Trump Versus the EPA

MANOUSH ZOMORODI: This is Science Friday. I’m Manoush Zomorodi sitting in for Ira Flatow.

So last month, you may have seen a piece of proposed legislation go viral on Twitter and Facebook. HR 861, this was a bill to terminate the EPA. It’s a classic example of stunt law-making, a flashy but toothless stand against environmental regulation, perhaps, designed to distract us from more substantial threats.

And that’s because President Trump and Republican lawmakers don’t need a single deadly bullet to kill the EPA. They can chip away at US environmental policy in small, sometimes, stealthy ways. For example, Congress has already overturned two Obama-era regulations involving methane emissions and coal waste through one rarely used law.

And this week newly-appointed EPA administrator, Scott Pruitt, says he’ll consider throwing out a previous deal made with automakers to improve fuel economy standards. So here to tell us more about changes coming to the EPA and environmental regulation under the Trump administration are my two guests, Ann Carlson, Shapiro Professor of Environmental Law at UCLA. Ann, welcome to Science Friday.

ANN CARLSON: Thanks, Manoush. Nice to be here.

MANOUSH ZOMORODI: And here in the studio with me is Michael Burger, Executive Director of the Sabin Center for Climate Change Law at Columbia University. Michael, welcome to you.

MICHAEL BURGER: Hello.

MANOUSH ZOMORODI: So if you have questions listeners, you can give us a call at 844-724-8255. That’s 844-SCI-TALK. Or you can tweet us directly at SciFri.

So Michael, I want to start with you. Let’s start talking about what Congress is doing. They’ve rolled back these two environmental regulations so far. Can you tell us more about that?

MICHAEL BURGER: Well, the first regulation that Congress has undone under the Congressional Review Act is the stream protection rule, which is a rule that EPA promulgated to eliminate waste dumping from coal mining sites. And in regards to climate change, that rule sort of provides some incentive, increased incentive, to coal companies to continue to operate without bearing the additional cost of controlling their pollution. And then, of course, it poses an immediate threat to waterways and the communities that live downstream from them.

MANOUSH ZOMORODI: Right, and then the other one is methane, right? Is that correct?

MICHAEL BURGER: Well, the methane, the BLM methane rule has not formally gone– I don’t believe that the Senate has actually voted to strike that rule down as of yet. The House passed a resolution under the Congressional Review Act, again, striking that down. But the Senate has not yet voted to do the same. And the Trump administration obviously hasn’t acted on it.

MANOUSH ZOMORODI: Now, it seems like it’s just that easy to undo regulation. Is it?

MICHAEL BURGER: Well, the Congressional Review Act is a unique body of legislation. And it basically provides Congress with the ability to overrule or repeal regulations that administrative agencies have passed within a certain period of time after they’ve passed. And in this instance, it’s not all that easy.

It needs to pass both houses of Congress. And then the President needs to sign off on it. It’s only been successfully used once before prior to the current Congress.

MANOUSH ZOMORODI: When was that?

MICHAEL BURGER: That was in 2001, I believe, when Congress rescinded a rule around ergonomics in the workplace.

But there have been other attempts to use the rule to roll back. But typically, you’re not in a situation like this where you have Congress and a new president coming in a uniform party alignment to overturn the gross majority of the policies enacted by the former administration.

MANOUSH ZOMORODI: Right. So Ann, are there other policies that they could overturn with the Congressional Review Act?

ANN CARLSON: For the most part, the Congressional Review Act is, as Michael said, limited to regulations that were adopted very close to the end of the Obama administration. So what we’re more likely to see is administrative rollbacks. That is, EPA using its authority to rescind rules that were previously adopted by the Obama administration.

We could see Congress use other powers to try to curtail EPA power but probably not under the Congressional Review Act.

MANOUSH ZOMORODI: And if something is pulled back, does that mean it’s the end for those policies? Or could a future EPA under another administration issue old rules again?

