Not So Fast, Mr. Trump

Donald Trump, accompanied by Scott Pruitt and Ryan Zinke, today signed a comprehensive and sweeping Executive Order purporting to roll back multiple final rules and Executive actions of his predecessor aimed at dealing with the climate and other environmental impacts of developing US coal and natural gas and oil.

But even Administrator Pruitt will have to agree that the process matters and the rule of law matters – he has said so, repeatedly. So, while his boss’s broad and sweeping executive order[s] may seem to have cancelled the momentum for U.S. progress on climate change by directing revision or rescission of the Climate Action Plan and the rules on power plants and the oil and gas industry implementing the Plan, in our Constitutional democracy, due process does matter and final agency rules cannot be swept aside by administrative fiat.

In that sense today’s Executive Order is nowhere near as powerful as Mr. Trump made it seem. And, even fully implementing this order will not hand coal miners back their jobs because the Obama era regulations are not the reason they were lost.

That’s because the law requires significant regulatory process before the Clean Power Plan or any of the rules Mr. Trump has identified are revised, much less rescinded. As others have noted, undoing any of the targeted rules requires a full notice and comment rulemaking. And reversing course requires a new science-based record showing the change is not arbitrary and capricious, and that it does not harm the very “stakeholders” the Clean Air Act was designed to protect – those most at risk of the harms of air pollution.

Moreover, notwithstanding Mr. Pruitt’s recent remarks to the contrary, carbon dioxide and methane from human activity are beyond a doubt proven to be the dominant cause of global climate change and the damage it causes, and the Clean Power Plan and the other rules targeted in the Executive Order are based on this international scientific consensus.

So — rolling back these rules is not going to be easy for the Trump Train – or even possible, where it requires undoing scientific truths. The Clean Power Plan is eminently reasonable – reflecting actions the power sector is already taking: a shift from higher-emitting to lower emitting sources of electricity – and provides the least expensive alternative available to achieve reductions from existing power plants, which are the largest industrial emitters of climate pollution. As such, it benefits all stakeholders, while also taking the first steps towards sound climate protections that are the duty of the Administrator. Mr. Pruitt correctly said during his confirmation hearings: “the Endangerment Finding is there and needs to be enforced and respected.” And of course the U.S. Supreme Court recognized in 2011 – over 5 years ago – that the Clean Air Act is the only available vehicle for regulating greenhouse gas emissions from existing power plants.

But we know from Mr. Pruitt’s positions when he was the Oklahoma Attorney General attacking the Clean Power Plan, and other EPA climate rules, that his view of the Act requires only that power plants meet emissions standards based on controls that can be applied at the existing sources themselves. That’s contrary to the Clean Power Plan’s recognition that the statute offers the flexibility to design a system for trading market-based credits to comply – and that those factors can be considered in setting the standards. In fact, EPA conducted thousands of hours of listening meetings with states, power companies, and other stakeholders – including the public health advocates, tribes, and environmentalists overlooked by Mr. Pruitt in his recent tweets upon his confirmation – crafting the Clean Power Plan to build on available strategies like shifting from coal to gas generation, renewable portfolio standards, cap and trade programs, that are currently moving the U.S. towards cleaner energy sources.

And EPA’s record shows that a standard based merely on heat rate efficiency improvements to coal plants – as many Clean Power Plan opponents have proposed – would not result in the substantial and meaningful reductions commensurate with the gravity of power plant emissions and their contribution to climate change. Mr. Pruitt’s position to date also ignores that such an “inside the fenceline” standard must also take into account the availability of natural gas co-firing and carbon capture and sequestration retrofits where they are available, a point made by Clean Air Task Force’s comments on the proposed Clean Power Plan, and recognized by the Agency, although rejected in favor of a final option that the agency said would achieve the reductions at even lower costs.

Similarly, rolling back the EPA and Bureau of Land Management rules curbing methane emissions from the oil and gas industry is reckless and damaging to public health and global climate. Methane, 70 times as potent a warmer as CO2 in the first 20 years after emissions, can be cost-effectively controlled from this sector in ways that benefit the industry and host states, as well as federal coffers. These methods are already creating 1000s of jobs in the fast-growing methane mitigation industry. There is therefore no jobs-related or cost-related reason to permit oil and gas producers to spew methane and associated toxic air pollution into the atmosphere at this point in our history.

While historically low gas prices, the recession, and gains from renewable energy and energy efficiency have lowered electric system emissions, the Clean Power Plan is important to lock in those gains. The U.S. Clean Power Plan targets (2020, 2030, and 2050) are consistent with the deep decarbonization necessary to stabilize the climate.

We believe sensible operators and producers in the energy industry must decline to go on President Trump’s full-bore fossil-fueled “bender” — because unless they want to bet that climate deniers will occupy the White House for the next four decades, they will have an even deeper and more expensive hole to dig out of. Trump may want to call a timeout on emission reductions for the next four years, but the climate clock is still ticking and the environmental community will not reset it.

In short, retaining these rules is the only option that makes sense for the climate and public health, and the only option that will not also require years of additional rulemaking and certain litigation.

Those of us who care about public health and the environment are already robustly defending all of these rules, and will hold this Administration accountable. When the shortsighted policies contained in Mr. Trump’s Executive Order are advanced, we will see him in court.