Abstract
President Trump has embarked on an ambitious and far-reaching attempt to reshape American environmental policy. In regard to climate change, water quality, and other areas, his administration’s actions constitute an attempt to roll back existing environmental protections and to recalibrate American environmental federalism. These actions largely represent a continuation of the practice of presidential reliance on the tools of the administrative presidency that has shaped U.S. environmental policy over the past forty years, although the Trump Administration has employed these tools in an especially aggressive fashion. Because changing public policy through administrative means is a time-consuming process that invites legal challenge, the full implications of these efforts will not be known for several years.
On June 1, 2017 President Trump announced his intention to remove the United States from the Paris Climate Agreement. The Paris accord, finalized a year and a half earlier, is an agreement by virtually every nation in the world to reduce emissions of the greenhouse gases causing climate change. In his speech in the White House Rose Garden, President Trump remarked:
President Trump further noted that withdrawing from the Paris Climate Agreement was necessary due to the “draconian financial and economic burdens the agreement imposes on our country,” and because, in his view, it did not impose “meaningful obligations on the world’s leading polluters” (The White House 2017).Therefore, in order to fulfill my solemn duty to protect America and its citizens, the United States will withdraw from the Paris Climate Accord—(applause)—thank you, thank you – but begin negotiations to reenter either the Paris Accord or a really entirely new transaction on terms that are fair to the United States, its businesses, its workers, its people, its taxpayers. So we’re getting out. But we will start to negotiate, and we will see if we can make a deal that’s fair. And if we can, that’s great. And if we can’t, that’s fine (The White House 2017).
President Trump’s speech came four years after a major address that President Obama had given at Georgetown University, where he first announced that the Environmental Protection Agency (EPA) would design a regulatory strategy to reduce carbon dioxide emissions from existing power plants, in what ultimately became the Clean Power Plan (CPP). President Trump’s decision clearly signaled his intent to rescind the CPP and other policies that the United States had put in place to meet its commitments under the Paris agreement. It also fulfilled a campaign promise that President Trump had made to attempt to revive the struggling coal industry.
With this announcement, President Trump further cemented his broader objective of drastically changing the direction of U.S. environmental policy. President Obama’s environmental achievements, ranging from addressing climate change to reducing emissions of toxics to protecting public lands, were an important part of his domestic policy agenda (Konisky and Woods 2016), and President Trump had pledged to reverse most of them during his campaign. As part of this effort, President Trump also promised to change the regulatory posture of the EPA, the Bureau of Land Management (BLM), and other federal agencies that he believed had over-reached during the Obama Presidency. President Trump and his political appointees, especially EPA Administrator Scott Pruitt and Department of Interior Secretary Ryan Zinke, have begun to implement this agenda.
Although it is still early in President Trump’s tenure, the broad contours of his environmental policy agenda are already apparent. In this article we evaluate the important ways in which the Trump Administration is attempting to redirect environmental policy, with a focus on climate change mitigation and water quality protection management. An important dimension of this redirection of policy is a view of environmental federalism that would shift more responsibility to state governments. While these actions constitute a dramatic change in policy and philosophy about the role of the federal government, the Trump Administration, like his predecessors, is employing the tools of the administrative presidency to achieve its policy goals. This strategy is time consuming and subject to legal challenge, which makes its ultimate success or failure difficult to prejudge. Moreover, reorienting environmental policy through the use of administrative tools rather than legislation is a tenuous strategy for achieving long-term change.
A Recalibration of Cooperative Federalism
Scholars of U.S. environmental policy have for many decades debated the merits and drawbacks of federalism (Konisky and Woods 2010; Kraft and Scheberle 1998; Lowry 1992; Rabe 2011; Stewart 1977). This debate is not just academic, but has been a key dimension of the political discourse on how the U.S. government should address a myriad of environmental challenges, ranging from air and water pollution to natural resource degradation to climate change. In fact, one can argue that, for much of the past fifty years, U.S. environmental politics and policy has reflected a “tug-of-war” between federal, state, and sometimes local authority (Konisky 2011).
With the election of President Trump, and especially the appointment of Scott Pruitt as EPA Administrator, federalism has taken on a central role in discussions of environmental policy. From the outset of his tenure as head of the EPA, Pruitt has emphasized his commitment to “cooperative federalism.” In his opening statement during his confirmation hearing before the Senate Committee on Environment and Public Works, Pruitt identified cooperative federalism along with the “rule of law” and “public participation” as three core philosophies he would adhere to as Administrator. He remarked:
[C]ooperative federalism must be respected and applied by the EPA with regard to our environmental laws. Congress has wisely and appropriately directed the EPA through our environmental statutes to utilize the expertise and resources of the States to better protect the environment, and for the States to remain our nation’s frontline environmental implementers and enforcers. If we truly want to advance and achieve cleaner air and water the States must be partners and not mere passive instruments of federal will (Pruitt 2017).
Before analyzing what Pruitt’s perspective on federalism might portend for environmental policy during the Trump Presidency, it is useful to first review the common arguments on how federalism as a political institution might be harnessed for environmental protection, and how these arguments fit into broader political debates.
Environmental Federalism in Context
As it relates to U.S. environmental policy, debates over federalism usually focus on the question of which level of government—federal or state—should take a leading role.1 Advocates of a strong federal role typically argue that there is a need for uniform standards across the country, and that decentralized authority is likely to lead to inefficient regulation (Levinson 2003). National standards, proponents argue, provide a baseline level of protection, and mitigate concerns that states, left to their own devices, will be unwilling to impose pollution abatement costs on firms in fear that they will respond by relocating to lower regulation states. If all states behave strategically in this way, this could result in downward regulatory competition, and potentially a “race-to-the-bottom” (Konisky 2007; Woods 2006a). Proponents of national-level control also point to the ability of the federal government to potentially better manage interstate spillovers (Konisky and Woods 2010, 2012a; Monogan, Konisky, and Woods 2017) as well as the ability to capture economies of scale in what is often technically-challenging decision-making (Esty 1996).
