Environmental update

Environmental update

December 15, 2016 | By Andrew Skroback in New York

Anyone who suggests he or she knows what will happen with environmental regulation and energy policy under a Trump administration is pulling your leg. But there are plenty of tea leaves to read, and they appear to spell out portents of deregulation, a slew of battles to loosen regulatory standards at the federal level, litigation from environmental organizations in the face thereof, behind the curtain infighting among soon-to-be-appointed environmental appointees and demoralized agency staff, and a stark shift in leadership on these issues from the US government to states and other countries. Here is what we know.

Trump on Climate Change

Mr. Trump said in November 2012 that “[t]he concept of global warming was created by and for the Chinese in order to make US manufacturing noncompetitive.” The allotted 140 characters did not allow for elaboration on why he believed that might be the case. In February 2015, Trump extolled that 
“[t]he only global warming we should fear is that caused by nuclear weapons — incompetent pols.”

Candidate Trump tweeted in October 2015, “It’s really cold outside, they are calling it a major freeze, weeks ahead of normal. Man, we could use a big fat dose of global warming!” In December 2015, Trump told a rally, “Obama’s talking about all of this with the global warming and . . . a lot of it’s a hoax. It’s a hoax. I mean, it’s a moneymaking industry, okay? It’s a hoax, a lot of it.” In January 2016, in response to criticism, Trump explained his views on a morning talk show as follows: “Well, I think the climate change is just a very, very expensive form of tax. A lot of people are making a lot of money. I know much about climate change. I [have] received environmental awards. And I often joke that this is done for the benefit of China. Obviously, I joke. But this is done for the benefit of China, because China does not do anything to help climate change. They burn everything you could burn. They couldn’t care less. They have very — you know, their standards are nothing. But they — in the meantime, they can undercut us on price. So it’s very hard on our business.”

In a prominent speech on energy policy in May 2016, Trump condemned “draconian climate rules” and advocated rescinding “all the job-destroying Obama executive actions, including the Climate Action Plan.” He went on to promise that he would “cancel the Paris Climate Agreement and stop all payments of US tax dollars to UN global warming programs.” “President Obama entered the United States into the Paris Climate Accords unilaterally and without the permission of Congress,” Trump said. Although the Paris accord is without enforcement mechanisms, Trump insisted it “gives foreign bureaucrats control over how much energy we use right here in America.”

Post-election, many in the press suggested that Trump seemed to soften his campaign rhetoric on climate change and his vow to “cancel” the United Nations Paris Climate Change Agreement when he told the New York Times that he would keep an “open mind” about the agreement. This may be true or it may have been a symptom of Trump’s desire to please the audience directly in front of him. A look at the full transcript is more enlightening.

In the interview, Trump said he has “an open mind” on climate change. He said he is also open to the “other side.”

Asked whether he plans “to take America out of the world’s lead of confronting climate change,” Trump said, “I’m looking at it very closely . . . . I have an open mind to it. We’re going to look very carefully. It’s one issue that’s interesting because there are few things where there’s more division than climate change. You don’t tend to hear this, but there are people on the other side of that issue . . . .”

In follow-up, Trump was asked, “When you say an open mind, you mean you’re just not sure whether human activity causes climate change? Do you think human activity is or isn’t connected?” Trump responded, “I think right now . . . there is some connectivity. There is some, something. It depends on how much. It also depends on how much it’s going to cost our companies. You have to understand, our companies are noncompetitive right now.”

When reporters raised the destructiveness of Hurricane Sandy and the notion of climate change affecting weather patterns, Trump said “we’ve had storms always” and then appeared to suggest that the atmosphere is not getting hotter on average. “You know, the hottest day ever was in 1890-something, 98. You know, you can make lots of cases for different views.”

Mr. Trump’s statements demonstrate a profound lack of understanding of climate change as a process. When climate change skeptics cherry pick temperature readings, or Mr. Trump tweets that, “it’s snowing . . . freezing in NYC. What the hell ever happened to global warming,” they ignore that global warming as a concept means that global average temperatures are on the rise. They also ignore irrefutable data demonstrating that 16 of the 17 hottest years on record have all been in the 21st century, with the 17th being 1998. The current year, 2016, is on track to be the hottest on record, surpassing the previous records set in 2014 and 2015.

Closing out the subject, Trump referred to himself as an environmentalist and affirmed, “I absolutely have an open mind. I will tell you this: Clean air is vitally important. Clean water, crystal clean water is vitally important. Safety is vitally important.”

