The USA’s assault on environmental protection

Michael Goldhaber, IBA US Correspondent

Pic: A train loaded with coal sits on the tracks inside the now-bankrupt mining company Blackjewel’s former Black Mountain mining complex, while striking miners blockade the tracks a mile away in protest of unpaid wages, in Cumberland, Kentucky, US, 12 August 2019. REUTERS/Charles Mostoller

As the world faces up to the scale of the climate emergency, Global Insight assesses just how far the Trump administration has gone in undermining America’s ability to show environmental leadership.

Record-breaking temperatures and months of severe droughts have sparked massive fires across Australia, burning 10 million hectares of land and killing at least 30 people. With dozens of these fires still burning, United States President Donald Trump stood in front of an audience of the world’s business elite at Davos towards the end of January, and suggested that this is a time for optimism on climate change. He also attacked environmental activists, with the most prominent of them, Greta Thunberg, later pointing out that the world ‘in case you hadn’t noticed, is currently on fire’.

This was perhaps the most overt manifestation of a war waged against those seeking to protect the environment throughout the first three years of the Trump administration. ‘This administration has in many ways undermined if not abandoned the mission of the US Environmental Protection Agency [EPA],’ says Avi Garbow, former General Counsel (GC) of the EPA. The New York Times has identified 95 environmental rules that have been in the firing line, and while 37 have not yet been entirely wiped out, many of the rest are the subject of court proceedings.

‘The scale of deregulatory action under the Trump administration is unprecedented,’ adds Caitlin McCoy, who tracks each move for the Environmental and Energy Law Program at Harvard Law School. No ecological insult seems too petty to restore, from high-flush toilets in the home to plastic water bottles in national parks. At the same time, no ecological resource seems too vast to degrade, from the shelf of a continent to the tropospheric layer of the earth.

What’s most extraordinary, says Garbow, is that these rollbacks ‘don’t seem to be pegged whatsoever to the strength of the science, but are instead tied to the interests of select industries’. Intriguingly, this is actually a source of optimism for green litigators. Undue influence of lobbyists, coupled with an unhealthy disdain for science, may give environmentalists a chance to limit the damage.

Matt Leopold, the current EPA GC, takes issue with the notion that the story is simply one of deregulation. ‘That narrative is not at all what’s happening at the EPA,’ he says. ‘We are moving forward with key environmental protections. We believe you can have both environmental protection and a healthy and strong economy.’ Among many proposals he’s proud of, says Leopold, are the new Chemical Contaminant Rules, as well as the Lead and Copper Rule envisioned as an answer to the Flint drinking water crisis. More broadly, Leopold notes that the US energy sector’s carbon and methane emissions continued to fall, bucking the global trend. He also touts the US–Mexico–Canada Agreement for its cutting-edge rider, animated by green critiques of the NAFTA.

‘Part of our agenda is working on deregulation where it makes sense in order to energise our economy,’ says Leopold. ‘And that’s ‘something accepted in the developed world.’ He argues that the regulatory budget under the Trump administration – directing agencies to rescind two rules for every new one – resembles the one-for-one regulatory policies embraced by the United Kingdom, Canada and Australia.

Deregulation is often driven by the ‘rule of law,’ in Leopold’s view. The Obama EPA routinely ‘over-read vague laws’ to dictate what they saw as good policy that Congress wouldn’t enact. But ‘the Supreme Court has said clearly that you can’t find an elephant in a mousehole. Some of the rules we’re rolling back are elephants in mouseholes. We’re committed not only to protecting health and the environment, but also to following the laws and limits Congress has placed on us.’

Agency critics find Leopold’s softer remarks unconvincing. Christopher Sellers is Professor of History at Stony Brook University and Director of the Center for the Study of Inequalities, Social Justice, and Policy. He testified at the House Energy and Commerce Subcommittee on Oversight and Investigations hearing on the EPA’s troubling enforcement record under the Trump administration. ‘Despite their rhetoric of caring about the environment, all their behaviour points toward deregulating,’ he says. Their lodestar is: ‘How far can we push to get the law off the backs of industry?’

The Fossil Fuel Protection Agencies?

The President has followed the same pattern with all three cabinet-level environmental positions. He initially chose a trio of politicians long funded by the energy industry: Oklahoma Attorney General Scott Pruitt to head the EPA, Montana congressman Ryan Zinke to head the Interior Department, and Texas Governor Rick Perry to head the Energy Department – with a corporate lobbyist riding shotgun in each agency. Each came unstuck with scandal, much like President Reagan’s first EPA administrator. But, in 1983, a Democratic Senate and moderate big business pushed for an environmentalist to replace the disgraced hard-liner. By contrast, in 2018–2019, a Republican Senate replaced each with their lobbyist deputies, while the most responsible multinationals stayed silent, and smaller, more radical industries cheered.

