President Donald Trump signed an executive order on Tuesday that could scrap former President Barack Obama’s Clean Power Plan. What does it mean for the future of U.S. environmental policy?

What is the Clean Power Plan?

In 2015, Obama introduced the Clean Power Plan (CPP) as an effort to cut down on carbon dioxide emissions. It gave each state a different quota for reducing its emissions, allowing states the independence to develop their own plans to meet these requirements. States would have had to submit their ideas by 2016, or 2018 if an extended deadline had been approved. If a state failed to do so, then the Environmental Protection Agency (EPA) would implement its own plan in that state. States would have had until the year 2022 to actually put their plans in action.

What will happen to the Paris climate agreement?

The Obama Administration’s goal was to bring emission levels to at least 26 percent below 2005 levels by the year 2025. It was announced prior to the 2015 Paris climate talks to show the U.S. commitment to lowering emissions. Following the conference, the U.S. joined almost 200 other involved countries in a pledge to prevent the earth’s temperature from rising more than 2 degrees Celsius, or 3.6 degrees Fahrenheit.

Trump’s order gives the EPA the authority to rework the previous plan. But without the previous administration’s policy in place, the United States may not be able to carry out its end of the agreement reached in Paris. Though the White House hasn’t taken an official position on the Paris climate agreement, EPA Administrator Scott Pruitt recently called it a “bad deal” and Trump has considered removing the U.S. from the agreement over doubts about the existence of climate change. If Trump follows through with exiting the agreement, the U.S. could end up setting a precedent for other countries to back out of their pledges.

According to the New York Times, Trump’s inner circle is divided over whether or not to remain in the agreement. Trump’s daughter Ivanka and Secretary of State Rex Tillerson are reportedly concerned that withdrawing could damage the U.S.’s relationship with the other countries involved, but senior adviser Steve Bannon wants out.

Will the new policy bring back jobs?

The CPP was not popular with everyone. Two dozen states sued the Obama Administration over concerns that the policy would hurt their coal industries, because it urged states to transition from relying on fossil fuels to relying on natural gas and renewable energy. But Trump’s move won’t necessarily restore many of the jobs lost by coal miners; the mining industry has been on the decline for several years, and humans are being replaced by technology. While Trump’s executive order makes good on many of his campaign promises, it may not garner its intended results.

Victoria Sheridan

Victoria is an editorial intern at Law Street. She is a senior journalism major and French minor at George Washington University. She’s also an editor at GW’s student newspaper, The Hatchet. In her free time, she is either traveling or planning her next trip abroad. Contact Victoria at VSheridan@LawStreetMedia.com.

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While President Barack Obama’s time in office has now come to a close, his environmental legacy has the potential to last far beyond his eight years as president. The Obama Administration has worked tirelessly to protect and defend the environment, championing several initiatives. Some key accomplishments, however, include the establishment of more national monuments than any other president, signing the historic Paris Climate Agreement to reduce greenhouse gas emissions, banning drilling in parts of the Arctic and Atlantic Ocean, and unveiling the Clean Power Plan. Additionally, Obama raised fuel-efficiency standards, invested in green energy, and created the Federal Strategy to Promote the Health of Honey Bees and Other Pollinators. Whether these policies stand the test of time, however, may depend heavily on the actions of future administrations.

National Monuments

While Obama’s time in office was winding down, he was still designating sites as national monuments. On January 12, 2017, Obama named five new national monuments. That brought his total number during his presidency to 34—more than any other president. Moreover, in December 2016, he created two national monument sites in Utah and Nevada. The Bears Ears National Monument, which protects 1.35 million acres of land in southwest Utah and two geological formations, was particularly controversial; five Native nations had petitioned Obama to grant federal monument protections to the area.

“Bears Ears” Courtesy of Bureau of Land Management : License: (CC BY 2.0)

Over the course of his time in office, Obama utilized the Antiquities Act–a law signed by President Theodore Roosevelt in 1906–multiple times to create the monuments. The Act gives the President of the United States the authority to set aside land to protect important historic, cultural, and ecological sites without approval from Congress. In total, Obama protected more than 550 million acres. That is more than double the amount that Roosevelt, a well-known conservationist, conserved himself.

A large portion of the land Obama protected is covered by water. He created and expanded several large national marine monuments. One notable monument is the Pacific Remote Islands National Marine Monument, a large collection of coral reefs, underwater preserves, and tiny islands roughly 1,000 miles off the coast of Hawaii. Bush had originally established the monument in 2009 at 55.6 million acres; Obama then expanded it by 261.3 million acres in 2014. Obama also quadrupled the size of Hawaii’s Papahānaumokuākea Marine National Monument, which is home to more than 7,000 species of wildlife, many of which are endangered.

Ban on Arctic and Atlantic Drilling

In addition to the significant acreage of water Obama protected as national monuments, his administration also banned arctic drilling. Using the Outer Continental Shelf Lands Act, Obama withdrew hundreds of millions of acres of federally-owned land in the Arctic and Atlantic Ocean from new offshore and gas drilling in December 2016. The Act allowed for Obama to act unilaterally, but no president has ever utilized the law to permanently protect land. In particular, large portions of the Chukchi Sea and Beaufort Sea in the Arctic and canyons in the Atlantic from Massachusetts to Virginia are now off-limits to oil exploration.