A few days later, in late November, the incoming White House chief of staff, Reince Priebus, clarified the position Mr. Trump took in the New York Times interview: “As far as this issue on climate change, the only thing [Trump] was saying after being asked a few questions about it was, look, he’ll have an open mind about it. But he has his default position which, most of it is a bunch of bunk.”

In early December, Ivanka Trump, rumored to hold different opinions than her father on climate change, arranged a meeting between Al Gore and the President-elect.

Transition Team

Whether or not his mind is currently open, Trump’s pick of advisers has now revealed who will be on the inside helping to close it.

To head his EPA transition team, Mr. Trump named Myron Ebell, director of environmental and energy policy at the Competitive Enterprise, a libertarian advocacy group in Washington, DC. This is a significant pick because it will be Mr. Ebell who will help the new administration set the direction of the federal agencies that address environmental policy, and he has been guiding Trump’s choice of key personnel to lead those agencies.

Mr. Ebell is a climate change denier who happily disagrees with the scientific consensus that climate change is real, a significant threat and directly tied to human activity. In an interview from 2012, Ebell explained to PBS’s Frontline why he and others went to work to try and dismantle that consensus. “We believed that the consensus was phony . . . . We believed that the so-called global warming consensus was not based on science, but was a political consensus, which included a number of scientists.”

Mr. Ebell has asserted that whatever warming is caused by greenhouse gas pollution is modest, and that such warming could actually be beneficial. Ebell argues that the science is less than certain and suggests the concerns cited are pretext for expanding government regulation. It is uncertain whether Mr. Ebell attributes the pretext to the Chinese.

Infamous among environmentalists, his critics are legion. They have called Ebell an “oil industry mouthpiece” and point out that his Institute receives significant funding from the coal industry. The Sierra Club said in a statement in early December that Ebell is “not a ‘climate contrarian’ or ‘skeptic’ as the media has irresponsibly taken to calling him. He’s one of the single greatest threats our planet has ever faced. Simply put, Ebell doesn’t believe in science.”

Ebell’s views on climate have also prompted criticism from some Republicans. For example, David Jenkins, president of Conservatives for Responsible Stewardship, reportedly said, “There is nothing prudent nor conservative about Ebell and his agenda. Ebell, a fervent advocate for polluters, has never met a pollution limit he likes. His life’s mission seems to be opposing environmental laws and attacking any scientific conclusion that finds pollution harmful, including climate change.”

Others in the EPA transition team now include the Heritage Foundation’s David Kreutzer, The Federalist Society’s Austin Lipari, Energy and Environment Legal Institute’s David Schnare, Caesar Rodney Institute’s David Stevenson, the Sugiyama Group LLC’s George Sugiyama, and Amy Oliver Cooke, a fracking supporter. David Schnare, who may be a candidate for a political appointment inside EPA, was a staff attorney at EPA for three decades who now runs his own law firm and acts as general counsel of the free-market Energy & Environment Legal Institute. Last year, Schnare suggested a new administration could scuttle EPA’s finding that greenhouse gases endanger health and welfare. In the face of the scientific evidence supporting that finding, this seems implausible, but a Trump EPA could certainly try to narrow the finding’s scope. 

EPA Administrator

As for the top job at EPA, Trump nominated Oklahoma’s Attorney General Scott Pruitt. Pruitt is a climate change denier whose experience in environmental law appears rooted in the numerous lawsuits he has brought to challenge high-profile rules established by EPA under the Obama Administration, several of which remain active. Pruitt sued to dismantle or defeat the Clean Power Plan, mercury air toxics rule, waters of the US rule and regulations on haze. One lawsuit failed to block EPA from finalizing its greenhouse gas rule for existing power plants, but another he was involved in won the stay of the rule from the US Supreme Court. Pruitt has no science degrees or other apparent environmental background. While a private lawyer, his practice reportedly focused on litigation, Constitutional law, contracts, insurance and labor law.

As EPA Administrator, Pruitt will face far fewer hurdles than he faced in court to limit EPA action. His Federalist stances are likely to drive regulation to the state level. While Pruitt has recognized that “[t]here are clearly air and water quality issues that cross state lines and sometimes that can require federal intervention,” he told a House committee in May 2016 that, “[a]t the same time, the EPA was never intended to be our nation’s foremost environmental regulator. The states were to have regulatory primacy.”