New EPA administrator Andrew Wheeler lobbied for the notorious coal miner Murray Energy at Faegre Baker Daniels. New Interior Secretary David Bernhardt lobbied for the Independent Petroleum Association of America (IPAA) at Brownstein Hyatt Farber Schreck. New Energy Secretary Dan Brouillette lobbied in-house at Ford Motor Company. They are only three of 281 lobbyists tapped by President Trump in his first two years. Legions more were employed as either political staffers or at think tanks, with close financial ties to the fossil fuel industries.

In 2019, a recording was leaked of a 2017 meeting where the CEO of the IPAA lobby boasted to a gleeful room of fracking executives that the guy who headed their effort to weaken the Endangered Species Act ‘is now the No. 2 at Interior. So that’s worked out well.’ The group’s political director added: ‘We know him very well, and we have direct access to him, have conversations with him about issues ranging from federal land access to endangered species.’ The executives chortled as the CEO described EPA staffers who hung on his every word as the Administrator gave him a personal tour, saying, ‘Write that down, write that down’. ‘[W]e have unprecedented access to people that are in these positions who are trying to help us,’ he said, and it’s ‘very helpful’. Presumably it’s even more helpful now that the fracking lobby’s guy has been promoted to No. 1 at Interior.

By the time Bernhardt began as Interior Secretary, the inspector general had already received seven complaints about conflicts of interest while he was Deputy, with more complaints to come. In December, the department’s watchdog concluded that the Assistant Secretary for Oceans had violated ethics rules by meeting with the Koch-funded think tank where he used to work (his job was to make ‘the forgotten moral case for fossil fuels’). The Assistant Secretary then emailed his old colleague, ‘Keep fighting.’

Observers aim to link specific lobbies to new policies, which sometimes verge on self-parody. Our Global Insight feature in 2018, ‘Scott Pruitt versus the EPA’, highlighted the influence of Murray Energy, for example. The IPAA achieved their long-time goal when Bernhardt’s Interior watered down the Endangered Species Act Rules in 2019. Listing decisions must meet a tougher scientific standard for endangerment. Economic factors may now be taken into account – but climate change can’t be.

Also in 2019, Interior relaxed the Well Control Rule, which formed its main response to BP’s Deepwater Horizon spill in the Gulf of Mexico. As it eased up on measures to prevent similar offshore rig blowouts, the agency referred to American Petroleum Institute standards available on a member website.

In 2018, Interior declared open season on birds by effectively removing penalties under the century-old Migratory Bird Treaty Act. Industrial bird killing is now legal so long as a company is not in the business of hunting birds. This change topped the wish list of the Western Energy Alliance, perhaps because millions of birds are sickened in fracking wastewater ponds.

In 2017, Interior lifted the public land moratorium on coal leases and created a (short-lived) advisory body on royalties. With members drawn from fossil fuel companies like Cloud Peak Energy, the royalty panel blessed a new rule letting coal miners set their own rates.

In a similar spirit, Interior transformed its Advisory Council on Wildlife Trafficking into the International Wildlife Conservation Council. ‘It essentially became a “Safari Club” meeting space,’ says Joel Clement, who formerly ran the department’s Office of Policy Analysis. ‘There’s always been a certain amount of regulatory capture at Interior. But it was never so explicit. It’s almost as if the people coming in are trained in crossing ethical lines rather than public service.’

At the Federal Energy Regulatory Commission (FERC) – a traditionally nonpartisan agency that controls the electric grid – President Trump skipped straight to putting a lobbyist in charge. The Trump-era FERC Chair Neil Chatterjee lobbied for the coal-dependent National Rural Electric Cooperative Association, and advised Senator Mitch McConnell from the coal state of Kentucky. Green NGOs say that a technical FERC rule from the end of 2019 – forcing renewable energy companies to sell electrical capacity at artificially high prices in many of their biggest markets – is a crucial hidden subsidy to the coal sector.

Back at the EPA, Sellers reports that emboldened polluters are now pushing back against inspectors by threatening to go to their allies in the EPA brass. Across government, ‘we’re seeing a huge experiment in what happens when you bring the fox in to rule the henhouse,’ says Sellers. Agency leaders only ‘care about the regulated community,’ and above all the fossil fuel sector.

‘We reject that outright,’ responds GC Leopold. ‘We’re not captured. Our primary motivation for the regulatory decisions we make is the benefit of the American people. We’re not for any one energy type. We’re for economic growth including fossil fuels.’