“Sea Ice in the Chukchi Sea” Courtesy of NASA Goddard Space Flight Center : License: (CC BY 2.0)

The Atlantic Ocean already had a five-year moratorium in place, and the protection of the canyons means that most of the eastern seaboard will not be drilled for oil. The seas in the Arctic are a habitat for several endangered species, including species that are candidates for an endangered species listing, and the canyons protected are largely recognized as biodiversity hotspots. If the ban is upheld by the courts, about 98 percent of the waters in the Arctic would be protected from oil exploration and drilling. In a presidential memorandum, Obama stated that these areas are extremely vulnerable to oil spills and have irreplaceable value for marine animals, wildlife, wildlife habitat, and scientific research–making the Arctic Waters a prime area for protection

Paris Climate Agreement

The Paris Climate Agreement was the first of its kind–a global consensus to combat the effects of climate change. Its central aim is to strengthen the response to threats of climate change and keep the global temperature rise below 2 degrees Celsius. The agreement also aims to cut global greenhouse gas emissions by limiting the burning of fossil fuels and assist in preventing further floods, droughts, catastrophic storms, and rising sea levels.

In a rare moment of consensus, both the U.S. and China ratified the agreement, formally committing the world’s two biggest economies to curb climate change. The terms allow countries to determine independently which strategies will be most successful in attaining climate goals. While some of the aspects are binding and some are not, Obama’s ratification of the deal demonstrated a bold move by his administration to make protecting the planet a priority in years to come.

Clean Power Plan

President Obama’s most historic environmental initiative, perhaps, is the Clean Power Plan, which is designed to aggressively shrink America’s carbon footprint. The plan outlined the first national standards to specifically address pollution from power plants. In particular, the plan cuts significant amounts of carbon pollution and other pollutants from power plants that are responsible for soot and smog that have an adverse effect on human health. The plan is long-term, allowing companies to remain in business while making the changes needed to comply with the new standards.

The Supreme Court issued a “stay” in February 2016,  temporarily halting the plan from moving forward. However, it is set to be fully in place by 2030, with carbon pollution 32 percent below 2005 levels, sulfur dioxide pollution 90 percent lower, and nitrogen oxides 72 percent lower. This reduction in greenhouse gases is specifically aimed at combating the dangerous effects of such pollution on the climate. Additionally, the entire plan itself is expected to contribute a variety of positive economic effects–climate benefits of roughly $20 billion, health benefits in the $14-$34 billion range, and total net benefits of approximately $26-$45 billion.

“Power plant” Courtesy of Spiros Vathis : License: (CC BY-ND 2.0)

What’s Next?

Despite the great measures Obama undertook to protect the environment, it is quite possible that some of his environmental policies will be overturned by a new administration. The ban on drilling may or may not be able to be overturned by President Trump, but a Republican-controlled Congress could move to rescind the withdrawal of federal lands from oil and gas exploration. However, such a move might not be successful, given a close reading of the Outer Continental Shelf Lands Act.

National monuments have never been removed by a subsequent president, but President Trump has reportedly stated that he is open to the idea of doing so. As for the Paris Climate Agreement, Trump has made it clear that he wants to withdraw America’s participation in the historic deal. Arguments that the agreement will be disastrous for the economy and American industry are at the forefront of opponents’ minds. While Trump considers withdrawing the U.S. from the agreement, China, India, Germany, the EU, and the UK have all reaffirmed their commitments to curb emissions. China’s President, Xi Jinping, even stated that removing the U.S. from the agreement will endanger future generations. Furthermore, if other countries continue to invest heavily in clean energy, then money, jobs, and technology are sure to stream into those industries, perhaps leaving the U.S. behind.

The fate of the Clean Power Plan also hangs in the balance under the new administration. Many opposed to the plan have already urged President Trump to sign an executive order that rescinds the rule and tell the Environmental Protection Agency (EPA) not to enforce it. However, attorneys general from a variety of states have noted that “history and legal precedent strongly suggest that such an action would not stand up in court.” The plan is also vulnerable to the Congressional Review Act, which would allow Congress to nullify the regulations. For now, the Clean Power Plan remains in limbo.

Overall, most of Obama’s environmental legacy will be decided by the courts, not by a particular administration. With more than 100 judicial vacancies across the country as Trump takes office, along with a vacant Supreme Court seat, the courtroom is going to be the arena in which environmental policies could be dismantled. In particular circuits with more than one vacant seat, specific areas of environmental regulation may be rolled back immensely; for example, the Second Circuit has become a critical arena for determining water regulation under the Clean Water Act and the Ninth Circuit has a profound impact on endangered specifies. Environmental groups are already preparing to take any anti-climate policies or actions to court, along with attorneys general from multiple states.

