What Trump’s latest threat to the climate will mean in court

Freak weather conditions and destruction are signs of climate change. (Photo: White House video still)

Publish date: October 11, 2017

As California is reduced to ash by raging wildfires fueled by drought, and the Gulf of Mexico catalogues the destruction wrought by its fourth hurricane in two months, efforts to dampen America’s commitments to fighting climate change might strike some as being in poor taste.

As California is reduced to ash by raging wildfires fueled by drought, and the Gulf of Mexico catalogues the destruction wrought by its fourth hurricane in two months, efforts to dampen America’s commitments to fighting climate change might strike some as being in poor taste.

Not Scott Pruitt, Donald Trump’s fossil fuel cosseting, climate change denying head of the Environmental Protection Agency, who this week announced a repeal of the Obama Administration’s signature Clean Power Plan.

The plan, which would have reduced carbon dioxide emissions from coal burning power plants by 32 percent before 2030, was Washington’s central promise to the Paris Climate Agreement, from which Trump announced a bumbling withdrawal in May.

Without it, there is little hope that the United States will reach any of the goals spelled out in the accord – and that will further scuttle the world’s chances of dulling temperature spikes to below 2 degrees Celsius, to say nothing of America’s competitiveness in a world whose countries are moving toward more sustainable technologies.

But to Trump, that’s the point: Sinking the regulation is part of his plan to jab a thumb in the eye of globalizing forces on behalf of America’s hard-hatted coal industry – whose smoke has dissipated somewhat with the rise of cheap natural gas and renewables, independently of any supposed environmental fetters.

As if to underscore the spirit of American isolation, the EPA press release on the repeal said that, in calculating the costs of future pollution rules, it would no longer account for certain “supposed global benefits.” America first indeed.

But while the repeal plays well as another act in Trump’s theater of outrage, there are reasons to suspect that this White House – recently described as an “adult day care center” by a US senator who supports the repeal ­– might not have the teeth for it. That’s because actually dismantling it requires long, sustained, un-dramatic legal tedium that’s unlikely to capture Trump’s destructive imagination

As it stands, US law says the administration can’t just dump the Clean Power Plan because they don’t like. If they want to get rid of it for good, they’ll have to justify why they think it’s not reasonable or legal to cut carbon dioxide emissions by 2030 – which might be a hard sell to the 50,000 people still homeless after Hurricanes Harvey and Irma, and 3 million people in Puerto Rico who still don’t have running water or electricity weeks after Hurricane Maria.

First off, to offer new rules, Pruitt’s EPA has to run the gauntlet of the rule-making system to repeal regulations. When that’s done, he will have to horse his new rules through periods of public notice and comment, before he even puts his rules into effect – something that in the best of weather would take at least a year.

The forecast is gloomy. There are, as the Natural Resource Defense Council notes, 18 states’ attorneys general and a host of well-heeled environmental organizations waiting to pounce on any new regulations Pruitt comes up with. That would land him in the US Court of Appeals for the DC Circuit, a court historically sympathetic to finding in favor of protecting the environment.

If Pruitt actually clears the public notice and comment period and fends off dozens of environmental lawsuits in the process, there is another more fundamental obstacle to anything he proposes to replace the Clean Power Plan: He has to prove greenhouse gases aren’t dangerous.

To do that, he’ll have to go all the way back to 2007 to challenge a US Supreme Court decision, which ruled that it was the EPA’s job to regulate those gases. The law on which the Supreme Court based its ruling was the Clean Air Act of 1970, which offers restrictions on pollutants.

In the two years following that ruling, the Obama era EPA busied itself getting in tune with the court’s decision. The agency studied the potential for more tumultuous weather, death rates tied to rising temperatures, lethal exposure to pathogens, rising seas, melting ice, read thousands of pages from the UN’s International Panel on Climate Change, and came to this conclusion: Reason to believe that greenhouse gases were hazardous, and that things were only getting worse was “compelling.”

As a result of its studies, the EPA in 2009 issued what’s called an “endangerment finding.” This finding said that greenhouse gases were, in fact, dangerous and subject to regulation.

The finding has proved durable: After it was issued, a group of oil and gas lobbyists challenged it in a case that wound up in front of the US Court of Appeals for the DC Circuit. The lobbyists lost. The court ruled that the EPA’s interpretation of its own authority to regulate pollution was “unambiguously correct” – an authority that, despite Pruitt’s wishes, the EPA maintains today.

So, to fully trash the Clean Power Plan, Pruitt eventually will have to present evidence emerging since that 2009 ruling suggesting that greenhouse gases aren’t dangerous. Good luck. All of the evidence amassed since shows exactly the opposite.

For instance, this year’s Atlantic hurricane season has spawned more storms than seen in a century. Wildfires in Northern California scorched more than 100,000 acres and burned thousands of homes. More globally, the world has experienced some of the worst storms and most parching droughts, endured the hottest year on record, and seen huge populations go on the move in search of arable land – all in the last seven years.

Any proposed Clean Power Plan replacement from Pruitt would likely be challenged in the US Court of Appeals for the DC Circuit, and that court has historically tilted toward environmental regulation. If that court follows its environmentally friendly history, Pruitt could appeal the ruling to the US Supreme Court.

But here the stakes get even higher: To mount that attack, he’d have to prove to the justices that the Clean Air Act – congressional legislation embraced with bipartisan affection for 46 years ­– doesn’t allow the government to regulate pollutants.

Not to say that he won’t try. Pruitt, who prior to rising to ugly national prominence spent his career trying to sue the EPA, clearly intends to rot things from the head.

But the prospect that the Trump administration can craft a replacement rule that would clear these soaring hurdles prior to the 2020 election – when it’s widely hoped Trump will be voted out of office, turning Pruitt into a bad memory ­– is surpassingly slim.

The optics, however, are clear: Burning environmental regulation is an applause line for the minority of populist voters who put Trump in office. For the time being, the world’s climate is hostage to those voters as well.

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