By contrast, advocates of state level control emphasize the inefficiency and rigidity of national standards, arguing that one-size-fits-all solutions do not account for important differences in state circumstances, such as varying industrial compositions, citizen preferences, and background environmental conditions (Adler 2005; Revesz 1992). State governments, it is argued, are more knowledgeable about their local circumstances and can therefore tailor solutions to their unique situations (Butler and Macey 1996). In some circumstances, there may even be competitive advantages to raising environmental standards, and regulatory pressure across states to ratchet up standards in a process referred to as “race to the top” (Vogel 1998). Proponents of subnational authority also highlight that empowering state governments with more responsibility fosters policy experimentation and innovation, creating the potential for the best ideas to diffuse to other states (Daley and Garand 2005; Engel 2006; Sapat 2004).
Many of these arguments, of course, are not unique to the environmental policy domain. Ongoing debates over health care reform, social welfare programs, education, and other policy areas often involve disputes about the appropriate role of the federal government versus state governments. Complicating matters further is the fact that beliefs about where within the U.S. federal system authority should rest largely fall along common political lines; with some exceptions, Democrats tend to favor national level control for environmental protection, whereas Republicans tend to prefer state level control. These elite level differences are generally mirrored by public perceptions (Konisky 2011). For these reasons, policy decisions about where to assign responsibility for environmental protection can be just as politically contentious as decisions about which policy instruments to employ (e.g., regulations, market-based mechanisms, etc.) or what performance standards to set.
In practice, the choice at hand for policymakers is usually not a binary one—federal or state—but, rather a matter of emphasis. The current system of U.S. environmental protection relies on a model of shared responsibility across levels of government. Most often, the federal government (i.e., the EPA) sets national standards, which are then implemented by state government agencies. This arrangement is formalized through a process of delegation, where the EPA authorizes, or gives primacy, to state governments to implement federal programs (Crotty 1987; Woods 2006b). This is the basic structure of most environmental statutes, such as the Clean Air Act, Clean Water Act, Safe Drinking Water Act, and the Resource Conservation and Recovery Act (the Endangered Species Act and the Superfund program are notable exceptions). States are empowered to set standards above the national level, but they may not go below, thereby providing a baseline level of protection across the country.2 The EPA retains the right to de-authorize state management of programs if they find them to be deficient, although in practice this rarely occurs. According to the Environmental Council of the States, around 96 percent of the programs that could be delegated to the states have been (Environmental Council of the States 2017).
This statutory framework presumes a collaborative approach, whereby the federal government and state governments divide responsibility, but work in partnership. To be effective, this cooperative federalism approach requires not just coordination, but high levels of intergovernmental trust (Scheberle 1997). In practice, the precise nature of the federal-state relationship historically has varied depending on the political context, and whether the federal government’s policy priorities coincide or diverge with those of specific states. Moreover, over time presidential administrations have had different notions about where the most authority should rest—centrally with the EPA, or decentralized to the states.
Generally speaking, the Obama Administration shifted the balance of authority from the states back toward the federal government, after what had been a period during the George W. Bush Administration of more state-led efforts (Konisky and Woods 2016). States varied in their reaction to this assertion of federal authority. States such as California and New York usually welcomed efforts by the EPA on policies such as toxic pollution and greenhouse gas emissions, while states like Texas and Oklahoma (led by Scott Pruitt who was then serving as the state’s Attorney General) objected. Most often these states ended up on different sides of litigation around federal rules. This pattern was a reversal of the situation during the George W. Bush Administration, in which states like California and New York typically found themselves confronting federal environmental agencies, while Texas and Oklahoma came to their defense. The first year of the Trump Administration suggests a return to the pattern that typified the George W. Bush Administration.
Pruitt’s Federalism Agenda
With the appointment of Scott Pruitt as Administrator of the EPA, the pendulum has begun to turn back toward the exertion of less federal authority. For many years, Pruitt has advocated a specific view of cooperative federalism that emphasizes a predominant role for states. During his tenure as Attorney General of Oklahoma, Pruitt expressed deep concern about the reach of federal actions during the Obama Administration. These concerns were not merely symbolic or rhetorical. Upon taking office as Attorney General, Pruitt replaced a unit within his office devoted to environmental issues with one dedicated to federalism (Holden 2017).3 Speaking during a campaign event, Pruitt remarked that this new unit “will be an office or division where I will retain attorneys who wake up each day, go to bed each night with one thought in mind, how do we make your constitutional liberties and freedoms real against Washington’s encroachment” (PBS Frontline 2017).
More importantly, Pruitt was a key architect of the legal challenges to President Obama’s environmental policy, having sued the EPA on behalf of Oklahoma more than a dozen times. Pruitt was a key leader of an effort by the Republican Attorneys General Association, closely coordinated with the fossil fuel industry and colloquially referred to as a “strikeforce,” to challenge regulatory measures developed by the EPA during Obama’s second term (PBS Frontline 2017). Most of these lawsuits argued that the EPA in some way was exceeding its statutory authority under laws such as the Clean Air Act and the Clean Water Act. The highest profile lawsuits included challenges to the CPP, standards on ozone and toxic mercury pollution, and a revised definition of the Waters of the United States (WOTUS) (Dennis 2017).
In each of these cases, Pruitt questioned not only the legal basis of EPA actions but also their policy wisdom. That is, he viewed them as heavy-handed, and as a federal over reach that imposed the will of EPA bureaucrats on Oklahoma and other states. As an illustration, on the same day that the Obama EPA issued its CPP, Pruitt petitioned the U.S. Court of Appeals for the D.C. Circuit to review the rule.4 In a press release accompanying the petition, Pruitt remarked: “The so-called Clean Power Plan threatens the reliability and affordability of power generation across the nation because it unlawfully coerces states into shuttering fossil-fuel generated electricity in order to meet the standards proposed in the rule” (Oklahoma Office of the Attorney General 2015). A few months earlier, Pruitt had filed suit against the EPA regarding the WOTUS rule which was designed to clarify which waterbodies were subject to protection under the CWA. Here too, Pruitt highlighted what he viewed as federal overreach: “Respect for private property rights have allowed our nation to thrive, but with the recently finalized rule, farmers, ranchers, developers, industry and individual property owners will now be subject to the unpredictable, unsound, and often byzantine regulatory regime of the EPA” (Killman 2015). We discuss each of these cases in more detail in the next section.
To this point, the Trump Administration has begun to recalibrate the federal-state relationship with environmental policy in three key ways. First, the EPA, Department of the Interior (DOI), and other agencies have initiated a comprehensive rollback of federal rules. Second, the Trump Administration has signaled that few new federal rules will be pursued. Third, the Trump Administration has pledged to work more closely with states, turning over more authority when possible. We briefly discuss in each in turn, with a focus on the EPA.
