500-Year Flood, Last Straw, or Asteroid Strike? Metaphorically Testing the Resilience of Environmental Law.

Posted on August 28, 2018 by JB Ruhl

Regardless of your politics, it’s hard not to describe the environmental policies of Trump Administration as…very different. Indeed, that’s exactly what his supporters want and his opponents fear. But the question is how much different. Enough, I would say, to test the resilience of environmental law.

With origins in ecology, resilience theory has swept into the social sciences as a way of thinking about how social systems withstand forces of change, especially extreme events like the so-called 500-year flood—the flood so big it is expected on average only once every five hundred years. It’s now common to read commentary and proposals on how to build resilience of cities to natural disasters, resilience of corporations to consumer crises, and resilience of the financial system to economic shocks. Well, as I have suggested previously, legal systems are social systems, and they have either enough or not enough resilience to bounce back from extreme “pulse” disturbance events or from a long onslaught of less intense “press” events. If they don’t have enough then, just like an ecosystem experiencing desertification after prolonged drought, a legal system could experience a regime shift and look nothing like its former self on the other side.

One thing that’s entirely apparent now is that, after 35 years of arguing and name calling in environmental law between the “left” and the “right,” we’ve been playing between the 40-yard lines after all. We see that because there’s a new team in town, and they are trying to set up their offense on the 10-yard line, first-and-goal. But I shift metaphors. Back to resilience, and floods, though I may come back to football.

Had any other Republican who threw his or her hat into the ring back in early 2016 been the nominee instead of Donald Trump and won the White House, we’d all have expected “disturbance” events of some magnitude—some pushback on the Clean Power Plan, some softening on climate change policy, some pull-back on the WOTUS rule. Democrats would have waved arms and sounded alarms. But really, in retrospect it would have been just a bunch of 25-year floods and a rare 100-year flood here and there. Then a Democrat would eventually take over and we’d have more of the same in the opposite direction, with role reversal. Hey, that’s politics (or it was politics). The bottom line is that 45 years after the environmental law statutory big-bang of the early 1970s, all these disturbance events added up have never swamped environmental law as we have known it—the laws and agencies are still there, plugging away, albeit it with different playbooks (football again) from administration to administration. In short, environmental law had resilience to spare!

The Trump Administration, at the very least, is a 500-year flood—it’s intended to be that or more. 500 years is a long time, but 500-year floods happen. The smug complacency of the previous paragraph missed one little problem: when a 500-year “pulse” event flood comes along after decades of continuous lesser-magnitude “press” disturbances, it’s possible the resilience reserve just isn’t enough to stave off the assault and prevent a regime shift. Maybe it can, but maybe this 500-year flood is the last straw. And then there’s also the possibility that the Trump Administration is more like an asteroid strike—you know, like the one that wiped out the dinosaurs. Even when the resilience reserve after a long press assault is at three-quarters, that’s a challenge. As in, no way.

So which is it: a 500-year flood environmental law can withstand, the last straw, or an asteroid strike? Everyone has his or her own positions, and I’m not (in this post) trying to tell anyone what they should hope for. Rather, stepping back from the political fray, what’s the evidence? Here’s my take.

First, I don’t think this is an asteroid strike. Those happen fast, and are unequivocal impact events. For environmental law, that would mean something like we wake up one day and there is no Clean Water Act, Clean Air Act, Endangered Species Act, and so on—they went the way of the dinosaurs. There is no evidence that is in the cards, even if it were in the plans. The fact is that our governance system, notwithstanding the critiques, makes it immensely difficult for any new administration, regardless of its agenda and mandate, to accomplish an asteroid strike on environmental or any other field of law. Power is too dispersed, procedures are enforced, courts step in, the public pushes back, election cycles are short, politics can turn to molasses, and so on. Notwithstanding all the hype from both sides, the Trump Administration so far has not proven to be that big of an event. Arguably, though, asteroid strikes have happened in our not too distant past—the Great Depression and WWII were impact events that threw our entire governance system into a regime shift, leading to the dawn of the regulatory state. Were an external global event of that magnitude and threat to occur, its combined effect with the Trump Administration’s agenda could be a very hard blow indeed.

Rather, the evidence thus far is that the Trump Administration, for environmental law and many other fields, looks like a 500-year flood.  It has pushed really hard on all those resilience mechanisms just mentioned, but they are pushing really hard back. And I don’t see it getting near the last straw. I follow the Endangered Species Act very closely from a centrist position—I am no starry-eyed fan or red-eyed critic—and I from what I observe there is zero chance of it going away. But there is a 100 percent chance it will experience broad and deep regulatory and policy reform—it’s well underway already—and perhaps some legislative tinkering. This almost surely will be an outlier disturbance event, like a 500-year flood, and may deplete the resilience reserve more than usual, but it will not wipe it out.  As for other corners of environmental law, I leave that to their respective experts, but my sense is that it is largely the same story.

