Home runs are done. Now Trump makes small moves on climate

Source: Zack Colman, E&E News reporter • Posted: Wednesday, September 6, 2017

The Trump administration is learning how to play small ball.

Energy and environment experts say the Trump administration is reversing substantive policy measures that often fly under the radar. At the same time, the administration has completed structural changes in the government that alter the trajectory of environmental and energy policy by, in part, crimping agencies’ work on issues that are unimportant to the White House, like climate change.

These changes lack the high-profile bravado preferred by President Trump. But they can have a lasting effect.

“They got off to a flying start,” said Dan Byers, who leads the U.S. Chamber of Commerce Global Energy Institute’s coal program. He added, though, that there’s still some heavy lifting ahead. “There’s a lot of sort of small, under-the-radar process steps that have been taken to initiate reforms, but really to bring those to fruition they have to really roll up their sleeves.”

Others see the administration’s emphasis on small ball — a focus on numerous low-level wins — as a sign that it’s the only strategy available to it.

Many of Trump’s victories are process-oriented, like putting Obama-era rules on hold and issuing executive orders. The courts have looked unfavorably at some early White House moves, sending the administration back to the drawing board. Future litigation awaits.

“Basically I think that the Trump administration has taken a lot of shortcuts in the unrolling of environmental policies, and it’s starting to get punished by the courts — and that’s going to continue,” said Richard Revesz, professor and dean emeritus at New York University School of Law and director of the Institute for Policy Integrity. “They made a serious strategic error in building a house on quicksand.”

It’s true that the Trump administration has misfired on some moves. U.S. EPA pulled back on a plan to delay implementation of a new ozone standard by two years (Greenwire, Aug. 3). The courts blocked EPA’s attempt to halt a rule requiring oil and gas drillers to capture emissions of methane, a potent greenhouse gas (Greenwire, July 3). A court rejected a natural gas pipeline approval because it didn’t account for potential greenhouse gas emissions, testing the Trump administration’s revocation of requirements that federal agencies consider those emissions before approving projects (Greenwire Aug. 22).

For those who wish the administration success in accomplishing its agenda, the start has been at times “frustrating,” said Jeff Holmstead, an EPA air chief under President George W. Bush. He said political vacancies are tripping up the administration’s early efforts, a comment shared by many in industry, and amid reports that EPA political officials are shunning career staff (Greenwire, Aug. 31).

“The Trump folks clearly want to fix the regulatory problems created under Obama, but they haven’t actually done much yet,” Holmstead, now a lawyer at Bracewell LLP, said in an email. “Fixing regulations requires a lot of detailed technical and legal work, and they don’t yet have the people in place to do this.”

Giving coal ‘confidence’

Still, it’s also true that early setbacks may be temporary and largely a function of political vacancies. The big fight on ozone, for example, is over disarming the Obama standard, not merely delaying it. And while EPA’s methane rule is being questioned on process grounds, industry groups are still pushing for a full rewrite or repeal. The Federal Energy Regulatory Commission has enough members now to approve a logjam of pipelines. That’s underway.

Beyond that, the administration has brushed aside a number of environmental rules that industry says are slowing energy development.

Gone is the stream buffer rule designed to protect waterways from coal-mining pollution (E&E News PM, Feb. 16). Same goes for a resource planning framework for energy development on federal land that companies said required layers of permitting and environmental reviews (Greenwire, July 5). Curbs to royalties earned by fossil fuel firms for extracting resources from federal land are being ditched, though a recent court decision clouded the fate of those changes (Greenwire, Aug. 31). The social cost of carbon, which would have made it harder to justify projects and policies that increase greenhouse gas emissions, has vanished (Greenwire, March 29).

The most charitable view offered by administration supporters is that the White House has checked off the easy items and has inspired confidence that the whole wish list could be fulfilled.

“I think what’s overlooked about this administration’s help for our coal industry is what can’t be measured but is nonetheless real: confidence,” Luke Popovich, a spokesman with the National Mining Association, said in an email. “For the first time in almost a decade, operators, miners, investors and all those in the coal supply chain finally have a government that is not dedicated to their destruction. That leaves them unencumbered by regulations, more confident when facing marketplace pressures — gas and subsidized renewables.”

