David Bookbinder | Vox

How Trump’s reckless climate policy invites a judicial backlash

2017-12-11T11:37:53-05:00

Southern Greenland. | Education Images/UIG via Getty Images

Along with his fellow climate-denial zealots in the Trump administration, EPA Administrator Scott Pruitt appears hell-bent on rolling back virtually every limit on greenhouse gas emissions he can get his hands on.

And while the administration’s dismantling of these measures is an environmental setback in the short term, the potential silver lining is that in the long term, the result may be precisely the opposite of what Pruitt & Co. intend.

While (quite literally) the rest of the world acknowledges that climate change is (again, literally) an existential threat, Congress continues to ignore the crisis. And now the executive branch is moving aggressively to scrap almost all previous efforts to reduce emissions. Like nature, policy abhors a vacuum, and we have seen some reaction already in the form of increased state regulatory efforts. Virginia is preparing to join the Regional Greenhouse Gas Initiative, the nine-state cap-and-trade system for power plant emissions, for instance, and Phil Murphy, New Jersey’s incoming Democratic governor, has promised to do likewise.

But there is another player waiting in the wings to step in to deal with the policy mess the Trump administration has created: the courts. Judges have done this before — think of civil rights, when Washington’s failure to tackle the problem of racial inequality in education led ultimately to Brown v. Board of Education — a sweeping intervention belatedly supplemented by Congress a decade later by the Civil Rights Act of 1964.

Washington’s climate policy failure may inspire similar a judicial move. Indeed, two new types of cases are beginning to wend their way through the system, both of which have the potential for dramatic impacts extending far beyond the wrangling over the legality of each particular EPA action (or inaction).

(The enviros have won the opening rounds in those fights: EPA was judicially shot down after it attempted to declare by fiat that certain Obama-era rules would not go into effect — including a new methane-emissions standard for oil and gas production. But Pruitt has hired Bill Wehrum, who has been busy litigating for industry against the Obama climate measures, as his assistant administrator for air, precisely to oversee their formal rollback. Environmental groups have limited tools to stop that formal process.)

The first line of legal attack against the Trump administration

Last year a group of children sued the government in federal court in Oregon (Juliana v. United States), claiming that they had a constitutional right to a climate capable of supporting human life, and that the government has a “trustee” responsibility to maintain the atmosphere free of “substantial impairment.” Their goal is to get the government to draft, and then execute, a comprehensive plan to dramatically reduce US emissions using the full panoply of federal authority.

The government’s response to the suit was, in part, to describe its “strong” and “substantial” efforts to tackle the problem via various regulatory measures, and to urge the court to therefore “decline Plaintiff’s invitation to short-circuit” this process. But District Court Judge Ann Aiken did not buy it. Refusing to defer to the government (the outcome you might expect), she held that the case could go forward, and in doing so, noted, “Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.”

This week, Monday, the Ninth Circuit Court of Appeals will hear argument on that decision. Pruitt has been targeting almost all previous efforts to reduce emissions, including vehicle tailpipe standards and emissions limits at coal- and gas-fired power plants. None of the developments since Judge Aiken’s decision are likely to persuade the Ninth Circuit that she got it wrong.

Nor is the Ninth Circuit the only court in which the Trump administration’s climate rollbacks will be an issue. On November 6, Pennsylvania’s Clean Air Council filed a similar case in federal court in Philadelphia (Clean Air Council v. United States), alleging that the government has violated its constitutional duty to maintain a stable climate system, and violated its trust responsibility to preserve natural resources — including the atmosphere. A solid 16 pages of the complaint describe the administration’s war on climate science and its reversal of the Obama administration’s (unfortunately modest) climate efforts. The plaintiffs argue that these actions “increase the clear and present danger of climate change.”

Ultimately, of course, the Juliana plaintiffs would have to convince the Supreme Court. And while they’d have a steeply uphill battle if the high court were asked to vote today, the dynamic will change as the climate problems get worse, and as the record grows richer as lower courts review the facts and weigh the legal issues.

The constitutional claim that would demand a particular climate policy remains an extreme long shot, but courts have been sympathetic to the view that the government has a “public trust” duty with respect to natural resources. Five years from now, the Juliana plaintiffs might well have a chance of swaying five justices.