First, the EPA and other federal agencies have focused much of their attention during the first year of the Trump Administration on undoing regulations that had been finalized by the Obama Administration. Broadly speaking, this deregulatory agenda is similar to that pursued by Ronald Reagan who also came to office with a goal of removing what he viewed to be burdensome regulations on business. Acting in conjunction with the Republican-controlled Congress, the Trump Administration repealed more than a dozen Obama Administration rules through the use of a previously obscure piece of federal legislation known as the Congressional Review Act (CRA). The CRA allows any regulation promulgated by a federal agency to be rescinded by a simple majority vote in each congressional chamber and the signature of the president, but it can only be used within sixty legislative days of Congress being notified of the regulation. It is difficult to successfully employ the CRA in any situation except during the early days of a new presidential administration with a unified Congress of the same party, which is why it had been used successfully only once before in its twenty-one-year history (the successful repeal of an OSHA ergonomics regulation early in the George W. Bush Administration). This is the political circumstance that the Trump Administration found itself in, and it employed the tool extensively.
Using the CRA, President Trump signed fourteen laws that formally rescinded regulations put in place by the Obama Administration. Several of these rules pertained to the environment, energy, and public lands. The first use of the CRA during the Trump Administration overturned a transparency rule that required mining and energy companies such as Exxon Mobil and Chevron to disclose taxes and other payments made to foreign governments. The second application was to overturn the Office of Surface Mining’s Stream Protection Rule, a rule finalized in December 2016 that would have required coal companies to keep waste from mountaintop mining activities from polluting local waterways. Environmental advocates pointed out that toxic byproducts from coal surface mining are known to produce birth defects, developmental delays, and other health and environmental impacts, but the Administration and its allies in Congress argued that overturning the rule would help the struggling coal industry. Other rules that were struck down affected federal management of public lands, such as a U.S. Fish and Wildlife Service rule that protected predators such as bears and wolves from aerial hunting, live trapping or baiting, and other “extreme hunting” practices on sixteen federally owned wildlife refuges in Alaska (Dwyer 2017), and the Bureau of Land Management’s so-called Planning 2.0 rule, which was designed to make federal land-use planning more efficient and open to the public. Both of the latter rules were criticized for reducing the authority of state or local land managers and undermining local interests (Harvey 2017).
The extensive use of the CRA by Congress and President Trump was not only unprecedented, but it may have long-term policy implications. The CRA has a provision that prevents any executive branch agency from promulgating a “substantively similar” rule in the future. This provision, which has not yet been subjected to legal challenge, is one reason why President Trump’s use of the CRA may have a significant impact on public policy in the long run. The parameters for what exactly constitutes a “substantively similar” regulation are unclear, but some experts believe it would apply to any rule on the same topic (Grunwald 2017).
During the first year of the Trump Administration, the EPA, DOI, and other federal agencies pursued two additional strategies with respect to already finalized regulations.5 First, in several cases, agencies moved to delay implementation. For example, in June 2017, Pruitt announced that the EPA would extend a deadline by one year for states to comply with a standard for ambient concentrations of ozone set by the Obama Administration in October 2015 (Davenport 2017a). In September, Pruitt also delayed the compliance deadline from 2018 to 2020 for an Obama-era rule that limited discharges of toxic metals (e.g., mercury, arsenic, lead) from power plants into public waterways (Dennis 2017). In a similar decision, the Department of Interior had delayed deadlines, in this case indefinitely, for complying with a 2016 Bureau of Land Management regulation that limited methane venting and flaring from oil and gas wells on public and tribal land—a rule that Congress had previously tried, and failed, to undo with the CRA (Gilmer 2017).
Some of these delays have already run into obstacles. In the case of the ozone standard, the EPA reversed course in August 2017 a day after the agency was sued by sixteen states that had challenged the delay in federal court (Friedman 2017), though the agency then missed the deadline for implementation two months later. With respect to the BLM rule on methane emissions, the U.S. District Court for the Northern District of California ruled in October 2017 that freezing the rule violated the law (Gilmer 2017). After the agency tried once again to suspend implementation of the rule, this time going through a notice-and-comment process, states and private plaintiffs again filed suit and won another favorable judgment from the U.S. District Court for the Northern District of California in February 2018 (Richards 2018).
In addition to delays, the Trump Administration has sought to fully rescind other rules. The two most high profile examples were the Obama Administration’s CPP and Waters of the United States rule, which are discussed further below. Because these rules had been finalized, the EPA must initiate a full rulemaking process, a lengthy process that must adhere to the Administrative Procedure Act. In addition to these actions, the EPA announced the plans to revisit a large number of other pollution-related rules such as fuel efficiency standards, disposal rules for coal ash waste, and emissions rules for plant start-ups, shutdowns and malfunctions and natural resource management-related issues such as a plan to protect sage grouse habitat and plans protecting national marine sanctuaries (Popovich and Albeck-Ripka 2017).6
A second way that the Trump Administration has recalibrated the federal-state relationship is by signaling its intention to pull back from an active federal role in environmental policymaking. During the first year in office, President Trump has not advocated for any major legislation on the environment. Moreover, all indications are that agencies intend to issue fewer new regulations, at least ones designed to be more protective of human health and the environment. Through the first year of the Trump Administration’s first term, no new, significant “pro-environmental” regulations were issued, and there was no indication of major rules to come.
President Trump’s broader regulatory reform agenda leaves little reason to expect many new rules will be forthcoming. In fact, the emphasis is on deregulation of existing policies and programs. During his first five weeks in office, President Trump signed two executive orders outlining his regulatory reform priorities. First, on January 30, 2017 he signed Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs that imposed a two-for-one rule that required agencies to identify at least two existing regulations for repeal for every new regulation proposed, and a so-called regulatory budget for FY 2017 that required that total costs of all new regulations, including repealed regulations, to be no greater than zero. These types of reforms have received some attention from the scholarly community (Cecot and Livermore 2017; Hahn and Renda 2017; Peacock 2016), but they are new approaches for the United States with uncertain implications. President Trump followed this initial executive order with a second one on regulatory reform about a month later. On February 24, 2017, he signed Executive Order 13777 on Enforcing the Regulatory Reform Agenda that required each federal agency to establish a “Regulatory Reform Task Force” to recommend to the agency head for repeal, replacement, or modification regulations that, among other criteria, eliminate jobs or inhibit job creation; are outdated, unnecessary, or ineffective; or impose costs that exceed benefits. Although these regulatory reform initiatives are not specific to environmental protection, they are certain to have a “chilling” effect on the EPA’s ability, if it were interested, to adopt new regulations under the various statutes it is tasked by Congress to implement.