ANN CARLSON: The answer is yes. An EPA that’s friendlier to the environment could come in and reinstate more progressive environmental rules.

It’s also the case that, at least in theory, the Trump administration can’t just not regulate. They will be sued if they don’t issue replacement regulations. In fact, they’ll probably be sued even if they replace regulations that are weaker than the ones that they pull back on.

And they could lose. There are statutes that require EPA to protect the environment, to protect the air, to protect the water, to regulate on climate change. And so it’s not like they have unbridled power that won’t be checked by lawsuits and by courts.

MANOUSH ZOMORODI: So Michael, from what I understand, the Republican lawmakers have also introduced the REINS Act. This is another way to hamper regulation, especially at the EPA. Is that correct?

MICHAEL BURGER: Well, it’s not limited to the EPA. I mean the REINS Act is a proposal that’s been around for a long time. I think it was probably first introduced around a decade ago, if not longer ago. And the core idea here is to reconfigure the administrative state altogether.

And what the REINS Act would do, basically, is say that no rule that was passed by an administrative agency would take effect unless it was also agreed to by both Houses of Congress and the President. The President would likely sign that rule. But it would require both Houses of Congress to vote on it.

So what this does is it takes away the delegation of authority by Congress to the executive branch to regulate and to administer and to execute the law and says, well, we’re going to give you the authority to develop proposals. And if we like that proposal, will adopt it and make it into law. And if we don’t, then it’s a wasted effort.

MANOUSH ZOMORODI: And that’s it?

MICHAEL BURGER: And that’s it. And that would apply to EPA and every other agency.

MANOUSH ZOMORODI: Now there’s another one sort of menacingly called the Secret Science Reform Act. Can you tell us about that one?

MICHAEL BURGER: That one, I believe, there’s one provision of it which I’m familiar with, which basically says that the EPA agencies would only be able to rely on information that was publicly available in order to when they enact a regulation. And this could potentially gum up the works in regards to enacting public health regulations, some of which rely on studies that use personal information–

MANOUSH ZOMORODI: Protected, private, personal–

MICHAEL BURGER: Protected private information.

MANOUSH ZOMORODI: And how likely are either of these bills to become law?

ANN CARLSON: You know, I’m trying to figure out what Congress will do is, of course, a really tough guessing game. I think that there’s one big protection, and that is that the Senate needs 60 votes to overcome a filibuster. And I think, certainly with the REINS Act, I think with both of these, I think, unless the filibuster disappears, Democrats will align and defeat these, assuming that the House of Representatives passes them and that the Senate then passes them. So I think the odds are relatively low. But this whole question of the viability of the filibuster, I think, is a big one because I think a lot of policies could be affected by the presence of Democrats in the Senate who can stop the most radical bills from passing if they choose to exercise their filibuster power.

MANOUSH ZOMORODI: OK, so that’s Congress. Let’s go over to the executive branch. President Trump, he’s also using executive action to dismantle climate change policy. He’s announced that as soon as next week, he’ll order the EPA to withdraw its Clean Power Plan. What is that? And why would he want that on the chopping block, Ann?

ANN CARLSON: The Clean Power Plan was issued under the Clean Air Act, actually as the result of a lawsuit that first began against the George W. Bush administration and then continued– the effects of it continued under the Obama administration. And it attempts to regulate greenhouse gas emissions from the electricity sector. Electricity sector is now the second biggest emitter of greenhouse gases in the country, surpassed only by the transportation sector.

And it’s a pretty ambitious proposal to try to cut about 30% of the emissions of the electricity sector by 2030. And it does so in a novel way. It’s under court challenge right now. And President Trump has made very clear that he’s going to repeal it.

MANOUSH ZOMORODI: So Michael, how does this work though? Didn’t things get complicated because the Supreme Court ruling gave the EPA the authority to regulate greenhouse gases under the Clean Air Act, right? There’s all sorts of different branches who have formalized things.

