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The Planet

Don’t Freak Out About Trump’s Climate Executive Order Just Yet

by Ben Jervey

March 29, 2017
Image of Paris protests via Flickr user Joe Flood (cc)

For months, President Trump has been chiseling away at the Obama administration’s climate legacy. This week, as predicted, he pulled out the sledgehammer.

On Tuesday afternoon at the Environmental Protection Agency headquarters, surrounded by energy company executives and coal miners, Trump signed a long-anticipated executive order that intends to dismantle most federal actions on climate change, particularly President Obama’s hard-fought Clean Power Plan.

Despite the hoopla, the Executive Order has no legal significance at all.

On paper, this “Presidential Executive Order on Promoting Energy Independence and Economic Growth” is as bad as we feared. Senator Edward Markey, a Massachusetts Democrat, called it “a declaration of war on American leadership on climate change and our clean energy future.” But let’s be clear about something: This order does not kill the Clean Power Plan.

“Despite the hoopla, the executive order has no legal significance at all,” says attorney Richard Revesz, director of NYU School of Law’s Institute for Policy Integrity.

As with all executive orders, it is tempered by some necessary clauses about the actual legal power of the order. In this case, they come in Section 8, which overtly states that, “Nothing in this order shall be construed to impair or otherwise affect the authority granted by law to an executive department or agency,” and that, “This order shall be implemented consistent with applicable law and subject to the availability of appropriations.”

In other words: This order can’t undo laws that Congress has passed, nor can it take away regulatory authority from agencies that Congress has granted. Also, the order can’t do anything without finding money to pay for it. Even so, the order stands as the best available blueprint for how the Trump team intends on retreating from any federal climate action. So let’s walk through its most dangerous directives. There’s a lot in there, but only four are worth worrying about.

1. Repealing and replacing the Clean Power Plan

Once again, Trump can’t simply sign away the Clean Power Plan. We already knew that EPA administrator Scott Pruitt was going to try to dismantle this cornerstone climate rule; Trump’s order simply formalizes the threat. The Clean Power Plan itself—which aims to cut greenhouse gas emissions from existing electric power plants by 32 percent by 2030—was born of lengthy notice and comment rulemaking, which can’t simply be undone.

They probably don’t want to hear this again, but if they want to repeal, they have to replace.

As New York Attorney General Eric Schneiderman told The New York Times, “If they want to go back into the rule-making process, we believe they are compelled under law to come up with something close to the Clean Power Plan. They probably don’t want to hear this again, but if they want to repeal, they have to replace.”

“The agency will need to propose a rule explaining the legal, economic, and scientific basis for its change of position,” Revesz explained. “And it will need to not only justify the merits of this new approach, but also provide a convincing explanation for why it is departing from the approach embodied in the Clean Power Plan.”

This new rulemaking process could take a full year or more, and when (or if) the EPA eventually issues a new final rule, the litigation will commence. Every Big Green nongovernmental organization with a legal team will be hacking away at any potential replacement to the Clean Power Plan, as will plenty of state attorneys general, including Schneiderman in New York. 

Revesz believes that the inevitable legal battle could reach the Supreme Court, and that it might not even be resolved before the 2020 election. “The fate of the Clean Power Plan might ultimately be determined by the winner of that election,” he said.

As for the utilities that would be most impacted by the Clean Power Plan—they don’t seem to think that Trump’s actions are going to slow down the steady transition to clean energy. The electric utility trade site Utility Dive surveyed more than 600 utility professionals about both the future of their industry and the future of their businesses. Responses to the survey revealed an industry that is expecting to source more power from renewables and much less from coal.

Image via State of the Electric Utility 2017
 

2. Bringing back federal coal leasing

Back in early 2016, the Obama administration put a moratorium on the federal coal leasing program, which had been plagued by scandal for decades and was criticized for giving away public-owned coal for pennies on the dollar. The moratorium was set to allow for the Department of the Interior to conduct a system-wide review—to ensure that that companies mining coal on public lands were adequately compensating taxpayers and to better factor the impacts of greenhouse gas emissions in the leasing program.