This reduction in federal regulatory effort also appears to be evident in environmental enforcement. As indicated in Table 1, during its first year the Trump Administration resolved forty-eight civil cases in court actions that yielded $30 million in penalties for violating federal pollution control laws (Shaeffer and Pelton 2018). This was 44 percent fewer cases and 73 percent less in inflation-adjusted penalties than the averages during the first years of the Obama, Bush, and Clinton Administrations. Another significant tool in the EPA’s enforcement arsenal is the ability to force companies to retrofit existing facilities in order to reduce pollution emissions. Under EPA Administrator Pruitt, the dollar value of such actions, termed injunctive relief, also declined substantially. During the first year of the Trump Administration the agency ordered $966 million in injunctive relief, a decline in 73 percent from the average of the Obama and Bush Administrations in their first year. It merits mentioning that prior scholarship on EPA enforcement has found that civil penalties and other major enforcement actions have been relatively impervious to presidential pressure (Ringquist 1995; Wood 1988). This is true even for the Reagan Administration, which was also committed to environmental deregulation. If the early trend in the Trump Administration’s environmental enforcement continues, the susceptibility of EPA enforcement to presidential influence may warrant re-examination.
Enforcement Actions in First Year of Presidency
| Administration | Civil Cases Lodged | Penalties | Pollution Control Cases | Injunctive Relief |
|---|---|---|---|---|
| Clinton | 73 | $93 | NA | NA |
| G. W. Bush | 112 | $70 | 36 | $2,000 |
| Obama | 71 | $81 | 54 | $3,800 |
| Trump | 48 | $30 | 30 | $966 |
| Administration | Civil Cases Lodged | Penalties | Pollution Control Cases | Injunctive Relief |
|---|---|---|---|---|
| Clinton | 73 | $93 | NA | NA |
| G. W. Bush | 112 | $70 | 36 | $2,000 |
| Obama | 71 | $81 | 54 | $3,800 |
| Trump | 48 | $30 | 30 | $966 |
Note: Figures are for (1) number of civil environmental cases filed by the U.S. Department of Justice and the EPA, (2) dollar value of penalties imposed, (3) number of cases for which injunctive relief is imposed for pollution control, and (4) dollar value of injunctive relief. Penalties and injunctive relief are expressed in millions of inflation-adjusted dollars. The time period covered is the first working day in the first term of each administration to one year later. Source: Shaeffer and Pelton (2018).
Enforcement Actions in First Year of Presidency
| Administration | Civil Cases Lodged | Penalties | Pollution Control Cases | Injunctive Relief |
|---|---|---|---|---|
| Clinton | 73 | $93 | NA | NA |
| G. W. Bush | 112 | $70 | 36 | $2,000 |
| Obama | 71 | $81 | 54 | $3,800 |
| Trump | 48 | $30 | 30 | $966 |
| Administration | Civil Cases Lodged | Penalties | Pollution Control Cases | Injunctive Relief |
|---|---|---|---|---|
| Clinton | 73 | $93 | NA | NA |
| G. W. Bush | 112 | $70 | 36 | $2,000 |
| Obama | 71 | $81 | 54 | $3,800 |
| Trump | 48 | $30 | 30 | $966 |
Note: Figures are for (1) number of civil environmental cases filed by the U.S. Department of Justice and the EPA, (2) dollar value of penalties imposed, (3) number of cases for which injunctive relief is imposed for pollution control, and (4) dollar value of injunctive relief. Penalties and injunctive relief are expressed in millions of inflation-adjusted dollars. The time period covered is the first working day in the first term of each administration to one year later. Source: Shaeffer and Pelton (2018).
In part, this enforcement slowdown may reflect the centralization of enforcement decision-making in the hands of the EPA’s main office. According to reporting by the New York Times, EPA enforcement officers in the regional offices no longer have the authority to order certain air and water pollution tests without receiving permission from EPA headquarters (Lipton and Ivory 2017). These tests, which can determine the type and amount of pollutants being released, are essential for building a case against polluters in order to obtain civil judgments in court. The New York Times report notes that some previously aggressive regional offices have sharply curtailed their use of these tests since the order went into effect (Lipton and Ivory 2017).
A third broad manner in which the Trump Administration is reshaping environmental federalism is by shifting more responsibility to the states. These efforts have thus far taken a back seat to the regulatory rollback and reform agenda, but will likely be a larger part of the focus moving forward. The Administration’s interest in moving more authority to the states is reflected in two early statements of EPA policy and in its initial budgetary blueprint.
In his first articulation of EPA’s new policy direction, Pruitt called for a “Back-To-Basics” Agenda. Speaking two months after his confirmation, Pruitt described this agenda as an effort to return “EPA to its core mission: protecting the environment by engaging state, local, and tribal partners to create sensible regulations that enhance economic growth” (U.S. Environmental Protection Agency 2017a). Notwithstanding the fact that this statement diverges from the EPA’s official mission, which is to “protect human health and the environment,” and does not mention enhancing economic growth, Pruitt here clearly emphasizes an agenda of working in close collaboration with subnational governments. Among the specific items enumerated in the press release that accompanied Pruitt’s announcement was the EPA “restoring states’ important role in the regulation of local waters by reviewing the WOTUS (‘waters of the U.S.’) rule,” and the EPA “helping states achieve high air quality targets, clean up toxic waste sites and improve America’s water infrastructure” (U.S. Environmental Protection Agency 2017a).
