United States: Trump's Executive Order On Climate Change

The EPA's climate change program is a combination of rules issued under the Clean Air Act and executive orders implementing policies on greenhouse gas emissions reduction. The most extensive program is contained in former President Barack Obama's Clean Power Plan rules,1 which are aimed at the energy supply and power generator industries. More recent rules governing oil and gas drilling by new sources also contain detailed standards.2

This expert analysis looks at how those rules could be affected by the presidential executive order titled Promoting Energy Independence and Economic Growth, which was issued by President Donald Trump on March 28.3

The executive order seems, on its face, to be directing actions in violation of the separation of powers.

States and other groups petitioned the government for greenhouse gas regulations. The Supreme Court, in the seminal case of Massachusetts v. EPA,4 recognized that controls on manmade carbon pollution (or greenhouse gas emissions) are administratively unusual in that they have an enormous regulatory impact on the energy sector, even though no federal statutes expressly require the government to regulate carbon pollution or set criteria to address climate change.

But the court concluded the actions the EPA had taken, as well as those the agency was asked to take in the petitions, were within the broad scope of its authority under the Clean Air Act.5

The Obama administration subsequently determined that greenhouse gases threaten public health and the environment, and that motor vehicle exhaust emissions cause or contribute to the greenhouse gas pollution that threatens us.6

Multiple lawsuits challenged the EPA's initial greenhouse gas reporting rules, the endangerment findings on which they were based, and the requirement for permits for stationary sources that emit greenhouse gases.

Even with "tailoring" rules that limited such regulations to very large emitters (greater than 100,000 tons per year) of greenhouse gas, the opposition became a partisan crusade in which no negotiation or compromise was possible.

The District of Columbia U.S. Circuit Court of Appeals upheld the rules in part and denied review of the rest of the challenges. The case then proceeded to the Supreme Court.7

In Utility Air Regulatory Group v. EPA, 134 S. Ct. 2437 (2014), the Supreme Court rejected the tailoring rules and said permits could not be required for sources that emit only greenhouse gases. It also allowed for the regulation of stationary sources that were already subject to Clean Air Act.

Unable to build a consensus for statutory amendments that would preclude greenhouse gas regulation, opponents continued to object to regulations on every ground, including denial of the scientific data and analysis supporting regulations.

The Obama administration proceeded to issue its Clear Power Plan, and the rules were immediately challenged in the D.C. Circuit by multiple states and other parties. The D.C. Circuit denied motions to stay the rules in an order issued Jan. 21, 2016.8

The significant potential impact of the rules yielded an unusual procedural outcome: The Supreme Court issued a 5-4 stay of the rules pending completion of judicial review.9 Although the Obama administration continued its defense the rules in court until the end of its term, the Trump administration was granted a 60-day stay of the case, thus preserving the stay of the rules.10

Eventually, procedure will have to give way to a review on the merits, either of the existing rules or any revisions made in response to the executive order.

CLEAN AIR ACT REGULATORY PROCEDURES

Methane, carbon dioxide or other carbon-containing gases, which are created by both natural and manmade emissions, clearly fall within the very broad definition of "air pollutant" in Section 302(g) of the Clean Air Act.11 The executive branch has already determined that these emissions pose a substantial potential for harm to human health, welfare and the environment.

When a prior administration has made discretionary decisions based on its analysis of a significant body of data collected over decades — and has taken regulatory actions that have been sustained by judicial review — does the law restrict a succeeding president's power to revoke, withdraw or modify those regulations? If so, does Trump's recent executive order follow the required procedures for the changes he apparently seeks to make?

The Trump executive order clearly intends to eliminate carbon regulations of the Obama administration in their entirety. However, it contains several qualifications reflecting statutory obligations that restrict his actions, or policy decisions relating to the regulation of fuels for power plants that reflect his own stated goals.