Trump’s executive order lifts the moratorium and opens public lands back up to lease for coal mining. And for all his self-promotion as a “master negotiator,” Trump has, by default, accepted the outdated fiscal terms of these leases, “depriving taxpayers of fair market value for this publicly owned resource,” according to Jayni Hein of the Institute for Policy Integrity at the NYU School of Law. “In ending the review of the coal program, the Department of the Interior would miss a critical opportunity to harmonize coal leasing with environmental goals by using higher royalty rates or setting a carbon budget for leasing on public lands,” she says.

A couple important points: First, these leases on public lands are all for surface mines in Western states, which are the types of mines that employ far fewer workers for every ton of coal extracted (not the types of mines the coal workers Trump surrounded himself with when signing the order actually work in.) Even the CEO of the largest privately-owned coal company in the country warned Trump that these policies “can’t bring mining jobs back.” Second, nobody wants these leases right now. As this Bloomberg article describes, there’s a glut in coal supply at the moment—and for the foreseeable future—mostly because so many power producers have switched to natural gas for purely economic reasons.

Regardless, Democratic Senator Jeff Merkley of Oregon responded to the executive order by hastily reintroducing his “Keep It In the Ground Act,” which would essentially put a permanent end to all coal leases on public lands.

3. Allowing more methane leakage

Methane emissions that seep out of leaks during the extraction of oil and gas were long ignored by regulators, despite the fact that they have massive global warming impacts. The Obama administration finally cracked down on these so-called “fugitive” methane emissions in a number of rules issued by the DOI and the EPA over the last couple years. The Trump order seeks to rescind these rules, but for many of them, as is the case with the Clean Power Plan, his agencies will have to go through the rulemaking process to do so. There again will come the legal challenges from the NGOs and state attorneys general, and Trump’s administrators will have to defend the new rules in the circuit courts.

4. What cost of carbon?

Since 2015, the federal government has been using a $36 per ton price on carbon emissions to apply to cost-benefit analyses that are mandated to justify new rules or regulations by agencies such as the EPA and the Department of Transportation. This so-called “social cost of carbon” was exhaustively calculated by teams of climate scientists and economists—even so, many have since found it to be far too low. Yet, Trump’s order will send it back to the drawing board again, with the obvious desire to lower the figure to de-incentivize low-carbon alternatives.

For all his self-promotion as a master negotiator, Trump has, by default, accepted outdated fiscal terms.

Why wouldn’t he strike the social cost of carbon entirely? Federal courts demanded it, in a 2007 case involving the Bush administration’s fuel efficiency standards for cars. So having a cost that is “not zero” is required by a court ruling, but Trump’s team will look to make this as low as possible, while still being able to survive the inevitable legal challenge.

5. Everything that’s missing.

There is, of course, more awful stuff in the order—like how all agencies must review every regulation that might possibly inhibit energy production, and how a whole slew of Obama’s other executive orders on climate are now undone. Brad Plumer gets into some of these specifics in his comprehensive post on Vox.

But it’s also notable what the order did not include. There was no mention of the Paris Agreement, which is reportedly the subject of hot debate within the Trump team. (Apparently, adviser Jared Kushner, adviser/daughter Ivanka Trump, and Secretary of State Rex Tillerson all favor remaining in the Paris Agreement, while advisers Steve Bannon and others on the far-right want the United States to pull out.) For now, the president has sent no official signal that the United States would withdraw from the agreement. Though, it must be noted that if this order is fully converted into agency action and survives legal challenges, then the U.S. pledges for emissions reductions to the United Nations’ landmark climate pact would be virtually impossible to achieve.

There are legitimate concerns that Trump’s actions will poison the Paris Agreement process with enough bad faith that other nations will react by walking away or tempering their climate commitments. But, so far, the reaction overseas has been one of resolve. Laurence Tubiana, the woman who lead the French negotiating team in the 2015 talks that gave birth to the Paris Agreement, told The New York Times: “There are countless countries ready to step up and deliver on their climate promises and take advantages of Mr. Trump’s short-termism to reap the benefits of the transition to the low-carbon economy.”

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Don’t Freak Out About Trump’s Climate Executive Order Just Yet