A second statement of policy came with the release of the Draft FY 2018–2022 EPA Strategic Plan. In this document, the Agency reiterated “Cooperative Federalism” as a guiding principle, and emphasized that the purpose of the strategic plan was to: 1) refocus the Agency back to its core mission; 2) restore power to the states through cooperative federalism; and 3) lead the Agency through improved processes and adhere to the rule of law (U.S. Environmental Protection Agency 2017c, emphasis added). The strategic plan is not a detailed document, but it does signal the intention of the EPA to shift the current balance of shared responsibility. The document states that “This Administration will undertake a series of initiatives to rethink and assess where we are and where we want to be with respect to joint governance,” by which it means programs implemented collaboratively by the EPA and state government (U.S. Environmental Protection Agency 2017c). The strategic plan goes on to say that it will reconsider the federal-state relationship in areas such as permitting, planning, and compliance assurance, with the specifics to be determined in time.
President Trump’s first budget blueprint, released in February 2017, provides additional insight into how the Administration would like to shift responsibility from the EPA to state governments. Overall, the budget requested a $2.6 billion cut for the EPA, representing a more than 31% decrease in spending compared to the previous fiscal year, as well as shrinking of the EPA labor force (U.S. Environmental Protection Agency 2017 b). The proposed budget cuts were aimed throughout EPA programs, clearly signaling that the agency under the Trump Administration would like to diminish the role of the federal government. Ironically, the budget also called for decreased funding for grants to states, which raises questions about the sincerity of interest in empowering states to assume more authority. For example, the proposed budget called for cutting the grants states rely on for conducting their own environmental programs by 19 percent. In addition, the budget blueprint called for the zeroing out of resources for numerous regional and state programs designed to protect areas such as the Chesapeake Bay, the Great Lakes, and Puget Sound (U.S. Environmental Protection Agency 2017 b). Ultimately, these funding decisions will be determined through negotiations with Congress, but as a policy signal, they clearly demonstrate a preference for a new direction for federal environmental policy.
A Continued Reliance on the Administrative Presidency
A persistent theme in U.S. environmental policy across recent presidential administrations has been the heavy reliance on the tools of the administrative presidency to achieve policy goals (Klyza and Sousa 2007; Konisky and Woods 2016; Rabe 2007). Where presidents have differed is in whether they have used their administrative discretion to strengthen or weaken pollution control measures and natural resource management efforts. By and large, Republican presidents have used their authority to weaken laws, while Democratic presidents have used their authority to strengthen them. In this respect, President Trump is not much different than his most recent Republican predecessor, George W. Bush, though he may share more in common with President Ronald Reagan with respect to the intensity of the efforts to undo existing policies toward environmental protection and public lands management.
In the previous section, we discussed a series of deregulatory efforts that the Trump Administration has taken during its first year in office, most of which have utilized existing administrative authorities. Here we illustrate President Trump’s use of the administrative presidency in the context of reversals of two major policies from the Obama era: the CPP and the WOTUS rule.
Rolling Back the CPP
President Trump signed an executive order in March 2017 instructing the EPA to take steps to dismantle the CPP, the signature Obama-era initiative regulating greenhouse gas emissions from existing power plants. On October 10, 2017, the EPA issued a statement stating that it would file an Advance Notice of Proposed Rulemaking formally indicating its intent to repeal the regulation. Describing the rules as the “so-called Clean Power Plan,” the EPA statement said that rescinding them will “facilitate the development of U.S. energy resources and reduce unnecessary regulatory burdens associated with the development of those resources” (U.S. Environmental Protection Agency 2017e).
The plan, which aimed to reduce carbon dioxide emissions from existing fossil fuel burning power plants 32 percent from 2005 levels by 2030, had been tied up in court for over a year after more than two dozen states joined industry organizations in a lawsuit against it. One of the litigants was current EPA Administrator Pruitt, who helped organize the legal campaign to challenge the CPP as Attorney General of Oklahoma (Lipton and Davenport 2017). The plan was stayed by the Supreme Court until a lower federal court ruled on it (Nolette 2017). In April 2017, the U.S. Court of Appeals for the District of Columbia granted the Trump Administration’s request to suspend the lawsuits because the EPA was reviewing the rule (Eilperin and Dennis 2017).
President Trump had sharply criticized the CPP during the campaign, during which he had promised to bring back coal mining jobs and create new jobs in fossil fuel industries. As president, he appeared to relish the opportunity to repeal it. “Did you see what I did to that? Boom, gone,” he said of the plan to a cheering crowd of supporters at a September event in Alabama (Bradner 2017).
In reality, the CPP is not yet gone. Because it was a final rule, the reversal is required to go through the regular rulemaking process before being finalized, including posting an explanation for why the rule is being repealed and allowing a formal public comment period. A replacement rule, should one be forthcoming, will also need to go through the often lengthy notice-and-comment process. This would undoubtedly be followed by a protracted period of litigation.
No timetable has been announced for when, or if, a replacement rule will be forthcoming. The EPA’s statement announcing that it intends to revoke the CPP left the door open for creating a replacement rule, but did not commit to it. EPA Administrator Pruitt’s statement said “We are committed to righting the wrongs of the Obama administration by cleaning the regulatory slate. Any replacement rule will be done carefully, properly, and with humility, by listening to all those affected by the rule” (U.S. Environmental Protection Agency 2017d). Subsequently the EPA issued an Advance Notice of Proposed Rulemaking (ANPRM), stating that it is “soliciting information on the proper and respective roles of the state and federal governments” in setting emissions limits on greenhouse gases. Though the ANPRM seeks public input on what a replacement rule might look like, some outside actors, including a coalition of twenty-one Republican state attorneys general, have continued to push for the rule to be repealed without replacement (Heikkinen 2018).
On the surface, it would appear that the rule must be replaced. In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court ruled that the EPA must regulate greenhouse gases if they pose a threat to human health. The EPA subsequently found that they did. Although some conservatives, including Myron Ebell, who chaired the Trump environmental transition team, have argued that Pruitt should revoke this so-called carbon endangerment finding, at this point it appears that he has decided not to. The climate science is so settled that most observers feel the EPA would stand little chance of winning the inevitable lawsuit that would result. As it stands, then, the EPA is legally required to regulate greenhouse gas emissions.
