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  Additional energy efficiency rulemakings finalized but not published under the Obama Administration currently remain unpublished.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.

Trumping the National Monument Designations of Past Presidents

Posted on May 23, 2017 by Larry Ausherman

When a President of the United States sets aside important federal lands for conservation, the accompanying fanfare typically invokes the notion of forever.  But, in light of President Trump’s Executive Order 13792, maybe these national treasures should be asking our government the timeless question posed long ago by The Shirelles, Carole King, and others:  “Will you still love me tomorrow?”

On April 26, 2017, President Trump signed Executive Order 13792, which directs the Secretary of the Interior, Ryan Zinke, to review and make recommendations concerning many prior presidential designations or expansions of national monuments that were made under the Antiquities Act of 1906.  The Executive Order essentially suggests that some past monument designations may have been made without adequate public input, and may be overbroad or unduly restrictive of other uses of the designated lands.  The Executive Order concerns monument designations or expansions since 1996, where the designation or expansion covers more than 100,000 acres or where Secretary Zinke determines it was made without adequate public outreach and coordination with stakeholders. 

But the Executive Order, together with the review it requires, is probably only the first step.  The review probably foreshadows a future attempt by President Trump to at least pare back certain existing national monument designations, based on Secretary Zinke’s recommendations.  Prominent among the monuments that are in the cross hairs is President Obama’s controversial Bears Ears National Monument in Utah. 

The Secretarial review is on a fast track.  The Executive Order provides that the Secretary’s interim report is due in mid-June.  The final report is due in late August, and it should include recommendations for subsequent actions.  In the meantime, the Department of the Interior is inviting public comment.  On May 5, 2017, it issued a press release describing the scope of and deadlines for public comment.  It also listed the twenty two national monuments and five marine monuments that are subject to the ongoing review.

The Antiquities Act was enacted during the term of Theodore Roosevelt, and it empowers presidents to create national monuments with federal land to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.”  The presidential power created by the Act is unique in that it allows presidents to unilaterally protect federal land by designating national monuments.  In that regard, presidential power under the Act goes beyond the often used power to issue executive orders.  Presidents from Theodore Roosevelt to Barack Obama have used the power given to them under the Act. 

Both presidential power to create national monuments under the Antiquities Act and Congressional power to change them under the Property Clause of the Constitution are well recognized, but President Trump’s signing of Executive Order 13792 leaves a looming question:  Does a president have the power either to abolish or to reduce in size a monument designated by a previous president?  The Antiquities Act is silent on that question.  According to a 1938 opinion of the United States Attorney General and the legislative history of the Federal Land Policy and Management Act of 1976, the Antiquities Act does not confer upon the president the power to abolish entirely an existing national monument designation.  No previous president has done so.  But the administration likely will not concede the issue of whether the president can abolish a monument.  Regardless of the Act, some note that the Constitution grants the president broad power to reverse actions of previous presidents.  The separate question of whether a president may merely reduce the size of a monument or change its boundaries is probably a closer call than the question of complete abolition of it.  Rather than abolish national monuments, President Trump might attempt to reduce the size of one or more of them.

The Act limits the size of lands that can be reserved for national monuments to “the smallest area compatible with proper care and management of the objects to be protected . . .”  But that limitation can be difficult to quantify, and it has generally not stopped presidents from designating very large swaths of land as national monuments.  For example, much of the public and political criticism of Bears Ears National Monument – designated by President Obama in the last month of his term – focuses on its huge size, which is about 1,350,000 acres of public land.  President Clinton’s 1996 designation of Grand Staircase Escalante National Monument covers about 1.9 million acres.  It has been subject to similar criticism, and it is also under review by Secretary Zinke.  Although it is somewhat unusual for a president to reduce the size of an existing monument, Presidents Wilson, Truman, and Eisenhower have done so.  However, these past reductions were not challenged, and so case law on the questions presented by the Executive Order is scarce.  Unlike these past actions to reduce monument size, any move by President Trump to change established monuments likely will be challenged.  The issues raised by his Executive Order are already highly contentious.

It remains to be seen whether any future effort by President Trump to abolish or reduce a monument’s size will withstand the inevitable legal challenge, but we can predict a few of the issues that could be raised.  Of course, the prominent initial question is whether either the Antiquities Act or the Constitution’s general grant of executive authority authorizes a president to change monument designations of past presidents. 

