Trump’s Executive Order On Energy: This Time, He Listened To The Lawyers
By Paul Homewood
President Donald Trump’s executive order dismantling large chunks of Barrack Obama’s environmental legacy is a cleverly written document that avoids the pitfalls of Trump’s controversial orders on immigration. Unlike those orders, which have been suspended by federal courts, this one bears the clear stamp of experienced government lawyers and leaves the administration with a rich variety of tactical choices on how to eliminarte Obama-era regulations on fossil fuels.
The 7-page order released this afternoon reverses a string of Obama’s presidential orders, including findings on the dangers of human-induced climate change and methane emissions. It also orders federal agencies to examine all of their actions related to the previous administration’s scientific findings on climate change with orders to "suspend, revise, or rescind" rules and regulations or begin the notice and comment period to reverse them. These are all legal steps that will spawn lawsuits by states and environmental groups opposed to the Trump administration’s regulatory rollback, but are designed to capitalize on the broad discretion given to federal agencies to interpret the law under the so-called Chevron doctrine.
The order doesn’t rescind Obama’s Clean Power Plan, which has been suspended by the Supreme Court while a Washington appeals court considers its fate. But the order lays the groundwork for rescinding the CPP by instructing Environmental Protection Agency Chief Scott Pruitt to review and potentially "take legal action" to reverse the legal memorandum the Obama administration relied upon to justify the CPP’s sweeping controls on the electric utility grid. To accomplish that goal the EPA reversed a decades-old understanding of a tangled section of the Clean Air Act. The incoming administration can choose to reinterpret it again, and it can cite as a legal defense the fact that it is merely returning to a long-held understanding of the statute.
"The lawyers really had their way with this one," said said Thomas Lorenzen, a partner with Crowell & Moring in Washington and former assistant chief of the Justice Dept.’s environmental law section. "It is a very carefully constructed order."
Eliminating the previous administration’s legal memorandum could be a speedier way to get rid of the CPP, although it would still have to go through a notice and comment period as well as the inevitable legal challenges. The government wouldn’t have to delve as deeply into the scientific record, however, which the Obama administration provided in ample detail to justify its plan. Instead, the Trump administration would argue the CPP, which takes a systemwide approach toward reducing CO2 emissions, is based on an incorrect reading of federal law. The new EPA plan could return to "inside the fence" regulations on individual power plants, still holding them to strict efficiency standards that will be hard for coal plants to meet, but not eliminating them entirely. The CPP used "outside the fence" regulations imposed on entire regional electricity grids to effectively remove coal plants from the mix.
The order also calls for the elimination of the Interagency Working Group on Social Cost of Greenhouse Gases, as well as its findings on the cost of global warming, which it pegged at $42 a ton by 2020. Effective immediately, the administration will use Bush-era standards to judge the cost of carbon emissions.
The Trump administration still faces hurdles, including a federal appeals court ruling upholding the Obama administration’s findings on the dangers of CO2 emissions from automobiles. But the new administration can use Chevron deference to its advantage here as well, Lorenzen said: The court ruling, which the U.S. Supreme Court refused to overturn, says the Obama administration’s finding was reasonable. The EPA under Pruitt need only muster enough scientific evidence to show that its findings are also reasonable, a relatively low bar for an agency to get over.