Trump's Decision to Hamstring California's Climate Authority Is Illogical and Uninformed
Originally published in The Revelator. Reprinted under Creative Commons license CC BY-NC-ND 3.0.
For five decades California and the federal government have worked together in an innovative exercise in federalism aimed at achieving cleaner air. California has played an important role in controlling greenhouse gas emissions that contribute to climate change, particularly from motor vehicles.
But now, contrary to law and in a massive departure from past practice, President Donald Trump has announced that his administration is pulling the rug out from under California's feet by divesting it of its longstanding authority to adopt auto emission controls more stringent than the Environmental Protection Agency's.
The action, implemented jointly by the EPA and the National Highway Traffic Administration, couldn't come at a worse time. Less than a year ago, the Intergovernmental Panel on Climate Change called "ambitious mitigation actions" indispensable to limiting warming to 1.5 degrees Celsius and avoiding the most disruptive and potentially irreversible effects of climate change.
California, supported by more than 20 other states, is already challenging the administration in court. But if the administration's effort succeeds, the world will be deprived of California's vital leadership, and the Trump administration will have shelved another important tool for combatting climate change.
Because of the severity of California's pollution problems and the state's early environmental leadership, the Clean Air Act specifically allows the state to apply for a waiver
Abolition of Supplemental Environmental Projects: A Damaging Retreat for Environmental Enforcement
by Joel Mintz | September 18, 2019
Late last month, the U.S. Department of Justice (DOJ) quietly took a major step to undercut the enforcement of our federal pollution control laws. In a publicly released but little publicized memorandum, DOJ’s Associate Attorney General for Environment and Natural Resources, Jeffrey Bossert Clark, announced that the agency will no longer approve enforcement case settlements with local governments that include Supplemental Environmental Projects (SEPs) – a long-standing feature of negotiated resolutions of environmental enforcement cases. SEPs allow a non-complying company,
A Welcome Victory in the D.C. Circuit
Originally published on Legal Planet. Last Friday, the D.C. Circuit decided Wisconsin v. EPA. The federal appeals court rejected industry attacks on a regulation dealing with interstate air pollution but accepted an argument by environmental groups that the regulation was too weak. Last week also featured depressing examples of the drumbeat of Trump administration rollbacks, so it was especially nice to have some good news. I hesitated about whether to write something about the case because the opinion makes for
The Ball Is Back in EPA's Court Following Release of Final Bay Restoration Plans
Last week, the six Chesapeake Bay states and the District of Columbia posted their final plans to meet the 2025 pollution reduction targets under the Bay cleanup effort known as the Chesapeake Bay Total Maximum Daily Load ("Bay TMDL" for short). These final Watershed Implementation Plans (WIPs) were, by and large, little different from the draft ones released this spring, at least for the big three Bay jurisdictions (Maryland, Pennsylvania, and Virginia) that are responsible for roughly 90 percent of
Clearing the Air
Originally published on Legal Planet. On Friday, the D.C. Circuit decided Murray Energy v. EPA. The court upheld EPA's health-based 2015 air quality standards for ozone against challenges from industry (rules too strong) and environmental groups (rules too weak). However, it rejected a grandfather clause that prevented the new standards from applying to plants whose permit applications were in-process when the standards were issued. It also required EPA to tighten up the "secondary standards" for ozone, which are intended to
The Hill Op-ed: Congress Should Support Clean Energy Research and Development
This op-ed was originally published in The Hill. For the past couple of years, President Trump's federal budget proposal has called for the elimination of a crucial Department of Energy program — the Advanced Research Projects Agency-Energy (ARPA-E). The agency’s mission is to fund high-risk/high-reward energy research — that is, research that has transformative potential for the nation’s economic and energy needs but that is deemed too expensive or too risky for energy companies to fund on their own. Congress, though, has wisely resisted the president’s proposal, and continued to fund ARPA-E. But the White
Get Ready for Phase 2 of the Deregulation Wars
Originally published on Legal Planet. The first phase of Trump's regulatory rollbacks has been directed against Obama's climate change regulations. Those deregulatory actions will be finalized soon. What happens next will be in the hands of the courts. But the Trump EPA is now beginning a new phase in its attack on environmental regulation. Having tried to eliminate climate regulation, its next move will be an attack on basic protections against air pollution. The Clean Air Act, the federal air
The Cost-Benefit Boomerang
This commentary was originally published by The American Prospect. Everyone in communications knows how to bury a news story: release it late on a Friday. So it was with the White House’s annual report on federal regulations, released months behind schedule on a Friday in February. As it has for many years, the report pegged the benefits of federal regulation in the hundreds of billions of dollars, swamping the calculated costs of compliance by at least 2 to 1 and
EPA Abandons Role at the Center of the Chesapeake Bay Accountability Framework