If the answer to that question is “yes,” many unresolved questions may arise about the scope of presidential authority to change designations.  Can a president abolish a monument altogether?  If a president can only alter, but not abolish, a monument, then by what criteria should the validity of the alteration be measured?  Is the challenged reduction in size so substantial as to thwart the conservation purposes for which the monument was created?  In the words of the Act, does the reduction leave the “smallest area compatible with proper care and management of the objects to be protected”?  Is a paltry level of public outreach or coordination preceding a president’s designation of a monument adequate legal justification for changing the monument?  Is outreach or coordination even legally relevant to a monument’s validity, and if it is, how should the adequacy of public outreach and coordination with stakeholders be tested?

Politics and public opinion will also steer the upcoming debate.  The national monument issue raised by the Executive Order is a lightning rod for many, including environmental groups, Tribes, State and local governments, and those who favor limiting the reach of the federal government.  This episode would not be the first time that President Trump has announced controversial policy that invites high profile legal challenges and the media attention that accompanies them.

I tend to be wary of landscape scale reservations of federal lands under the Antiquities Act and some other laws.  They can be as political as they are large.  Abuse of power is a concern.  We always should consider whether the designation fits in size and purpose the law that is being used to authorize it.  Is the designation simply a misguided, feel-good lob at a legacy, orchestrated by an outgoing president in his final days?  Or is it something more substantial, with a size and purpose that are supportable under the authorizing legislation?  Those are good questions for the president making the designation, for a reviewing court, and for Congress, in the rare case where it considers whether to change a designation.  But, when it comes to existing national monuments, I at least question whether President Trump (and then each of his successors) should be the one who gets to decide.

Until now, national monuments have, for the most part, enjoyed an air of permanence.  With some exceptions, presidents have typically deferred to the monument designations of predecessors, even while dismantling other aspects of a previous administration’s policies.  But President Trump’s actions raise questions about whether the tradition might end.  As legal challenges unfold, it may be years before we know to what extent this president, and every future president, could toss established national monuments into the same bin of ephemera that is used to dispose of old political appointments and presidential proclamations.

Slashing EPA’s Budget Will Hinder Efforts to Improve Environmental Regulations

Posted on April 5, 2017 by Mark R. Sussman

          Since the election of President Trump and appointment of EPA Administrator Pruitt, more than a few articles and blogs have been written about the new administration’s plans to dismantle EPA, including the proposal to cut EPA’s budget by almost one third.   Even if one agrees that EPA needs to be “down-sized,” the massive cuts proposed by the Trump Administration are counter-productive.   If EPA fires thousands of environmental professionals, who will be left to repeal or revise unnecessary or unduly burdensome regulations?  Unlike Executive Orders, regulations cannot be rescinded or revised with the stroke of a pen.

          The hazardous waste regulations adopted to implement RCRA provide a case in point.  The Obama EPA adopted the final Hazardous Waste Generator Improvements Rule (discussed by a recent blog by Donald Stever) at the end of last year, acknowledging that the RCRA regulations are in many cases ambiguous, contain inconsistencies, and lack flexibility.  EPA took a year to address more than 200 comments before it finalized the rule.  Other aspects of the RCRA regulations also need to be modernized to encourage, rather than discourage, the reuse of materials derived from waste.

          Just one example involves the recycling of mercury-containing lamps, which have been regulated as Universal Waste since 1995.  Although fluorescent lamp manufacturers have reduced the amount of mercury in their lighting over time, such lamps are regulated as Universal Waste because many lamps exhibit the toxicity characteristic for mercury; and thus, would be classified as D009 hazardous waste.  While the Universal Waste Rules simplify the management of mercury containing lamps, the hazardous waste regulations and longstanding EPA interpretations of these rules impede the reuse of materials recovered through the recycling of universal waste lamps. 

          Two of the primary materials produced through lamp recycling are calcium phosphate powder and crushed glass.  Calcium phosphate powder removed from fluorescent lamps contains mercury at levels below the hazardous waste threshold, and the amount of mercury in such powder is typically further reduced by a retorting process.  Significantly, the phosphate powder also contains several rare earth elements, including Europium, Terbium and Yttrium, which are considered strategic materials by the United States Government, because of the need for such elements in many military and high-tech commercial products, such as cell phones, computer hard drives and other electronic equipment, and precision-guided munitions. 

          China controls about 95% of the production of rare earth elements.   Therefore, recycling calcium phosphate powder to produce rare earths provides a sustainable, domestic source of rare earths needed in the U.S. economy.  Unfortunately, as a waste derived material, regulators have limited the ability of businesses to stockpile calcium phosphate powder for future recycling, and much of this material is currently being disposed of in landfills, rather than being reserved for the recovery of rare earths.   

