Election 2020‘Everything related to the environment is at stake’
Paul Farrell has spent his career tackling one of the state’s most intractable environmental problems — dirty air — clocking 27 years at the state Department of Energy and Environmental Protection alone, the last two as director of air planning.
So when Farrell says, “I think the environmental stakes of the upcoming election are as significant as I’ve ever seen in my career,” he knows what he’s talking about.
To be clear, the state’s battle with the Trump administration isn’t its first but, as Farrell points out, it’s one for the books.
“I’m tracking right now somewhere in the neighborhood of 90 different environmental actions EPA has taken in different areas,” Farrell said. “Without a doubt, they’re all weakening some standards in some form or fashion.”
And that’s just air quality issues.
In nearly four years, the Trump administration has endeavored to roll back some 100 environmental regulations and policies as documented by The New York Times from databases at Harvard University, Columbia University and others. Then there are a hefty number of new regulations and policies.
And let’s not forget the court actions.
Over the past three-and-a-half years, we have an unprecedented attack on clean air, clean water, the climate.”
As America heads into Election Day in the aftermath of the hottest Northern Hemisphere summer on record and fierce hurricane and fire seasons — punctuated by dire warnings from scientists that time for turning back climate change impacts is running short – Farrell’s take on the state of play is echoed widely.
Connecticut’s Attorney General William Tong calls it a “full frontal assault.”
“Not to put too fine a point on it, but everything related to the environment is at stake,” Tong said. “Over the past three-and-a-half years, we have an unprecedented attack on clean air, clean water, the climate.”
So far this year, Tong has taken nearly 50 legal actions – filing lawsuits, amicus briefs, letters and comments against Trump environmental actions, according to the State Energy and Environmental Impact Center at NYU School of Law – which maintains a database of legal actions by attorneys general nationwide. Tong initiated a similar number of actions in 2019, and his predecessor, George Jepsen, filed about 50 during the first two years of the Trump administration.
Tong’s superlatives are hardly the only ones being uttered about the ferocity of Trump administration environmental actions. Add “scorched earth,” “industry-friendly,” “pernicious” and “insidious” to the list.
Many warn that while the big publicized actions, such as pulling the U.S. out of the Paris climate change agreement and rolling back a host of motor vehicle regulations, are huge setbacks for climate change mitigation, the public is less aware of the many administrative changes intended to dismantle the underpinnings of how agencies like the Environmental Protection Agency (EPA) are allowed to operate.
The “rules for making the rules” is how Farrell puts it, calling the actions “drastic.” He said rules have been proposed that would both directly impact the efficacy of environmental standards and the environment itself, which in turn would negatively affect the health of people in Connecticut, especially minorities and those of limited economic means.
“It’s thrown the entire regulatory eco-system into question,” he said.
Farrell also said federal rules are being altered or developed that would limit the EPA’s ability to do things like use peer-reviewed science. That’s what he calls insidious.
Tong agrees. “This battle is largely a battle of administrative law,” he said. “The regulatory damage has been extensive, and it will take a long time for us to dig out from underneath it.”
Among the big-ticket rule rollbacks, the ones that will have the most direct impacts on Connecticut fall within the Clean Air Act and involve air quality, which the state has struggled for years to improve. The Trump actions are likely to make it worse.
Connecticut, Trump and the air
Connecticut’s air pollution problems have a large root in bad luck – air currents from the west and south that converge over Connecticut, dumping on the state the bulk of the pollution they carry from fossil fuel power plants and other sources in midwestern and southern states. Throw in summer sun and heat and that pollution cooks into ground level ozone – aka smog. Summers made hotter by climate change make it all worse.
Ozone levels in Connecticut are so high – especially in the southwest part of the state – they not only fail to meet current federal standards, they also don’t meet more lenient standards set in 2008. It’s only been recently that the state’s ozone level finally met the standards set in 1997 — the most lenient of the three.