It is not completely clear, however, that the EPA must regulate emissions from existing power plants. In promulgating the CPP, the EPA claimed legal authority to do so under section 111(d) of the Clean Air Act, which allows the agency to set standards for existing sources of pollution. However, during the process of amending the Clean Air Act in 1990, the House and Senate approved slightly different wordings of that section, and, due to a clerical oversight, these differences were never reconciled. The litigants against the CPP, including now-EPA Administrator Pruitt, have argued that the House version implies that the EPA cannot regulate carbon emissions under section 111(d) because it already regulates mercury pollution from those facilities under a different section of the law, section 112. While the same objection does not apply to the Senate version, at this point it is unclear which version should prevail (Plumer 2017). There are other possible legal challenges to the EPA’s use of section 111(d) as well (see Richardson (2017) for an overview), and it remains a possibility that the EPA will decline to promulgate a replacement rule, arguing that it lacks the authority to do so under section 111(d), a contention that would surely be immediately challenged in court.7
The more likely option, which has been signaled in the EPA’s ANPRM, is that the EPA will argue that the CPP overstepped its legal mandate by requiring states to make decisions that would move power production away from coal and toward natural gas, nuclear, and renewables. The CPP set individual state level emission reduction goals on the basis of what was technically feasible for each state to achieve by three means: (1) efficiency improvements at existing fossil fuel power plants, (2) shifting power production from coal to natural gas, which emits less carbon, and (3) generating more electricity from renewable sources. Although the plan allowed individual states to decide how to meet these emission reduction goals, the ANPRM argues that EPA regulators exceeded their legal authority by considering points (2) and (3) above. Rather, the EPA now argues, EPA regulations are confined to working “within the fenceline,” that is, the EPA may only compel changes within current power plants.8 This could lead to revised regulations that require only modest efficiency upgrades within existing plants. This approach is less legally risky than attempting not to replace the CPP, but would still be open to legal challenge from states and environmental organizations who will argue that it does not fulfill the EPA’s legal mandate to establish “a best system of emissions reduction” to deal with greenhouse gases. Moreover, even if the federal courts agree with the “within the fenceline” interpretation, there are options for much more intrusive and expensive methods of reducing carbon emissions within existing plants than the EPA is likely to recommend.9
If the CPP is revoked, the action will almost certainly end up in federal court. Some state attorneys general, including Eric Schneiderman of New York, have already indicated that they are preparing lawsuits arguing that by shelving the CPP without a replacement in hand the EPA is failing to fulfill its mandate to regulate greenhouse gases as required by the Massachusetts v. EPA decision and the subsequent endangerment finding. In all, eighteen state attorneys general have been involved in legal efforts to support the CPP, many of whom could be expected to oppose efforts to eliminate it. These lawsuits will likely be filed as soon as the EPA formally revokes the CPP. Likewise, any replacement rule that is produced by the EPA is almost certain to end up in court. It is thus possible that the plan could be tied up in litigation until after 2020, when a new president could potentially be in office.
In the meantime, utility companies that must make long-term investment decisions now regarding electricity infrastructure are facing a period of prolonged regulatory uncertainty. They must consider the possibility that the next president will throw out what may be a still yet-to-be implemented Trump plan and re-impose stiffer greenhouse gas emission restrictions. This may lead them to be cautious about embracing coal-fired power plants even if the CPP is revoked (Irfan 2017). In addition, even in the absence of the CPP, market forces and state clean energy initiatives are accelerating the movement away from coal and toward natural gas, wind, and solar energy production. This movement has been significant enough that the United States may meet the emissions goals of the CPP even if it is repealed. A recent study by the research firm Rhodium Group projects that emissions from the power sector will fall 27 to 35 percent below 2005 levels by 2030, a range that includes the CPP’s original target of 32 percent (Larsen and Herndon 2017).
One important manifestation of the commitment to clean energy policies made by several states is the United States Climate Alliance, a bipartisan group of states and territories that have formally committed to achieving their CPP target reductions and to upholding the goals of the Paris Climate Accord more broadly. Formed by the governors of California, New York, and Washington on the day that President Trump announced his intent to withdraw from the Paris agreement, the organization currently has sixteen member states, representing about 40 percent of the U.S. population and nearly 50 percent of the U.S. Gross Domestic Product (United States Climate Alliance 2018).
Regardless of how much power plant emissions could fall due to market forces and state policies alone, however, it is exceedingly probable that they would have fallen further had the CPP remained in place. There are two major reasons for this. First, a significant number of states that have been slow to transition from coal generated power would have been required to take action. Second, the CPP would have instituted a regulatory framework that would have allowed for deeper cuts. As the Rhodium Group report states: “The big emissions reduction potential of the CPP…was not in the specific targets included in the 2015 final rule. If upheld by the courts and implemented by EPA, the CPP would have created a national regulatory framework and de facto emissions trading system that would have enabled target ratcheting as energy prices, technology costs and baseline emissions projections changed. That framework will be significantly eroded, if not completely undone” (Larsen and Herndon 2017).
These additional reductions are important, because the CPP alone would not be enough to allow the United States to meet its obligations under the Paris Accord. The CPP alone is expected to produce only about a quarter of the reductions needed to meet the Paris Accord goals (Irfan 2017). Moreover, there is widespread agreement among many climate scientists that the Paris Accord targets are insufficient to avoid the worst effects of climate change (Roberts 2017; United Nations Environmental Program 2016).
The effects of revoking the CPP may extend beyond U.S. borders. During the Paris climate talks in late 2015 the Obama Administration had used the creation of the Clean Power Plan to signal to other countries that it was serious about taking meaningful action on climate change. Revoking it makes it less likely that the U.S. will be able to meet its target, which was going to be challenging in any event. Some observers fear that this may lead other countries to take their target goals less seriously as well (Davenport 2017 b), although several nations, including major greenhouse gas emitters such as India and China, appear to be on pace to exceed their targets (Mathiesen 2017).
Redefining the Waters of the United States
In another major presidential action, President Trump issued an executive order in February 2017 instructing the EPA and the Army Corps of Engineers to “review and reconsider” the Waters of the United States rule, an action he described as “paving the way for the elimination of this very destructive and horrible rule” (Mufson and Eilperin 2017a). By June, the EPA had posted a notice in the Federal Register stating their intent to revoke the existing rule, which had been in development for several years before taking effect in August 2015.
