EPA plans target climate change initiatives

A Harvard expert in environmental law said a recent set of Trump administration regulatory changes targeting initiatives in the climate change battle will reverse progress made over decades.

Richard Lazarus, Harvard Law School’s Charles Stebbins Fairchild Professor of Law, said the late U.S. Sen. John McCain described the first Trump administration’s approach to cutting government programs as using a “meat cleaver” rather than a scalpel.

“I would say that Trump 2.0 in the first 71 days has been more akin to a nuclear explosion, with a bull’s eye on programs related to climate change,” Lazarus said on April 1, during an online discussion of the administration’s new goals for the Environmental Protection Agency disclosed last month.

Regulatory whipsawing is common, Lazarus said, as administrations undo what they see as predecessors’ harmful actions and overreach. Efforts in Washington D.C. today, however, go far beyond disagreement over how to regulate, questioning whether to regulate at all.

Carrie Jenks, executive director of HLS’ Environmental and Energy Law Program, agreed, saying that in mid-March the EPA laid out a roadmap of 31 steps it would take, targeting issues including climate change-related regulation, power plant and greenhouse gas reporting requirements, and support for electric vehicles. The steps also included reconsidering restrictions on the oil and gas industry, mercury standards that affect coal power plants, wastewater regulations for oil and gas development, air quality standards, and others.

Lazarus and Jenks’ assessments were part of a conversation hosted by the Salata Institute for Climate and Sustainability. The hourlong event, part of its “Harvard Voices on Climate Change” series, was moderated by Salata Institute Director James Stock, Harvard’s vice provost for climate and sustainability and the Harold Hitchings Burbank Professor of Political Economy.

A key administration initiative, they said, is the launch of a formal reconsideration of the 2009 “endangerment finding.”

That finding, ordered by the Supreme Court in 2007, concluded that the buildup of greenhouse gases in the atmosphere endangers human health. It provided the legal foundation under the Clean Air Act for government regulation of climate warming gases like carbon dioxide and methane.

Jenks described the finding as “a trigger” for subsequent regulation, so an attractive target for those seeking to undermine federal action on climate change. Attacking the decision on the basis of scientific fact, however, may be difficult, since the science is well-established.

Instead, Jenks said the administration might try to argue that the EPA doesn’t have the legal authority to regulate greenhouse gases or has the discretion to choose not to.

“I think they’re going for more legally risky strategies that have more damaging outcomes if they’re successful,” Jenks said. “Each action taken by the EPA under [Barack] Obama, [Joe] Biden, and even in some cases, the first Trump administration, recognized climate change, and the debate was about how to regulate, not whether to regulate. Now, I think, it’s very different from what we’ve seen in the past.”

Whatever approach they take, Jenks said, they will have to go through a process of proposing regulatory change, taking public comments, and finalizing the rule, which takes time and allows environmental groups and others who disagree to voice their opinions.

“I’m sure those actions will then be litigated, and any regulatory action should need to be grounded in the statutory criteria that Congress has required EPA to consider, which generally has at least one component connected to emissions or pollution reduction,” Jenks said.

Jenks said she expects the EPA to move quickly, but that could become difficult if staff cuts deplete the agency’s expertise on these matters, as the underlying rationale for regulatory change has to have supporting data.

Another option, Lazarus said, is the GOP-dominated Congress could decide to use the Congressional Review Act as a weapon against environmental regulation. The law would allow the House and Senate, by majority vote, to overturn a rule by any federal agency and then prohibit that agency from reissuing the rule or creating a similar rule unless authorized by Congress.

That strategy was in full view in February when Congress overturned EPA’s rule implementing the “waste emissions charge” on methane emissions contained in the Inflation Reduction Act. The result, Lazarus said, is that though the IRA requires companies emitting methane to pay the charge, there are no regulations in place for that to happen, leaving the companies and the fee in limbo.

Congress might employ the same strategy to remove California’s ability to exceed federal regulations on vehicle emissions standards, which has not only allowed California to create the strictest standards in the country, but, once set, can be followed by other states.

The IRA itself is under attack as the administration tries to claw back funding in an array of programs intended to provide incentives for climate-friendly action. Like the moves that gutted USAID, choosing not to spend funds on congressionally approved IRA programs on climate change is illegal, Lazarus said. But the administration appears to be unconcerned with running afoul of the law and is pushing hard to bring change quickly.

“They don’t mind forcing the courts to act and litigation takes time,” Lazarus said. “The practical effect of a freeze and a contract violation is it takes time to undo it. In the meantime, money isn’t being spent. The contractors aren’t getting it. People’s salaries aren’t being paid. People have leases that aren’t being paid. Right now, it’s chaos among all those recipients around the country. And the Trump administration will keep changing the legal rationale, making it very elusive and just saying, ‘We’re pausing it,’ or ‘We have to study it more carefully.’ The practical effect is quite serious.”

In the end, Jenks and Lazarus agreed, it may be the effect on individual lives that does the greatest harm. Regulatory changes can be undone or rewritten and new regulations passed, but layoffs, reassignments, and hostile working conditions threaten to rob the agency of the scientific and legal expertise that has ensured continuity from administration to administration.

While some of the firings and other personnel steps undertaken by the new administration may be halted or reversed by the courts, people are leaving voluntarily because they are demoralized and have bills to pay.

“Many are leaving,” Lazarus said. “To lose not just the regulations, but potentially lose that career expertise, and the funding of the IRA, is potentially devastating.”