Again, I’ve tried not to imprint my own politics onto this analysis. Like an ecologist studying an ecosystem under disturbance, I’m simply asking, how big a disturbance to environmental law are the policies of the Trump Administration? We all agree they are big and intended to be so. But ten years from now, will we be playing between the ten, twenty, thirty, or forty yard lines on the football field, or will we be playing soccer on the pitch? I guess only time will tell, but I’m sticking with my seats on the 50-yard line for now.

Common Sense Species Mitigation Policy Shouldn’t Be Reversed By Trump DOI

Posted on March 29, 2018 by Melinda E. Taylor

Depending on one’s political persuasion, the Endangered Species Act is either a glaring example of federal overreach or a critical safety net for scores of plants and animals that are at risk of extinction. Its impact is felt across the country in regulations that protect the spotted owl and salmon in the Pacific Northwest, the red-cockaded woodpecker in the Southeast, the Mojave Desert tortoise in the Southwest, and the whooping crane on the Gulf Coast. 

Thanks to the act, over 220 species have avoided extinction and remain in the wild, including the bald eagle, brown pelican, American alligator, peregrine falcon, and northern right whale.

When Richard Nixon signed the law in 1973, few expected it to be as controversial as it eventually became. It was passed by Congress with little opposition, but by the 1990s, the Wise Use movement and extractive industries like forestry, mining, and oil and gas were bristling at the land use restrictions that accompanied federal decisions to list endangered species, while at the same time, environmental groups were filing lawsuits to force the federal government to use the law even more aggressively.

To varying degrees, the Clinton, Bush, and Obama administrations each adopted policies designed to reduce the conflicts between the warring sides and make it more appealing for private landowners to protect rare species. Those efforts were important, because 75% of endangered species occur on private land. Without the cooperation of landowners, their chances of rebounding were slim.

Because of incentive-based policies, over 130 conservation “banks” have been established on private lands to protect 70+ species, including the Florida panther, golden-cheeked warbler, American burying beetle, and gopher tortoise. Private investors, as well as ranchers, farmers, and forest owners, have invested millions of dollars in land management practices that help rare species in return for the right to sell “credits” to companies that destroy the species’ habitat elsewhere. Regulated industries benefit from a streamlined permitting process.

The Obama Administration crafted policies to clarify and improve the incentives. It also worked with states, ranchers, industries, and conservation groups to formulate ambitious, large-scale conservation plans intended to preclude the need for federal protection altogether and give more flexibility to state governments. Unfortunately, the Trump Administration appears determined to undermine these efforts.   

On March 28, 2017 President Trump signed an Executive Order on Energy and Climate Change that reversed key parts of the Obama Administration’s agenda. The intent was to unleash fossil fuel development, especially on public lands, by relaxing environmental requirements applicable to oil, gas, and coal that were supposedly holding the industry back.

Among the several actions that the executive order rescinded was a relatively obscure Presidential Memorandum dated November 3, 2015 titled “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment.”  Unlike the other actions rescinded by the order (Power Sector Carbon Pollution Standards, Climate Change and National Security, and Preparing the United States for the Impacts of Climate Change), the 2015 Obama Memorandum did not address climate change or energy development.

Rather, it directed federal agencies to formulate policies that would encourage private investment in natural resource conservation, a goal that should be appealing to conservatives and liberals alike.

The 2015 Obama Presidential Memorandum had ordered agencies to refine their species mitigation programs, including conservation banking, to ensure they produced measurable outcomes. It required an increased level of transparency and consistency for the regulated industries and landowners. It was designed to level the playing field among conservation bankers and other providers of species mitigation. In short, it was intended to create conditions in which the free market could work efficiently for endangered species. It is hard to imagine a rational justification for abandoning this common sense policy; like a number of other environmental decisions by the Trump Administration, this one appears to be driven by the notion that, regardless of the merits, if the previous administration put the policy in place, it must be reversed.

The Endangered Species Act has become highly politicized, despite the fact that polls show a core of strong, unwavering public support for the law. Republicans in Congress have introduced dozens of bills in the last year that would undermine its protections. A far better approach, a win-win for private landowners and industry, would be to fine-tune the tools developed by previous administrations to harness the power of the marketplace and the willingness of private landowners to protect the nation’s natural heritage.

With the Stroke of a Pen…or a Tweet?

Posted on February 1, 2018 by JB Ruhl

John Milner’s recent post on executive orders, memorandums, and proclamations taps into something that is quite new and different for environmental lawyers—a president who uses these and other “direct actions” to shape environmental policy from day one, and who is doing so largely by undoing his predecessor’s direct actions.  