Senate Democrats have limited power to oppose executive branch nominees. Since the Senate, in 2013, eliminated the filibuster for nominations other than Supreme Court vacancies, we expect Democratic efforts to focus on publicizing any nominees’ histories of lobbying, potential conflicts from industry experience, and arguably anti-environment policy positions in order to summon public pressure and sway the votes of moderate Republicans. Pruitt is likely to be questioned about his financial ties to the coal, oil and gas industries and past collusion between his office and those industries in opposing EPA rules. Any such opposition to his nomination is unlikely to succeed. 

Obama Regulatory Legacy

What will happen to the Obama administration’s current and planned federal climate change initiatives once the Trump administration takes the reigns at the Environmental Protection Agency?

Current EPA Administrator Gina McCarthy said in early December 2016 that she foresees some degree of continuity between the Obama and Trump EPAs, including with respect to greater water infrastructure funding. “If [the Trump administration], as they said, is interested in infrastructure investment, they recognize it as good for the economy and jobs, I do really hope that they will add water and wastewater infrastructure as opportunities to grow the economy plus deal with what we know is a core need of this country,” McCarthy said.

Many of McCarthy’s statements about potential common ground — such as on rulemaking for existing source performance standards for oil and gas extraction — seemed to rely heavily on a naive will to believe in the persuasive power of information with the next administration’s environmental and energy team.

Acting EPA air chief Janet McCabe also expressed optimism in a post-election speech that the greenhouse gas and other air pollution programs will continue. “EPA is the career staff,” she said, and that staff will not leave when Obama’s political appointees do. This may have been a wink at the likely internal infighting between soon-to-be-appointed environmental appointees and a dispirited career staff, who are able to hinder as well as help. “I’m not worried, really, the work will go forward,” McCabe said.

Off the record, an EPA staff attorney recently likened the mood inside the agency since the election to being aboard the Titanic. They know an iceberg is coming, but no one knows when it will hit and everyone remains focused on rearranging the deck chairs as the band plays on.

The Paris Agreement to address climate change that was reached in December 2015 officially went into effect in November 2016, just days before the US presidential election, with 94 signatory countries having ratified it. Those nations, including the United States, China and India, represent 66% of total global greenhouse gas emissions. It took more than two decades to negotiate the agreement.

Its goal is to prevent the most destructive effects of climate change by limiting the increase in global temperatures to two degrees Celsius (3.6 degrees Fahrenheit) or less. Such destructive effects include prolonged heat waves, worsening drought, extended wildfire seasons, more intense weather and, most devastating, a significant sea level rise. However, even if every country delivers on its initial pledges, the increase is expected to be closer to 2.7 degrees Celsius. Nations are supposed to agree to take further steps in the coming years to achieve the deeper reductions that are needed. If left unchecked, global greenhouse gas emissions are likely to drive temperatures up between 2 and 5 degrees Celsius (3.6F to 9F) with a sea level rise of between two to four feet, according to some reports. Average global temperatures have already increased more than 0.8 degrees Celsius (1.5 degrees Fahrenheit) over the past century.

The United States must give three years’ notice to withdraw from the Paris accord under its terms. However, Trump could try another route.

The Paris agreement is considered part of the 1992 UN Framework Convention on Climate Change, which the US ratified under Republican President George H.W. Bush. Since it is not considered a treaty, the US Senate was not required to ratify the Paris accord. President Obama committed the US to it earlier this year by executive authority.

Trump could take the position that the agreement is a treaty and submit it to the Senate for ratification as a means to kill it, since that would require 60 votes. During the United Nations climate talks in Paris in 2015, Ebell reportedly said he was there to argue the agreement was “in fact a treaty” that requires Senate ratification. “We’ll have won if we convince the Congress that it’s a treaty.” 

Trump need not cancel the Paris agreement to blow up the process. Paris does not obligate each party to do any more than to pledge emissions reductions and then reveal what it has actually done to meet those pledges. Trump can simply ignore the obligations to which the United States committed itself. Aside from the domestic Clean Power Plan and the Paris accord, Trump could go further by weakening federal support for clean energy or regulations to improve vehicle efficiency. While the pledges are not enforceable, the specific transparency mechanism, still being negotiated, will be legally binding. If the United States does abandon its leadership role, then the global consensus achieved in Paris could be in jeopardy. China and India, the world’s first and third largest emitters of greenhouse gases respectively, would face an economic incentive not to fulfill their pledges under the agreement if the world’s second largest emitter defaults. India’s chief climate negotiator told reporters that a US withdrawal from the process risked spreading “like a contagious disease” to other countries.

