Turning a Blind Eye: The Trump Administration's Flagrant Disregard for the Warming Effects of Methane on the Earth's Climate.

AuthorSmarra, Sierra J.

"America is now under siege by climate change in ways that scientists have warned about for years. ... Decades of growing crisis are already locked into the global ecosystem and cannot be reversed. This means the kinds of cascading disasters occurring today ... are no longer features of some dystopian future. They are the here and now, worsening for the next generation and perhaps longer, depending on humanity's willingness to take action." (1)

  1. Introduction

    The constantly evolving and devastating effects of climate change are evident on a national and global level. (2) The 2020 Atlantic hurricane season, with thirty named storms, shattered previous records. (3) In the United States, fires burned over 8.5 million acres of land in 2020 alone, a staggering increase over previous years. (4) Greenhouse gases (GHGs) are known to cause climate change, with methane being the second biggest GHG contributor after carbon dioxide. (5) Methane, which has a relatively short life span of about ten to twenty years, warms the planet eighty-six times as much as carbon dioxide. (6) The Environmental Protection Agency (EPA) assigns a Global Warming Potential (GWP) to each GHG in order to properly compare them with each other because each GHG warms the planet at a different rate. (7) Methane has a GWP that is at least twenty-eight times greater than carbon dioxide. (8)

    Methane's intense warming power is especially alarming considering scientists' new estimate that the Earth's climate will reach a "tipping point" within the next few decades. (9) In climate science, a tipping point occurs when a small change causes a dramatic shift to the entire system; put another way, a tipping point is "the straw that breaks the camel's back." (10) While climate science is still developing, there is strong evidence that systematic shifts caused by tipping points will be permanent and irreversible. (11) Currently, there are nine tipping points on the verge of causing abrupt or irreversible change to parts of the Earth's climate. (12) Climate change has already had devastating effects on our health and economic welfare; once a tipping point is triggered, life as we know it will never be the same. (13)

    Permafrost, which includes frozen rock and soil, covers large swaths of the northern hemisphere, and contains twice as much carbon as the current atmosphere because it has accumulated over thousands of years from decaying organic material. (14) The Intergovernmental Panel on Climate Change (IPCC) found evidence of permafrost melt, with temperatures changing by 20-30C as of 2020. (15) Permafrost melting can trigger a tipping point because it releases enormous amounts of GHGs that have accumulated over thousands of years. (16) Once permafrost begins to melt, the effects will be irreversible on a human timescale, meaning accelerated climate change has already begun. (17)

    Methane accounts for 10% of GHG emissions in the United States and is mainly emitted from energy, industry, agriculture, and waste management activities. (18) The oil and gas industry is one of the primary sources of methane pollution in the United States, accounting for 30% of emissions in 2019. (19) The oil and gas source category is broken down into five segments: natural gas production, oil production, transmission and storage, distribution, and processing. (20) Copious amounts of methane gas, for example, escape from natural gas systems when the natural gas is purified and transported through pipelines for industry use. (21) Consequently, methane leaks account for $2 billion per year in losses for the natural gas industry. (22)

    Despite these harsh realities, the EPA under the Trump Administration implemented Rule EPA-HQ-OAR-2017-0757 (Trump Rule), which repealed New Source Performance Standards (NSPS) for the oil and gas industry previously implemented under the Obama Administration. (23) The Trump Administration established the rule in order to cut industry costs and unburden the oil and gas industry from so-called "redundant requirements." (24) As a result, the Trump Administration focused on the static industrial costs of regulation, instead of protecting the public health and welfare of the American people, which the Clean Air Act (CAA) requires. (25)

    In 2009, the EPA made an Endangerment Finding that determined GHGs, including methane, significantly contributed to air pollution and endangered public health and welfare. (26) Under the CAA, the EPA must regulate any air pollutant that may endanger the public health or welfare. (27) The 2009 Endangerment Finding and the 2016 Endangerment Finding for methane both obligated the Trump EPA to regulate methane within section 111(b)(1). (28) The Trump EPA disregarded these findings when it enacted the current rule and reversed NSPS, violating the EPA's duty under the CAA to protect public health and welfare in the face of danger. (29)