These are:

• The executive order says it is not to be construed to impair or affect "authority granted by law to an executive department or agency or branch thereof," or to related budgetary functions, administrative action or legislative proposals. It is to be implemented consistent with applicable law and available appropriations.12
• The executive order intends to promote the "clean and safe" development of energy regulations, which is "prudent" and avoids regulation that "unnecessarily encumbers" the energy industry.13

ENERGY DATA AND DECISION-MAKING

Section 3 of the order specifically revokes each executive order, presidential memorandum, report or plan of the Obama administration related to carbon pollution regulation and the energy sector.14

In effect, the Trump administration disagrees with the actions that were taken by the Obama administration as well as the analysis and conclusions that were used to support them. But the executive order does not provide supporting data for its stated goals of eliminating climate policies, plans, orders and rules of the Obama administration.

The approach of the Reagan administration might have been used as a guide to better procedure. The Reagan administration also sought to limit the EPA's regulatory reach. The mechanism for that process, Executive Order 12291, required a cost benefit analysis (also called a regulatory input analysis, or RIA) of all pending and future rules, and adherence to statutory requirements.

The Reagan EPA ran afoul of the Administrative Procedure Act when it tried to stay a final rule after it was adopted but before it took effect. The 3rd U.S. Circuit Court of Appeals reversed the stay in Natural Resources Defense Council v. EPA, 683 F.2d 752 (3d Cir. 1982). But the RIA process remains intact and functional today.

The Trump executive order also calls for a review process and compliance with the law. But it determines the goal of that process — revocation — in advance of the review. The immediate rescission of the executive plans and policies directing the development of the rules may be viewed as evidence of an intent to revoke them after the 180-day review period specified in the order.

In the meantime, the EPA is seeking to stay the individual rules to allow time for review under the order and any public comment period required for revocation. The executive order says that any decision to suspend, revise or rescind a rule will be made "appropriately." But the word "appropriately" is used in conjunction with references to compliance with law, not burdening energy development, protecting the public interest or respecting the roles of the federal and state government.

The biggest challenge for supporters of greenhouse gas regulation may be dealing with an agency without a budget.

Such ambiguous references to standards for "appropriate" consideration cannot mask the bias reflected in the rescission or revocation of all executive memoranda, orders or plans from which rules such as the Clean Power Plan arise.

Any appropriate consideration cannot reasonably result in rescission if nothing is presented to contradict the data and analysis on which the Obama administration rules are based. And no specific plan for data collection or analysis to identify contradictory data prior to action has been presented.

DATA COLLECTION

In Massachusetts v. EPA, the Supreme Court noted that a substantial body of data supports the greenhouse gas effects that drove the EPA's Obama-era regulations. The Trump executive order may be read simply to require a fair review of those rules on the record, but that reading raises questions.

For example, where will the data come from for that review to support any suspension, revision or rescission of the rules? And how much time will be required to complete the process needed to stay, amend or rescind any rules? Is 180 days really enough time for an "appropriate" review? And will courts agree to delay the effective dates of rules that are final but not yet implemented — or to suspend rules that are in effect to permit such data collection and review?

The Trump executive order does nothing to answer the data question. The Trump administration is actively working to reduce staff, eliminate scientific advisory boards and reduce operating budgets.

Unless the plan is to have the regulated community or environmental groups provide the data and research, the order does not contain adequate planning or resources for the review it purports to require.

The order reasserts long-standing objections to EPA rulemaking where the legislative delegation is not completely explicit, or where the rules would impose extensive regulatory requirements on the states.

The Supreme Court decided the issue of legislative delegation in favor of the Obama rules in Whitman v. America Trucking Association, 531 U.S. 457 (2001) (authored by Justice Antonin Scalia).

Federal authority to regulate motor fuels and emissions of air pollutants from stationary sources under the Clean Air Act is beyond question. The inability of the states to manage such carbon pollution problem was discussed in Massachusetts v. EPA.

No convincing arguments have been presented to contradict the executive authority to regulate carbon fuel production and use due to the air pollutants they produce, which have the potential to impact climate change. Decades of data collection and analyses have established the existence and severity of manmade carbon pollution in the air.

So we return to the need for a factual — rather than legal — basis for revocation. Here, the glaring omissions of research, analysis and data collection initiatives in the executive order become critical problems.

If the data supporting its intended action exists, when will we see the analysis and conclusions supporting the actions being taken? If more data is believed to be needed, what is the plan? What are the actions and deadlines for collecting and analyzing the data and presenting new conclusions and actions?