Meanwhile, suits in state courts seek compensation for the costs of adapting to climate change

While Juliana and Clean Air Council seek a serious and comprehensive government regulatory effort, another set of cases seek to effect change by going after a different set of actors: corporations contributing to global warming. Local governments along the California coast have filed five cases under the centuries-old “public nuisance” doctrine. Here, the plaintiffs seek to get the fossil-fuel industry to help pay for the expense of adapting to sea-level rise caused by climate change.

Importantly, these nuisance cases are in state court, which means they will likely avoid this Supreme Court, which has zero interest in holding corporations accountable for their environmental externalities. Importantly, at bottom these cases are about property — not complex constitutional jurisprudence or abstruse concepts like the public trust doctrine. Judges are extremely familiar with property; the root of the common law could be summed up as, “You did something that damaged my property and so now you have to pay for it.”

If and when those claims reach the California Supreme Court — they are currently locked in jurisdictional wrangling — the Trump administration’s actions will not make those judges any more inclined to leave this issue to the fools in Washington.

Thus, ironically, the Trump climate agenda, by making judges sympathetic to arguments that might have seem far-fetched a while ago, may help save the planet after all. That’s the good news. The bad news is that, from a national policy perspective, it will do so in the least efficient way imaginable.

Climate policy is no different than most other national issues. The best solution is tailored congressional legislation. The second-best solution is a regulatory program using existing agencies and legal authority.

Intervention by the courts isn’t a great way to make policy, but it may be all we’ve got

The third-best solution, by far, is leaving this to whichever state and federal judges are randomly assigned to these cases, to rule on the specific claims raised by a given set of plaintiffs against whichever defendants they’ve sued, and awarding whatever relief is appropriate for the particular facts, legal claims, and parties are in their courtroom. (Full disclosure: I’ve written an amicus brief on the public trust doctrine in Juliana, and have been consulting with lawyers working on the nuisance cases.)

But that third-best option may be the only avenue now open. Back in 2007, when the Supreme Court held that CO2 was a pollutant that could be regulated under the Clean Air Act, Republicans bemoaned the “regulatory train wreck” that would come from just EPA Clean Air Act regulation. And that was a single agency using its authority under one statute. Trump’s election put that effort on hold, but the day may come when those Republicans wish they could rewind time and accept that train wreck.

Consider the range and complexity of the legal attacks on those who refuse to act to ameliorate global warming. Judge Aiken is being asked to order the entire federal government to come up with a plan to phase out fossil fuel use; the Pennsylvania case asks for an order ending the regulatory rollbacks.

Two of the California cases assert a single claim in an effort to make five oil companies pay for San Francisco’s and Oakland’s cost of building seawalls and other infrastructure made necessary by to sea level rise, while the other three California cases assert eight separate legal grounds for why some three dozen fossil fuel defendants should not only pay their adaptation costs, but punitive damages as well.

Additional local government cases — both in California and elsewhere — are in the works. Each state, and each state’s laws, represents a separate opportunity to establish liability, improving the likelihood of success somewhere. And entire states are contemplating the same sort of cases against the fossil fuel companies that they brought against the tobacco industry. (The suits would analogize the costs of adapting to a changing climate to the increased health care costs that they were forced to bear due to smoking.)

In other words, with the government unwilling to deal with climate issues, lots of clever lawyers are busy thinking up new and exciting ways to screw with the fossil fuel companies.

There you have it: The Trump administration’s climate policy (for want of a better word), may precipitate a judicial reaction eventually leading to greater restrictions on fossil fuels than anything contemplated under the regulatory program Scott Pruitt inherited. And if that happens, it will achieve this in a far more fragmented, ad hoc, uncoordinated — and thus significantly more expensive — manner than any such regulatory program.

Unintended consequences, indeed.

David Bookbinder is the chief counsel at the Niskanen Center, a libertarian think tank in Washington, DC.

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Obama had a chance to really fight climate change. He blew it.

2017-04-29T07:23:51-04:00

President Obama speaks about climate change on Earth Day in 2015, in Everglades National Park | Joe Raedle / Getty

On Saturday, the People’s Climate March will take to the streets because “everything we have struggled to move forward in the United States is in peril,” according to the march’s organizers. But how much progress has there really been, in the United States, to reduce the impact of human activities on the climate?

