Trump, Citing Pandemic, Moves to Weaken Two Key Environmental Protections

Source: By Coral Davenport and Lisa Friedman. New York Times • Posted: Friday, June 5, 2020

Twin environmental actions set for Thursday underscored the president’s push to roll back regulations as the coronavirus crisis continues.

President Trump’s executive order will call on agencies to waive required environmental reviews of infrastructure projects to be built during the pandemic-driven economic crisis.
Samuel Corum for The New York Times

WASHINGTON — The Trump administration, in twin actions to curb environmental regulations, moved on Thursday to temporarily speed the construction of energy projects and to permanently weaken federal authority to issue stringent clean air and climate change rules.

President Trump signed an executive order that calls on agencies to waive required environmental reviews of infrastructure projects to be built during the pandemic-driven economic crisis. At the same time, the Environmental Protection Agency has proposed a new rule that changes the way the agency uses cost-benefit analyses to enact Clean Air Act regulations, effectively limiting the strength of future air pollution controls.

Together, the actions signal that Mr. Trump intends to speed up his efforts to dismantle environmental regulations as the nation battles the coronavirus and a wave of unrest protesting the deaths of black Americans in Georgia, Minnesota and Kentucky. They will also help define the stakes in the 2020 presidential election, since neither effort would likely survive a Democratic victory.

By changing the way the government weighs the value of the public health benefits, Andrew Wheeler, the E.P.A. administrator, would allow the agency to justify weakening clean air and climate change regulations with economic arguments.

Mr. Trump’s executive order would use “emergency authorities” to waive parts of the cornerstone National Environmental Policy Act to spur the construction of highways, pipelines and other infrastructure projects. Environmental activists and lawyers questioned the legality of the move and accused the administration of using the coronavirus pandemic and national unrest to speed up actions that have been moving slowly through the regulatory process.

“When it comes to trying to unravel this nations’ environmental protection laws, this administration never sleeps,” said Richard Lazarus, professor of environmental law at Harvard University.

Fossil fuel companies have long asserted that the economic formulas used by the federal government to justify pollution controls have unfairly harmed them. During the Obama administration, the E.P.A. drafted a rule to limit toxic mercury pollution from power plants, estimating that it would cost the electric utility industry $9.6 billion a year. But an initial analysis found that reducing mercury would save just $6 million annually in health costs.

Andrew Wheeler, the E.P.A. administrator, appearing before a Senate panel last month.
Pool photo by Al Drago

To justify that stark imbalance, the Obama administration found an additional $80 billion in health “co-benefits” from the incidental reduction of soot and nitrogen oxide that would occur as side effects of controlling mercury.

Last month, the Trump administration completed a rollback of that Obama mercury rule that discounted such co-benefits.

Now, Mr. Wheeler has proposed extending that measure by eliminating or reducing the emphasis on co-benefits across all new Clean Air Act regulations. This year, he is expected to propose a similar revamp of the cost-benefit formulas that govern clean water and chemical safety regulations.

Mr. Wheeler said that the E.P.A. would still calculate the economic value of such co-benefits. But he said those calculation would no longer be used in defending rules. “Co-benefits would not be used to justify the rule,” he said in a telephone call with reporters, noting specifically that the change would mean that regulations like the Obama-era mercury rule would no longer be defensible.

“The way the Obama administration used co-benefits to calculate the mercury rule and other rules — they were playing a shell game,” he said.

Historically, the economic costs of regulating pollutants such as mercury or planet-warming greenhouse gases often do outweigh the direct benefits. But such rules also tend to lower emissions of another deadly pollutant: fine industrial soot, also known as particulate matter.

By reducing emissions of the tiny, lung damaging particles known as PM 2.5, clean air rules that are primarily aimed at controlling different pollutants can have the effect of saving thousands of lives by lowering rates of asthma and lung disease. And, last month, researchers at Harvard released the first nationwide study linking long-term exposure to PM 2.5 and Covid-19 death rates.

“At a time when more than 100,000 Americas have died from Covid and we know about this connection, the Trump administration is going to put in place some analytical techniques that will make it easier for them to kill more Americans,” said Richard Revesz, an expert on environmental law at New York University.

Mr. Revesz and others said the change also defies the intent of the landmark Clean Air Act of 1970.

“These economic cost-benefit analyses have been an important driver of Clean Air Act regulations for 40 years,” said Richard Morgenstern, a former E.P.A. official who served from the Reagan to the Clinton administrations. “What this rule is doing is altering the math in such a way to potentially downplay the economic benefit to public health, so they are justified in writing weaker rules in the future.”

Allies of Mr. Trump applauded that prospect.

“This helps the Trump agenda because it limits E.P.A.’s freedom to push out new regulations,” said Steven J. Milloy, a member of Mr. Trump’s E.P.A. transition team and author of the book “Scare Pollution: Why and How to Fix the E.P.A.”

The fossil fuel industry expressed support for the move. “Through administrator Wheeler’s proposal, E.P.A. must now be consistent and transparent with the data and analysis used to justify decisions in its rule-making efforts,” said Anne Bradbury, chief executive of the American Exploration and Production Council, which represents oil and gas companies. “These reforms help to avoid federal rules that could otherwise hurt American workers, businesses and our economy.”

The future of Thursday’s actions will depend on the outcome of this November’s election. If former Vice President Joseph R. Biden Jr. defeats Mr. Trump and is inaugurated before the draft rule is made final, a process that can easily take up to a year, his administration could simply discard the E.P.A. proposal. If the rule is made final, but Mr. Biden wins the White House and Democrats take control of the Senate, they could use the Congressional Review Act to quickly undo the Trump-era regulation.

The act, almost never used until Mr. Trump took office, allows Congress to nullify any regulation that has been in place for fewer than 60 legislative days.

Thursday’s executive order would be even more vulnerable, since it could be undone with a new president’s signature.

Citing more than 41 million people out of work because of Covid-19, Mr. Trump said “Without intervention, the United States faces the likelihood of a potentially protracted economic recovery with persistent high unemployment.”

He said the need for his administration’s deregulatory agenda was “all the more acute now” and claimed regulatory delays would continue to keep millions of Americans out of work.

The order calls on the secretaries of the Transportation Department, the Department of Agriculture, the Department of the Interior, the Defense Department and the head of the Army Corps of Engineers, to “use all relevant emergency and other authorities” to expedite infrastructure projects. They must report back to the White House within 30 days with a list of all projects that have been fast-tracked.

Alyssa Schukar for The New York Times

Mr. Lazarus, the Harvard professor, noted that the environmental policy act provides for federal agencies to consult with the White House on whether “emergency circumstances” make it necessary to waive requirements, but does not give power to waive environmental requirements.

“The president’s assertion of authority to waive the application of environmental laws in the way described seems wholly untethered from law,” Mr. Lazarus said.

Democratic leaders said the administration’s actions would be particularly harmful to communities of color.

“By signing this executive order, Donald Trump is muzzling the voice of environmental justice communities, and continues to make clear his total disregard for those speaking out and fighting for racial justice and a sustainable environment,” Senator Chuck Schumer of New York said in a statement.

The Trump administration aimed to dismantle parts of the National Environmental Policy Act long before the coronavirus pandemic hit the United States. In January Mr. Trump released a plan to weaken the law. That measure, which is expected to be finalized this month, would no longer take climate change into account when federal agencies weigh the environmental consequences of infrastructure projects.

The Club for Growth, a free-market group, applauded the move and called it “bold action” to “get our country back to work faster.” The Center for Biological Diversity, an environmental group, accused the administration of “exploiting the pandemic.”