The Clean Water Act gives the EPA the authority to regulate pollution into, and the U.S. Army Corps of Engineers the authority to issue permits for the dredging and filling of, “navigable waters.” Since the Clean Water Act was enacted forty-five years ago, these agencies and the courts have struggled to define which waters are included within this jurisdiction. Issues include whether tributary streams, adjacent wetlands, and isolated wetlands are covered, and the extent to which these waters may be intermittent. Two Supreme Court decisions, in 2001 and 2006, led to further ambiguity. The Obama rule sought to clarify the EPA’s legal jurisdiction under the Clean Water Act by specifying the types of water bodies covered. Its interpretation was largely based on a concurring opinion from a Supreme Court decision in Rapanos v. United States, 547 U.S. 715 (2006), written by Justice Anthony Kennedy. The Kennedy opinion argued that waters could fall under the jurisdiction of the Clean Water Act if they have a “significant nexus” to navigable waters (Mufson and Eilperin 2017b).10
The WOTUS rule states that the EPA’s regulatory authority covers streams that serve as tributaries to navigable waterways, as well as wetlands adjacent to navigable or interstate waters. These tributaries and wetlands can be intermittent, but must be “relatively permanent,” (a phrase used in previous court rulings). This definition puts about 60 percent of the water bodies in the United States within the EPA’s regulatory purview.
The Obama Administration rule was opposed by a variety of real estate development, agricultural, and industrial interests, as well as several states, who argued that it represented regulatory overreach and unreasonable usurpation of state authority. Thirteen states filed a lawsuit against the EPA and the Army Corps of Engineers, and its implementation was stayed by a North Dakota federal district judge in 2015 until the case could be heard. One of the issues in this case was whether federal district courts should have jurisdiction to hear legal challenges to the WOTUS rule, or if the appropriate jurisdictions rests with the federal appeals courts. Subsequently, the U.S. Circuit Court of Appeals for the Sixth Circuit reached a split decision on the jurisdiction question, and imposed a nationwide stay on the WOTUS rule. In January 2018, the U.S. Supreme Court decided that district courts had jurisdiction, which in turn raised the possibility that the nationwide stay would be lifted (Reilly and Wittenberg 2018).
While the legal challenges to WOTUS continue, they may become moot, given the Trump Administration EPA’s intention to propose a replacement rule. The content of this replacement is uncertain, but the Administration has signaled that it is likely to base the rule on the definition of navigable waters articulated in the late Supreme Court Justice Antonin Scalia’s dissent in Rapanos v. United States. Scalia’s opinion advocated for a narrower definition than implied by Kennedy’s “significant nexus” test. The Scalia definition suggests limiting jurisdiction to “relatively permanent” waters and wetlands with a continuous surface connection to larger rivers and streams (Wittenberg 2017). By one estimate, this might lead to the loss of protection for about two million miles of streams and 20 million acres of wetlands, which is potentially significant since as many as one in three Americans get their drinking water from a source that may not qualify for EPA protection under Scalia’s definition (Sneed 2017).
Once the Trump Administration finalizes its new WOTUS rule, it is a virtual certainty that it will face legal challenge from a coalition that is likely to include a very different set of states than those who litigated against the Obama Administration rule. However, the process of developing the new rule could take years, and in the meantime the definition of navigable waters–and thus the extent of EPA authority under the Clean Water Act–will remain unclear.
As the preceding discussion suggests, there has been significant state involvement in litigation surrounding both the Obama Administration’s CPP and WOTUS rules. These environmental lawsuits reflect a broader pattern of increasing levels of coordinated legal activism by state attorneys general, although the amount of participation in such lawsuits varies significantly across states (Provost 2006, 2010). Figure 1 provides an overview of the position of each state on these rules. Twenty-seven states have sued the EPA to stop the CPP, and one additional state (Nevada) has indicated support for the lawsuit in court documents. A total of thirty-one states have joined various lawsuits against the WOTUS rule. In each case, several states have filed amicus briefs in support of the rule, a practice that some research suggests is heavily dependent on the partisan policy preferences of the state attorney general (Provost 2011). As the map indicates, only a few states have stayed out of litigation on these two rules entirely, and two states (Iowa and New Mexico), have sued to stop implementation of the WOTUS rule but have supported the CPP. As the Trump administration seeks to undo these and other Obama-era policies many of these states will find themselves on opposite sides of the EPA in future litigation.
State legal action on Obama administration WOTUS and CPP Rules.
These types of conflicts have begun to emerge in other policy areas as well, perhaps most notably with respect to opening up offshore waters for oil and natural gas drilling. As part of the Trump Administration’s efforts to aggressively expand the development of fossil fuel resources (for example, by permitting oil and gas exploration in the Arctic National Wildlife Refuge, which was done through the budget reconciliation process used to enact the tax reform bill), the DOI announced in January 2018 that it would permit oil and gas drilling in most of U.S. coastal waters (Friedman 2018). This decision reversed a ban imposed by President Obama, and sparked immediate backlash from many governors—both Republican and Democratic—of affected states. After discussions with Interior Secretary Ryan Zinke, Florida governor Rick Scott was able to secure a commitment to exempt his state from the new plan, which led other governors, such as Democrats Roy Cooper (North Carolina), Andrew Cuomo (New York), Terry McAuliffe (Virginia) and Republicans Larry Hogan (Maryland) and Henry McMaster (South Carolina) to seek a similar outcome for their states (Davenport 2018; Weigel, Fears, and Wagner 2018). As this plan unfolds, it is a near certainty that there will be legal action, though in this case, it may be more of a more bipartisan nature. The Trump Administration’s attempts to scale back protections at certain national monuments has generated another area of significant conflict, which is the focus of a separate article in this issue.
A Preliminary Assessment
At the time of this writing, the United States is about a year into the Trump Presidency. By all accounts, the first months of this presidency were rocky, characterized by constant scandal, failed legislation, and a contentious leadership style. Although many political commentators have concluded that President Trump has been feckless from a policy perspective, this has not been case with regard to his environmental policy priorities. Quite the contrary. On environmental policy, the Trump Administration has been, by and large, organized, strategic, and in many respects quite effective. On issues ranging from air and water pollution to public lands management to climate change, President Trump has followed through on his campaign promises to undo many of his predecessor’s signature achievements, relying largely on administrative tools.
What judgments can we reach about the Trump Presidency and environmental policy? The answers to this question will become clearer in the years to come, but we can at least draw some preliminary conclusions given the direction of the Trump Presidency to this point.