What are these great accomplishments that are “in peril”? Fewer than many activists on the left, particularly supporters of President Obama, would like to admit.

In a draft of an article that will appear in the Harvard Environmental Law Review, the Harvard Law professor and former Obama official Cass Sunstein offers the rosiest possible evaluation of Obama’s legacy: “With a paralyzed Congress, the executive branch proved able, between 2009 and 2016, to use regulatory authorities to take a remarkable variety of steps to reduce greenhouse gas emissions.”

The results, he added, were “closely akin to what might have been done through aggressive congressional action.”

I’m skeptical. Despite vigorous recent attempts to greenwash his legacy, President Obama’s climate policy in his first term was largely indistinguishable from George W. Bush’s. Both fought mightily to avoid greenhouse gas regulation — Bush because he didn’t care about the issue, Obama because it was a lower priority than health care and, after the Affordable Care Act passed, because of fear of the political consequences. Only after the 2012 election did Obama show any appetite for actual emissions regulation, and by then it was too little — and way too late.

Why “too late”? Better late than never, you might think. The catch, and it’s a big one, is that regulations that came out in the second half of 2016 can be killed via the Congressional Review Act (CRA) — eliminated through a simple-majority vote of both houses of Congress, and the president’s signature. Such climate-related regulations that Obama issued exist at the whim of the Republican House and Senate — and we know the inclinations of the Republican Congress.

While the CRA threatens only regulations issued in late 2016, more worrying is the fate of any regulation that is still being litigated by the affected industries. Trump’s EPA can easily undo those regulations by agreeing to reconsider the issues being litigated and then eliminating all the aspects of the rules industry doesn’t like.

Even Obama’s “signature” issue, the Clean Power Plan, which would reduce emissions at power plants — the largest CO2 source in the United States — is at risk because of his administration’s foot-dragging.

Obama pursued policies without giving enough thought to how easily they could be undone

Obama’s climate strategy was a sound one, in short, only if he was 100 percent sure that Hillary Clinton (or another Democrat) would succeed him. Apparently, he and his staff did not recall that the last time one Democrat replaced another Democrat in the White House by election was in 1856, when James Buchanan succeeded Franklin Pierce.

Compared with both initial expectations and recent hype, there is simply far less substance to the Obama administration’s climate accomplishments than meets the eye.

That is not to say that the administration deserves no credit. Some of its victories occurred out of the limelight and deserve more attention — as in the case of the little-known Appliance and Equipment Standards Program. Through that program, dozens of standards have been issued by the Department of Energy, largely without fanfare or litigation, that reduce electricity used by everything from dishwashers to walk-in freezers. Quietly, cumulatively, and over the long haul, these standards will significantly reduce US CO2 emissions.

A second significant accomplishment was developing a measure to quantify the social cost of carbon (SCC), an estimate of how much damage each ton of CO2 emitted today will cause in the future. That is a fiendishly complicated task, but critically important for new regulations. That’s because regulations in this area must be justified by cost-benefit analysis; without factoring in the true cost of carbon, many future climate rules might not pass muster.

The Obama administration quickly set up an interagency working group to produce a uniform SCC estimate (albeit in a somewhat secretive process that did not allow for public notice and comment), and produced its first SCC values in 2010. And while Trump has already deep-sixed it by way of executive order, the value of that work will remain to be used by future administrations.

However, as important as the social cost of carbon was, only one Obama-era regulation relied on it in order to pass the required cost-benefit analysis. That regulation, methane standards for oil and gas production, is squarely in EPA Administrator Scott Pruitt’s crosshairs: Trump’s Environmental Protection Agency plans to “reconsider” all the issues the oil and gas industry did not like, which will surely result in gutting the entire rule.

Even Obama’s showpiece CO2 program, the Clean Power Plan, did not rely on SCC in order to pass cost-benefit analysis. Instead, the CPP’s cost-benefit calculation hinged on the benefits of reducing conventional pollutants, which on their own outweighed the plan’s compliance costs.