MICHAEL BURGER: Yeah, this gets into some pretty murky waters pretty quickly. One of the things that we learned yesterday was that the executive order that we expect to see next week, that Anne referred to, we expect that it will say not just that EPA should repeal the existing rule, but also that it shouldn’t even offer up a new rule to take its place. And that’s fundamentally different than saying, we’re going to repeal this rule, look at the policy preferences and choices that went into it, and come up with something new that, like Ann said earlier, would be maybe weaker.

That’s consistent with what we also heard from EPA administrator, Pruitt, yesterday that he doesn’t appear to believe that carbon dioxide is a significant contributor to climate change that we’re seeing today. And that, in turn, does get to this sort of core issue that you’re raising, which is the Clean Air Act requires regulation of air pollutants that endanger the public health and welfare. And one of the outcomes of the litigation that Ann mentioned was that EPA reached the determination that it does. That carbon dioxide and other greenhouse gas emissions are air pollutants that endanger our public health and welfare.

And the consensus science view today, of course, is that that is true. It is obvious. So we’re now in a situation where the head environmental protection representative in this country doesn’t agree with the fundamentals of climate science and intends to not just reconsider policy, but just to take no action whatsoever.

MANOUSH ZOMORODI: So Ann, Scott Pruitt, this new head of the EPA, he also has an eye on something called the CAFE regulations. There’s so many regulations, so many names. These are fuel efficiency standards that President Obama negotiated with the car industry. What’s happening there?

ANN CARLSON: So the fuel economy standards are issued under both the Clean Air Act, as we’ve already talked about, and also a separate federal statute. And they go after the biggest emitting sector, the biggest greenhouse gas emitting sector, and that is the transportation sector. And basically what they do is get us on a path toward much more efficient vehicles.

And the rules in particular that Pruitt is going to go after are for model years 2022 to 2025. At least, that’s what we’re hearing. We don’t know whether he’s going to eliminate those rules altogether or just make them easier to meet.

And then there’s a really complicated related question, which is whether he’s also going to take away authority from California who has the power under the Clean Air Act to issue its own standards.

MANOUSH ZOMORODI: We got a tweet from Aaliyah with a question for both of you. “How likely is it that the Trump administration dissolves the EPA entirely?” Ann, do you want to take that first?

ANN CARLSON: Sure. I think that it’s very unlikely. But it’s attempting to really gut EPA in all kinds of ways, and in particular, in terms of funding.

The difficulty in doing away with EPA altogether is that there are a bunch of statutes on the books that require EPA to do things– to issue regulations, to enforce laws, to clean up hazardous waste sites, and so forth. And so if you abolish the agency, you’d have to presumably also amend all those statutes to take EPA authority away. And that would be just a big political mess, and it would be really, really difficult. So I think what they’re basically trying to do is kill EPA through 1,000 cuts, as opposed to actually abolishing it outright.

MANOUSH ZOMORODI: Right. Michael, you agree?

MICHAEL BURGER: Absolutely. And another way that they’re going about this is by putting into positions of authority within the agency people who, like our administrator, are fundamentally opposed to the mission of the agency and who, rather than seeking to find ways to constructively regulate industry to protect the public health and welfare and the environment are seeking ways to not do that.

MANOUSH ZOMORODI: I’m Manoush–

ANN CARLSON: You can think of–

MANOUSH ZOMORODI: Oh, sorry, Ann. Let me just mark where we are. I’m Manoush Zomorodi. This is Science Friday from PRI, Public Radio International. Ann, you wanted to add something to what Michael was saying.

ANN CARLSON: Yeah, I was going to say this seems consistent with Steve Bannon’s phrase that he wants to deconstruct the administrative state.

MANOUSH ZOMORODI: Right. I’m talking to Ann Carlson, Shapiro Professor of Environmental Law at UCLA and Michael Burger, Executive Director of the Sabin Center for Climate Change Law at Columbia University.