I’ve recently completed two empirical studies of presidential direct actions from FDR through the first year of the Trump Administration. In one paper we look at what topics presidents have focused on overall through time and then drill down on environmental (and energy) policies. In the other paper we examine the practice of presidents revoking predecessor direct actions (through yet another direct action).

Despite what you may read in the media, President Trump is by no means unlike other presidents in using direct actions, and lots of them, to steer policy early in his term, or in revoking predecessor direct actions to get the job done. What sets him apart is how early in his term he focused on environmental and energy policy, and how aggressive he has been in revoking President Obama’s direct actions in those fields. And then there’s…the tweets. Let’s take these one at a time.

Direct Actions and the Environment: There is a rich history of presidents using the big four direct actions—executive orders, memorandums, proclamations, and determinations—to shape policy straight from the White House, but environmental policy has not played a big role. Once you take out public lands policy, including the Antiquities Act, environmental policy has been a small component of direct action activity. Energy policy has been more prominent, however, and to the extent the two fields are increasingly merging, one does see more presidential attention going their way, but not usually concentrated at the beginning of a term. President Trump is quite different in this respect, using direct actions to dramatically change environmental and energy policy right out of the gate. 

Revoking Direct Actions: Presidents have revoked predecessor direct actions throughout history, and with great frequency. Here President Trump is no different, except that he is the first to bear down so much on environmental and energy policy. Part of the reason, of course, is that President Obama used direct actions to shape much of his administration’s environmental and energy policy, meaning President Trump could not advance his policies without negating President Obama’s actions. But he has gone further than that. For example, while not completely unprecedented, his orders “shrinking” existing national monuments established by Presidents Clinton and Obama have, for the first time, called into question whether a president has the power to do so.  

Tweets as Direct Actions: The rising use by politicians of social media as a channel of communication has raised questions regarding the status of President Trump’s frequent “tweets” as official policy. If the pen is mightier than the sword, is a tweet from the President even mightier?

Until recently, no one could be blamed for thinking a tweet is just a tweet—but they warrant their own treatment (tweetment?) given how important a role they have come to play in the Trump Administration. For example, former White House Press Secretary Sean Spicer somewhat circularly explained the status of President Trump’s tweets, stating that “The President is the President of the United States, so they're considered official statements by the President of the United States.” CNNPolitics, White House: Trump’s Tweets are “Official Statements." Ninth Circuit Court of Appeals apparently took him at his word when ruling on the so-called “travel ban,” pointing to a Trump tweet as tantamount to an official presidential “assessment.” Hawaii v. Trump, No. 17-15589, n. 14 (9th Cir., June 12, 2017). Indeed, the Department of Justice recently declared in litigation that Trump’s tweets are “official statements of the President of the United States.” James Madison Project v. Dep’t of Justice.  It’s not entirely clear where we are supposed to go with that—are tweets truly direct actions, or just official statements, and what’s the difference?

Presidents through time have shaped policy through direct actions, revoked predecessor direct actions, and, more recently, tweeted. For environmental lawyers, though, President Trump has done all three in ways that seem to be changing the rules of the game. Stay tuned for more?  How can you not?

It’s the Infrastructure, Stupid

Posted on June 7, 2017 by Gregory Bibler

On May 23, 2017, President Trump issued his Fiscal 2018 budget proposal.  EPA’s press release, issued the same day, declared:  “EPA Budget Returns Focus to Core Statutory Mission.” https://www.epa.gov/newsreleases/epa-budget-returns-focus-core-statutory-mission  EPA made clear that “returning” to the “mission” means reducing the size of the agency.  EPA’s budget would be cut by 31 percent, compared to the Fiscal 2017 enacted budget, and its current workforce would be cut by 25 percent.  The President proposes to cut 600 more positions than indicated in his March 16 budget proposal (which was abandoned with surprisingly little fanfare when the President signed the Fiscal 2017 enacted budget on May 5). 

But there is at least one bright spot in the President’s new budget proposal.  Funding is to be preserved for programs “supporting the President’s focus on the nation’s infrastructure.”  “Infrastructure,” according to EPA, includes improvements to drinking water systems.  Toward that end, the budget includes $2.3 billion for State Revolving Funds and $20 million in additional appropriations for the Water Infrastructure Finance and Innovation Act program.

The President is sticking by his campaign promise to help communities like Flint, Michigan finance improvements needed to reduce lead in drinking water, particularly in homes and schools.  Providing funding for these particular programs stands in contrast to the overall tenor of the budget, and the campaign’s promise to eliminate “wasteful” EPA grants. 

