In this Q&A with the Stanford Lawyer magazine editor, Stanford Law School Professor Deborah Sivas discusses the Trump administration’s recently announced plans for its environmental policy—including a steep cut to the EPA’s budget and the rollback of many of the Obama administration’s environmental initiatives.
The Trump administration announced this week a new executive order that will roll back many of President Obama’s environment initiatives, including the Clean Power Plan. What is the Clean Power Plan—and its significance?
The Clean Power Plan was a cornerstone of the Obama administration’s strategy to implement the Paris Agreement on climate change and begin bringing greenhouse emissions from the electric power sector down. Like the transportation sector, the power industry produces a large share of the nation’s greenhouse gas emission – about 30 percent of the total. In order to reduce those emissions, the Clean Power Plan sets carbon dioxide standards for power plants and, consistent with the “cooperative federalism” embedded in the Clean Air Act, allows states the flexibility to implement those standards in the way that best works for local conditions. In California, for instance, we are using a market-based “cap-and-trade” program that applies to the electric generating sector, as well as to some other industrial polluters.
How does, or might, the Clean Power Plan affect the coal industry?
Those who believe the Clean Power Plan has destroyed the coal industry are sadly mistaken. For one thing, the Plan is being litigated and its implementation has been stayed by the courts, so there is zero impact right now. The coal industry has declined precipitously because it cannot compete with natural gas, and increasingly, with renewable energy. That’s the reality of our market system. The fossil fuel industry has been booming in the oil and gas regions of the country and shrinking dramatically in the coal regions of the country. The Clean Power Plan did not produce that result and its rescission isn’t going to bring back a single coal job. It is just going to make Mr. Trump feel better and put us further behind where we need to be going as a nation and a planet.
The overwhelming and, frankly, indisputable, climate science is telling us that pulling back on policy initiatives like the Clean Power Plan, which took many years and incredible stakeholder outreach to develop, merely delays the inevitable and makes us all worse off. In the meantime, those historically coal-dependent communities will consider to suffer with this administration’s false promises. Making the world worse off is not going to make coal workers better off. Indeed, coal-dependent communities are enduring a triple injury – first, they suffer debilitating illnesses as a result of working conditions in the mines; second, they are experiencing economic dislocation as a result of the free market system; and third, like all of us, they are beginning to see the local impacts from a destabilized climate. If the administration truly cares about those communities, it should stop talking about rolling back climate policy and instead figure out how to funnel retraining and redevelopment aid to those areas.
President Trump’s budget plan calls for a 31 percent reduction in the EPA’s budget. Can you give us a sense of what that might mean—how it might change the mandate of the EPA and its ability to function?
First, let’s be clear: The proposed cuts are not really about saving money for the federal government. EPA’s budget accounts for roughly 0.2 percent of the total federal budget, virtually the lowest funding level for any major federal agency. And this is not new. Each Republican Congress has slashed EPA’s budget in recent years, so the agency’s current budget of roughly $8 billion is less than half of what it was in the 1970s, adjusted for inflation, and the lowest it has been since the mid-1980s. Thus, the agency is already functioning at a bare bones level, especially with respect to compliance and enforcement. So the White House proposal to cut EPA’s budget by another one-third is about undermining the agency’s mission, not about deficits or debt.
Second, although some have tried to politicize the environment, EPA is first and foremost a basic science agency. It conducts and funds basic science research on public health and the environment, and it awards grants to local communities to protect air and water. So a budget that cuts research by 50 percent, as the White House has proposed, is not just a climate-denier budget; it is, in fact, an anti-science budget. If we stop doing basic science, we cannot shape or implement appropriate policy to protect public health and the environment. But just because you stick your head in the sand doesn’t mean the pressing problems go away. All national polls continue to show that a majority of the public is committed to protecting the environment. Defunding the core agency that conducts scientific research on air and water pollution is simply inconsistent with the popular will.
Third, the administration’s proposed budget cuts are, in many ways, ideologically targeted. The White House wants to eliminate any spending on climate issues, even though climate change affects every part of the environment and every citizen. Statements by the new EPA Administrator and other administration spokespeople admonishing the EPA to get back to its basic air and water pollution mandates are nonsensical. We cannot protect public health and our environment without understanding how the rapidly shifting climate affects our air and water resources. Likewise, the proposal to zero out EPA’s Office of Environmental Justice, to reduce the Office of Enforcement by 23 percent, and to slash the Superfund oversight program by 34 percent sends a strong signal to corporate polluters that the federal government has effectively closed up shop, that it will not be enforcing the law or holding them to account for their actions.
President Trump has also ordered the EPA to revise the agency’s standards on vehicle emissions designed to cut greenhouse gases by 2025. Isn’t this a renegotiation of an agreed standard?
Yes, in my view this is an attempt by the auto industry to renege on a deal cut at the start of the Obama administration. It’s a bit complicated, but the backstory is this: Transportation is a huge source of traditional air pollutants as well as a major component of the greenhouse gas emissions that are driving rapid climate change. Because California had an air pollution program in place before the federal Clean Air Act was enacted in 1970, Congress allowed the state to maintain stricter vehicle emission standards if it so chose, subject to EPA’s approval. For traditional auto emissions like particulate matter, nitrogen oxides, and carbon monoxide, California has, since the very beginning, invoked this waiver to maintain stricter vehicle emission standards than EPA. And as Congress permitted in the Clean Air Act, up to 15 other states have also adopted California’s standards. The industry has complained about the California standards over the years, but because California is such a big part of the vehicle market – and with many other states also adopting the stricter California vehicle standards – we have seen traditional air pollution levels dramatically reduced over the last four decades.
Okay, now fast-forward to the 2000s, when policymakers started thinking very hard about how to reduce greenhouse gas emissions, especially carbon dioxide emissions that result from the burning of fossil fuels like gasoline. Whereas traditional vehicle pollutants could be significantly reduced by adopting new technology, like catalytic converters, no technology can reduce carbon dioxide emissions from vehicles. The only way to do that is to make internal combustion engines more efficient – that is, to increase fuel mileage standards. So during the Bush administration, California sought another Clean Air Act waiver specifically to address carbon emissions by setting higher vehicle mileage standards, as an integral part of the state’s efforts to curb greenhouse gas emissions. The Bush EPA denied that waiver— the first time the EPA had ever done so. Previously, EPA had routinely granted dozens of waivers for different kinds of engines. That denial was driven by the administration’s position on climate change and on whether greenhouse gas emissions should be covered by the Clean Air Act. California, joined by 15 other states, sued EPA over the denial.
At the same time, other related litigation was also ongoing. For instance, our clinic was involved in a case along with the California Attorney General challenging the failure of the National Highway Traffic Safety Administration, which sets federal vehicle mileage standards along with EPA, to consider greenhouse gas emissions when it set the corporate fleet fuel economy standards for the 2011-2016 vehicle production years. That lawsuit was successful. At the same time, several states sued to compel EPA to set standards for greenhouse gas emissions. That challenge led to the Supreme Court decision in Massachusetts v. EPA, which held that the Clean Air Act gives EPA the authority to set such standards and sent the matter back to the agency for consideration.
As all of this was playing out, the Obama administration came into office in 2009 and, with the economy in free-fall, was looking at the need to give huge financial bailouts to the U.S. auto industry. So the new administration brought all the parties together and structured a historic deal.
So tougher fuel mileage standards came out of the recession and the auto bailout?
Yes. To avoid years more of agency process and litigation, EPA and NHTSA set national fuel economy standards intended to begin bending the efficiency curve upwards and the carbon emissions curve downward. These fleet standards typically are set in five-year intervals so that auto manufacturers will have production certainty. The deal was that the federal fuel economy standards would increase slowly during the first production period ending in 2016 and then ramp up more dramatically to a fleet-wide average of 54.5 miles per gallon by 2025. Obama’s EPA would grant California the waiver for greenhouse gas emission standards that had been previously denied, but the states agreed that they would go along with these standards and not seek more stringent standards under the California waiver. And In return for roughly 80 billion dollars in bailout money, the auto industry would agree to the schedule and start designing the fleet to meet the higher standards over time.
So under the deal, there was some modest nationwide progress on fuel economy standards through 2016. But now, when the curve is really supposed to start bending up, the industry is strenuously lobbying the Trump administration to scrap the deal and lower the national standards.
How easily can the fuel mileage standards be changed?
While it looks like the White House may bow to the industry and renege on the deal, doing so won’t be that easy. First, the federal agencies will have to go through a new rulemaking process to lower the standards and any rollback will then be litigated.
What might that mean to California and its stringent vehicle emission standards?
Any move by the Trump administration will inevitably be tied up in the courts for some time.
California has already signaled that it won’t roll over for reductions in the national standards. It intends to rely on its existing waiver through 2025. Some have suggested that EPA could try to revoke that waiver, but the Clean Air Act doesn’t provide for a revocation and the statutory standards gives a lot of deference to California’s judgment. The most immediate question is whether the Trump administration or the auto industry will try to challenge California’s exercise of its waiver in some way. Another question is what other states will do. Because other states can opt to follow California’s more stringent standards and more than a dozen—mostly in the Northeast—historically have done so, the market share of vehicles subject to higher standards is fairly large. The industry cannot just write off those significant markets.
Deborah A. Sivas is the Luke W. Cole Professor of Environmental Law at Stanford, the director its Environmental Law Clinic, director of its Environmental and Natural Resources Law and Policy Program, and a senior fellow at the Stanford Woods Institute for the Environment.