Roll over Galileo

‘This administration is openly hostile to science,’ says Gretchen Goldman, Research Director of the Center for Science and Democracy at the Union of Concerned Scientists. ‘They have systematically ignored, cast aside and manipulated science. They’ve gutted advisory bodies. And they’ve mounted an all-out assault on climate science.’ In her group’s 2018 survey of federal scientists, 47 per cent at the National Park Service and 35 per cent at the EPA reported being asked not to use the term ‘climate change’. Following an executive order last June to cut the number of advisory bodies by a third, the administration killed panels on invasive species and electric grid innovation. Interior has defunded research centres on habitat loss and wildfire management. The EPA has defunded children’s health centres that helped justify regulation of ozone and pesticides (two areas where the Trump EPA suffered early court losses).

Richard Revesz, a cost-benefit scholar who directs the New York University (NYU) Institute for Policy Integrity, calls the administration an outlier in its disdain for both science and economics. In some cases – most notably in its new plan for coal power plants – the EPA’s own analysis shows foregone health benefits vastly greater than any cost savings to industry. Trump regulators seem to forget that the point of the exercise is to maximise net benefits. The Office of Information and Regulatory Affairs (OIRA), says Revesz, ‘knows how bad the analysis is,’ but ‘Trump has hollowed out the institutions,’ like OIRA, whose role it is to push for good analysis.

Many had feared that the same would be true of the EPA’s Science Advisory Board, after the President packed it with scientists who have ties to industry. But this New Year’s Eve, the Board released draft reports highly critical of the analysis underpinning EPA proposals to vastly shrink the extent of wetlands protection, lower standards for auto fuel efficiency, and undermine limits on air toxics emissions from fossil fuel power plants. The Board politely rejected the tailpipe rule’s central economic assumption as ‘implausible’, and gently noted the scientific fact that watershed systems are inter-connected. As a layman might put it, the EPA forgot that water flows.

Sellers expresses relief that even industry-friendly scientists have integrity. Clement argues more cynically that they often don’t, so the slanted advisory panels will usually help industry. In any event, this Science Advisory Board also rebuked the EPA for its Science Transparency Rule – which Goldman sees as the Trump administration’s most fundamental attack on the field.

Under the Science Transparency proposal, the EPA will only rely on scientific studies with public data. That may sound nice, but big studies with private data are the standard way to track chronic exposure to toxins. As the EPA’s scientific advisers note, such studies are usually required by law or protocol to be done anonymously – and that has never troubled peer reviewers. ‘The EPA is using the rhetoric of transparency to torpedo the gold standard study design in environmental health,’ says Sellers.

‘This rule is an abomination,’ says Revesz, ‘because it claims to embody the practices of the scientific community, while scientific leaders say that’s not at all what we do.’

Goldman says the ‘secret science’ canard has been pushed for over 20 years by dirty industries, because anonymous studies help underpin regulation of particulate matter. ‘Particulate matter kills people, so protecting people from it is cost-effective,’ she says. ‘That fact is very inconvenient if you want to roll back environmental regulation.’ As it happens, a proud climate science denier, and former coal executive, named Steven Milloy helped pioneer the ‘secret science’ strategy for the tobacco industry. Milloy served on the Trump EPA’s transition team (directed by another climate science denier), and openly claims credit for the EPA’s initiative.

Leopold, the EPA’s GC, nonetheless rejects the charge that the EPA aims to politicise science. ‘What we’re trying to do is simply allow public transparency,’ he says. ‘In order for regulatory science to support enforceable legal obligations, it needs to be public and reproducible.’

Environmental rollbacks, 2017–2019

By most counts, those seeking to protect the environment and arrest the climate crisis have done remarkably well in litigation during the first three years of the Trump administration. In 36 challenges to environmental deregulation, the administration has prevailed only once, according to the NYU Institute for Policy Integrity. That makes the government success rate an anemic three per cent, compared with an historical norm of 69 per cent in 11 studies reviewed by the Brookings Institution.

‘If Trump is a one-term President, he will have very few successes to point to on the regulatory front,’ says Revesz. ‘There’s been lots of damage along the way because he didn’t move forward where he should have. There’s been an enormous loss of expertise. But in terms of actual regulatory initiatives, he will have very little to show at the end of four years.’

Leopold says the NYU study is skewed by losses over deadlines and defences of Obama rules. Excluding those, he claims a success rate near the historical norm. When it comes to the merits, he says, ‘We’re winning on a large majority of Trump environmental actions.’