Ann, you mentioned this putting away at the EPA by 1,000 cuts. Is a good demonstration of that Trump’s proposal to slash the EPA budget and eliminate 38 of its programs?

ANN CARLSON: Absolutely. I mean these cuts are so draconian that we’d see the essential elimination of all kinds of programs that do things like clean the Chesapeake Bay, clean the Great Lakes, remove or clean up diesel vehicles, which emit cancer-causing particulate matter.

And in addition to gut both enforcement staff, that is those lawyers and staff people who administer the law and make sure that polluters are actually following it, along with the very committed scientists, economists, lawyers, and other staff who issue the regulations under the statute. So they’re just gutting them.

There’s going to be, if Trump succeeds, there’s going to be essentially no one left to administer the laws, to clean up the environmental messes that still remain, and to figure out how to move forward and continue to make environmental progress in cleaning the air or cleaning the water and protecting the planet from higher temperatures.

MICHAEL BURGER: So I would just add to Ann’s excellent points that first, these are very popular programs in many instances. And the Trump proposed budget is not the final word on what the budget will actually be. So there is a lot of, I think, work to be done, as the appropriations process moves forward in Congress to remind Congress people that environmental protection enjoys broad and deep popular support.

The second thing that I would mention is that these budget cuts that have been proposed are not unique to EPA. They are across many agencies, including many other agencies that have direct relevance to our climate future.

One of the things that the Trump administration has proposed to do is to cut all funding altogether for floodplain mapping. Floodplain mapping is the way in which the Federal Emergency Management Agency helps us know who’s at risk of floods, both from sea level rise and storm surge and increased flooding from severe storms and extreme precipitation events. They also want to cut funding for disaster planning and for disaster recovery.

Now when we think about climate change, we often think about reducing greenhouse gas emissions. But climate impacts are happening now. And adaptation measures are necessary. And what they’re proposing to do is to undercut state and local efforts to be prepared for impacts that are already happening and are definitely locked in for the future.

MANOUSH ZOMORODI: I mean I just wonder how that plays out politically. I mean it takes one Hurricane Sandy for people to say, wait, whoa, whoa, whoa, where did our funding go? Right, Ann?

ANN CARLSON: Absolutely. And I think Michael made a great point earlier about the fact that these budget cuts are only proposals at this point. They haven’t passed Congress. And it remains to be seen whether Congress is willing to sign on to what I agree will be really unpopular moves. Disaster planning– let me add a couple more.

The budget currently contemplates drastically cutting the NASA budget to figure out what’s going on with respect to climate change, the building of scientific knowledge about how to address climate change, about how to address the emissions that are causing temperatures to rise. It devastates the Department of Energy’s budget. Department of Energy has lots of programs focused on clean energy, energy efficiency, et cetera. All of these are very popular.

And they’re not just popular in blue states. They’re popular across the country. President Trump, himself, said that he believes in clean air and clean water, and yet his budget does not display any love for either of those topics.

MANOUSH ZOMORODI: OK, Ann, Michael, don’t go away. We’re going to come back in just a second. We’re going to talk more about regulation, the EPA, the Trump administration. We’ll be right back after this very short break.

This is Science Friday. I’m Manoush Zomorodi sitting in for Ira Flatow. We’re talking this hour about changes already underway at the EPA. And my guests are Ann Carlson, Shapiro Professor of Environmental Law at UCLA, and Michael Burger, Executive Director of the Sabin Center for Climate Change Law at Columbia University.

And I want to just take a call. We have someone on the line. Let’s see if I can do this right. Sarah, calling from Madison, Wisconsin. Sarah, hey, it’s Manoush here. Do you have a question?

SARAH: Hi, Manoush. Yes, this morning, I read in the Washington Post online a headline about 21 children filing a lawsuit, and that would have a significant impact on Trump and his administration’s ability to mess with our environment. Can you say more about what’s happening with that lawsuit?