Conclusion

Obama’s presidency was clearly focused on environmental protection and combating catastrophic effects of climate change in the coming years. As commander-in-chief, Obama did an extensive amount of work to ensure the environment is viable and sustainable far into the future. Whether his efforts will be unraveled in the new Trump Administration and Republican-controlled legislative branch, however, is yet to be seen. Overall, Obama’s actions certainly elevated the environment and climate change to a much higher level of importance, and his environmental legacy may have him remembered as one of the top environmental presidents in history.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

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Scott Pruitt, President-elect Donald Trump’s choice for the head of the Environmental Protection Agency appeared before part of the Senate for his confirmation hearing on Wednesday. Pruitt, a former attorney general of Oklahoma, said he would like to shift some regulatory control from the federal government to the states. He purported that being pro-energy and pro-environment can be mutually exclusive. And while he acknowledged that climate change and human activity are linked, he questioned just how strong that causality is.

As attorney general, Pruitt advocated on behalf of states’ rights in the face of what he saw as federal overreach. In fact, Pruitt sued the EPA 14 times; he also led the 27-state lawsuit against President Barack Obama’s Clean Power Plan. If he is confirmed as the next EPA chief, Pruitt could become involved in some of the lawsuits that he filed. In Wednesday’s hearing, Senate Democrats asked Pruitt if he would recuse himself from those lawsuits. He did not commit to doing so.

Scott Pruitt will not say whether he will agree to upholding California’s high vehicle pollution standards. That is unacceptable.

— Kamala Harris (@KamalaHarris) January 18, 2017

Sen. James Inhofe (R-OK) introduced Pruitt: “Yes, as attorney general, Scott fought the EPA, the Fish and Wildlife Service and the outgoing administration on many fronts,” he said, “but all of these suits were brought to protect state and local interests from overzealous and activist agencies.” Outside the hearing room, protesters, some wearing pink hats and surgical masks, others donning oil rig gear, represented the dueling sides of the hearing itself: Democrats who questioned Pruitt’s ties to the energy industry, and Pruitt’s long-held disdain for environmental activists and what he sees as job-killing regulations.

“We must reject as a nation the false paradigm that if you’re pro-energy you’re anti-environment, and if you’re pro-environment you’re anti-energy,” Pruitt said during the hearing. In his opening remarks, Pruitt, who is often called a climate denier, clarified his stance on climate change: “Science tells us that the climate is changing and human activity in some manner impacts that change,” he said. “The human ability to measure with precision the extent of that impact is subject to continuing debate and dialogue, as well they should be.”

If we look at EPA’s major legacy rule – CPP, WOTUS, haze, CSPAR, tailoring rule – the agency is batting 0.00. #confirmpruitt

— Jim Inhofe (@jiminhofe) January 18, 2017

Pruitt’s hearing was on the same day the National Oceanic and Atmospheric Administration released a report that said 2016 was earth’s hottest year on record, since at least 1880, when record keeping began. Though he made clear that the EPA under his watch would grant more power to state legislatures, Pruitt mentioned the Flint, Michigan water crisis as an instance when the federal agency failed to do enough.

“In Flint, the EPA should have acted faster. With air quality, water quality across state lines, there is a role where EPA is important,” he said. Pruitt added that he does not know the science behind lead poisoning: “I haven’t looked at the scientific research,” he said.

In 2009, the EPA found that carbon emissions endanger humans and warm the planet. That ruling serves as the basis for subsequent emissions regulations, including Obama’s Clean Power Plan. Pruitt, who Democrats worry will scrap a number of regulations, said he would enforce that ruling. “It is there, and it needs to be enforced and respected,” he said. Pruitt is expected to pass a full Senate confirmation, as all 51 Republicans will likely support him; Sen. Joe Manchin (D-WV) is also expected to support Pruitt.

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

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President-elect Donald Trump took a significant step in fulfilling his promise to scale back the Environmental Protection Agency on Thursday, announcing Oklahoma Attorney General Scott Pruitt as the agency’s next leader. Pruitt, 48, has spent years waging legal battles against the agency he is now set to steer. In his six years as attorney general, Pruitt has been a consistent and vociferous critic of government overreach; President Obama’s environmental regulations have frequently been targets.

“For too long, the Environmental Protection Agency has spent taxpayer dollars on an out-of-control anti-energy agenda that has destroyed millions of jobs, while also undermining our incredible farmers and many other businesses and industries at every turn,” said a statement from Trump’s camp, adding that Pruitt will “reverse this trend and restore the EPA’s essential mission of keeping our air and our water clean and safe.”

Pruitt, who has voiced his disdain for government overreach in editorials and in his work as attorney general, said he will run the agency in “protection of the environment and freedom for American businesses.” Working as the attorney general of Oklahoma, one of the country’s leading producers of oil and natural gas, Pruitt partnered with energy companies to fight Obama’s environmental regulations on things like greenhouse gas emissions and water pollution.

“There’s a mentality emanating from Washington today that says, ‘We know best,’” Pruitt said during his 2010 election campaign for attorney general. “It’s a one-size-fits-all strategy, a command-and-control kind of approach, and we’ve got to make sure we know how to respond to that.” He also has a cozy relationship with wealthy energy industry players: the CEO of Continental Energy was the co-chairmen of Pruitt’s 2013 re-election effort. 

Perhaps the most maligned target of Pruitt’s crusade against federal overreach is Obama’s Clean Power Plan, which imposed caps on emissions at power plants. Writing in the National Review on Obama’s key energy achievement in May, Pruitt said: “The checks and balances built into our system of government were simply ignored as inconvenient impediments to the president’s agenda,” referring to Obama’s executive action on the bill, which circumvented Congress. Oklahoma and 28 other states filed an anti-regulation suit against the act. The suit is pending in the U.S. Court of Appeals for the D.C. Circuit.

