Opponents of President Trump’s deregulatory agenda are salivating over the possibility of using the administration’s own scientific research about the severity of climate change as a tool to defeat him in the courts.
The new National Climate Assessment, required by Congress and produced by scientists from 13 government agencies, concludes that global warming will impose hundreds of billions of dollars of damages on the U.S. economy.
The report’s findings, dismissed by Trump, conflict with his administration’s policies, which discount the cost of climate change in favor of the view that a lighter touch on industry will inspire investment and economic growth.
“The report is a scathing indictment of what this administration is trying to do,” California Attorney General Xavier Becerra, who has sued Trump’s government more than a dozen times, said Wednesday in an interview with the Washington Post. “It’s an affirmation of what the facts have shown. In this case, the facts speak dramatically and it comes from his own shop. We’ll use every piece of that report that we can [in court].”
But legal experts interviewed by the Washington Examiner say it’s uncertain how valuable the report will be to plaintiffs challenging the administration’s policies.
The major policies in question include the Environmental Protection Agency’s effort to weaken Obama’s two signature climate change regulations: his strict fuel efficiency standards for cars and light trucks, which were set to steadily rise through 2026, and the Clean Power Plan that was set to limit carbon emissions from power plants.
“I don’t want to poo poo this report completely,” said Jeff Holmstead, a former deputy administrator of the EPA in the George W. Bush administration who now represents energy clients at the Bracewell law firm, “… but I don’t think it will really fundamentally change the regulatory reforms.”
While Holmstead acknowledges the “sloppy work” of early EPA deregulatory efforts, which have led to some court defeats, he and other lawyers say judges will mostly make decisions based on how they interpret an unresolved legal dispute about the federal government’s authority to regulate carbon dioxide.
“Opponents may have to do some very creative lawyering to persuade the court about the relevance of the National Climate Assessment,” said Joseph Goffman, an environmental law professor at Harvard University and former EPA attorney in the Obama administration. “The court is ultimately going to focus on questions of statutory interpretation.”
The existing legal quagmire results from uncertainty about the tools the Clean Air Act gives regulators to combat climate change.
The 1963 Clean Air Act, designed to control air pollution and last amended in 1990, was created before climate change entered the public consciousness to the extent it does today.
The relevant section of the law, section 111(D), says carbon pollution rules must reflect “the best system of emission reduction” — without defining what that means.
The Obama administration took a more expansive view of the law when it issued its Clean Power Plan, which required states to reduce carbon dioxide emissions by forcing a shift in the electricity sector away from coal plants to natural gas and renewable energy.
The courts never ruled on the legality of the Obama administration’s Clean Power Plan — even though the Supreme Court stayed the rule — and likely never will, following Trump’s EPA’s narrow proposal to replace it.
Its plan, called the ACE rule, is designed to encourage coal plants to invest in efficiency upgrades that would allow them to burn less pollution, and exist longer, in a way that opponents say could actually increase carbon emissions.
Now, the courts will have to answer the question of whether Trump’s narrower interpretation goes far enough to fulfill a government legal finding, upheld by the Supreme Court, that says carbon dioxide is a pollutant endangering public health that the EPA should regulate under the Clean Air Act.
“The climate assessment may slow down rollbacks on procedural grounds, but ultimately the EPA and other agencies have considerable discretion as to what actions to take,” said David Konisky, an associate professor at Indiana University’s School of Public and Environmental Affairs.
Environmentalists and Democrats, however, argue the EPA’s replacement rules for regulating pollution from power plants and vehicles do not satisfy the bare-bones requirement of the law.
Opponents of climate policy rollbacks will try to use the government assessment to bolster their claims that the administration has reached decisions arbitrarily, underestimating the costs caused by carbon pollution and global warming and discounting the benefits of limiting it.
“The report strikes at the heart at the biggest weaknesses of Trump’s proposals,” said David J. Hayes, executive director of the State Energy and Environment Impact Center, a coalition that assists state attorneys general contesting Trump’s deregulatory agenda. “They are downgrading the costs associated with greenhouse gas emissions, and trying to justify an economic analysis that doesn’t fit what scientists are saying.”
The Trump administration, meanwhile, is downplaying concerns about how the climate assessment will impact the durability of its agenda.
“We have nothing to hide,” EPA acting Administrator Andrew Wheeler said Wednesday in an interview with the Washington Post. “Everything we have done has been out in the open. When members [lawmakers] look at the data we used and laws we are implementing, we are following the Clean Air Act, we are following the Supreme Court cases.”