MANOUSH ZOMORODI: Yeah, let’s ask Michael and Ann. Michael, you want to go first?

MICHAEL BURGER: Sure. So this is a lawsuit that was filed by 21 youth plaintiffs in federal district court in Oregon, that is really a novel and potentially groundbreaking lawsuit. Basically, what the plaintiffs, what the kids in the case have claimed is that first, that there’s a constitutional right that’s at stake in climate protection, which is a statement that’s never been held true before by the courts. Second, that there’s a public trust obligation that the federal government owes to the people of the United States and to future generations to ensure that the nation’s natural resources and its regulatory authority are managed in such a way as to protect current and future generations.

So they sued the Obama administration and basically asked the court to step in and set a science-based target for greenhouse gas emissions and for management of our natural resources in a way consistent with those science-based targets. Where that lawsuit is right now, the defendants, the US government and various industry groups that have intervened in the case, filed a motion to dismiss the case. The district court judge denied that motion. So it is moving forward towards a trial.

But in the meantime, the federal government, actually this week, just filed a motion to stop the litigation where it is and have the Ninth Circuit Court of Appeals, the appellate court, weigh in on whether or not the district court was right to allow the case to move forward.

MANOUSH ZOMORODI: Great question, Sarah. Thanks for bringing that to our attention.

ANN CARLSON: Well–

MANOUSH ZOMORODI: Did you want to– yeah, go for it.

ANN CARLSON: In follow-up, I think the Post, one of the highlights of their article, I scanned it really quickly, was essentially that the folks who were contesting this essentially said the burden of proof shouldn’t be on the government. Some element of a different strategy– this is a new strategy, and that shouldn’t be as that.

MANOUSH ZOMORODI: Huh. Interesting.

MICHAEL BURGER: Well, one of the things that is very exciting about this lawsuit is the idea that there are constitutional and this public trust basis that really should govern the way in which the government acts here, that it’s not just a matter of the Clean Air Act and what the EPA can or can’t do under that statute, but that there actually are other more fundamental rights at stake. And the district court judge found that there is such a constitutional right and that there is a public trust obligation, both of which are entirely innovative holdings, which is presumably why the US government is seeking to have the appellate court hear those issues now.

MANOUSH ZOMORODI: So Ann, I mean of all the moves that have been made so far to deregulate or weaken the EPA, what do you think could be the most damaging in the long-term?

ANN CARLSON: I think the passage of the REINS Act would be in the long-term really, really deleterious because not only would it hamper environmental progress under a Trump administration, but it would still be in effect for a new administration that comes in that wants to be more environmentally protective. And Congress would need to approve any regulation that imposes costs greater than $100 million. That means, essentially, any major environmental regulation.

I mean just to give you one example, a rule that protects the population from mercury emitted from coal fire power plants has costs of about $9 billion. But it also has benefits in the tens of billions of dollars from the protection of public health. That would never have passed a Republican Congress. And we wouldn’t have that rule in place.

So for me, I think anything that Congress does to permanently curtail EPA authority is probably the most damaging. I’d say second would be really, really draconian budget cuts that we don’t get back or that get hard to replace. So if we see the kinds of budget cuts that the Trump administration is proposing, 25%, 30% of the budget, we’re just going to devastate enforcement and protection across the country. And particularly, if we see other budget cuts that affect states, it’s very hard for states to step in and fill the void.

MANOUSH ZOMORODI: OK, I want to take another call after that depressing comment. I want to go to–

ANN CARLSON: I’m sorry.

MANOUSH ZOMORODI: No, no. Marge is calling from Washington DC. Marge, is that right, that you’re a former EPA employee?

MARGE: Yes I am.

MANOUSH ZOMORODI: Tell us your question.