But Connecticut has only limited ways to cut pollution. With the dirtiest power plants in the northeast no longer operating, the main homegrown source of pollution, including the greenhouse gases that contribute to climate change, comes from motor vehicles.
About 70% of smog-forming nitrogen oxide emissions come from the mobile source sector, which includes everything from cars to airplanes to lawnmowers. A little less than 40% of the state’s homegrown greenhouse gas emissions come from transportation.
So the state’s options for cutting standard pollution and greenhouse gas emissions is to force upwind states to cut their emissions and to tackle transportation emissions at home.
Along with other states, Connecticut has spent a decade using the courts to push the federal government to force upwind states to curb their power plant emissions. A U.S. District Court in July ordered the Trump administration to address cross-state pollution so Connecticut can meet 2008 ozone standards by a July 2021 deadline. A couple of weeks ago EPA released a plan – now in a comment period, but Farrell said an initial read of that plan shows it will not do enough to help Connecticut meet its deadline.
But by just about every other metric, the Trump administration is making it harder for Connecticut and other states to lower greenhouse gas emissions and clean up their air. The administration has rolled back, rewritten or introduced new rules that generally loosen restrictions on emissions of all sorts.
In setting the 2020 ozone standards – also known as the National Ambient Air Quality Standards (NAAQS), the EPA chose not to lower the threshold, maintaining instead the 2015 levels.
Just prior to that, Farrell noted, the EPA had restructured the Clean Air Science Advisory Committee, removing several public health experts. That’s in addition to the overall brain-drain at the environmental agencies – especially the EPA and the Department of Interior – where career employees with decades of institutional knowledge have headed for the exits over the last four years.
There is fear that trend would become more pronounced if Trump wins a second term, fears that have been heightened by an executive order the president signed last week that could upend the entire civil service system by forcing out policy level employees if they are found to be insufficiently loyal to the administration.
Trump officials have also replaced the never-implemented Obama Clean Power Plan with the much less stringent Affordable Clean Energy plan, leading Connecticut and more than two dozen other states and cities to launch a legal challenge that was heard in federal appeals court in early October.
The administration has used multiple avenues to loosen restrictions on methane emissions, arguably the most potent greenhouse gas, which flares from fossil fuel drilling sites and landfills and leaks from pipelines and other natural gas facilities. It’s also considered an ozone precursor – so it can make smog worse. While this doesn’t have a direct impact in Connecticut, it does impact the state indirectly; the more methane is emitted, the worse climate change impacts will be for everyone.
The administration also appears to be slow-walking environmental approvals for offshore wind – something Connecticut and other states have made large components of their strategies to lower emissions. Trump was pushing offshore oil and gas drilling off the southeastern U.S. But its unpopularity in those states, considered important to his re-election, precipitated Trump to authorize a moratorium on the drilling. He included offshore wind in that moratorium – a potentially ominous sign for Northeastern states like Connecticut.
But by far, the biggest environmental problem imposed on Connecticut by the Trump administration is the motor vehicle standard rollbacks. It’s the main sector the state has a shot at controlling in terms of lowering emissions. The administration has now made that close to impossible to do.
It’s all being fought out in several lawsuits, with Connecticut part of the effort.
The administration has rolled back fuel economy/mileage standards put in place by the Obama administration for cars and light duty trucks for the 2021-2026 model years. Worse mileage means more gas used, which means more emissions.
It’s also loosened the Obama-approved more stringent tailpipe emissions levels covering greenhouse gases. But in conjunction with that, the Trump administration became the first ever to rescind the so-called California waiver.
I think they took a sledgehammer to the Clean Air Act. I don’t think they’re being particularly subtle about it at all.”
That’s an exception baked into the Clean Air Act since 1970 that allows California to set its own stricter motor vehicle emissions standards. States are allowed to choose the federal standards or California’s. Connecticut is among more than a dozen states that follow California’s. But there’s another wrinkle. The waiver also allows participating states to have a zero emissions vehicle (ZEV) sales mandate to achieve emission goals.
