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Trump’s Climate Deregulation Will Face Obstacles at Every Turn

California Air Resources Board/flickr
California Air Resources Board/flickr

Fossil barons’ hopes and communities’ fears about the Trump administration’s ability to massively scale back environmental regulation in the United States might be more than a little bit exaggerated, a flurry of recent news reports suggests.

Trump’s nominee for Environmental Protection Agency administrator, Scott Pruitt, has spent a lot of his time as Oklahoma attorney general fighting the EPA in court. Ex-Texas governor Rick Perry, the president-elect’s choice to head the Department of Energy, has pledged to dismantle the agency (when he’s been able to remember its name).

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But apart from some early wins with more recently-introduced regulations, including EPA rules to reduce methane emissions from oil and gas operations, Pruitt’s mandate “could prove tougher than it sounds,” Reuters reports. “Regulations that have been on the books for longer, most of those [President Barack] Obama ushered through during his two four-year terms, will be more difficult to reverse, experts on both sides of the political divide said.

For those rules, including Obama’s signature Clean Power Plan and vehicle emission standards, “Pruitt will have just a handful of options, none of them easy, and nearly all of them triggering drawn out legal battles against well-funded environmental groups and attorneys general from Democratic Party-controlled states.

To undermine the CPP and the Waters of the United States Act, Pruitt “will likely try to take the simple step of halting the EPA’s defense of these regulations,” the news agency notes. In that case, Harvard University Law Professor Jody Freeman said the agency might well be required to explain and defend its change of course in court.

“Even if the EPA was able to withdraw its defence for the rules, other interested parties, including state governments and businesses, could intervene to defend them—raising the spectre of a lengthy court battle,” write correspondents Valerie Volcovici and David Shepardson. Already, New York and California have vowed to stand their ground against any attack on EPA rules, and this week the Democratic governors of California, Oregon, and Washington State said they would continue the fight against climate change and ocean acidification, even if the Trump administration abandons the field.

California Gov. Jerry Brown also urged Obama to permanently ban offshore oil and gas drilling in the state before he leaves office.

Pruitt could also try to undo the “endangerment finding” that provides the basis for climate regulations, by declaring carbon dioxide a public health risk. “But doing so would be hard given the volumes of scientific research that support it, and the requirement to build up a new case that shows carbon dioxide is innocuous,” Reuters notes. That effort, too, would likely trigger legal action, and “the DC Circuit Court of Appeals, which hears all cases challenging federal clean air rules, has been supportive of the scientific evidence for man-made climate change.

“There is no chance you could get either the DC Circuit, or the Supreme Court, to find that CO2 and other pollutants don’t endanger public welfare and health,” said NRDC attorney David Doniger.

The new administration’s easiest path might be simply to gut the EPA’s staff and funding, but state attorneys-general are already preparing for that fight. “I stand ready to use the full power of my office to compel their enforcement by the agency,” said New York AG Eric Schneiderman. President George W. Bush tried some of the same strategies, said Susan Dudley, one of his top regulatory officials, but “none of those initiatives has succeeded at accomplishing more than minor changes at the margin.”

As for speeding up approvals for new fossil infrastructure projects, Bloomberg reports that Trump’s efforts will run headlong into the Federal Energy Regulatory Commission (FERC), a slow-to-change body where commissioners serve five-year terms and Democrats could hold a voting majority until June 2018. “FERC operates under economic and environmental laws that carry specific approval guidelines that have been tough to overcome, even as pipeline opponents grow increasingly sophisticated in using them to their advantage,” the news agency notes.

“Short of, literally, an act of Congress,” making any big changes in how FERC operates is “wishful thinking,” ClearView Energy Partners Managing Director Christi Tezak told reporter Catherine Traywick.

And while all of those battles play out at the federal level, the new administration may also find its deregulatory efforts hamstrung by state governments, and by businesses that are no less involved with the push for clean energy than they were on the morning of November 8.

In a post last week, Environmental Leader suggested that California’s climate regulations could “trump a weak EPA,” using the market power of the world’s sixth-biggest economy to set de facto environmental standards for the whole country.

“Now more than ever, the nation — and the world — are looking to California for leadership on climate change and air quality,” said Mary D. Nichols, chair of the California Air Resources Board, in a December 2 statement on a draft plan to cut the state’s greenhouse gas emissions 40% below 1990 levels by 2030.

“Denial is not an option,” she declared. “We must plan, invest, and transform.”

The regulations call for steep carbon cuts through low- and zero-emissions vehicles, cap-and-trade regulations, waste diversion from landfills and water conservation, and possibly a carbon tax.

“Why should businesses outside of California care about any of this?” Environmental Leader asked. “The short answer is that many companies do business in California and other states, so greenhouse gas emissions from their products and services sold outside of the Golden State affect their overall carbon footprint. And despite a more lenient federal EPA under Trump, other states may follow California’s lead in enacting tougher climate rules.

While the EPA sets a minimum standard, explained attorney William Anaya of Greensfelder, Hemker & Gale, “states can be more stringent if they wish, and they are—California being one of them—all up and down the West Coast. California will continue to be a leader, telling the rest of the world how to do that calculation: take less raw materials, create less waste, and come up with more finished goods.”

Attorney Chris Carr of Morrison & Foerster predicted litigation over state emissions standards. “We also anticipate there will likely be a raucous battle in the federal courts over the legality of strict state requirements, particularly when those requirements implicate interstate commerce,” he told Environmental Leader.

As for private sector leadership, cleantech entrepreneur and investor Jigar Shah argues that “titans of industry cannot be slowed” at a time when clean energy investment and businesses are surging.

“Despite the campaign rhetoric, the clean energy revolution will continue at scale (although it may now require more political acumen by funding campaigns, developing more sophisticated mass marketing messages, and associating with effective lobbyists,” he writes. Shah lists fuel cells, solar hot water, ice storage, “electric vehicles and beyond”, agricultural productivity technologies, and food waste as areas that are ripe for innovation and investment.