MARGE: Well, it’s more of a comment. I think that with Scott Pruitt saying that he’s very uncertain about whether carbon dioxide is a major contributor to climate change, he is hiding behind uncertainty as opposed to bad science. There is uncertainty in every scientific endeavor and particularly, in modeling. I actually used to do modeling for EPA. It wasn’t climate work, but it was ecosystem modeling.

And there’s lots of uncertainty. There’s lots of variability. But that doesn’t– it’s kind of like, to me, his saying, well, we’re not going to do anything, is kind of like saying, I’ve got a kid who’s got a fever. But I don’t know whether it’s 100 or 104, and I’m not going to do anything until I know which one of those things.

MANOUSH ZOMORODI: Marge, are you in touch with any of your former colleagues? I’m kind of wondering what the morale is like?

MARGE: Oh morale is in the toilet. I haven’t been closely in touch, but yeah, what little I have been, it’s in the toilet. I was actually in the Office of Science and Technology. And they’re the ones that the mission statement no longer mentions science.

MANOUSH ZOMORODI: Oh gosh. Thank you for calling in Marge. We appreciate it very much.

I mean Michael, when you’re listening to this what can people actually do? You’ve built an online climate deregulation tracker that helps people sort of literally keep track of what is going on day by day. Can you tell us about that?

MICHAEL BURGER: Sure. So quickly on the tracker, which is available on the Sabin Center’s website, www.columbiaclimatelaw.com.

What we’ve done there is we’ve put up a front page tool that literally does keep track of the deregulatory efforts being undertaken both by the administration through the executive agencies and by Congress. And then we’ve linked that through to a database that we’ve created of existing climate regulations that were passed during the Obama administration. So you can sort of see side by side what’s already on the books and what are they doing now, how are they trying to dismantle this thing.

In terms of how to use that information, there are several fairly traditional avenues, I think, that are available. One is to engage with the administrative agencies, as Ann mentioned earlier. When an agency pulls back on a final rule, they don’t get to just say, we’re done with it. They actually have to go through a regulatory process, which involves providing public notice and allowing for public comment. And you know–

MANOUSH ZOMORODI: So public, keep track. Have comments.

MICHAEL BURGER: Exactly so. And then at the same time, a lot of this is quite political. I think that a lot of what we’ve been talking about today reflects this sort of shift away from faith and reliance on technical and scientific expertise, which is manifested in the agencies, and a move towards political decision-making in these areas that really ought to be left to experts. And so there’s a lot to be done in regards to pushing politicians to allow the experts to exercise their expertise.

MANOUSH ZOMORODI: Ann, very briefly, I just want to give you the last word. Could anything good come out of any of this? Are there some legitimate improvements to be made at the EPA?

ANN CARLSON: So I’m going to be more global about what good could come out of this. And this actually is a follow-on to some of the comments Michael made about how people can get involved.

One thing to do is to look at states. And a number of states are doing really innovative things in the clean energy sector, including not just the blue states, but red states. So get your state legislators to support renewable energy, other clean energy moves and also support environmental organizations, those non-governmental organizations that actually can keep track of a lot of the regulation, can make comments, places like the Sierra Club and the NRDC and local organizations and organizations focused on environmental justice.

I think getting the public engaged in the process is one of the few things that I think is a bright spot here. I think people do care about the environment, and they need to express how much they care about it. And you know what? Congress listens to that.

So another place to really pressure is when these budget cuts get presented to Congress and if you’re in a district where your Congressman is thinking about supporting them, call, write, make it clear that clean air and clean water and climate change matter to you. We have seen actually the growth of a Republican climate caucus.

MANOUSH ZOMORODI: Ann, we got to leave it there.

ANN CARLSON: I could go on.

MANOUSH ZOMORODI: Great advice. Such good information. Ann Carlson, Shapiro Professor of Environmental Law at UCLA, Michael Burger, Executive Director of the Sabin Center for Climate Change Law at Columbia University, many thanks to you both.

MICHAEL BURGER: Thank you.

ANN CARLSON: You’re welcome and thank you.

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