The administration has shown signs of moderating its ambition. It has rebuffed coal and nuclear companies that sought preferential treatment, despite the fact that doing so might have pleased core constituencies (Greenwire, Aug. 22). And while speculation abounded that the White House might attack the endangerment finding on greenhouse gas emissions, a ruling that undergirds all climate regulation, it’s looking as if Trump may steer clear of that path.

The most obvious sign on that front involves ongoing discussions around the Clean Power Plan. While Trump spoke on the campaign trail of ending Obama’s signature domestic climate policy, it looks increasingly likely that the administration will leave a scaled-back version in place (Climatewire, Aug. 24).

Interior Secretary Ryan Zinke’s tour to evaluate national monuments has also demonstrated some restraint. Reports indicate he will propose shrinking four of the 27 sites reviewed, though Zinke is reportedly considering a drastic reduction of the Bears Ears National Monument in Utah (Greenwire, Aug. 24).

That use of a scalpel rather than ax perhaps reflects the minimal interest by the oil and gas industry in downsizing monuments. While the industry, along with the ideological right, is concerned about abuse of a 111-year-old rule allowing presidents to unilaterally designate monuments, there’s little conflict between current monuments and oil and gas resources, said Kathleen Sgamma, president of the Western Energy Alliance trade group.

“There have been a few leases in some monuments, most of which companies have long since abandoned,” Sgamma said. “There are a few leases in the Bears Ears, so if the boundaries were adjusted, maybe — and they’re all in the periphery. But energy development has not been significantly impacted to date by monuments.”

‘Driving people out’

Still, detractors contend that the administration, while delivering some wins to its supporters, hasn’t met Trump’s hyperbolic promises from the campaign trail. And they claim it won’t ever, due to legal pushback.

On that front, some see the Energy Department’s electric grid study as an example of the administration’s inability to effect the change it seeks. The report largely confirmed analysts’ assertions about the electricity market: Cheap natural gas plus an influx of renewables, combined with sagging demand and environmental regulations, are economically stressing coal and nuclear power plants.

The report offered a series of policy recommendations that a Republican-leaning FERC may take up (Energywire, Aug. 25). But FERC is an independent panel. And a major recommendation for EPA regarding expanding flexibility for existing power plants to make improvements without triggering new permitting has been contested in the past (Greenwire, Aug. 24).

Beyond that, while Trump has spoken of regulatory reform on any number of issues, much of what he wants to accomplish may require Congress changing underlying statutes — a big hurdle in this age of gridlock. There are few clear ways, for example, to act on the executive order signed last month to shorten environmental review timelines short of adding or reassigning staff to quicken approvals (Greenwire, Aug. 23). A number of ad hoc regulatory reform committees are also working on proposals, but whatever comes of that might be for naught without legislation or changes to bedrock environmental laws like the Clean Air Act.

“I think it’s funny because there’s a lot of news articles about how they’re doing so much, but in most cases issuing an executive order isn’t doing anything,” said Brian Potts, an environmental lawyer with Perkins Coie. “They haven’t issued the Clean Power Plan replacement, they haven’t issued any kind of ozone rules that I’m aware of. There’s things that they could and likely will do, but they just take a long time.”

It’s not just about rules, though.

Decimating the career staff through steep budget cuts, reassigning climate personnel to areas in which they have little expertise and calling for public debate on climate science constitute some of the subtle alterations that greatly affect the future of policymaking, noted Jody Freeman, a White House official under President Obama who now teaches at Harvard Law School.

“All the less visible stuff really in a way can be more dangerous and more difficult to overcome than the policy shifts,” Freeman said. “The message is a message of, ‘We don’t respect this stuff.’ A lot of it is designed, I think, to cut the civil staff through attrition or driving people out.”

Even with some of these more subtle developments, Trump, along with EPA Administrator Scott Pruitt, has tried to hammer a home run. Nothing to come in the energy and environment space will match the pageantry with which Trump withdrew the United States from the Paris climate accord.

Even within that massive shift lies a little bit of small ball, said Jim Murphy, senior counsel with the National Wildlife Federation. Although the administration has had a number of legal “misfires,” the Paris pullout has greatly lowered the climate ceiling.

“The whole kind of driving principle that was behind the methane rule and the Clean Power Plan, he’s kind of wiped that policy away,” Murphy said. “He’s dramatically changed the trajectory EPA was on.”