By William S. Becker
The President of the United States must “take care that the laws be faithfully executed” and must take an oath to “faithfully execute the office of the President.” – Article II, U.S. Constitution
Between its other investigations of Donald Trump and his administration, Congress may want to defend its right to pass laws with confidence that the Executive Branch will implement and enforce them. More specifically, the House should look into whether Trump’s war on federal regulations is letting polluters violate the letter or the spirit of the nation’s environmental statutes.
By one count, the Trump administration has or is trying to roll back more than 80 federal rules on air pollution, drilling, water pollution, and toxic substances. As I noted in a recent blog, nine out of 10 of these attempts have been defeated in court, an indication that Trump’s team is firing its anti-regulation shotguns without much care for what they hit.
Trump realizes that this doesn’t look good for reelection. A spokesman at the White House says Trump will hold an event Monday to brag about his “administration’s environmental leadership and America’s role in leading the world.” Watch for him to boast that America has the cleanest air on the planet (we actually rank 10th) and that U.S. carbon emissions are dropping (they went up more than 3% last year).
One environmental rule of special importance was President Obama’s Clean Power Plan, the centerpiece of his strategy to reduce the pollution responsible for America’s role in global climate change. Trump’s EPA threw it out and replaced it last month with something it calls ACE.
EPA did so despite a list of concerns submitted by 14 states that represent 43% of the economy. They pointed out that ACE ignores power plant improvements like renewable energy that can produce greater emission reductions; prohibits emissions trading; implies that state rules more stringent than ACE will be disallowed by EPA; and fails to establish a national baseline for the environmental performance of power plants, which adds to regulatory confusion. EPA’s own analysis of ACE includes a scenario in which carbon dioxide pollution in 21 states would actually increase by 2035.
“The need to reduce carbon emissions to address climate change is clear,” air officials from the 14 states wrote to EPA Administrator Andrew Wheeler. “Our states are already experiencing the harms of climate change, including increased wildfires, more severe droughts, and heatwaves, rising seas, and increased frequency and intensity of extreme and costly storms. These and other impacts are directly harming the health and welfare of residents in our states and causing significant economic damage.”
Wheeler finalized ACE anyway. Now we can expect a new round of lengthy, costly litigation by states that believe reductions in power plant pollution are necessary to combat climate change. This follows a lot of lengthy, costly litigation over the last two years by states that opposed Obama’s rule.
The Clean Power Plan was not a careless regulation. It complied with the U.S. Supreme Court ruling that greenhouse gases must be regulated if they endanger the American people’s health and welfare. Based on an enormous body of science, EPA issued a finding of endangerment. That triggered the requirement that carbon dioxide – the principal global-warming gas — must be curtailed under the Clean Air Act. The President’s skepticism about global warming is immaterial.
The Obama Administration held listening sessions with industry and considered more than 4 million comments, a record, before finalizing the rule. It calculated that the Clean Power Plan would prevent as many as 3,600 premature deaths, 1,700 heart attacks, and 90,000 asthma attacks in children. The cost of compliance would be $8.4 billion, but the health and climate benefits would be as high as $54 billion annually by 2030.
In its latest issue, Rolling Stone gives the backstory on what’s happening here. Few CEOs were willing to back Trump in 2016 as he sought the Republican Party’s nomination. Some did, however, and Trump appointed them to a Leadership Council that gave him the idea to make deregulation a theme of his campaign.
Members of the Council included lobbyists and corporate officers in banking, homebuilding, defense, and fossil energy, among other sectors. While Trump promised publicly to “drain the swamp” in Washington, he accepted instructions from his Council on what he should do.
The to-do list included more oil and gas drilling on federal lands and keeping billions of dollars of taxpayer subsidies for fossil fuels. The hit list included killing Obama’s Clean Power Plan and cutting staff at EPA, requested by coal executive Bob Murray. Several members of the Leadership Council now serve in Trump’s administration, Rolling Stone reports.
With his refusal to honor subpoenas, Trump has put Congress in the position of defending its constitutional oversight responsibility. He also appears to be challenging Congress’ responsibility to pass laws to protect the environment. This, too, would be a constitutional crisis that Congress must resolve.