A Kentucky native, Pruitt went to the University of Tulsa law school, started a private practice upon graduating in 1993, and five years later served in the Oklahoma State Senate, before running a successful campaign for attorney general in 2010. An avid baseball fan, Pruitt co-owned and managed the Oklahoma City Redhawks, a minor league baseball team, from 2003 to 2010.

Environmental groups and some lawmakers were unhappy with Trump’s latest cabinet appointment. “Scott Pruitt has a record of attacking the environmental protections that EPA is charged with enforcing. He has built his political career by trying to undermine EPA’s mission of environmental protection,” said Fred Krupp, president of the Environmental Defense Fund. Sen. Bernie Sanders (I-VT) called Pruitt a “sad and dangerous” choice. “I will vigorously oppose this nomination,” he added. 

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

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After a year of intense debates, drama, and scandals, election day is now less than a week away. The results of the 2016 election will have a major influence on the next four years in politics with regard to a variety of issues, including gun rights, immigration, and tax reform. While environmentalism has not been a highlight of this election cycle, each president has a dramatically different approach to the issue, and the winner will have a serious impact on the future of environmentalism in the United States.

In this two-part series, we will unpack each candidate’s stance on environmentalism and their plans for the future, as well as outline exactly what is within their power to do. This first part will focus on the Republican side of the issue and analyze Donald Trump’s environmental policy. How exactly would Trump’s plan to loosen environmental regulations influence global warming as well as air and water quality? What exactly is Hilary Clinton’s renewable energy proposal and how effective would it really be? These are pressing questions that have gotten little attention throughout the campaign season.

Read Part Two: Where Does Hillary Clinton Stand on Environmental Policy?

The G.O.P. Debates: The Case of the Missing Environmentalist

First a little context. While the 17 original Republican candidates fought bitterly on a variety of issues, they were almost all united in their belief that climate change is a hoax. There were a few exceptions to this rule; Jeb Bush and John Kasich admitted that climate change was real, but not that it was caused by humans, while Carly Fiorina both admitted that climate change was real and caused by human activity. Chris Christie and Rand Paul have both publicly admitted to climate change being real and human-caused (Rand Paul even signed onto a bill agreeing to this) but both later went back on their statements, claiming that the science is still unclear.

Republican runner-up Ted Cruz briefly drew public attention with a clever scientific misinterpretation when he claimed that there has been no warming over the past 18 years, at least if you go by satellite data. His timeline of 18 years would take us all back to the uniquely hot 1997-1998 El Nino. It is true that if you only look at a short period of time and begin with a hot year, it doesn’t appear that much warming has taken place. But if you look at global temperatures over any kind of longer period, they are very clearly going nowhere but up. The methodology behind his assessment also flies in the face of the scientific community, which creates climate change models based on satellite atmospheric data combined with surface measurements, because satellite data can easily be subject to flaws due to confounding variables.

Current Republican nominee Donald Trump has had an even more outlandish position–that climate change is a hoax perpetrated by the Chinese in order to render American manufacturing less competitive. He has since both claimed that this was a joke and that he never said any such statement, although it still exists on his Twitter account and in videotaped interviews.

“Donald Trump” courtesy of Gage Skidmore; License: (CC-BY-SA 2.0)

Where the Party Stands

The Republican party is often viewed as being anti-environmentalist and generally for good reason. Currently, 182 members, or 34 percent, in Congress do not believe in climate change. While this list of climate deniers includes both Republicans and Democrats, Republicans make up the vast majority of this demographic. In fact, only eight out of 278 Republican members of Congress have taken open stances that they believe climate change is real. However, it wasn’t always the case that Republican presidential candidates also soundly rejected the existence of global warming. Both George W. Bush and John McCain did have environmental proposals when they ran for president and made public speeches about their intentions to aid the environment (although Bush’s environmental legacy was far from positive).

It is not exactly unique that environmental protection isn’t high up on the list of Republican priorities, but is unique that climate change and environmentalism were hardly even touched upon in the Republican presidential debates. The closest these topics came to being debated was within the context of which energy sources the candidates supported, which were universally oil, gas, or coal. Several of the candidates offered support for renewable proliferation to increase domestic energy security, but not at the expense of the economy or energy producers.

The internationally acclaimed COP 21 agreements came to pass without so much as a mention during the G.O.P. debates; the California drought was similarly ignored. This may be reflective of the voting base Republican politicians appeal to, which also has a high percentage of climate deniers. Interestingly enough, this is beginning to shift with time as well; where 24 percent of Republican voters believed in climate change in 2014, now 47 percent embrace the science. If the Republican party shifts enough in its position on environmentalism, it will be interesting to see if Republican politicians will also be forced to change their stances.

Donald J. Trump: Get Rid of All Regulations

Republican nominee Donald Trump does seem to have a consistent view on whether climate change is real (unless you count being confused as to whether or not he blames the Chinese for it). Historically, he has always claimed that climate change is a hoax. His campaign manager, Kellyanne Conway, publicly stated that, while Trump acknowledges that temperatures are rising globally, he doesn’t believe that human activity has had any influence over this. Trump’s running mate Mike Pence, however, spoke on CNN a day after the first debate to say that climate change was definitely real and man-made–although he reiterated Trump’s general stance that no environmental policies should be put into place that would hurt businesses or cost jobs.