Then there is the Paris climate agreement, an amazing achievement (although it did not achieve nearly enough): 197 nations each agreed to take steps to reduce their greenhouse gas emissions. Paris would never have happened without US leadership, although it is ironic that through it, the Obama administration may end up effecting more change overseas than at home.

But now for the bad news.

A fateful delay in regulating CO2 from power plants

Lamentations over how sad it is that the Trump administration is going to kill the centerpiece of the Obama climate legacy, the Clean Power Plan, ring hollow to those of us who know the history of the CPP. You know what’s sad? How long and how hard the Obama EPA fought against imposing CO2 standards for these plants. They were fearful of the political consequences. When finally forced into doing so, the EPA finished them so late that Pruitt will hardly have to lift a finger to get rid of them by agreeing to “reconsider” the entire rule.

Samuel Corum / Anadolu Agency / Getty" data-portal-copyright="Samuel Corum / Anadolu Agency / Getty" />

In 2006, the Bush EPA refused to regulate power plant emissions on the grounds that it did not have Clean Air Act authority to regulate CO2, because it was not a pollutant. That decision was challenged by a coalition of states and environmental groups, and it was in court when, in 2007, the Supreme Court, in Massachusetts v. EPA, held that CO2 indeed qualified as a pollutant under the Clean Air Act. In light of Massachusetts, the court handling the power plant case sent the EPA’s decision back to the agency, with instructions to reconsider its position. The Bush EPA ran out the clock without doing anything more, so that decision was sitting around when the Obama administration arrived.

Yet Obama’s EPA continued to sit on the issue, even though the states and environmental NGOs were pleading with the agency to start work on power plants. Only after being threatened with a lawsuit did the EPA capitulate, and not until December, 2010 — almost two years into the Obama administration — did it sign a settlement agreement. Under the terms of that agreement, the EPA would issue proposed rules for new and existing power plants by July 2011, and final rules for both by May 2012.

(Some apologists for the Obama administration have justified the delay by arguing that political attention was rightly focused in 2009 on the comprehensive Waxman-Markey climate bill — which would have established a cap-and-trade system for limiting emissions. That excuse doesn’t fly. Waxman-Markey passed the House in June 2009 and then died immediately in the Senate, with no hope of 51 votes, let alone overcoming a filibuster. More damningly, many activists had pleaded with the EPA to work on power plant regulations specifically to encourage Congress to encourage a more market-oriented approach. And of course it would have been useful to have the regulatory process well underway in the likely event that Waxman-Markey failed — as it predictably did.)

The EPA then proceeded to ignore the settlement agreement concerning power plant emissions. (Ignoring settlements was a pattern for the Obama EPA.) It did not propose standards for new plants until March 2012, and did not propose any standards for existing ones, the actual source of emissions. In response to election-year objections from the coal industry, EPA withdrew the proposed regulation and did not come up with a replacement until another 18 months had passed. EPA only got around to proposing existing plant standards — the Clean Power Plan — in June 2014, fully three years after it had promised to do so.

Because the EPA did not finish these standards until 2015, they were still being litigated when Donald Trump arrived, which makes it extremely easy for him to avoid implementing them. All of this was foreseeable. Let’s stipulate a generous four years from the start of the regulatory process to a final rule. If the Obama administration had started work in 2009, it would have been finished by 2013, and the legal challenges would have been over and done long before the Obamas left town.

Obama let slip the chance to regulate the CO2 emissions of oil refineries

And that is not the worst of it. The Clean Power Plan’s demise is small beer compared with the effect of the Obama EPA’s grossly irresponsible failure to deal with oil refineries.

First, a bit more about the Clean Air Act. Each Clean Air Act “stationary source category” — power plants, cement factories, steel mills, pipelines, and the like — has its own set of emission standards, and CAA Section 111 says that every eight years the EPA must review and, if appropriate, revise these standards.

After Massachusetts, you might think the EPA would now have to start including CO2 standards as part of that review. (Recall that the Supreme Court found that CO2 should be considered a pollutant.) However, in a 2008 decision refusing to regulate refinery CO2 emissions, the Bush EPA said that Section 111 does not require the EPA to consider CO2 emission standards in these periodic reviews.