WHAT MUST THE PRESIDENT DO?

The Trump executive order removed the underlying policy statements regarding man-made climate change, its significance and the need to base decision-making in favor of actions that reduce carbon emissions. Trump's action may forestall numerous federal agencies from further research, data collection or analysis that reinforces prior executive decisions on climate change.

The constitutional duty to faithfully execute the law15 should encompass the duty to continue data collection and analysis needed to execute the law properly. The Trump administration may dispute the existence of this duty in the absence of specific climate change legislation (which is not likely to be forthcoming).

The administration would argue that in the absence of air quality criteria and a National Ambient Air Quality Standard for greenhouse gases under Sections 108 and 109 of the Clean Air Act, the president cannot be forced to disprove the data and analysis supporting prior policies and current rules of the Clean Power Plan.

As discussed, the decision in Massachusetts v. EPA forecloses that argument, but a new review in a changing Supreme Court may bring a different result.

EXISTING LEGISLATIVE REQUIREMENTS

The executive order calls for the rescission of policies supporting climate change rules and the review of existing rules. This includes 40 C.F.R. Parts 85-86, 98, 600 and Subchapter U rules, among others.

Such ambiguous references to standards for "appropriate" consideration cannot mask the bias reflected in the rescission or revocation of all executive memoranda.

The rescission potentially includes the endangerment findings under Title II of the Clean Air Act, pending challenged final rules such as the Clean Power Plan rules, the greenhouse gas reporting rules, and the standards for methane gas and other emissions from the oil and gas industries. EPA Administrator Scott Pruitt has issued notices withdrawing all proposed rules and commencing review of existing final rules.16

Section 307(d) of the Clean Air Act, which governs review of most final actions under that statute, makes it clear that revisions to existing rules under Section 111 of the Clean Air Act must follow the APA's notice-and-comment procedures and are subject to judicial review.

There is no doubt that APA procedures would apply, and judicial review would be available, for any revocation of the Clean Power Plan rules remaining in effect following the outcome of current litigation over those rules.

The current jurisprudence on standing requirements presents no obstacle to suits seeking judicial review of rescission of the Obama rules.

ACTION BY INACTION

Can the president avoid his duty to faithfully execute the laws, as stated in Article II of the Constitution, simply by failing to obtain budget resources or by declining to enforce the laws during a lengthy period of review and litigation? The federal Budget Control Act requires the president to submit a budget.

Moreover, the failure to seek funds required to carry out a nondiscretionary duty under the Clean Air Act could fall under the citizen suit provision allowing litigation against the Trump administration for failure to perform any nondiscretionary act or duty under that law.17

If the administration is willing to endure such litigation (and legal costs and fees) to delay the rules, the only way to ultimately enforce proper executive action is by impeachment, which is a political move rather than a legal matter.

WHERE DO THINGS STAND?

The administration is implementing the executive order, and following procedures for notice and comment, while seeking to stay implementation of the Obama administration's final rules and standards. Initially the courts have allowed a stay of litigation in the appeals of the Clean Power Plan and a brief stay of the oil and gas industry rule.

On July 3 the D.C. Circuit reviewed a lengthy, open-ended stay of the oil and gas rule pending review. In a 2-1 decision, it vacated the stay because an immediate stay modifies the rule without going through proper rulemaking and procedures.

The stay was not authorized by Section 307(d). The court found that the criteria under that section were not met and that the stay was therefore "arbitrary, capricious [and] in excess of statutory authority."18

This decision suggests that courts will accept jurisdiction and act to prevent excessive stays of pending proposed rules or delays in the implementation of final standards during new reviews.

After a period of litigation over stays, environmental advocates will need to be prepared to challenge decisions resulting from EPA review and to file citizen suits to enforce standards and require the EPA to implement existing rules.

The biggest challenge for supporters of greenhouse gas regulation may be dealing with an agency without a budget. Even citizen suits depend on access to filed reports by the regulated industries.

If the EPA has no resources to maintain those reports and respond to Freedom of Information Act requests and file reviews, citizen suit enforcement may become much more difficult.