First, and most obviously, there has been significant policy retrenchment. To this point, the Trump Administration has not expressed any intent to pursue new environmental protection initiatives. EPA Administrator Pruitt has instead emphasized on his “Back to Basics” agenda, which emphasizes a narrow focus on implementing existing programs, such as Superfund site remediation, and helping states and communities achieve current national ambient air pollution standards. In marked contrast to this paucity of new efforts, the Trump Administration is devoting considerable energy to deregulation of existing protections. We are still at the early stages of regulatory rollbacks of policies such as the EPA’s Clean Power Plan and Waters of the United States rule and the BLM’s methane standards for the oil and gas industry. Because these regulations were finalized during the Obama Administration, doing away with them and/or replacing them with alternatives requires a new rulemaking process. Even if the EPA is able to move expeditiously, the ultimate fate of its actions will not be known until after they undergo certain legal scrutiny by the federal courts. Additional efforts to rollback federal regulations are certain to follow, though there remains considerable uncertainty as to how reform efforts such as the two-for-one rule and regulatory budgets will be employed.
Second, the role of states has become more prominent. As discussed earlier, the notion of cooperative federalism being promoted by EPA Administrator calls for delegating more authority to state governments to manage environmental issues. What this will mean in practice remains to be seen, but historical experience here should be informative.
Absent an assertive federal government, both in setting policy goals and performing oversight, states will have additional discretion to decide how they want to pursue environmental protection. In areas of policy implementation where states already have considerable leeway, variation in state performance is well-documented (Konisky and Woods 2018). More broadly, studies in the comparative state environmental policy literature have shown that states devote varying degrees of effort to environmental protection, depending on their political, economic, and fiscal contexts (Konisky and Woods 2012b; Ringquist 1993). Existing differences in state environmental priorities and policies are likely to be exacerbated if the federal government retreats from pursuing national standards, providing robust oversight, and providing grant funding for state environmental agencies.
Some states are likely to compensate for less federal government activity. The state of California, for example, has long addressed its environmental problems by pursuing policies more stringent than the federal government, most notably to limit air emissions for motor vehicles. Many states have followed suit, choosing to adopt California standards rather than the lower federal standards. Just as importantly, however, many other states are likely to choose not to compensate, using the strong signal from the federal government to begin retrenchment of their own activities. We have already begun to see this pattern developing. For example, in response to President Trump’s decision to withdraw the United States from the Paris Agreement on climate change, elected officials in some states and cities responded by announcing that they would move ahead with their own climate change mitigation initiatives (Halper 2017). However, elected officials in other states celebrated President Trump’s decision (Domonoske and Dwyer 2017), as many had encouraged exactly this decision.
Federal policy retrenchment, coupled with a varied state response, is likely to change the nature of environmental federalism in the short term; but will the recalibration of the federal-state relationship that embodies the Trump Administration’s approach to environmental policy have lasting effects? The answer to this question is difficult to project, since it depends a great deal on how long President Trump is in office, how states respond, and the environmental policy preferences of his successors. It is important to emphasize, however, that policy goals achieved through the tools of the administrative presidency are less durable than legislation. Subsequent presidents with different policy preferences could use administrative tools to reverse many of the Trump Administration’s policies—that is, use the same set of tools that the Administration is using to undo Obama-era policies.
The upshot of this pattern is schizophrenic policymaking, which makes it challenging to sustain progress and consistency in both the problems on the agenda and the efforts to address them. But, in this respect, the Trump Presidency (and whatever follows it) mostly reflects a continuation of the ebb and flow of U.S. environmental policy over the past forty years. After the enactment of the foundational statutes of the 1970s, Presidents have turned to administrative tools to pursue their policy priorities (Klyza and Sousa 2007). Given that presidents vary in these priorities often in large and consequential ways, including on how they see the respective roles of the federal and state governments, environmental policy has undergone abrupt changes from administration to administration. The changes from President Obama to President Trump are especially severe, but, in reality, they reflect a continuation of the long-term pattern of U.S. environmental policy.
Footnotes
This debate at times also includes discussion of the role of local governments (Woods and Potoski 2010) as well as alternative arrangements that include nongovernmental entities (John 1994).
Many states have laws in place that prevent them from going above the national standard. Moreover, states can implicitly lower standards through lax enforcement (Konisky 2007; Potoski 2001).
As another indication of the importance of federalism to Pruitt, his official EPA bio highlights his establishment of this federalism unit, noting that he created it to “combat unwarranted regulation and overreach by the federal government” (U.S. Environmental Protection Agency n.d.).
Along with fourteen other states, Pruitt had sued the EPA on behalf of Oklahoma at the time the Clean Power Plan was proposed, but a federal judge ruled that such a lawsuit was premature given that it has not been finalized by the EPA (Layden 2015).
The Trump Administration also withdrew several rules that had been proposed, but not yet finalized, including a rule establishing a national tire fuel efficiency consumer information program and a rule that proposed limits on endangered marine mammals caught in fishing nets (Popovich and Albeck-Ripka 2017).
The Trump Administration also changed course on a number of other federal policies and decisions made by President Obama, such as approval of the Keystone XL and Dakota Access pipelines, repealing a ban on offshore oil and gas drilling in the Atlantics and Arctic oceans, and undoing a requirement that greenhouse gases be included in environmental impact reviews (Popovich and Albeck-Ripka 2017). Since these Obama-era policies were not promulgated through the formal rulemaking process, they can be easily reversed through presidential discretion.
Even if this interpretation of the law were upheld in court, the EPA would still be mandated to regulate greenhouse gas emissions from other sources. However, the power sector represents the single largest source of U.S. greenhouse gas emissions. If these could not be regulated, it would make serious progress on emissions reductions all but impossible to achieve (Plumer 2017).
As justification for this, the ANPRM notes that section 111 of the Clean Air Act refers to a “best system of emission reduction,” and directs that standards be developed “for an existing source.” The EPA now argues that such statutory language only gives the EPA the authority to compel emissions reductions within an existing facility.
Another complicating factor is the Supreme Court’s opinion in Utility Air Regulatory Group v. EPA, 134 S.Ct. 2427 (2014), in which a fractured court held that greenhouse gas emissions could be regulated in cases where facilities were required to install best available control technology (BACT) to deal with emissions of conventional pollutants, but that facilities could not be required to install BACT solely on the basis of greenhouse gas emissions.
For more history on the relevant regulations and case law, see, for example, Gardner (2011).
