News and Observer Op-ed: Trump Can Order, but Federal Judges Will Decide on Climate Rules

by Victor Flatt

April 03, 2017

This op-ed originally ran in the Raleigh News & Observer.

President Trump's new "energy" executive order is an attempt to roll back Obama regulations on climate change, and even make considerations of climate change disappear from much of the policymaking process altogether.

That's quite a lot to accomplish by executive order, and despite all the media attention he got for it, the president is eventually going to discover that he can't eradicate climate realities from federal consideration with the stroke of a pen.

Among other things, Trump's order directs the EPA to take steps to get rid of the Clean Power Plan as currently constituted and begin rolling back an Obama era rule restricting methane emissions. These rules went through a full and complete rulemaking process; in order to undo them, the administration will have to undertake its own rulemaking.

That will take time – years. And along the way, it won't be sufficient for the president to simply order up a different rule that ignores statutory requirements related to climate change. All actions by federal agencies, including rulemakings, must be made on the basis of evidence, and may not be arbitrary and capricious or an abuse of discretion. Having established a deep base of evidence in support of these rules, the EPA can't simply say it changed its mind. It'll need new evidence, new analysis and new public comments; and in all likelihood, this will spur new litigation.

Whatever President Trump says about the reality of climate change, neither he, nor the federal agencies within the executive branch can simply swap alternative facts into what must be a factually based decision.

Read the full op-ed on the Raleigh News & Observer website.

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Also from Victor Flatt

Victor B. Flatt is the  Dwight Olds Chair and Faculty Director of the Environment, Energy and Natural Resources Center, University of Houston Law Center, and a Distinguished Scholar, Global Energy Management Institute at the University of Houston.

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