Trump’s environmental policy logically follows his general denial of climate change as relevant or real. Trump’s original plan was to entirely abolish the Environmental Protection Agency–the government body that designs new environmental rules and regulations (working together with the Office of Information and Regulatory Affairs, an umbrella department within the Office of Management and Budget). While it is not within his power to do so unilaterally, one of the most important ways a President can influence energy policy is by choosing a new administration for the EPA. Each new President can appoint a new Administrator, who must be approved by Congress. If the president’s recommendation is approved, that further gives him or her the power to reshape both the upper positions of the EPA and the direction the agency will take.

Trump’s proposed selection to lead the EPA transition team is none other than Myron Ebell, the director of the Center for Energy and the Environment at the conservative Competitive Enterprise Institute, a group that uses bogus science to question “global warming alarmism.” Ebell is a famous climate denier and believes that Obama’s Clean Power Plan, which will dramatically shift the future of energy production in the United States, is not only a huge waste of government funds but also illegal because of the undue burden the regulations place on American businesses. At this time it’s unclear if Trump’s intention is to attempt to make Ebell the new EPA Administrator, but his current position as leader of the team puts him at the top of the suspected list. Alongside Ebell, the EPA transition team includes Republican energy lobbyist Mike Mckenna and former Bush Administration Interior Department solicitor David Bernhardt.

In the event that Trump is able to get his EPA transition team approved by Congress (and they will almost certainly face some opposition), they would be well equipped to try to dismantle the Clean Power Plan and remove many environmental regulations. Which brings us to the simple cornerstone of Trump’s environmental policy: remove as many regulations as possible. Trump has said that he will fight to do away with all regulations he believes are unnecessary in order to allow American businesses more operational freedom and greater room to grow.

In terms of Republican politicians, this position is in no way unique, but few presidential candidates have taken such a hard line stance against previously established environmental regulations (runner-up Ted Cruz would be fighting a very similar battle right now). Trump’s plan includes freeing up protected federal land, both on and offshore, for oil and gas drilling. Interestingly, designating an area as federally protected government land under the Antiquities Act is one of the few ways a president can directly use their executive authority to protect the environment. George W. Bush and Bill Clinton are both known for designating huge areas of land as federally protected, Clinton doing so several times specifically to prevent oil and gas companies from drilling in certain areas. For Trump to attempt to use executive power to remove these designations is a little like one president fighting directly with the legacy of a previous president.

More Fossil Fuels

Trump has said he would open up these swaths of federal land for coal mining leases and remove some of the rules that protect waterways throughout the nation from drilling, which is of concern if you’re an environmentalist or if you drink water. Trump is, in fact, one of few politicians still talking about the fantasy power source of “clean coal” in 2016. The general concept behind clean coal is to burn coal as efficiently as possible and then capture the emissions afterward, making it as “clean” as possible. While it’s true that we have made coal cleaner, it’s impossible to burn coal without some pollution. Clean coal has proven much more expensive and difficult to scale than its early proponents thought, making it far from a viable method to reduce carbon emissions. This is particularly true when less expensive and more efficient alternatives exist.

Trump’s focus on coal in particular is interesting, because coal as an energy source has dropped significantly in popularity and coal-fired power plants are rarely built these days (President Obama, coming from coal-heavy Illinois, also once preached the benefits of the mythical Clean Coal, although he’s since done an 180 on the issue and one of the key focuses of his Clean Power Plan is to regulate and reduce coal emissions by as much as possible).

Trump has made public that he views regulations on pollution as an obstacle to the success of business and jobs in America, although research indicates that over the past few decades the negative impacts of regulation on business have been modest and the demand for cleaner technology has in the past repeatedly stimulated innovation and growth in the private tech industry. If his EPA team was driven by the goal to free up businesses from all regulation, this would also involve dismantling key provisions of the Clean Water act and Clean Air Act. While a president can’t literally change the provisions of these acts, the administration he or she puts in place can reinterpret them and Trump could effectively remove the enforcement mechanisms that enable these acts to have their nationwide impact. Trump has, in fact, publicly stated that he would review the EPA endangerment findings, which are used to regulate greenhouse gas emissions. To strip away the EPA’s ability to regulate air and waterborne pollution would dramatically increase the United States’ role as a global polluter and worsen public health throughout the United States.

Conclusion

It’s important to look at our current political context to see if Trump really could do any of what he proposes. His selection of an EPA transition team of climate deniers is a little ridiculous and simply unrealistic considering that any new administrator could be blocked by Democrats in the Senate. A figure as divisive as Myron Ebell, or any of the other members of the team, will simply not make it through Congress. If Trump does become president he will most likely have to consider a more neutral person to take the EPA Administrator role.