A year into the Obama administration, the EPA agreed to reconsider the Bush EPA’s refinery decision. A year after that, the agency signed a settlement agreement committing to propose emission standards for both new and existing refineries by December 2011, and to issuing a final rule by November 2012. These would include appropriate CO2 emissions standards.

Despite the settlement, no such standards were ever proposed or finalized. More critically, in its eight years, the Obama EPA never reversed the Bush EPA interpretation that the Clean Air Act does not require that CO2 emissions must be included in the periodic Section 111 review.

With Hillary Clinton’s defeat, the opportunity to reverse that wrongheaded Bush-era decision has been lost. Unless the DC Circuit can be convinced that the Bush interpretation (now presumably the Trump interpretation as well) is wrong, any limits on CO2 from stationary sources now face a multi-year, steeply uphill slog through EPA and the courts.

The legal challenge environmentalists now face, due to the Obama administration’s unconscionable delay, is immense. Under legal rules, the DC Circuit would have to conclude not just that any EPA decision to not regulate CO2 was incorrect but that it was “arbitrary and capricious.” Anyone who has ever litigated against the EPA knows how mind-bogglingly difficult it is to overcome the great deference courts give to this kind of agency decision.

And that is how the Obama EPA dealt with the two largest stationary CO2 sources. I could go on (don’t get me started on cement kilns, or the EPA’s “best available control technology” guidance), but you get the picture.

There has been progress on car and truck emissions — but California should get the credit

Obama climate apologists love to talk about the great things done to regulate CO2 emissions from cars and trucks, but in this case, they are trying to sign his name to someone else’s work.

For cars, the only thing the EPA should get credit for was granting a Clean Air Act waiver that allowed California to set its own CO2 standards for vehicles. That was not a very heavy lift: It was a campaign promise that President Obama ordered the EPA to make good on in his first week in office. A few months later, Obama and the auto industry had a photo op in the Rose Garden, with automakers agreeing that the California standards would become the national ones.

This, however, was pure smoke and mirrors. Once EPA granted the waiver, California’s standards went into effect there and in more than a dozen other states that followed California’s lead, totaling about 40 percent of the US car market. But here’s the catch: The auto industry had already announced that it would only build a single “California-compliant” fleet for the whole country. It had already established the California standards as the de facto national ones. The much-ballyhooed federal standards merely made them officially so.

There was never much doubt that the EPA would grant a waiver for California. Such requests are almost automatically granted, and the Bush EPA had denied it on completely bogus grounds. To be sure, this was a victory for the climate, but Obama can’t take the credit.

The same holds for the second round of these standards for model years 2017 to 2025: The EPA simply adopted California’s de facto national standards. While Trump and Pruitt have made clear that they intend to ax the complementary federal standards, unless they also succeed in revoking the California waiver (legally, very difficult to do), losing the federal standards will not add a single ton to US vehicle emissions.

Obama’s defenders further maintain that the EPA and the Department of Transportation issued the first-ever truck CO2 standards in 2011 on their own initiative. Nonsense. The 2007 Energy Independence and Security Act mandated that the DOT (in consultation with the EPA and the Department of Energy) create a “fuel efficiency improvement program designed to achieve the maximum feasible improvement.” (To a rough approximation, fuel efficiency and CO2 emission standards are the same thing.) The Obama administration does, however, get full credit for a second round of more stringent standards, which it was not legally obligated to issue.

Overall, the Obama climate change legacy is weak

The Obama administration simply did not make climate a priority. While California took the lead on cars, the Obama EPA wasted enormous amounts of resources in its doomed power plant regulations by ignoring pleas to work faster. And by failing to change the Bush EPA refinery rule, they handed the Trump EPA an excellent excuse to do nothing about refineries or other “stationary sources.” And by waiting so long on other climate regulations, such as the oil and gas methane rule, they made it easy for Trump and congressional Republicans to wipe out most of their accomplishments.

Marching to promote action on climate change is a worthy endeavor. But let’s also be clear how little happened under President Obama’s watch. On this issue, history will not judge him kindly.

David Bookbinder is the chief counsel of the Niskanen Center, a libertarian think tank. He is former chief climate counsel of the Sierra Club. (Disclosure: The author represented natural gas vehicle interests during the litigation over federal emissions standards for trucks.)