    The EPA's flagrant disregard for its duties will inevitably lead to irreversible harm on our environment. (30) This Note begins with a history of GHG regulation, the CAA, and accompanying jurisprudence. (31) This Note then details significant Obama EPA rules regulating GHGs and methane, including Rule EPA-HQOAR-2010-0505 (Obama Rule). (32) Next, this Note outlines the Trump EPA actions that set the stage for the Trump Rule and mass deregulation. (33) This Note then asserts that the Trump Rule violates the CAA because the EPA's founding principles, the 2009 Endangerment Finding, prior jurisprudence, and the Obama Rule findings obligate the EPA to regulate methane. (34) Lastly, this Note suggests that the EPA should reimplement methane NSPS for the oil and gas industry, and that Congress should develop legislation to further decarbonization before the climate reaches a tipping point. (35)

  2. History

    1. History of the EPA's Reluctance to Regulate GHGs in Accordance with the CAA

      President Richard M. Nixon created the EPA in 1970, and its first director, William D. Ruckelshaus, intended to establish a strong, independent agency that would adhere to the following guiding principles: support the scientific process and rely on scientific results; adhere to rule of law, including faithful implementation and enforcement of environmental laws; and avoid excessive politicization. (36) These guiding principles are juxtaposed with the presidential control model, which requires agencies to work under the direct authority of the President. (37) Partisan environmental policy became prevalent shortly after the EPA's introduction and has since continued. (38)

      1. Massachusetts v. EPA

        The Trump EPA's politicization of the climate issue and blatant disregard for scientific facts directly contradict the EPA's guiding principles. (39) The Bush Administration similarly attempted to politicize the climate issue and agency expertise, but the Supreme Court struck down that attempt in Massachusetts v. EPA. (40)

        In Massachusetts v. EPA, the Supreme Court contemplated whether the EPA had a statutory duty to regulate GHGs, and if so, whether the EPA's stated reasons for declining to regulate were consistent with the CAA. (41) The Court noted that the broad definition of air pollutant found in section 302(g) embraced all airborne compounds of whatever stripe, including methane, because of the unambiguous and repeated use of the word "any" in the CAA. (42) The Court subsequently held that the EPA had a statutory obligation to regulate GHG emission standards for new motor vehicles and could only avoid this obligation by either determining that GHGs did not contribute to climate change or by providing a reasonable explanation for why the EPA refused to regulate despite GHG contribution to climate change. (43) The EPA offered many politicized excuses for its refusal to regulate GHG emissions, but the Court invalidated each one and demanded that the EPA justify its refusal to form a scientific judgment. (44) The Court's insistence on a scientific judgment potentially stemmed from their fear of the politicization of agency expertise, which had become commonplace in the Bush Administration. (45)

        The Court in Massachusetts v. EPA combatted the growing politicization of agency expertise in narrowing the basis on which the EPA could refuse to regulate GHGs by excluding political factors from the analysis and focusing exclusively on technocratic factors. (46) The Court narrowed the relevant factors to prevent the EPA's arbitrary refusal of GHG regulation from convoluting the basic purpose of the CAA. (47) This decision set off a regulatory chain reaction, which had an effect far beyond the scope of automobile emission regulations because of the CAA's interconnectivity. (48)

      2. The 2009 Endangerment Finding

        The EPA made the 2009 Endangerment Finding in response to the Court's holding in Massachusetts v. EPA and used scientific data as justification to unequivocally hold that six well-mixed GHGs endangered public health and welfare. (49) These six well-mixed GHGs were responsible for 75% of anthropogenic climate change, which motivated the EPA to take action. (50) The United States Global Change Research Program (USGCRP) assessment evidenced the need for swift action due to the imminent threats caused by the warming climate. (51) The assessment evidenced an unambiguous and alarming thirty-year-trend, with the warmest years occurring in the past decade. (52)

      3. Coalition for Responsible Regulation v. EPA

        Two years after the Supreme Court decided Massachusetts v. EPA, the EPA initiated four rules, which the Coalition for Responsible Regulation (CRR) challenged as arbitrary and capricious in Coalition for Responsible Regulation v. EPA. (53) CRR argued that one of the rules, the 2009 Endangerment Finding, was improperly based on scientific judgment and devoid of public policy and regulatory concerns. (54) CRR disputed the validity and certainty of the scientific evidence used to support the 2009 Endangerment Finding because the data failed...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT