President Donald Trump was inaugurated as the 45th President of the United States on January 20, 2017. With his inauguration, Republicans gained control of American government: the Presidency and both seats of Congress. As of early April, conservative ideology regained its majority on the Supreme Court.
Republicans have for decades regarded environmental protection measures as anathema to American economic wellbeing. Whenever Republicans talk about keywords like job growth or economic security, the answer seems to always be eliminating harmful environmental regulations. Sometimes I play a game; I listen to a Republican in a debate or stump speech, I listen whenever economics are brought up, and inevitably they say something about regulations and environmental regulations in particular. The new administration has mostly governed in a way that reflects this sentiment.
This is truly a fascinating time to study environmental policy. For the past two months, I have collected what I believe to be the most important federal-level environmental policy changes coming out of Congress and the Trump Administration. In this post, I break down the environmental politics and policy of today’s Republican Party. I explore the why and how of Republican anti-environmentalism, outlining the strategies Republicans have utilized since January as well as the motivations underlying those strategies. I believe that by better understand exactly what it is that Republicans are doing, environmentalists and conscious policymakers can better mobilize and oppose harmful policy.
Big Executive Orders Attempt to Undo Obama’s Environmental Legacy
Similarly to under President Obama, the direction of US environmental policy has largely been determined by the executive branch. American presidents are in charge of a vast bureaucracy, and determine how their agencies work in two ways by (1) appointing political allies to top spots within those agencies, including the lead administrator for each agency, and (2) directing agencies to do certain things and act a certain way, which tends to come from interagency directives or from executive orders.
President Trump has made major splashes with executive orders in the last couple of months, many not related to the environment. However, he has issued a number of significant orders that direct EPA to rollback and reconsider President Obama’s most significant environmental policy victories. The most significant order was an omnibus order that directs EPA to reevaluate the Clean Power Plan (which would mandate that states reduce their greenhouse gas emissions over a period of time and remains the cornerstone of America’s commitments to the Paris Agreement), as well as a number of other actions, including directing agencies to reconsider the social cost of carbon (SCC) metric. SCC essentially is a number (currently set at $36/ton) that justifies the costs and benefits of federal regulations that reduce carbon emissions. Other executive orders issued by the Administration include an order that directs EPA to reevaluate the Waters of the United States Rule (which expands the definition of what “waters’ are protected under the Clean Water Act), and executive orders speeding up the permitting process for controversial oil pipelines in the upper midwest.
These actions, I argue, make up the core of what any Republican would do to limit the reach of EPA over the private sector. However, with some exceptions, these are not actions that can be carried out immediately, and they are by no means a sure bet to actually happen. The reason for this is simple: most direct agencies to change rules that have already been instituted by previous administrations. Rule changes are not a sexy topic, but they are vastly important and crucial to understand. Agencies do not just issue new rules with a snap of a finger. Rather, these processes are massively drawn out, and the process of revising or withdrawing existing rules are equally complicated and painstaking.
Let’s use the Clean Power Plan as an example. The Clean power Plan is an agency rule. Trump can not and did not just repeal it with a stroke of his pen. He asked EPA to revisit the Plan – essentially to find a way to reduce its regulatory burdens on states and industry. EPA now has to go through a process where they must justify why a proposed alternative is legally sound, and justify why their proposed alternative is a better course of action. It will take years to complete, as the agency will have to formulate a strategy, prepare numerous environmental impact statements (EIS’s), and do the challenging work of making policy. Furthermore, each step of the process will accompany with them numerous environmental impact statements and lawsuits. There are some excellent pieces, like this one written by Vox’s Brad Plumer, that detail how difficult it will be for the Trump administration to revoke this rule. Basically, federal rulemaking does not exist in a vacuum. There exist legal precedents and other agency work that find that greenhouse gases are a danger to human well-being and establish that EPA has the authority to regulate greenhouse gases (meaning that EPA pretty much must regulate GHGs). The administration cannot just change this, and it will be interesting to observe the approach that EPA takes to diminish the Clean Power Plan. Regardless, there will most certainly be plenty of litigation challenging Trump’s directives. The same story is mostly true of other executive-directed rule changes.
Bring on the Congressional Review Act
Where executive orders and rule changes are slowly changing dynamics of American environmental politics, Republicans in Congress have been invoking a rarely used piece of legislation called the Congressional Review Act (CRA) to eliminate recent agency rules and to do it very quickly. The CRA was passed in 1996 and empowers Congress to use an expedited Joint Resolution to review and nullify recently issued agency-level rules and regulations. It had only been used on time prior to the inauguration of Donald Trump. However, once there was a Republican President favorable to deregulation (President Obama was not likely to sign bills that would eliminate rules his own agencies created), the Republicans in Congress began to pass bill after bill that eliminate last-minute environmental rules created by the Obama administration. Since January, Congress has passed and Trump has signed 11 “Joint Resolutions of Disapproval” under the CRA that eliminate last-minute regulations. While the CRA acts undo regulations having to do with everything from internet privacy to the ability to buy guns, the majority of the actions are environmental in nature. A full list of regulations struck down by the Trump Administration and the Republican Congress can be found here. Politico notes that Trump’s signing of CRA bills remain his only major legislative accomplishments since his inauguration.
Invoking the CRA to undo regulations makes it VERY difficult for another administration and its agencies to issue a similar rule. Pundits see the actions as Republicans winning political victories, and coming through on campaign promises.
How to Hamstring Regulatory Agencies in Two Months
In February, Stephen Bannon took the stage at the Conservative Political Action Conference and told the gathered right-wingers that one of the primary goals of the administration is the “deconstruction of the administrative state”. The use of the CRA is part of a larger deregulatory story playing out in Washington that includes but transcends the use of the act and regulatory rollback.
Since taking control of the government, Republicans have pursued legislation and executive orders have been invoked to reduce the future regulatory power of the federal government. The core of the strategy has been, it seems, to create oversight over federal agencies. In late February, Donald Trump signed an executive order that mandates that each agency appoint a “Regulatory Reform Officer” who is empowered to identify certain regulations that may be detrimental to job growth or “outdated”, and recommend to the agency administrator and the President that they be removed. Also in February, Congress did a very similar thing. The House passed the SCRUB Act (which has not made it out of committee in the Senate), which would create a Congressional regulatory review commission, which would be able to identify and recommend to Congress that those rules be eliminated.
In addition to regulatory overview, Republicans have utilized strategies to make future regulation much more difficult. From the executive branch, President Trump has issued (very ambiguous) orders, such as one that requires that for every new regulation, the cost-equivalent of two others be repealed by a federal agency. This kind of order is rife with complications and uncertainties, but executive directives to agencies have power, and without revoking this order, any new regulation must invoke this process. This has the potential to both backfire on the Trump administration attempting to regulate really anything, but also will slow down the regulatory process.
In Congress, Republicans have used a different strategy to make future regulatory endeavors more difficult: changing how agencies can use information – scientific information in particular.
In early April, the House passed two bills, the HONEST Act and the “EPA Science Advisory Board (SAB) Reform Act”. The bills come out of Republican sentiments, displayed in the language of the bills and multiple hearings including one entitled “Make EPA Great Again”, that past Obama-era EPA regulatory decisions have been political decisions rather than scientific decisions. This is reminiscent of conservative claims that environmentalists interested in responding to climate change are pushing an ideological or political agenda rather than a scientific one. Which is, of course, ridiculous. Anyway, both bills limit the way EPA can use science. The HONEST Act in particular, authored by Rep Lamar Smith (R-TX-21), mandates that EPA can not use scientific knowledge if it is now the “best available science, specifically identified, and publicly available in a manner sufficient for independent analysis and substantial reproduction of research results”.
Finally, Republicans will use budgeting to hamper the work of EPA and other regulatory agencies. This is not a new strategy. Republicans in Congress under President Obama used funding appropriations and riders (stipulations attached to funding bills) as one of the main ways to limit what EPA could do. I will not go into the details of Donald Trump’s proposed EPA budget, but needless to say, it would cut a sizeable amount of the agency’s operating budget. I do not think that all of the budget cuts will come into effect, as even conservative Republicans will balk at the dramatic reductions, but it is very reasonable to expect still-sizeable cuts to EPA’s budget. These cuts, including possibly closing EPA regional branches, have the potential to severely limit what EPA does and slow its work, but in a non-regulatory manner.
These mechanisms represent a more subtle, but forward looking approach to dealing with environmental protection. They are removed from the straight-forward rollbacks of existing environmental regulation. Rather, they deal with, and limit, the ways that agencies can regulate moving forward as well as challenging the wisdom of environmental regulation more generally.
The Case of the Endangerment Finding, and, Republican Environmental Strategies in 2017
I think that the questions remains: what strategies are and will the Republicans take on environmental protection policies? And, why? I have outlined the general executive-guided rollback approach approach that I have noticed throughout my two months of observation. However, the case of the endangerment finding I think gives us some insight into the actual environmental politics behind the administration’s policy choices. When Donald Trump issued his omnibus executive order on climate and energy, the order omitted any mention of revising or reconsidering the endangerment finding. I alluded to the endangerment finding earlier, but essentially it is a 2009 finding by EPA that carbon dioxide emissions are bad and bad for America. The endangerment finding, coupled with the 2009 Supreme Court decision Massachusetts v EPA, make up the core of the legal authority of the government to regulate GHG emissions. If the Trump administration is truly opposed to climate protection measures, why would it not attempt to challenge or reconsider one of the primary justifications for US climate policy?
According to a Politico article (yes I am using Politico a lot), Scott Pruitt and other higher-ups in Trump’s EPA believed that it would be too legally difficult to adequately challenge the endangerment finding. This concession essentially amounts to admitting that the weight of scientific inquiry and logic is behind the argument that carbon emissions, and associated climate change, is a bad thing and should be stopped.
This makes the other things that the administration has been doing that much more important. With an understanding of this administrative finding, and the reasons why the administration has not done anything to change it, the strategy that the Republicans are taking on the environment becomes clear. On one hand, they are attempting to roll back whatever they can using the politically and legally low-hanging fruit of executive orders, agency practices, and CRA regulation reviews However, it seems they have made a choice to not challenge every little piece of specifically climate-change related piece of administrative law or court precedent. Another prominent example can also be seen in the handful of extremely anti-EPA and anti-environment bills coming out of Republicans in Congress, that never had a chance of becoming law, but were simply proposed by Republican legislators eager to appease their voting base. Political grandstanding, like proposing a bill that would eliminate EPA, are political tools, but these kinds of radical policy proposal are not the core of modern-day Republican anti-environmentalism.
Effectively opposing environmental offenses depends on recognizing exactly what Republicans are doing on climate and the environment and why. The Republican Party is unfriendly to environmental protection as to them, it represents the public sector reigning in business and innovation. However, the core of Republican strategy is not to simply deny the existence of climate change or try to stop certain regulations. Republicans do not feel that they need to challenge every little thing about climate policies in the US to do the work of deregulation. Rather, Republicans can rely on the rollbacks that they can easily achieve, while gutting and reorganizing the federal bureaucracy to hamstring the work of federal agencies. Environmentalists would do well to remember this into the contentious future.