CONCLUSION

Trump's executive order does not violate the law. In fact, it contains qualifying provisions that require compliance with the law and protection of the environment.

Actions taken under it to revoke existing rules will be subject to public comment and judicial review, absent legislative action amending the Clean Air Act.

The order does raise serious doubt concerning a commitment to the constitutional duty of faithful execution and enforcement of the law. The complete absence of requirements to compile the data and analysis needed to change the rules is arguably evidence of bad faith — that the administration is unwilling to do what is needed to justify a proper review of the rules.

The lack of provisions addressing the scientific data and analysis needed to undo climate change rules is surprising. Unless the Trump administration can counter the existing body of data and analysis, it must collect data supporting a contrary model.

Modern courts will not tolerate a quasi-Scopes trial19 on climate change without a proper record rebutting the substantial supporting record.

Most opposition to climate change science and its regulatory progeny seems to be based on cost benefit analysis. But cost as an argument against regulation will require an amendment of the Clean Air Act, and Congress does not appear to have the appetite for such action.

Footnotes

1 80 Fed. Reg. 64662-64964 (Oct. 23, 2015); 80 Fed. Reg. 64510- 64660 (Oct. 23, 2015).

2 81 Fed. Reg. 35,824-35,942 (June 3, 2016).

3 Exec. Order 13,783, 82 Fed. Reg. 16093 (Mar. 31, 2017).

4 549 U.S. 497 (2007).

5 Id. at 507-514.

6 74 Fed. Reg. 66496-66546 (Dec. 15, 2009).

7 The first wave of lawsuits were decided under the name Coalition for Responsible Regulation v. EPA, 684 F.3d 102 (D.C. Cir. 2012). A second wave of lawsuits challenging the EPA's review of state regulations for greenhouse gases was rejected under Texas v. EPA, 726 F.3d 180 (D.C. Cir. 2013). Petitions for rehearing on the second wave of litigation were denied May 4, 2015, and no appeal was taken. By that time the Supreme Court had ruled on the first lawsuits under the name Utility Air Regulatory Group.

8 West Virginia et al. v. EPA, No. 15-1363, stay motions denied (D.C. Cir. Jan. 21, 2016).

9 West Virginia et al. v. EPA, No. 15A773, 2016 WL 502947 (U.S. Feb. 9, 2016).

10 Order of abeyance, West Virginia v. EPA, No. 15-1363 (D.C. Cir. Apr. 28, 2017).

11 42 U.S.C.A. § 7602(g). See also Massachusetts v. EPA, 549 U.S. at 528- 529.

12 See Section 8, 82 Fed. Reg. 16096 (Mar. 31, 2017).

13 See Section 1, 82 Fed. Reg. 16093 (Mar. 31, 2017).

14 82 Fed. Reg. 16094 (Mar. 31, 2017).

15 U.S. Const., art. II, § 1. See In re Aiken Cty., 725 F.3d 255, 259 (D.C. Cir. 2013).

16 The EPA withdrew two proposed Clean Power Plan rules April 3. 82 Fed. Reg. 16144. In an April 18 letter Pruitt announced he was convening a proceeding to reconsider the methane gas rules for the oil and gas industry. A notice granting a stay of the existing rules until Aug. 31

based on the petition was published June 5. 82 Fed. Reg. 25730. Soon thereafter, the EPA proposed to suspend the existing rules for two years during its review of the existing rules. 82 Fed. Reg. 27645 (June 16, 2017).

17 Clean Air Act Section 304(a)(2), 42 U.S.C.A. § 7604(a)(2). Although Congress sets the budget, the executive is required to propose a budget to meet the obligations imposed under the law.

18 Clean Air Council v. Pruitt, No. 17-1145, 2017 WL 2838112 (D.C. Cir. July 3, 2017).

19 The 1925 Tennessee state court criminal trial of a teacher for violating the Butler Act, a state law prohibiting the teaching of the theory of evolution in contradiction of biblical text. John Thomas Scopes was convicted and fined, but the case invited broad public discussion of the freedom of scientific education to challenge religious doctrines.

Previously published in Westlaw Journal Environmental on August 4, 2017

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