But there’s a reason the agencies would like to forget all the early administrative procedure cases they lost. ‘We saw a lot of really sloppy legal work,’ says Harvard’s McCoy. ‘A failure to provide notice. A failure to give opportunity for comment. It was the basics.’

Litigation over methane typified the pattern. In early 2017, the EPA and Interior abruptly suspended strict Obama-era rules limiting the flaring or leakage of natural gas at wells on (respectively) private and public land. Later in the year, the DC and Ninth Circuits slapped down the agencies for violating administrative procedure. In late 2018, after going through the arduous rulemaking process, the EPA proposed, and the Interior finalised, much-weakened replacement rules. Controlling this mighty greenhouse gas will depend on litigating the merits of the Trump rules in the years ahead.

US President Donald Trump gestures as he leaves a news conference at the 50th World Economic Forum in Davos, Switzerland, 22 January 2020. REUTERS/Jonathan Ernst

In some cases, delay is especially meaningful. In 2017, the Interior opened large swathes of public land and waters to fossil fuel exploration. In March 2019, federal district judges in Alaska and Wyoming blocked the opening of the Arctic until Congress acts, and halted exploration on public lands until the government considers the cumulative climate impact. The vast programmes to sully public land and waters are shrouded in uncertainty pending appeals. Meanwhile, offshore drilling in the Atlantic has met resistance from Republican governors.

In terms of human health, environmentalists scored their biggest early victory against ‘glider trucks’. By mounting a dirty old engine atop a new chassis, a glider truck spews up to 40 times more pollutants than other lorries. A 2017 EPA proposal to uncap their production would have resulted in up to 21,000 extra deaths annually. The EPA abandoned its plan in July 2018 after the DC Circuit granted an emergency stay in favour of the non-profits who challenged the rule.

Some green litigators feel triumphant, but delaying harmful rules is a limited strategy. The agencies have lost forward motion. Litigators can’t force good new rules. Yet, good new rules are desperately needed to fight the climate crisis. Meanwhile, the agencies have seen an erosion in both enforcement and expertise. At the EPA, the number of civil cases closed just saw their three lowest years for at least a quarter-century.

The number closed in 2019 was less than half the historical average from 1994 to 2016. Congress has stopped the President from slashing the EPA’s budget by over 30 per cent each of the past three years. But staffing is still at a 20-year low. Headcount at the Office of Enforcement and Compliance Assurance in DC has fallen 40 per cent. The stars who haven’t left are eyeing the exits. ‘If Trump is re-elected, agencies will be gutted by departures,’ says Goldman. ‘No one wants to work at a place where science is not valued.’

The green strategy – to run out the clock in court – will only work for most Trump-era rules if Democrats return to power in 2021. If Trump wins re-election, then all of his challenged rules will reach court on the merits. Either way, a few key rules – easing up on coal power plants, and pre-empting California’s zero-emission vehicle programme – may reach the merits this year. ‘The phase of litigating over delay tactics is over,’ says McCoy. ‘Now we have a lot of proposed rules lined up. So we’re about to move into real substantive litigation. The stakes are higher.’

Environmental rollbacks, 2020 and beyond

Will green litigators sustain success as their cases reach the merits? EPA GC Leopold likes his odds better: ‘On appellate review we’re confident our legal theories and policy rationales will be relied on.’ It doesn’t hurt that the share of Trump appointees on circuit courts is 25 per cent, and soaring. Environmentalists fear the Supreme Court is hostile, particularly since the appointment of Justice Brett Kavanaugh.

Nevertheless, Republican appointees have ruled against Trump regulators in seven of their eight environmental cases in NYU’s database. ‘Especially on questions of regulatory analysis, the courts are not nearly as political as you think,’ an impassioned Revesz argues. ‘It doesn’t matter who appointed the judge, the institution of the judiciary is working well. We haven’t corrupted every institution yet and that’s not something that’s going to happen. There’s some resilience in this country.’

The best case for green optimism on the merits rests on the Trump agencies’ shocking disregard for science and economics. In a nutshell, ‘All their bad analysis will doom their deregulatory efforts,’ says Revesz.

‘The Science Advisory Board’s draft statements show that this administration’s rationales are bogus,’ agrees Gerrard. ‘They will be Exhibit A.’

But what if the quality of Trump regulation is improving? Many greens worry that the current crop of lobbyist-regulators are savvier than the political appointments the President made first. McCoy shares this concern up to a point. She agrees that Scott Pruitt was easy to beat during the first wave of cases, because the EPA was wildly incompetent on his watch. ‘Now under Andrew Wheeler things have changed,’ she says. ‘Not to say they’re doing robust, intellectually honest legal work on par with past administrations – but it’s certainly far more sufficient and thorough.’

