Obama’s mighty EPA falls into Pruitt’s hands

Source: By Andrew Restuccia and Alex Guillén, Politico • Posted: Friday, December 9, 2016

President Barack Obama leaned hard on the Environmental Protection Agency to carry out his climate agenda, bypassing a Congress that had refused to act.

As a result, President-elect Donald Trump and Scott Pruitt will have sweeping power to turn back the clock.

Pruitt, Trump’s choice for EPA administrator, is expected to begin attacking Obama’s environmental legacy using courtroom drama, foot-dragging and an upending of how EPA treats the scientific consensus on climate change. But one key to his success will be the same heavy reliance on executive action that Obama employed so aggressively in his second term.

Republicans have long contended that Obama overstepped his powers, accusing him of misusing obscure provisions of laws such as the Clean Air Act to claim authority over wide swaths of the U.S. economy. But in effect, Obama has offered a perfect blueprint for Trump and Pruitt, who would have a much harder time undoing his legacy if the Democratic Congress had passed global warming legislation in 2009 or 2010.

Pruitt is expected to take especially quick aim at Obama’s signature climate regulation, known as the Clean Power Plan, a suite of limits on power plants’ greenhouse gas pollution that is awaiting a crucial ruling from a federal appellate court. Pruitt has been one of the leading challengers against that and other EPA regulations in his role as Oklahoma’s attorney general.

“It’s the end of the EPA’s climate agenda,” conceded David Bookbinder, the Sierra Club’s former chief climate counsel. “The Clean Power Plan is dead. Let’s just forget it.”

Sen. Mike Lee (R-Utah) said EPA’s critics should expect Pruitt to be an aggressive champion for their cause.

“As attorney general of Oklahoma, Scott Pruitt has spent years being ignored and pushed around by Washington,” Lee told a gathering Thursday at the Heritage Foundation. “He knows the kind of dangerous bureaucratic mindset he’s up against.”

While the entirety of Pruitt’s agenda is unclear, he could also chip away at the agency’s efforts to slash carbon pollution from oil and gas operations, airplanes, cars and trucks.

Current and former Obama administration officials are still reeling over Trump’s selection of Pruitt, worrying that years of work could be undone. “All the things that I’ve done in my life that I feel most professionally proud of are going to be blown up in one shape or form,” one former senior administration official said.

Still, administration officials express few regrets over Obama’s executive-action approach, even if it made his accomplishments more vulnerable to Trump’s attacks. They said the Republican-controlled Congress could have killed a climate bill as well.

“Even if we passed climate legislation, it could go the same way that [Obama’s health care law] is going,” said Heather Zichal, Obama’s former top energy and climate adviser. “Nothing is sacred when you have these kinds of people running the agencies.”

Environmentalists promise to fight in court against any backsliding from Obama’s agenda — but they also point to scientists’ warnings that time is running short to forestall the most catastrophic damage from global warming. They said the harm from Pruitt’s actions would be compounded if Trump pulls the U.S. out of last year’s Paris climate agreement, giving other countries cover to follow suit.

“What you lose is the most precious quantity you have in the battle against climate change, which is time,” said David Doniger, director of the climate program at the Natural Resources Defense Council. “We’re deep into overtime already.”

Pruitt would come to the job with a track record as one of the leading litigators against the agency in recent years. He has at least seven ongoing lawsuits against the agency, including cases involving its rules on power plants, smog-creating ozone and Clean Water Act protections for wetlands and waterways.

His stock in Trump World rose after several conversations with investor Carl Icahn, who played a central role in vetting Trump’s EPA contenders. Icahn came away from the conversations believing that Pruitt is open to changing an obscure part of EPA’s ethanol rule that the oil refinery-owning investor had been railing against for months.

Former EPA Administrator Christine Todd Whitman, who led the agency during President George W. Bush’s first term, expressed deep skepticism about Pruitt’s coming reign.

“I haven’t seen a whole lot from him that indicates a real belief in the mission of the agency, since he’s sued it on just about everything,” she said. She added: “He seems to be skeptical of science, period.”

Indeed, one target that has environmentalists worried is EPA’s treatment of climate change science itself.

EPA issued a scientific conclusion in 2009 that greenhouse gases endanger public health and welfare, providing a necessary precursor for the agency’s subsequent rules targeting carbon dioxide. But Trump has promised to review that so-called endangerment finding.

Both Trump and Pruitt have questioned the science on man-made climate change, which Trump famously said on Twitter had been “created by and for the Chinese in order to make U.S. manufacturing non-competitive.” Pruitt maintains that significant disagreement exists among scientists over the cause and consequences of global warming, even though the vast majority of climate researchers say the consensus is overwhelming.

It’s not clear that reversing EPA’s scientific judgment would hold up in court, and even Republicans privately question whether challenging it is a wise political strategy. But litigation over the matter could take years, putting EPA climate action on the back-burner for some time.

Other ripe targets include regulations that are embroiled in court challenges, including the Clean Power Plan, which the D.C. Circuit Court of Appeals could rule on at any time. Regulations in earlier stages of their legal battles include greenhouse gas limits for new power plants, a “Waters of the United States” rule facing fierce attacks from the farming, oil and development industries, and a new standard for smog.

Pruitt could ask the courts to send those rules back to the agency for reworking. Obama used that strategy when he took office, opting not to defend several Bush administration environmental rules that were tied up in the courts and then working to undo them.

“I wouldn’t be surprise if we saw something similar here,” said Jeff Holmstead, a former Bush EPA official whom Trump’s transition team had considered to lead the agency.

Pruitt would have an even easier time revising the regulations if the courts strike them down first. Then he could either change the agency’s course or decide against regulating altogether.

Any changes to the regulations would require EPA to spend years wending through the typical rulemaking process, and most likely would face new lawsuits from supporters of the Obama versions — for example, from environmental groups or states like California or New York.

Pruitt would also play a major role in what happens to big-ticket regulations that are now in the works. Those include a review of car emissions standards for the 2022-25 model years, which EPA set four years ago with a final average target of 54.5 miles per gallon. The agency proposed keeping those goals unchanged last month, despite pleas from automakers to loosen them, but it has until April 2018 to make a final decision.

Other upcoming EPA actions include limits on carbon emissions from aircraft, rulesto ensure that hard-rock miners and other industries can pay for environmental cleanups, and regularly scheduled reviews of key national air quality standards.

Some important Obama-era regulations are well beyond Pruitt’s ability to roll back easily, however. Those include a first-term rule targeting pollution that drifts across state lines, an update to the standards for acid-rain-creating sulfur dioxide and a rule limiting cars’ and trucks’ air pollution through 2021. While Pruitt and other state attorneys general are still in court with EPA over a rule limiting mercury emissions from power plants, that rule has already taken total effect, forcing shutdowns of some of the nation’s oldest, dirtiest coal plants.

More broadly, experts believe that the United States’ emissions trajectory won’t dramatically change in the short term, even if Pruitt abandons the Clean Power Plan. Market conditions are causing widespread switching in the power sector from carbon-heavy coal to natural gas — and federal tax credits paired with state-level policies will continue to encourage development of wind and solar energy.

Still, climate advocates can’t help imagining an alternative universe in which a President Hillary Clinton had gotten to follow through on her pledges to build on Obama’s climate agenda. Environmentalists had planned to press her to crack down on methane pollution from existing oil and gas operations, and perhaps on greenhouse gases from refineries and agriculture.

“There will be no further progress,” Bookbinder said. “I think the real difference will not be between Obama and Trump, but between Trump and what Hillary Clinton would have done.”

Eric Wolff contributed to this report.