Connecticut has a ZEV mandate, and it’s a crucial component of the state’s emissions reduction strategy. But with the waiver rescinded, so is the ZEV mandate.
This isn’t chipping away at the Clean Air Act, as many characterize it, said Paul Miller, executive director of the Northeast States for Coordinated Air Use Management, NESCAUM (pronounced NES-com).
“I think they took a sledgehammer to the Clean Air Act. I don’t think they’re being particularly subtle about it at all,” he said. “They have been doing a number of things to, in their view, ensure that the next administration, if it turns out a different way in the election, is going to be tied up in knots.”
He’s not the only one saying so.
The sneaky stuff
“There’s a whole suite of regulatory actions the Trump administration has taken I think of as creating structural stealth impacts,” said Katrina Kuh, the Haub distinguished professor of environmental law at the Pace University School of Law. “These are the kind of behind-the-scenes tinkering that is going to change decision-making and outcomes at the federal level.”
Among them – the effort known by its short-hand – is “secret science,” which would negate the use of non-public studies. That could have a huge impact on the use of public health outcomes that often are not made public to keep identities of participants private as required by law.
The administration stopped using an economic calculation for what’s known as the social cost of carbon that weighs long-term implications of greenhouse gas emissions. And it is trying to change cost-benefit calculations for the Clean Air Act.
“Their approach to the regulatory state generally has been to try and dismantle it, and they take an approach that is almost as if every regulation is not a good one,” said Elizabeth Klein, deputy director of the NYU impact center. “The very first question is ‘what’s the effect on industry?’ And that is the most important thing. It outweighs everything else to the detriment of public health, the environment and other equally important factors.”
Klein and others also point to the rollback of the National Environmental Policy Act, NEPA, which has implications across many agencies and actions. The move weakens multiple components aimed at assessing the environmental implications, including long-term climate change, of all sorts of federal projects that traditionally had given states and communities a voice in federal agency decision-making.
“Telling agencies at this point in time that they shouldn’t really be looking at the climate change impact of their actions is the exact wrong approach to take,” Klein said.
Joseph Goffman, executive director of the Environmental and Energy Law Program at Harvard, who has also served in numerous environmental roles in government, called the Trump administration approach to weakening environmental rules “horrifying.”
“Whenever it does a rule that weakens pollution standards, it goes the route of articulating a new legal theory that has the effect of restricting EPA’s authority at the threshold,” he said. “They’re trying to create a legacy for their successor of an EPA and a Clean Air Act that are much less powerful as toolboxes for dealing with air pollution and climate change.”
Such concerns have given rise to speculation about whether a second Trump administration would go after some of the biggest bedrocks, not just of environmental law, but also of administrative law.
Telling agencies at this point in time that they shouldn’t really be looking at the climate change impact of their actions is the exact wrong approach to take.”
Of constant speculation since Trump came into office was whether he would try to overturn the so-called endangerment finding settled in 2007 by the U.S. Supreme Court in Massachusetts v. EPA that allowed the EPA to regulate greenhouse gases.
“It’s the keystone of everything we’ve been doing under the Clean Air Act for the past 15 years,” said DEEP’s Farrell. “If that goes away it’s going be exceedingly difficult for any state to reduce greenhouse gas emissions, especially from the transportation sector.”
Now raising concern is the 2011 decision known as American Electric Power Co. v. Connecticut. That case reinforced the endangerment finding by determining that federal common law claims over greenhouse gas emissions were pre-empted by the Clean Air Act. But the ruling did not include state common law, and the fear is that a second Trump administration could try to prevent states from doing the same.
Most recently, the issue of the so-called Chevron Deference, dating back to 1984, has come up. It’s considered a bedrock of administrative law that gives agencies, not courts, the leeway to interpret laws that may not specifically address certain issues.