A failure to implement US climate and clean power pledges would not reverse coal’s decline in the nation’s energy mix, which has more to do with the availability of cheap natural gas than federal regulation.  A report on the world energy outlook by the International Energy Agency, or IEA, a policy adviser to the United States and 28 other nations, suggests the amount of electricity generated from coal would fall by 41% from 2014 levels by 2040 if the Paris accord and the Clean Power Plan are implemented compared with a 21% drop if they are not. Natural gas usage would rise 56% percent under the regulatory regime compared with 27% if climate change efforts are scrapped. The report suggests that growth in solar and wind power would slow, but only marginally because falling costs will keep them competitive.

Trump has promised to rescind “job-killing” regulations, but details about what he might kill and how he intends to kill them are in short supply.

New Climate Leadership

The change of priorities appears fundamental. With few exceptions, the Obama administration raised climate change actively in engagements with foreign governments. The administration pivot toward China brought together the lead greenhouse gas emitter from the developed world and the lead emitter from those nations who claim developing status, but are nevertheless major sources of emissions. This effort broke real ground at the highest level, eventually allowing bilateral channels to run between hands-on negotiators for the US and China. This change allowed ideas to be taken to the larger community of nations and pressured both sides of the developed-developing divide to move toward agreement.

A Trump administration will likely create a vacuum of leadership on climate issues that others will be forced to fill. In the face of a federal abdication of leadership, states and cities will likely lead climate and energy policy in the United States, as they did before Obama took office and stepped up federal activity. Acting EPA air chief Janet McCabe said recently that, whatever happens at EPA, action by states and cities “will not be stopped.”

Many suggest the revolution in electricity generation and transportation is happening not because of federal regulation, but because it is being driven by the states. Prime examples include California programs to cut greenhouse gases and other pollutants. Others suggest we may be moving toward a more federalist regulatory system under Trump, where EPA and other federal agencies defer more to the states on policy issues. Success at the state level will be tied, at least to some degree, to continued federal funding of those efforts. Obama increased resources for the states in recent years, but future funding decisions will be made by the next administration and the next Congress. If the requirement for states to meet obligations under the Clean Power Plan and other regulations is rescinded, then that could create a divide between those states whose politicians favor such protections and those who do not.

What will industry do? Facing the prospect of a US retreat from climate action, there have been a number of private sector calls to support of the Paris Agreement. For example, 365 businesses and investors, including Fortune 500 companies such as DuPont, Hewlett Packard Enterprise, the Kellogg Company and Unilever, all called for continued engagement on climate change in a November 2016 statement. “Implementing the Paris Climate Agreement will enable and encourage businesses and investors to turn the billions of dollars in existing low-carbon investments into the trillions of dollars the world needs” to expand clean energy, the statement said. “Failure to build a low-carbon economy puts American prosperity at risk.”

Nicholas Akins, CEO of American Electric Power, an Ohio-based electric utility that generates power in 11 states, told The New York Times after the election that his company is making investments in energy generation aimed at 20 to 40 years from now. He assumes that carbon pollution will be regulated in the long run, whether or not the Trump administration dismantles the Clean Power Plan. “We will not be building large coal facilities. We’re not stopping what we’re doing based on the new administration. We need to make long-term capital decisions. I don’t think the course will change.”

Will other nations step into our shoes on climate change? Chinese President Xi Jinping said China intends to continue with its plans to cut carbon emissions without regard to what Trump does. China pledged under the Paris agreement that its emissions will drop after 2030, and that China will put in place a national system next year to force companies to pay a fee for their carbon pollution. It will be ironic if China steps firmly into a leadership position on climate change as America backs away.

Naming Names

In early December, Trump’s transition team took the peculiar step of asking the US Department of Energy to provide the names of all employees and contractors who attended climate change policy conferences. The questionnaire asked for “a list of all Department of Energy employees or contractors who have attended any Interagency Working Group meetings” to create a measurement known as the social cost of carbon, which has been used by the Obama administration to measure the economic consequences of greenhouse gas emissions and to justify the economic cost of climate regulations. Another request was for “a list of Department employees or contractors who attended any” United Nations climate change conference “in the last five years.”

The Trump transition team distanced itself from the questionnaire after DOE declined to provide names.