Revesz amusingly contests this conventional wisdom. According to his empirical work, the EPA run by a corporate lobbyist has been just as hapless as the EPA run by a political appointee. And it is still suffering the consequences in court. As a lifelong student of regulatory rationales, Revesz is especially heartened by the terrible analysis in the rule replacing the Obama Clean Power Plan.

The 2019 Affordable Clean Energy (ACE) rule aims to keep America’s fleet of coal power plants open. To justify this, the EPA slashed its social cost of carbon from $50 per ton to as low as $1 per ton, by placing no value on costs outside US borders, and an absurdly low value on the costs to future generations. But never mind the climate effects. The EPA’s own numbers show that the health costs from particulate matter – up to $75bn – will vastly outweigh the $6.4bn savings to the power industry. In human terms, the EPA projects up to 1,400 extra premature deaths annually from its handiwork, not to mention 48,000 cases of aggravated asthma. The difficulty of defending this in court explains why the EPA is so desperate to pretend that particulate matter is harmless, by smearing classic epidemiological studies as ‘secret science’.

Green litigators have an outstanding record of challenging deregulation in the first three years of the Trump Presidency. They face good prospects of continued success if appeal courts focus on the agencies’ dubious rationales, rather than restrictive interpretations of the governing statutes. President Trump has pursued the goal of deconstructing the regulatory state with as much zeal as dismantling the rules-based world order. Thanks to the maturity of US law and courts, environmental advocates have many more levers available to them in order to resist.

An environmental impact statement for the Trump administration

In January 2020, Secretary Bernhardt hailed his proposed new rules on environmental impact statements as the administration’s most consequential regulatory rollback. Under the old system, a court could block a major project like the Keystone XL pipeline based on analysis of its environmental effects. A court did exactly that in 2018, and President Trump called the ruling a disgrace. But the Keystones of the future won’t face such challenges. Privately financed projects will be wholly exempt from the National Environmental Policy Act of 1970. Publicly financed projects needn’t fret about effects that are ‘remote in time, geographically remote, or the product of a lengthy causal chain’. Legally, the US now considers climate impacts ‘insignificant’.

In the real world, any assessment of environmental impact in 2020 must prioritise the climate crisis. Power plants, vehicles and methane emissions account for nearly half of US greenhouse gases. That gives pre-eminence to the new weak power sector plan (the ACE); the new weak auto fuel efficiency standards (the SAFE Vehicles Rule); the federal challenges to California’s tough rival plan for auto emissions; and the collective methane rules (covering landfills, and new and old energy facilities on public and private land). The Science Transparency Rule belongs on this list to the degree it weakens the justification for stricter regulation of power plants and vehicles.

Carbon regulations may also have an immediate health impact by reducing particulate matter. According to an October 2019 study by the National Bureau of Economic Research, US levels of fine particulate matter, after falling nearly a quarter during the Obama era, rose by 5.5 per cent between 2016 and 2018 – a rise associated with nearly 10,000 extra premature deaths per year.

On global heating, the Trump administration has pursued its goals with characteristic creativity, and to great effect. The Energy Department is weakening efficiency standards for industrial equipment, home appliances and light bulbs. Interior has sought to open the public domain to fossil fuel exploration, and exempt most fossil fuel projects from environmental review, while jeopardising the development of offshore wind by requiring supplemental environmental review. The FERC is using an obscure price rule to protect coal, and deprive renewables of their natural price advantage. The State Department has helped to torpedo the December 2019 United Nations climate talks in Madrid, and taken climate off the agenda of this year’s G7 summit in Miami. Withdrawal from the Paris Agreement is gleefully promised for the day after the presidential election.

It’s conceivable that environmentalists will either defeat much of this agenda in court or reverse it by executive action when there’s a change of President. But, says Garbow, ‘even if none of the regulatory rollbacks have any durability whatsoever, we have still lost four years of environmental leadership on climate action. The best hope we have is the continuation of private-sector and state-level momentum, hopefully to be joined by renewed effort at the federal and international levels.’

More pessimistically, Gerrard imagines what the world would be like if President Trump remains in office for another five years. ‘In the short term,’ he says, ‘states would have to pick up the slack even further. But every year the life of coal power plants is extended means more greenhouse gases in the atmosphere; they’ll stay there for a century. In the long term we’ll have to spend a lot more money on sea walls and the like. The desperate situation that Australia is facing now will become more common in a number of different ways.’

Michael Goldhaber is the IBA US Correspondent. He can be contacted at michael.goldhaber@int-bar.org