If it is upended, courts could have a lot more authority in determining what statutes mean and therefore a hand in policy said Daniel Metzger, a climate law fellow at the Sabin Center for Climate Change Law at Columbia University.
“It’s probably not a good thing for the environment if Chevron is overturned,” he said, because laws that are often drafted deliberately vague to accommodate potential changes over time would have to be far more specific. “It heightens the need for clear federal action and moves that action into a solely political sphere.”
That’s something many think the Trump administration has done already, but there may be ways to fix that.
If Trump loses
Metzger was also co-editor of the Sabin Center’s Climate Reregulation in a Biden Administration, a 65-page blueprint “designed to restore (and enhance) facets of previously existing climate governance.” It assumes the Republican-majority Senate and Democratic-majority House will remain.
As many have noted, actual rules that went through the formal Administrative Procedures Act process are hard to undo. It requires going back through that same process, which can take a long time.
“It may not be possible to just roll back to whatever was in place before Trump was president,” Metzger said. “There may need to be a different replacement.”
The biggest takeaway, he said: “It will take time, but a close second is that it is doable.”
One wrinkle, he said, is that whatever position the Department of Justice used to defend or fight a rule will be held against a future administration. So a Biden administration won’t be able to just say, ‘We’ve changed our mind.’
Among the easier things a Biden administration could do is get back into the Paris Climate Agreement, which would reset the nation’s commitment to lower levels of greenhouse gases, or reverse some of Trump’s executive orders, though this worries some who see it as a dangerous politicized precedent.
The Congressional Review Act, which Trump made wide use of during his term, provides a mechanism to roll back legislation completed in the final 60 legislative days of a Congressional session. Since many days are not legislative, the window for the current session actually goes back to sometime in June.
There are also growing indications that outside forces, such as economic and business realities and public sentiment for dealing with climate change, will result in enough pressure to force policy changes.
The effect of the Trump rollbacks of climate regulation is that we will have lost time and we have lost another increment of climate stability that we will not be able to recover.”
But from Connecticut’s standpoint, DEEP’s Farrell said, there’s an immediate priority.
“The wrong-headed position that the Trump administration has taken on clean cars needs to be reversed first and foremost,” he said.
Unfortunately, some damage has already been done.
“The effect of the Trump rollbacks of climate regulation is that we will have lost time and we have lost another increment of climate stability that we will not be able to recover,” Goffman said, noting the greenhouse gas emissions of the Trump era so far will remain in the atmosphere for a long time. “The five years of emissions that we will have to see – there’s no way to offset them. There’s no way to reel them back.”
But some also see the potential of a Biden administration to undo some of the damage by strengthening and updating the Clean Air Act, which hasn’t had an overhaul since 1990. The same goes for the Clean Water Act, the Endangered Species Act, and others.
Legislative revisions could help address concerns about a conservative U.S. Supreme Court being anti-environment. That was especially driven home after newly confirmed Justice Amy Coney Barrett, during her confirmation hearing, called climate change “a very contentious matter of public debate,” and “politically controversial.” In the scientific community, it is neither contentious nor controversial.
“We have limped along with a really outdated suite of environmental statues that have been creatively repurposed to address new environmental challenges. But that has required a judiciary that has been willing to bless a pretty broad rule-making authority for federal agencies,” said Kuh at Pace. “I’m not sure we can continue to count on that.”
There is also a lesson to be learned from the Obama administration, which saw Republicans challenging and stalling environmental policies and, in the case of the Clean Power Plan, keeping it from being implemented until Trump was elected and killed it altogether.
“I can make a good argument that we’re going be even busier,” Attorney General Tong said of a potential Biden win. “That the ground will shift even further away from the battle in front of Congress and the policy-making branches of government and it will shift to litigation and so-called impact litigation. Big polluters, for example, and people who have an economic interest in not protecting the environment or the climate will take to the courts.”
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