          Similarly, the crushed glass produced by lamp recycling has characteristics that make it a useful substitute for sand and other materials used in construction operations, such as for road sub-base and pipe bedding materials.  EPA’s view, however, is that since Universal Waste lamps would be considered D009 hazardous waste, glass produced as part of the recycling process is in the same hazardous waste treatability group as the initial universal waste lamps, and therefore, is subject to the Land Disposal Restrictions (LDR) for D009 –non-wastewaters. Thus, the glass must be tested to demonstrate compliance with the LDR standard of 0.025 mg/l for mercury using the TCLP test (designed to assess leachate in a landfill environment), before the glass can be used on land as a substitute for other products.  While the glass from lamp recycling typically complies with the LDR standard, the additional regulatory process discourages the reuse of this glass as a substitute for raw natural resources.

          If President Trump were truly interested in alleviating “unnecessary regulatory burdens placed on the American people”, EPA needs the resources to review specific regulations and identify those regulatory changes that will accomplish the President’s goals.  Slashing EPA’s budget, before identifying and promulgating the regulatory changes, will likely result in missed opportunities for improving environmental regulations.  Instead, massive reductions in staff and efforts to rescind many regulations without careful consideration will lead to mistakes and litigation, which is in no one’s interest.  Businesses need certainty, and the approach outlined by President Trump’s Executive Orders will instead result in more confusion and uncertainty.

The Latest Executive Order: Any Kind of Consistency Is the Hobgoblin of Little Minds

Posted on March 31, 2017 by Seth Jaffe

Make no mistake, the Executive Order signed by President Trump at EPA yesterday is a big deal.  Time will tell whether the Administration’s U-turn on the Obama rules currently in litigation, such as the Clean Power Plan and the rule on fracking on federal lands will make any difference to judicial review of those rules.  There are plenty of states and NGOs ready to step into EPA’s and BLM’s shoes to defend those rules.

Regardless, though, it’s important.  Social cost of carbon?  Poof.  Gone.  Climate Action Plan?  Gone.  Consideration of climate change in environmental impact reviews?  Gone.

We already know all this, though.  I’d like to focus on a few details concerning the EO that might have gone unnoticed.

  • The order states that development of domestic natural resources “is essential to ensuring the Nation’s geopolitical security.”  I found this statement interesting in light of the recent statements by Secretary of Defense Mattis, who very clearly stated that climate change is real and is itself an important security risk.
  • The order states that environmental regulations should provide “greater benefit than cost.”  I found this statement somewhat odd, given that the President’s prior EO known as the 2-for-1 order, essentially requires agencies to ignore the benefits of regulations and focus solely on the costs that they impose.
  • Similarly, the Order requires agencies, in “monetizing the value of changes in greenhouse gas emissions resulting from regulations,” ensure that their analyses are consistent with OMB Circular A-4, issued in 2003.  The Order states that Circular A-4 embodies “best practices for conducting regulatory cost-benefit analysis.”

I’d be interested in knowing if a single one of the authors or peer reviewers of Circular A-4 have anything nice to say about the 2-for-1 Order?

POTUS, SCOTUS & WOTUS: What Do They Have in Common With Michael Stipe and Jack Black?

Posted on March 15, 2017 by Jeff Thaler

Then-candidate Donald Trump’s unauthorized use of REM’s 1987 song, “It’s the End of the World as We Know It (And I Feel Fine)”, during a 2015 campaign rally sparked a sharp objection by the band’s Michael Stipe. Flash forward to 2017 and now-President Trump has been flexing his executive powers in a number of legal fields; for many environmental, energy or immigration lawyers it’s the end of the regulatory world as we knew it for decades, and they are not feeling so fine.

Executive Orders (EOs) raise classic constitutional law issues of the separation of powers, in that they often are used for “executive legislating” even though there is no explicit constitutional authority for them. EOs also blur traditional regulating lines, because they are not issued with public notice or comment, and usually state that they do not “create any right or benefit enforceable at law or in equity by any party against the United States.”

An EO can have the force of law, however, if the EO is based on either the Constitution or a statute, per the Supreme Court’s 1954 Youngstown decision. That is why one must carefully read each EO to determine the grounds of its authority, and then whether it is possibly contrary to a) existing laws or b) constitutional provisions such as due process or equal protection.