Revelations in Flint triggered widespread and, as it turns out, legitimate concerns about the effectiveness of existing regulatory programs to protect against lead contamination in drinking water. http://www.goodwinlaw.com/-/media/files/publications/attorney-articles/2017/eba-winter-journal-2017flint-inspires-renewed-vigi.pdf It has been more than 30 years since Congress enacted the Safe Drinking Water Act, and more than 25 years since EPA adopted the Lead and Copper Rule (“LCR”).  After Flint, increased lead testing in schools, and greater scrutiny of data already being collected by public water systems, revealed that elevated lead levels continue to be a pervasive problem in U.S. cities and school buildings (including more than half of the 300 public school buildings tested in 2016 in Massachusetts).

In October 2016, in the waning days of the Obama administration, EPA issued a white paper that announced that the LCR and its implementation are in urgent need of overhaul.  The LCR is a protocol for testing and treatment, not a set of numerical standards.  EPA stated that more prescriptive requirements that are more effective and readily enforceable need to be adopted.  Notwithstanding the Trump administration’s current war on environmental regulation, EPA has stated that it intends to formulate more stringent and clear requirements.  Meanwhile, in December 2016, Congress actually succeeded in amending the Safe Drinking Water Act to replace the moribund school drinking water provision, which was declared unconstitutional in 1996, with a new provision that, among other things, established a voluntary school lead testing grant program.

It is apparent that, on the issue of safe drinking water at least, the Trump administration has accurately measured the political mood.  Despite draconian cuts proposed to almost all of EPA’s budget and staffing, the administration has recognized that improving the regulation, testing and treatment of drinking water in schools and public water systems is politically expedient, and may do more good than harm.  It is good policy and good politics.

States Challenge Trump Administration’s Approach to Climate Change Through Energy Efficiency Rules

Posted on May 26, 2017 by Chester Babst

When President Trump issued his energy-related Executive Order in March directing further review by the EPA Administrator of, among other things, the Clean Power Plan, it signaled the death knell for what was arguably President Obama's centerpiece domestic action on climate change. But while the Order's likely intent to neutralize this and other rules would have appeared to pave the way for a flurry of lawsuits filed by environmental groups and States particularly concerned about global warming, the federal dockets have thus far been somewhat quiet with respect to the Trump Administration's handling of prior climate change-related rulemaking.

A group of 10 states have begun to push back, though, by filing a petition in the Second Circuit. The rule that is requested to be reviewed? It doesn't involve coal-fired power plants. Nor wellpads or compressors. Rather, the petition involves rulemaking aimed at the ominous ... ceiling fan. The rule, enacted by the Department of Energy in January, establishes minimum energy efficiency standards for fans manufactured after January 2020 pursuant to the Energy Policy and Conservation Act.  According to the DOE, the rule is projected to reduce carbon dioxide emissions by over 200 million tons and methane emissions by 17 million tons through 2049.  Some 12 days after the rule was finalized, DOE delayed the effective date by 60 days with the stated intent of conducting further review and consideration of new regulations, consistent with the Freeze Memo. In March, DOE subsequently pushed back the effective date even further until September, with the basis being that DOE Secretary Rick Perry was, perhaps unsurprisingly, unable to accomplish the review and consideration of the rule within the 60-day timeframe.  Additional energy efficiency rulemakings finalized but not published under the Obama Administration currently remain unpublished.

The significance of the lawsuit is not so much about its substantive impact on climate change. After all, the projected GHG reductions under the ceiling fan rule are only a small fraction of those projected as part of the Clean Power Plan, which itself left some wondering whether it could meaningfully affect climate change on a global level.  Further, the Clean Power Plan’s vitality was already in question following the Supreme Court’s stay.  Rather, the petition carries broader implications for the Trump Administration's apparent strategy of stalling, as opposed to directly revising or withdrawing, environmental rulemaking that it fundamentally opposes. The strategy is not a wholly illogical one, especially considering the possible legal and practical limitations that some commentators have expressed the Administration might initially face if it were forced to provide, on-the-record, a definitive basis for full-fledged withdrawal of notable climate change regulations.

One of the key figures for the petitioners, New York Attorney General Eric Schneiderman, has contended that the DOE's delays violate the Administrative Procedure Act in that they constitute a substantive revision to a final rule without going through proper notice and comment. He is joined by nine other states (California, Connecticut, Illinois, Maine, Massachusetts, Oregon, Pennsylvania, Vermont, and Washington) as well as New York City. If the petitioners prevail, it will likely force EPA and other agencies to confront existing rulemaking head-on, and would otherwise challenge the viability of President Trump's energy-related Executive Order, including associated OMB guidance for implementation of the rule review procedures.  Further pressure could also come as a result of a challenge to the so-called “2-for-1” Executive Order, which environmental groups have claimed also directs arbitrary repeal of rulemakings.  But until then, neither industry nor environmentalists should be surprised if climate change or other significant environmental regulations carried over from the Obama Administration remain in an infinite loop of administrative review.