Expect Environmental Battles to Be ‘Even More Significant’ in 2018
Posted January 5, 2018 4:36 p.m. EST
WASHINGTON — If 2017 was the Trump administration’s year of grand pronouncements declaring an end to environmental regulations, 2018 will be the year of trying to finish what it started.
Despite President Donald Trump’s proclamation in the Rose Garden that the United States will withdraw from the Paris climate agreement, the United States is still in the Paris agreement. Despite a trip by Scott Pruitt, the head of the Environmental Protection Agency, to Kentucky coal country to announce an end to the Clean Power Plan rule curbing coal plant emissions, the Clean Power Plan still stands. And a host of other federal regulations, from controls on methane emissions to protections for wetlands, remain on the books despite executive orders declaring them void.
The administration opened the new year by proposing to reverse a ban on offshore oil and gas drilling in most U.S. coastal waters. But environmentalists and proponents of deregulation alike say they expect fewer high-profile announcements overall and more action in the courts, where both sides will fight over the future of deregulation.
“You may not see as many fireworks as there were in the past, but I think it’s going to be an even more significant year,” predicted Rep. Rob Bishop, R-Utah, chairman of the House Natural Resources Committee.
Here are some things to look for in 2018:
The Clean Power Plan isn’t dead yet
Pruitt put forward a formal plan in October to eliminate the Clean Power Plan, the Obama-era regulation restricting emissions from new coal-fired power plants. But analysts say the road to getting rid of the regulation is still a long one.
The public has a chance to weigh in on the effort until Jan. 16. But the EPA recently announced that new hearings would be held in San Francisco; Gillette, Wyoming; and Kansas City, Missouri. The dates have not been scheduled, but the meetings could push back the comment period and by extension progress on the full repeal.
The agency has indicated it plans to devise a new, narrower version of the regulation. Yet so far, all it has done is ask the public for thoughts on what a new rule should look like.
“They’re nowhere near the end of the line on the Clean Power Plan,” said David Doniger, director of the Climate and Clean Energy Program at the Natural Resources Defense Council. If the EPA kills the regulation before it moves forward with a replacement, Doniger said, the agency could be vulnerable to lawsuits because under the Clean Air Act it will still be obligated to address carbon dioxide.
“They have a long way to go to finish their rollback goals,” Doniger said. “And when they finish, we will see them in court.”
Scott H. Segal, a lawyer with the firm Bracewell who supports rolling back the Clean Power Plan, said replacing the rule — presumably with one that merely directs coal plants to enact efficiency measures — would allow utilities to plan ahead and would serve “as a bulwark against frivolous litigation.”
How far is Pruitt willing to go?
Pruitt told coal industry executives in June that he wanted the EPA to conduct a “red team-blue team” debate to raise questions about climate science. But there has been no public announcement about such an effort to date.
That might not stop a broader inquiry into the legal underpinning of EPA climate regulations, a 2009 document known as the endangerment finding.
The endangerment finding concludes that greenhouse-gas emissions pose a threat to human health and must be regulated under the Clean Air Act. As long as it stands, the EPA will be obligated to address climate change, even without the Clean Power Plan.
Legal experts agree that challenging the endangerment finding will be an uphill battle. But it may be one Pruitt wants to wage. In several interviews last year, Pruitt cast doubt on the document, and he has faced pressure from his supporters to overturn it. Yet he has avoided declaring definitively whether he will do so.
Repealing the Clean Power Plan may force Pruitt to make a decision one way or another by the end of the year.
Keep an eye on the infrastructure bill
With a major tax bill out of the way, Trump has said he hopes to tackle infrastructure next. That could create an opening for some of the year’s biggest environmental changes.
Bishop said he hoped any infrastructure bill would incorporate changes to the Endangered Species Act, which many conservatives argue has been used to thwart development. He also wants to overhaul a 1969 law that requires federal agencies to assess the environmental effects of their proposed actions.
“People have realized over and over again how that bill that was supposed to be passed so there is local input is being used to stop progress,” Bishop said of the law, the National Environmental Policy Act. He has previously introduced legislation that would make the endangered species law more friendly to landowners and industry.
“If there is a big infrastructure bill, we will try to put those all in a big package,” Bishop said. “If not, we will try to move them in pieces.”
Christy Goldfuss, who led the White House Council on Environmental Quality in the Obama administration, said she expected a bruising battle.
“The infrastructure fight will be very much set up as a false choice between putting people to work and destroying the bedrock environmental laws,” she said. Efforts to weaken rules on the construction of roads and bridges, she said, do not draw attention like debates over climate change. But she asserted that undermining fundamental environmental safeguards will do long term damage.
“This is going to be a big fight for the environmental community,” she said.