump has said little about the rest of the EPA's programs and functions. But since 2010 the agency has lost about 28 percent of its budget and 13 percent of its staff, and there is reason to expect that downward trend to continue. And while certain senior political leaders at the agency have advocated strenuously for improvements to the EPA IT infrastructure and other technology investments that would enable agency staff to do more with less, those improvements look likely to remain on hold indefinitely.
Still, while President-elect Trump will enjoy Republican majorities in the House and Senate, he appears unlikely to rally the votes necessary for wholesale repeal of the fundamental environmental statutes that the EPA administers. This should trouble industry, even industries that believe the agency has been overzealous, because most statutes contain provisions allowing citizens to sue the EPA for failing to take nondiscretionary actions and industry for violating the law.
While citizen suits play a role in holding the EPA accountable, they are poor and protracted substitutes for regulation. Just ask the scores of companies who have been on the receiving end of citizen suits; whenever possible, most prefer a consensual arrangement with the EPA or a state regulator over a court-imposed injunction.
As Trump assembles his transition team and begins to fill the EPA's political ranks, one might expect industry to impress on him the necessity to refrain from gutting the agency. After all, huge sections of our economy depend on the agency's decision-making, and some, like the renewable fuels industry, would not exist outside California without the EPA.
Perhaps ironically, enforcement and compliance monitoring at the EPA may be the area that undergoes the fewest changes in a Trump administration. The president-elect has repeatedly emphasized "law and order" as a grounding principle, and enforcement of existing laws and regulations (except for the Clean Power Plan and WOTUS) would seem in keeping with that principle.
There is historical precedent for this view. President George W. Bush sought repeatedly to change fundamental environmental laws and regulations; prime examples included "Range Readiness Preservation Initiative" to exempt military facilities from virtually all environmental and habitat preservation laws and his "Clear Skies Initiative" to create a cap-and-trade program to reduce NOx, SOx and mercury, but left carbon pollution untouched.
While Range Readiness and Clear Skies never gained traction in a divided Congress, President Bush generally did not meddle with EPA enforcement (except for power plant litigation, which remained squarely in the administration's sights), driving many decisions down to the career, rather than, political level. While few EPA enforcement staffers would publicly admit it, many privately concede that while they disagreed with the Bush administration's legislative and regulatory agenda, they liked that administration's generally hands-off approach to enforcement.
Much will depend, of course, on whom Trump selects to become the EPA administrator. In addition to the Competitive Enterprise Institute's Myron Ebell who is heading up the Trump environmental transition team, rumored potential administrators include Robert E. Grady, an investment banker who helped to draft the Clean Air Act Amendments of 1990, and Jeffrey R. Holmstead, a lawyer at Bracewell LLP and the former deputy administrator under the last Bush administration. Of the three, Holmstead appears the most moderate and seems to embody what one pundit called "the practical environmentalism" the president-elect espouses.
The transition at the EPA has already begun, with staff across the agency fanning out to prepare non-confidential briefing books for the newcomers; confidential briefings will await the new team's official on-boarding. Morale, already at low ebb after years of budget cuts, seems to have sunk to a new low, with many staff worried whether they will keep their jobs.
While Trump's environmental changes at the federal level will likely be significant, states retain their environmental prerogatives and authorities. So regardless of what happens to WOTUS, for example, Pennsylvania will continue to define all water, including groundwater, as a "water of the commonwealth," so there is no issue that wetlands are regulated under Chapters 102 and 105 of Title 25 of the Pennsylvania Code.
Still, at the federal level, change is coming. Exactly how much and how fast remain to be seen.