Environmental Law in the Trump Administration
| Publication year | 2017 |
Environmental Law in the Trump Administration
Robert V. Percival
The election of Donald J. Trump to be the 45th President of the United States understandably horrified environmentalists. During his campaign for the presidency, Trump vowed to abolish the U.S. Environmental Protection Agency ("EPA") and he pledged to kill EPA's most significant new initiatives to control air and water pollution.1 Calling climate change a "hoax," Trump promised to "cancel" the Paris Agreement that established a new framework for global efforts to respond to this problem.2
While it is too early to predict with confidence how environmental law will fare in the Trump administration, it is clear that it will be markedly different than it would have been if Hillary Clinton had been elected President. But because Trump truly is a Washington outsider who is beholden to neither of the two major political parties, he actually may have an opportunity to craft reforms that benefit both business and the environment. Whether or not he actually will do so is anyone's guess.
Reform, But Do Not Abolish, EPA
First, President Trump must realize that while he embraced the Tea Party's extreme, anti-EPA rhetoric during the campaign, he did not receive a mandate to gut America's environmental safety net. His principal opponent won the popular vote by more than 2.2 million votes.3 Trump's victory in the Electoral College was aided by his extravagant promises to rust belt and coal-state voters, but very few of even Trump's most ardent supporters want to see the U.S. experience the kind of air and water pollution problems that plague China
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today.4 Air pollution is estimated to kill 1.6 million Chinese every year and it is so bad at times that airports, schools and factories have to be shut down.5 In a meeting with editors of the New York Times on November 22, President-elect Trump stated, "Clean air is vitally important. Clean water, crystal clean water is vitally important."6 Trump should appoint an EPA administrator who shares these sentiments and back off from his previous pledge to shut down EPA.
There is no shame from on-the-job learning, as previous presidents have done. During his 1992 presidential campaign, Arkansas governor Bill Clinton pledged to reduce the size of the White House staff by 25 percent.7 To partially fulfill this pledge, Clinton announced shortly after taking office that he was abolishing the Council on Environmental Quality ("CEQ"), a tiny agency located in the Executive Office of the President. He did not appreciate that this required an act of Congress because CEQ was established by the National Environmental Policy Act. He did not comprehend that the tiny agency had bipartisan support for its highly regarded work helping other federal agencies comply with environmental impact assessment requirements. Ultimately, Clinton's effort to abolish CEQ failed.8
President Trump does not have the authority to abolish EPA by executive fiat; only Congress can do so by enacting new legislation. EPA was created in 1970 by an executive order issued by President Nixon pursuant to the Reorganization Act of 1949. That Act was amended in 1977 and 1984 to require express congressional approval before an agency like EPA can be abolished.9 If Trump were foolish enough to seek legislation to abolish EPA, Democrats in the Senate, who increased their numbers to 48, can use the filibuster to block such a radical move. On November 23, Sean Spicer, a
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spokesperson for Trump's presidential transition team, stated that Trump had no plans to eliminate federal agencies.10 This at least is a hopeful sign.
Appoint Agency Officials Who Care About Environmental Protection
Nearly all the nation's federal environmental laws were enacted during the 1970s by overwhelming, bipartisan majorities in Congress. When President Reagan took office in 1981 he moved aggressively to roll back some of these laws and appointed agency heads actively hostile toward their implementation. This generated a strong public backlash that resulted in the laws being significantly strengthened by Congress during the 1980s.11
Like Trump, President Reagan had campaigned against environmental regulation. In the days before Twitter existed, Reagan opined that "trees cause more pollution than automobiles," spawning protesters in tree costumes carrying signs saying, "Cut us down before we kill again."12 Reagan appointed people widely perceived to be anti-environmental to top positions in EPA and the Department of Interior. They waged ideological wars against environmental protection that ended in scandals and forced resignations. A top EPA official was sent to jail for lying to Congress after attempts to cover up political manipulation of the new Superfund program fell apart.13
To his credit, Reagan responded to these scandals by bringing back William Ruckelshaus, EPA's first leader during the Nixon administration, to restore the agency's credibility. He also fired Interior Secretary James Watt after he exulted that the members of a federal advisory committee overseeing efforts to expand coal leasing included "a black, a woman, two Jews and a cripple."14 In today's coarser political discourse, Watt's comments might have gone unnoticed, but they were the last straw for an agency head who had inflamed public opinion through his aggressively anti-environmental policies
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(and for not letting the Beach Boys perform during a Fourth of July celebration on the National Mall).
The Reagan administration's experience demonstrates the importance of choosing agency heads who will command bipartisan respect. There are plenty of conservatives who care about the environment whose appointments will not mire their agencies in ideological wars. President George W. Bush understood this when he selected New Jersey Governor Christie Todd Whitman to be his first EPA administrator. However, he let Vice President Richard Cheney undermine her authority when crucial environmental decisions were made. Few remember that during the 2000 presidential campaign Governor Bush promised in a major energy speech on September 29, 2000, that, if elected, he would ask Congress to adopt new legislation to limit emissions of CO2, the most ubiquitous greenhouse gas.15 Shortly after President Bush took office, Whitman, after confirming that Bush stood by his pledge, told a gathering of the world's environmental ministers on March 4, 2001 in Trieste that Bush would act to control U.S. emissions of greenhouse gases. However, when Whitman arrived back in Washington, she learned that, at the behest of Vice President Richard Cheney, Bush had repudiated his pledge on March 13, 2001.16
In its eagerness to shift gears on climate change, the George W. Bush administration made a huge strategic error when it officially denied a longstanding petition to use the Clean Air Act to control greenhouse gas emissions. This opened the courthouse door to environmentalists and led to the U.S. Supreme Court's landmark Massachusetts v. EPA decision. By a 5 to 4 vote the Court held that the EPA does have the authority to regulate greenhouse gas emissions under the Clean Air Act.17 The Court held that EPA's reasons for failing to regulate greenhouse gas emissions were based on factors not relevant under the Clean Air Act and it mandated that EPA determine whether such emissions endanger public health or welfare.
Through his political appointments President Trump can profoundly change EPA. But if he puts fierce opponents of protecting the nation's environment and natural resources in charge of the environmental agencies, he
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is likely to accomplish far less than if he appoints respected conservatives who care about the environment.
Pursue Even-Handed Regulatory Reform Rather than Windfalls for Crony Capitalists
Like Presidents Reagan and George W. Bush, President-elect Trump will enter office after campaigning against environmental regulation. But, as noted above, the anti-regulatory zeal of the Reagan and Bush appointees often backfired and spawned even more onerous regulations. For example, President Reagan appointed a Task Force on Regulatory Relief, chaired by Vice President George H.W. Bush. This group canvassed corporate CEOs to identify regulations they wanted repealed. After petroleum refiners complained about limits on the amount of tetraethyl lead they could add to gasoline, the Reagan White House directed EPA to repeal them.18 Despite President Reagan's efforts to require agencies to base regulatory decisions on cost-benefit analysis, his administration did not apply these requirements to proposals to rescind regulations. Thus no cost-benefit analysis was done of the proposal to repeal the lead limits even though it would sacrifice the health of countless children for tiny cost savings.19
The proposal to rescind the lead limits generated a firestorm. Even...
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