A little more than 100 days into his administration, President Donald J. Trump continues to roll out his potentially disastrous environmental agenda. His assault on former President Barack Obama’s legacy on climate change and energy, carried out largely through a flurry of executive orders, represents nothing less than a plan to dismantle federal climate regulation in the United States, promote the unfettered use of fossil fuels, and leave Americans fundamentally unprepared to deal with the inevitable impacts of climate change.
This ideologically driven attack — led by Scott Pruitt, the administrator of the Environmental Protection Agency — has received well-deserved attention in the news media, as has the potential of opponents to block the Trump administration’s agenda in court. But as the legal battles begin to unfold, it’s useful to examine just how much damage Trump and his team can do, what their likely legal and administrative strategies will be, and how they might be thwarted by citizens, environmental groups, cities, state attorneys general, and market forces.
The new climate litigation war has already begun. A coalition of environmental groups, ranchers, and the Northern Cheyenne Tribe have filed a lawsuit challenging the Department of Interior’s decision to lift the moratorium on leasing coal on federal lands without having completed a promised environmental review. New York State Attorney General Eric Schneiderman is leading a coalition suing the Trump administration for delaying efficiency standards for a host of appliances, including air conditioners and commercial boilers. In yet another lawsuit, environmental, consumer, and labor groups are challenging a Trump executive order on reducing regulations and regulatory costs, saying the order violates the separation of powers and will strip away safeguards that are vital to protecting the environment and public health.
We can expect to see this list expand with each actionable step the Trump administration takes to roll back environmental regulations, such as last week’s orders aimed at opening up designated national monuments and other protected federal lands to mining, oil drilling, and logging.
As it attempts to dismantle signature Obama-era achievements such as the Clean Power Plan — which would significantly reduce CO2 emissions from coal-fired power plants — the Trump administration faces a major legal barrier, erected by the U.S. Supreme Court. In a 2007 ruling, Massachusetts v. EPA, the Supreme Court ruled that greenhouse gas emissions are air pollutants as defined in the Clean Air Act and can be regulated under that statute. The court directed the agency to make a science-based judgment as to whether climate change endangers public health and welfare. Two years after Massachusetts v. EPA, the EPA under the Obama administration issued the so-called “endangerment finding,” which held that the continuing emissions of large quantities of CO2 and other greenhouse gases “threaten the public health and welfare of current and future generations.”
At this point, no court could uphold a conclusion that climate change does not endanger public health and welfare.
So, will Pruitt’s EPA seek to undo the endangerment finding? If the Trump administration aims to stop regulating greenhouse gases altogether, reversing this finding is a necessary step, as its existence literally compels the EPA to regulate. The problem for the administration is that the agency would immediately be sued. And it would lose, for a simple reason: The EPA already looked at this issue and — relying on assessments of exhaustive scientific evidence, conducted by leading bodies such as the Intergovernmental Panel on Climate Change and the U.S. Global Climate Research Program — concluded that climate change does endanger public health and welfare, on a massive scale. The D.C. Circuit Court of Appeals upheld that determination after the Obama administration was challenged by then-Oklahoma Attorney General Pruitt and others. At this point, no court could uphold a conclusion that climate change does not endanger public health and welfare. The science just isn’t there. Climate denial works fine as political rhetoric (for some people). But it wholly fails under scientific or legal scrutiny.
Given the near-certainty that Pruitt and Trump would lose any effort to topple this established legal pillar of climate change regulation, what is this pair of climate change deniers to do?
They could take a more circuitous approach and seek a more limited result, such as putting into place weaker, less ambitious greenhouse gas emissions standards that have at least some plausible basis in science and economics. For example, the EPA might seek to alter its interpretation of the “best system of emission reduction” — a standard set forth in the Clean Air Act — to impose less stringent requirements on new and existing power plants. The Obama administration EPA interpreted that standard as a complex web of interactions in the electric grid, which would allow for using natural gas instead of coal and increasing renewable energy generation. The current EPA might interpret the standard as a combination of technical fixes that would achieve some small reduction in emissions, but that in fact would be more expensive and less effective than Obama’s Clean Power Plan.