The fact that Congress is largely deadlocked between the two parties on environmental issues has been and will be a huge obstacle for any president trying to accomplish anything (a problem that extends far beyond the environment). Because of this gridlock, nearly all political efforts to combat climate change have had to come through executive action, a pattern that can be easily seen throughout Obama’s two terms. Trump’s commitment to reversing Obama’s executive actions would potentially mean undoing much of the last eight years of environmental policy efforts, worsening air and water quality and giving fossil fuel companies greater access to federal land for fracking and drilling. By specifically using executive power to accomplish this, it would be within Trump’s hands to dramatically peel back the progress that the environmental movement has made in the United States. His plans should be taken seriously by American voters as a threat to the future of our public health and energy security and to the ever worsening global problem of climate change.

Resources

The Blaze: Mike Pence Breaks From Trump, Says Humans Have a Hand in Climate Change

Business Insider: Where Hilary Clinton and Donald Trump Stand on Climate Change

CBS News: Where the 2016 Republican Candidates Stand on Climate Change

CNN: Campaign Manager: Trump Does Not Believe Climate Change is Man Made

Competitive Enterprise Institute: Myron Ebell

The Economist: Green Tape: Environmental Regulations May Not Cost as Much as Governments or Businesses Fear

Fortune: How Donald Trump’s Energy Policies Are All About Removing Regulations

Grist: How Obama Went from Being Coal’s Top Cheerleader to its No. 1 Enemy

Governing: Economic Engines: Do Environmental Regulations Hurt the Economy?

Grist: Who’s Really in Charge on EPA Rules? A Chat With Legal Scholar Lisa Heinzerling

Grist: Why is Trump so Fixated on Abolishing the EPA?

The Hill: Top Climate Skeptic to Lead Trump’s EPA Transition Team

Politico: The Politico Wrong-o-Meter: Fact Checking the 2016 Presidential Debate

Think Progress: The Anti-Science Climate Denier Caucus

Think Progress: Christie Says He’s Not ‘Relying on any Scientists’ to Inform Climate Change Views

Think Progress: The Environmental Implications of a Trump Presidency

Scientific American: Many More Republicans Now Believe in Climate Change

Scientific American: Trump Picks Top Climate Skeptic to Lead EPA Transition Team

The Washington Post: Ted Cruz Keeps Saying that Satellites Don’t Show Global Warming: Here’s the Problem

Kyle Downey

Kyle Downey is an Environmental Issues Specialist for Law Street Media. He graduated from Skidmore College with a Bachelor’s degree in Environmental Studies. His main passions are environmentalism and social justice. Contact Kyle at Staff@LawStreetMedia.com.

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The United States for the first time in history promised to cut its carbon dioxide emissions when it joined the Paris Agreement. In order to meet those targets, the Obama Administration created the Clean Power Plan to reduce emissions and move American states toward cleaner energy sources. However, the Clean Power Plan is currently being challenged in the Supreme Court and it’s unclear whether or not the U.S. government will be able to make its promises a reality. Read on to learn more about the past, present, and potential future of federal pollution regulation in the United States.

The Current Political Context

Currently, the United States has the second highest rate of carbon dioxide emissions in the world, surpassed only by China. The United States has also historically avoided participating in international climate negotiations and is one of  a small number of developed nations that chose not to ratify the Kyoto Convention. While both industrialized and developing countries around the world have joined onto the convention over the past two decades and made pledges to reduce their emissions, the United States has struggled to make national commitments to reduce its own emissions. This is, in part, because American fossil fuel companies have been able to exert a great deal of influence on political decisions through lobbying and because Congress is divided on whether or not climate change is even scientifically valid.

COP21, the 21st Conference of Parties for the U.N. Framework Convention on Climate Change, marked the first time that the United States made a national pledge to reduce its emissions. However, while the COP21 was hailed as an international victory, it remains unclear if America can actually follow through on its commitments. U.S. policymakers remain divided on the issue of climate change and many believe that the government’s attempts to regulate fossil fuel usage directly interfere with the economy. As of February, the Clean Power Plan, with which the EPA began strictly regulating CO2 emissions from power plants, has been stayed by the Supreme Court and risks being ruled unconstitutional. The United States may have made an international commitment to reduce emissions, but on a domestic level, is it ready for such a change to take place?

A Brief history of Climate Change Negotiations

The first United Nations Framework Convention on Climate Change, also known as the Kyoto Protocol, was held on December 11, 1997. The convention entered into force on February 16, 2005–90 days after it was ratified by 55 nations emitting at least 55 percent of the CO2 emissions in 1990. The protocol required industrialized countries to make pledges to reduce their emissions by 5 percent before 2012.

Developing nations weren’t required to make pledges in the first incarnation of the Kyoto Protocol, although many did pledge to use aid from the U.N. and World Bank to invest in renewable energy sources. This was decided by the principle of “common but differentiated responsibilities,” meaning that since industrialized countries did the most damage to the environment, they should bear the heaviest burden of fixing it. Likewise, since dramatically reducing emissions would handicap growth in developing nations, it’s viewed as unfair to expect them to make the same level of commitment.

The United States did sign onto the Kyoto Protocol but it did not ratify the convention, meaning essentially that it gave its public support but refused to individually reduce its emissions. Decisions not to make emissions pledges from some major nations such as the United States, Canada, and Russia–although Russia did eventually agree to ratify the convention in 2004–are often cited by smaller countries as justification to not participate as well.