On June 21, the Environmental Protection Agency (EPA) released its evaluation of the third and final round of state Watershed Implementation Plans (WIPs) under the Chesapeake Bay restoration framework known as the "Bay TMDL" (Total Maximum Daily Load). EPA's evaluation of the seven Bay jurisdictions broke no new ground regarding the quality or contents of the states' plans, but instead reiterated many of the same findings and concerns expressed by advocates, including the ones I expressed with my colleague David
Trump EPA Hiding Hundreds of Deaths in Plain View
According to press reports, EPA is preparing to ignore possible deaths caused by concentrations of pollutants occurring below the national ambient air quality standards (NAAQS). This is a key issue in a lot of decisions about pollution reduction. For instance, there is no NAAQS for mercury, but pollution controls on mercury would, as a side benefit, reduce pollution levels of harmful particulates. According to EPA’s prior cost-benefit analyses, those reductions could save many lives even in areas where current levels of
EPA's Partial Retreat on Cost-Benefit Analysis
In a memo sent last week but just now released, EPA Administrator Andrew Wheeler backtracked a bit on one of the administration's initiatives to undercut sensible safeguards. His May 13 memo abandons the agency's push last year to establish uniform standards for bending agency decision making in favor of cost-benefit analysis, regardless of statutory directives, and instead directs that this effort follow a statute-by-statute approach. Wheeler’s retreat on this particular effort to ignore the life-saving benefits of environmental rules is good
Shackling EPA Risk Assessment
Originally published on Legal Planet. EPA pollution regulations are based on an assessment of the risks posed by pollutants. This can be a complex scientific judgment. The Clean Air Scientific Advisory Committee (CASAC), the agency's scientific advisory board, is pushing for major changes in the way that EPA approaches this analysis. The effect would be to make it much harder for EPA to prove that a risk exists. Currently, risk assessment is based on a "weight of the evidence" approach
EPA's Mission: The Original Understanding Wasn't Cutting Regulatory Costs
Originally published on Legal Planet. What is EPA’s mission? To what extent is minimizing regulatory costs part of the core mission, as the Trump Administration seems to believe? Does the Trump-Pruitt/Wheeler view comport with original intent? History makes it clear that the answer is “no.” The title of the agency itself suggests that the core mission is protecting the environment, just as the core mission of the Defense Department is presumably national defense (though cost isn’t irrelevant in either setting). It’s
Public Interest Community Calls on EPA Administrator to Halt Dangerous 'Benefits-Busting Rule'
Today, the Center for Progressive Reform and 46 other environmental, labor, and public health organizations sent a letter to Environmental Protection Agency (EPA) Administrator Andrew Wheeler calling on him to withdraw the agency's pending "benefits-busting" rule. Wheeler was recently confirmed as the official agency head, and, as the letter notes, he can begin his tenure on the right track by abandoning this dangerous rulemaking. The proposal is a vestige of the disastrous Scott Pruitt era that would radically overhaul how the
Due to NEPA, Trump's 'One-In, Two-Out' Order Does Not Apply to Environmentally Protective Regulations
This post is adapted from a recent law review article published in the University of Missouri—Kansas City Law Review. In myriad ways – from speeches, favoritism toward polluting industries, and ill-advised regulatory rollbacks – the Trump administration has consistently exhibited unrestrained antagonism toward regulatory safeguards for health, safety, and the environment. One of the earliest manifestations of that antagonism – and arguably one of the most pernicious – was an executive order signed by the president only ten days after
It's Official: Trump's Policies Deter EPA Staff from Enforcing the Law
by Joel Mintz | February 19, 2019
This op-ed was originally published in The Hill. The Environmental Protection Agency (EPA) released an annual report Feb. 8 on its enforcement activities in fiscal 2018. After wading through a bushel full of cherry-picked case studies and a basket of bureaucratic happy talk, the report paints a dismal picture of decline in a crucially important EPA program. EPA's data indicate that it initiated and concluded approximately 1,800 civil judicial enforcement cases in 2018 — fewer than half the number it
Wheeler Hearing Provides Opportunity to Learn More about 'Benefits-Busting' Rule
During his tenure, former Environmental Protection Agency (EPA) Administrator Scott Pruitt launched multiple assaults on environmental and public health safeguards. His attacks on clean air standards and water quality regulations made so little sense in our reality that he went to the absurd and extreme lengths of creating an alternative reality to make them look legitimate. That alternative reality is rendered in the "benefits-busting" rule, which would systematically distort the analyses EPA economists conduct to assess the economic impacts of
Federalism 'Collisions' in Energy Policy
Originally published in The Regulatory Review. Reprinted with permission. Like many areas of law, energy policy in the United States is both national and local. The boundary lines delineating federal and state authority are not always clear, leading to tension and disagreement between federal and state authorities. When tensions get too high, Congress can, and often has, stepped in to override state control in order to promote national interests. But when Congress faces partisan gridlock, an increasing number of disputes are