Facing an uncooperative Congress, POTUS Obama came to rely on EOs in his last two years in office (see this prophetic 2015 School House Rock episode). POTUS Trump took to EOs right out of the gate. The two Trump EOs that have garnered the most publicity and outcry deal with immigration restrictions The first EO was challenged in numerous courts, and the 9th Circuit issued on February 9 the first appellate decision on a Trump EO. Interestingly, and instructive for future litigants and legal counsel, the first issue addressed by the 9th Circuit, and the one they discussed the most, was . . . standing. The court then moved on to reviewability, and only briefly due process and equal protection. The complaint’s count on violating the Administrative Procedure Act for not following proper rulemaking proceedings was not even discussed in the ruling.

Trump issued two EOs of more relevance to environmental and energy lawyers. First was the January 30, 2017 EO entitled “Reducing Regulation and Controlling Regulatory Costs”, aka the add-one-subtract-two, no-increase-in-incremental-costs [undefined]- of-regulations EO. That was followed by the February 2, 2017 Interim Guidance of the OMB implementing (and implicitly amending) the EO by limiting it to “significant regulatory actions”—i.e. those of $100 million or more of annual effect on the economy. A week later the EO and IG were both challenged in federal court in D.C. as violating the APA, separation of powers, the Constitution’s “Take Care Clause”, and as being ultra vires. Plaintiffs referenced in part OSHA, TSCA, the ESA and CAA, and other energy/environmental laws as being inconsistent with the EO’s requirement that a new rule can only be promulgated if its cost is offset by the elimination of two existing rules. The EO ironically signals the possible demise of cost-benefit analysis —first mandated by then POTUS Ronald Reagan by an EO in 1981—by disallowing consideration of the economic benefits of a regulation when weighing its costs.

Many more EOs are promised in the coming weeks concerning a variety of environmental and energy laws and regulations. Early in the wave was the February 28, 2017 EO with the majestic name of “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ [aka WOTUS] Rule”. This EO directs the EPA to review the WOTUS Rule while keeping in mind the national interest of “promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” Since WOTUS was a final rule published in the Federal Register, it can only be repealed and replaced by a new rule that goes through full notice-and-comment rulemaking, not simply by a non-legislative guidance or policy statement.

One who lives by the EO sword can slowly die from it too. POTUS Obama did not submit for approval to Congress the Paris Climate Change Agreement of 2016, calling it an “executive agreement”, thus POTUS Trump does not need Congressional approval to undo it. The Agreement terms do not allow withdrawal by a party before November 2019. However, the U.S. could withdraw from the overarching United Nations Framework on Climate Change with one year notice, if the Senate approves, and that in effect would undo our Paris “commitments”. And as a practical matter, the current Administration could also just choose not to implement the Paris obligations, because there is no binding duty to hit the emission reduction targets.

In sum, we live in interesting times.   Although Jack Black has said of this Administration that “It’s the end of the world”, for College members and their clients it’s the start of some fascinating new adventures in regulation and litigation. Stay tuned. 

Hail to the Chief

Posted on November 6, 2013 by Steve McKinney

On November 1, President Obama issued an executive order organizing several task forces and coordinating councils to focus on climate change adaptation.  Among the necessary and appropriate beltway benefactions was Section 3, which orders federal departments and agencies to “complete an inventory and assessment of proposed and completed changes to their land- and water-related policies, programs and regulations necessary to make the Nation’s watersheds, natural resources, and ecosystems, and the communities and economies that depend on them, more resilient in the face of a changing climate.”  That’s quite an assignment.

The order applies specifically to Defense, Interior, Agriculture, EPA, NOAA, FEMA, and the Army Corps of Engineers. The CEQ and OMB Co-Chairs can spread the assignment to other federal agencies as need be.  If you are left out of this list, you must not be very important.  The required inventory must also include a “timeline and plan for making changes to policies, programs and regulations.”  This is all supposed to happen in the next 9 months, a rather pregnant period of time in a variety of ways. 

The scope of the task catches your attention, but perhaps the limitations should also be of interest.  The inventory assignment is not supposed to include “wish lists” that have not yet been proposed or completed.  It is supposed to focus on resiliency-enhancing land and water programs, rather than air programs that are usually the target of any climate change discussion. However, “agencies shall, where possible, focus on program and policy adjustments that promote the dual goals of greater climate resilience and carbon sequestration, or other reductions to the sources of climate change.”

It’s a big job.  It imposes new priorities for all federal departments and agencies.  Sounds almost like an Act of Congress.  Come to think of it, I wonder what Congress thinks about this?  I mean… I’m just sayin’...