“High-level ministerial roundtable under the Kyoto Protocol” courtesy of UNclimatechange via Flickr

In 2012, following the end of the Kyoto Protocol’s first commitment period, another conference was held to establish new international pledges. The second conference produced the Doha Amendment, which gathered binding emissions reduction commitments from much of the industrialized world, including the entirety of the European Union and 37 other developed countries. Many developing countries ratified the amendment and made their own commitments, but their participation was on a non-binding basis.

In December 2015, COP21 was held in Paris and attended by representatives from 188 different countries, making it one of the largest international conferences in history. Rather than set specific reduction targets, COP21 let each participating country decide its own emission reduction plan with the ultimate goal of keeping global warming from raising the earth’s temperature by more than 2 degrees Celsius. COP21 was successful in bringing together almost every country on earth to participate in the conference, including a wide range of developing countries and many of the world’s top polluters, such as China, India, Indonesia, and the United States. The United States pledged to reduce its emissions between 26 and 28 percent by 2025, focusing primarily on carbon dioxide but also on methane, nitrous oxide, perfluorocarbons, sulfur hexafluoride, and nitrogen trifluoride.

The Clean Air Act and the EPA’s Role in Emissions Regulations

While COP21 marks the first time that the United States made an international commitment to reduce its emissions, the U.S. government has exercised power internally to regulate emissions since Congress passed the Clean Air Act in 1973. The Clean Air Act gave the EPA the power to create National Ambient Air Quality Standards (NAAQS) for six hazardous air pollutants: nitrogen dioxide, particulate matter, ozone, sulfur dioxide, carbon monoxide, and lead. Each state was required to design a State Implementation Plan (SIP) to upgrade and regulate industrial air polluters in order to meet these NAAQS. The act was amended in 1977 and in 1990, both of which were made to redesign the NAAQS and extend the deadlines for states that failed to reach their goals. The 1990 amendment also set new standards for technology upgrades for large-scale, stationary polluters.

The Clean Air Act addressed both stationary and mobile sources of pollution: power plants were forced to upgrade their technology and install filters on smokestacks and the auto industry was forced to redesign its engines and cars to reduce effects of harmful chemicals released into the atmosphere as well as meet average miles-per-gallon efficiency standards. The act has made a significant impact on air quality in the United States, reducing smog by more than 25 percent since 1990, lead pollution by 92 percent, sulfur dioxide by 71 percent, nitrogen dioxide by 46 percent, and ending the production and distribution of many chemicals that adversely affect the ozone layer.

However, while the Clean Air Act has existed for 43 years, its use to regulate greenhouse gas (GHG) emissions is a recent development. In 2007, the Supreme Court ruled  in Massachusetts v. the EPA that if it could be scientifically proven that greenhouse gas emissions were dangerous to human health, then it would be the EPA’s responsibility to regulate them. Only two years later, in 2009, scientific evidence proved both that GHGs were harmful to the human respiratory system and that an increase in heat waves due to global warming could be dangerous, especially for the elderly and infirm.

“Smokestack” courtesy of Dean Hochman via Flickr

The Clean Power Plan Explained

The Supreme Court’s ruling in Massachusetts v. the EPA gave the EPA the power to use the Clean Air Act as a viable policy tool to combat climate change and paved the way for the creation of the Clean Power Plan. The United States’ greenhouse gas emissions can be broken down into five major categories: 31 percent comes from electricity generation (also referred to as the power sector), 27 percent from transportation, 21 percent from industry, 12 percent from commercial and residential sources, and 9 percent from agriculture.

If the United States is to successfully reduce emissions by its target of 26 to 28 percent, a substantial amount of those reductions will have to come from the power sector, which contributes the largest share of greenhouse gasses and is also likely where the government can exert the most regulatory control. This has been the guiding logic behind the creation of the Obama Administration’s 2015 Clean Power Plan.

The Clean Power Plan mandates that power plants across the United States reduce their carbon dioxide emissions by 26 percent below 2005 levels by 2020 and 32 percent by 2030. The plan works differently on a state-by-state basis according to the energy mix used in each state, how efficient and environmentally friendly the current power plants are, and how effective a variety of traditional emission reduction tools can be in the context of the first two factors. The different emissions reductions targets vary widely because of these variables. For example, Montana is required to reduce its emissions by 47 percent while a few states aren’t required to make any changes because they don’t have power plants that the plan applies to. The EPA’s job is only to set these reduction targets; each state is allowed to design its own plan to meet its target. The only condition is that the plans must be submitted by September 1, or the EPA will impose a federal plan on states that failed to create their own.

Each state may choose to pursue the emissions reductions either through rate-based methods, which focus on reducing the amount of carbon emitted per unit of energy; or through mass-based methods, which focus on reducing the overall number of tons of carbon emitted. Regardless of their method of choice, the EPA offers four basic building blocks to aid the construction of each state’s plans: making existing coal plants more efficient; using existing gas plants more efficiently; increasing renewables and nuclear and increasing end-use energy efficiency. These four principles are not binding constraints but rather general guidelines; each state is expected to create a unique plan.

