On March 28, 2017, President Trump issued his long-awaited Executive Order that targets the principle climate change related rules and guidance of the Obama Administration. The express rationale and the title of the Executive Order is “promoting energy independence and economic growth”. The linchpin of the Order is to rescind regulations that “unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law”.
Notably absent from the Order is any discussion of environmental protection and climate change, other than a passing recognition of the need to protect clean air and clean water, “while also respecting the proper roles of the Congress and the States concerning these matters in our constitutional republic.” It is fairly predictable that this Executive Order will not have an immediate effect on energy independence and economic growth, if that means ‘ending the war on coal’, chiefly because of the reality that the energy sector has moved well beyond coal as a primary fuel for producing electricity because it needs long-term certainty and stability, because the US is more energy independent than it ever was, particularly due to the hydraulic fracking revolution, and because the attempt to rescind the “Clean Power Plan” rules will go on for years.
The Executive Order is sweeping and goes well beyond the Clean Power Plan to include, for example, proposed rescission of the Obama Administration’s regulations on fracking on federal lands, lifting of the ban on coal mine leasing on public lands, disbanding of the Interagency Working Group on Social Cost of Greenhouse Gases (IWG) and withdrawal of all of its technical reports, and revocation of numerous policies, reports and memoranda. Certain actions covered in the Order are immediate, e.g. the rescission of the CEQ Final Climate Change Guidance (NEPA). Other actions may take years to accomplish, e.g. the direction to suspend, revise or rescind both the Clean Power Plan Rule (applicable to existing coal-fired and gas-fired electric generation plants) and the Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units. The reason is the certainty of protracted lawsuits that will be brought by states, cities, renewable energy companies and private citizens against the Administration to challenge its actions. Further, the attempt to rescind such rules will be subject to the standards for judicial review of federal administrative actions: whether or not the action is in compliance with applicable law and whether or not it is arbitrary and capricious.
In light of the Supreme Court opinion in Massachusetts v. EPA (carbon dioxide is an “air pollutant” under the federal Clean Air Act) and EPA’s subsequent Endangerment Finding regarding CO2 and other greenhouse gas emissions, it will not be an easy task for the Administration to successfully defend its action. Further, even if the CEQ Final Climate Change Guidance is rescinded, an agency that does not sufficiently analyze the likely greenhouse gas impacts of a proposed major federal action under NEPA will find itself on thin ice in defending that action in court.
Finally, even if this Executive Order is ultimately successful in reversing the federal government’s rules and policies regarding climate change, it cannot prevent the states from enacting and enforcing their own laws and regulations regarding greenhouse gas reductions.
The Executive Order is a bold stroke and will undoubtedly have some significant and immediate consequences. However, the timing of its impact on the Clean Power Plan, the New Source Performance Standards for the electric generation industry and other final climate related regulations is harder to predict because of the expected litigation to come. (Since the Clean Power Plan was stayed by the Supreme Court, further delay due to litigation over its proposed repeal does not change the status quo). Further, in light of the hydraulic fracturing revolution that has led to lower prices for natural gas than coal, because most utilities have already begun moving beyond coal to natural gas, wind, solar and other diverse and less carbon intense resources, and since the U.S. is a net exporter of coal and is increasingly less reliant on imports of oil and gas, the Executive Order’s predicted impacts on energy independence and economic development appear overly optimistic.
Kenneth A. Reich, Esq., founder and principal of Kenneth Reich Law, LLC, is an experienced environmental and energy lawyer who formerly served as a trial attorney, then assistant chief of the Environmental Enforcement Section, US Department of Justice, before re-entering private practice. He writes and speaks frequently on national environmental and energy issues and teaches as a part-time adjunct at the Boston University School of Law.