The Glaring Omissions in Trump’s Climate Rule

In an effort to get his administration back on track after a miserable week, today Trump will sign a new executive order that initiates his efforts to roll back Obama’s climate change policies.

President Trump will take the most significant step yet in obliterating his predecessor’s environmental record Tuesday, instructing federal regulators to rewrite key rules curbing U.S. carbon emissions.

The sweeping executive order also seeks to lift a moratorium on federal coal leasing and remove the requirement that federal officials consider the impact of climate change when making decisions.

The language there is important. Trump will instruct federal regulators “to rewrite key rules curbing U.S. carbon emissions.” In other words, this is a directive to begin the process. Here is the catch:

The centerpiece of the new presidential directive, telling the Environmental Protection Agency to begin rewriting the 2015 regulation that limits greenhouse-gas emissions from existing power plants, will trigger a laborious rulemaking process and a possible legal fight.

The agency must first get permission from the U.S. Court of Appeals for the D.C. Circuit, where the rule is tied up in litigation, to revisit the matter. Then, agency officials will have to justify reaching the opposite conclusion of the Obama EPA, which argued it was technically feasible and legally warranted to reduce carbon pollution by about one-third by 2030, compared with 2005 levels.

“So, for the president, even if he would like to revoke the Clean Power Plan, he doesn’t have legal authority to do that,” said Jeffrey Holmstead, a partner at the Bracewell law firm who opposes the Obama-era rule. Holmstead, who headed the EPA’s air and radiation office under President George W. Bush, said he thinks the agency can justify reversing the regulation. But “they have to justify why they have changed,” he added.

The key phrase there is that “they have to justify why they changed.” Way back in 2009, Obama laid the groundwork for the Clean Power Plan with something called the “Endangerment Finding.”

The Environmental Protection Agency formally declared on Monday that carbon dioxide and other greenhouse gases constitute a threat to human health and welfare. The move empowers the agency to regulate these emissions and gives President Obama an important tool if Congress fails to pass legislation to reduce global warming emissions.

One of the most significant things about the order Trump will sign today is that revocation of the Endangerment Finding is not included. In other words, as federal regulators begin the process of re-writing these key rules—which will certainly face court challenges—the underlying policy that supports the Clean Power Plan will remain in place.

Why would the Trump administration do that? Because overturning the Endangerment Finding would trigger massive legal battles that would require them to prove that greenhouse gases do not constitute a threat to human health and welfare. Regardless of all the climate change denials from people like EPA Administrator Scott Pruitt, it is very possible that they know the science doesn’t support them. Meanwhile, they are left with the challenge of winning legal challenges to any new rules they write with the Endangerment Finding in place.

I have to admit that it is a bit amusing to see Pruitt attacked as just another swamp-dweller by the right-wing media for this exclusion. But take a look at what Breitbart writes about the kind of person Trump has made his Director of OMB:

Of a piece with this was [Pruitt’s] recent spat with Mick Mulvaney, director of the White House’s Office of Management and Budget, over the EPA’s budget allowance.

Pruitt — supposed to be a hawk — protested that he couldn’t accept the proposed 24 percent cut in the EPA’s $8.2 billion budget. A furious Mulvaney responded by increasing the cut to 31 percent.

Those cuts, as well as the fact that Trump has failed to nominate people to key positions within the EPA, will make Pruitt’s job of re-writing rules and defending court challenges even more difficult.

The other item that is not included in the order Trump will sign today is a statement about pulling the U.S. out of the Paris Climate Accord. It looks like the president will go with the idea of leaving that one up to Senate Majority Leader Mitch McConnell. It was earlier reported that Trump was getting advice from some people to frame that as a treaty requiring Senate approval. It will be interesting to see if McConnell wants to go there.

But let’s be clear, while what Trump will do today isn’t a complete roll-back of Obama’s climate policies, it will have an affect on the biggest challenge we face as a globe.

“Meeting the U.S. terms of the Paris Agreement would require full enforcement of the current regulations, plus additional regulations,” said Michael Oppenheimer, a climate scientist at Princeton University. “It takes a comprehensive effort involving every country doing what they committed to and more.”

He said Mr. Trump’s order “sends a signal to other countries that they might not have to meet their commitments — which would mean that the world would fail to stay out of the climate danger zone.”

All I can add to that is, when it comes to staying out of the climate danger zone, elections matter.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.