Legal Challenges

Since the release of the Clean Power Plan, 29 states have attempted to sue the EPA but the majority of these cases were quickly dismissed. But in January, one case, West Virginia v. the EPA, may be on its way to the Supreme Court. While the D.C. circuit court initially plans to review the case in June, on February 9 the Supreme Court voted 5-4 to issue a stay to stop the Clean Power Plan’s implementation prior to undergoing judicial review. That stay stops the EPA’s regulations until after a court ruling has determined whether they are within the agency’s authority. A ruling against the EPA could effectively cripple the plan’s intended purpose of combating climate change.

Image courtesy of Phil Richards via Flickr

However, on February 24, less than two weeks after the Supreme Court issued the stay, Justice Antonin Scalia passed away. Justice Scalia led the decision to overturn the Clean Power Plan and his death significantly complicates the plan’s legal future. The Supreme Court now seems to be divided 4 to 4 on the issue, but there has been no mention of changing the decision to stay the case. The issue is also further complicated by the GOP’s refusal to hold hearings on the President Obama’s Supreme Court nominee.

The looming question now is whether or not the Supreme Court will wait to hear the case until after the 2016 Presidential election and/or the confirmation of a ninth justice. The D.C. Circuit Court is currently scheduled to hear the states’ lawsuit this upcoming summer after which point the Supreme Court will decide whether or not it wants to take up the case. If the court refuses to take up the case or issues a 4-4 split ruling, then the circuit court’s decision will stand. However, legal experts note that the court could delay the case until a new justice joins the bench, which would likely lead to a 5-4 decision based on the ideological leaning of the ninth justice.

So What will Happen in the Meantime?

The Clean Power Plan is critical to the United States’ ability to fulfill its COP21 commitments. However, the fact that the plan is currently pending a court ruling does not mean that it failed. Last year, the Clean Power Plan already exerted considerable influence on the American energy systems as states have begun to redesign their energy systems for the future and many power plant operators have already begun retrofitting their plants and designing compliance plans. The primary focus of the Clean Power Plan is to dramatically reduce the use of coal in American energy and that may very well be happening. The implementation of the plan also coincides with a time when we have new access to domestic reserves of natural gas and energy investors have already started to move away from coal toward less expensive forms of energy.

Coal stocks plummeted in 2015 and many plants across America declared bankruptcy. However, this isn’t to say that the Supreme Court decision isn’t important. If the Clean Power Plan is overturned, then a new series of political barriers to regulating emissions may be created.  The decision also sets a dangerous legal precedent, marking the first time the Supreme Court has stayed federal regulations before hearing the case. The EPA’s legal authority to address airborne pollution is the major weapon that gives the United States a real chance to reduce its emissions. If that power is called into question then that may dramatically impede the EPA’s ability to make progress on climate change.

Conclusion

The Clean Power Plan’s emphasis on increasing renewable energy in America is a large part of what makes it an effective weapon against climate change. Coal may still die out on its own, but without the plan in place, it seems likely that energy investors will shift to the more cost efficient natural gas rather than renewable energy. Natural gas releases less CO2 than coal but is still very much a greenhouse gas and a national dependence on methane as an energy source would still result in high levels of GHG emissions.

As long as the Clean Power Plan is in legal limbo it’s difficult to predict what direction American energy will take. Currently, it seems likely that there won’t be a final hearing on the case until after the 2016 election is decided and a new justice is confirmed by the Senate. Whether that new justice ends up being liberal or conservative will most likely make or break the plan and will strongly influence the United States’ ability to meet its Cop21 goals. The next president will also have control over executive branch policy, meaning that he or she could peel back a significant portion of existing regulation or continue President Obama’s efforts and reduce greenhouse gas emissions further.

Resources

The Atlantic: A Legal Win for the E.P.A.

The Atlantic: Will a Reconfigured Supreme Court help Obama’s Clean Power Plan Survive?

The Atlantic: Did the Supreme Court Doom the Paris Climate Change Deal?

The Atlantic: The Supreme Court’s Devastating Decision on Climate Change

CNN: Kyoto Protocol Fast Facts

CNN: Obama: Climate Agreement ‘Best Chance we have to Save the Environment‘

Earth Institute, Columbia University: What is the U.S. Commitment in Paris? 

Environment and Energy Publishing, LLC: Clean Power Plan: A Summary

The EPA.: The Clean Air Act Requirements and History

The EPA: The Clean Power Plan for Existing Power Plants

The EPA: Summary of the Clean Air Act

The Guardian: The Kyoto Protocol is Not Quite Dead

The Hill: Supreme Court Overturns Landmark EPA Air Pollution Law

Inside Climate News: For U.S. and China, World’s Biggest Climate Polluters, It’s Still Business as Usual

Moyers & Company: Here are the 56% of Republicans who Deny Climate Change

NRDC: NRDC Summary of EPA’s Clean Power Plan

United Nations Conference on Climate Change: 188 Countries have Committed to Reducing their Carbon Emissions

United Nations Framework on Climate Change Convention: Status of Ratification of the Kyoto Protocol

Union of Concerned Scientists: The Clean Air Act

Kyle Downey

Kyle Downey is an Environmental Issues Specialist for Law Street Media. He graduated from Skidmore College with a Bachelor’s degree in Environmental Studies. His main passions are environmentalism and social justice. Contact Kyle at Staff@LawStreetMedia.com.

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