Toward that same end, the EPA might try to adjust its calculations to downplay the long-term global costs of climate change and the benefits of climate action. Under Obama, the EPA, relying on the “social cost of carbon” — a number calculated by a federal task force — concluded that the Clean Power Plan would produce $20 billion a year in global climate benefits by 2030. Trump has directed agencies not to consider the social cost of carbon, even though the courts have already said agencies cannot simply ignore the costs of climate change. Pruitt’s EPA could arguably make different assumptions that show significantly lower global costs, or focus only on domestic costs. The agency could also emphasize the uncertainty around projecting future climate costs, while trumpeting short-term economic benefits from polluting activities, such as corporate profits in the fossil fuel and utility sectors.
Trump can better protect against court losses if agencies enact watered-down regulations that look like actual regulations.
In short, Trump’s administration can better protect against losses in court if the agencies seek to enact watered-down regulations that look like actual regulations, rather than trying to opt out of regulation altogether. The devil is in the details, of course, but courts are far more deferential to agencies that provide a defensible decision than to those that simply deny a problem exists.
There are also things Trump and Pruitt can do without risking legal challenge, or at least improve their chances of winning in court if they are sued. These include cutting staff, reallocating discretionary funds, de-prioritizing climate research, and dragging their heels on enforcement. The administration has already taken steps in these directions, introducing a budget proposal that slashes funding for the EPA and climate programs across federal agencies, and reassigning EPA staff that had been working on climate change adaptation. These are transient wins, in that they are easily reversed by a new administration, but they can succeed in slowing the necessary transition toward a carbon-free economy.
States, cities, and environmental groups will play a necessarily defensive game against whatever the Trump team comes up with. Meanwhile, there have been, and will continue to be, lawsuits brought to proactively force the government and companies to act. This is what the 21 youth plaintiffs in Juliana v. United States are doing. In the Juliana case, the plaintiffs charged the Obama administration — and now the Trump administration — with violating their constitutional rights and the government’s own obligations under the public trust doctrine by failing to take adequate action to combat climate change. In a groundbreaking decision last November, a federal district court judge in Oregon held that the plaintiffs have a fundamental constitutional right to a “stable climate system” and that the federal government has an affirmative obligation to protect public trust resources impacted by climate change, including oceans and coastlines.
The Juliana decision is of a piece with a growing list of judicial opinions from courts around the world that acknowledge that climate change is not merely a technocratic pollution problem but a matter of individuals’ rights and governments’ core duties. For instance, in the well-known case of Urgenda v. Kingdom of the Netherlands, a district court in the Hague held that the Dutch government has a duty to take more ambitious climate change mitigation measures due to the “severity of the consequences of climate change and the great risk of climate change occurring.” Just last month, a court in Austria held that a new runway at the Vienna airport would violate the country’s climate change commitments and constitutional protections by increasing air traffic in and out of the country. (See also these cases from Pakistan, Colombia, and this early one from Nigeria.)
We have seen many times before that courts serve as a last resort when other branches of government fail the people.
Moreover, while they have not yet been successful, prospective cases against fossil fuel and power companies involving claims of public nuisance or negligence may also emerge. The Obama administration’s climate regulations forestalled some of these novel theories, but the Trump administration’s climate deregulation may well give them new life.
The stakes are high. Under Trump, we could be looking at four, or eight, years of climate-blind planning and program management at the federal level. This may well lock in new vulnerabilities to climate impacts — on wildlife, public lands, and federal facilities — for a generation or more. It may also send us on an emissions trajectory that could lead to a radically transformed world – possibly by the end of this century. One inkling of how four years of Trump might hobble the U.S. role in the climate fight came last week, when a study projected that Trump’s policies could lead to an extra 500 million tons of U.S. carbon emissions by 2025 — equivalent to the annual emissions from supplying electricity to 60 percent of U.S. homes.
Market forces favoring natural gas, wind energy, and solar power over coal can help stem the reactionary tide ushered in by the Trump administration. In addition, progressive cities and states, from California to Massachusetts, are moving steadily ahead with the deployment of renewable energy and other initiatives to cut fossil fuel use. Still, Trump and his team can do a great deal of damage, which is why the role of the courts will be central in thwarting Trump’s agenda over the next four years.
We have seen many times before that courts can, should, and do serve as a last resort when other branches of government fail the people. What we have seen from the Trump administration is a complete and total abdication of its responsibilities on the climate front. And so, we will see you — Donald Trump, Scott Pruitt, and the rest of the president’s team — in court.