President Donald Trump marvels at his own velocity when he boasts about dismantling the Obama climate legacy. “I have been moving at record pace to cancel these regulations and to eliminate the barriers to domestic energy production, like never before,” he said at a recent White House event.
But while Trump focuses on speed, his allies in Congress appear increasingly concerned about the durability of the president’s fossil fuel directives.
In recent weeks, they have advanced a handful of legislative measures that echo and extend various presidential orders meant to boost coal, oil and gas production and set aside consideration of climate change.
These moves may seem redundant, but they could provide bulletproof armor during future challenges to Trump’s agenda.
“They are … covering their bases by trying to legislate the rolling back of these safeguards because the process to repeal, undo or rewrite a regulation is as lengthy as the public process that helped establish the standard in the first place,” explained Melinda Pierce, chief lobbyist for the Sierra Club. “And, of course, any attempt to roll back environmental or public health standards can and will be challenged in court.”
“The Trump administration is attacking every environmental and health protection we have,” said Sara Jordan, legislative representative for the League of Conservation Voters. “If these legislative proposals get passed, it will make it that much harder for the next administration to restore environmental protections.”
That’s why Congressional Republicans are racing to write his instructions into law.
“We need to put the legislative stamp of approval on what the Trump administration is doing,” said Rep. Evan Jenkins (R-W.Va.) during a recent debate on the House floor.
The House already has voted to fast-track Trump’s withdrawal of a clean water rule and to streamline future environmental reviews over cross-border pipelines like Keystone XL. Now, GOP members are pushing forward legislation to bolster Trump’s revival of federal coal leasing, and to bar government regulatory agencies from considering the future damages caused by greenhouse gas pollution.
‘A Very Slippery Slope to Government by Fiat’
The courts have already started chipping away at the Trump administration’s edicts. A federal appeals court ruled July 3 that the Environmental Protection Agency (EPA) cannot simply suspend an Obama-era rule on methane emissions from oil and gas facilities. And a federal judge ruled last month that the Army Corps of Engineers had moved too hastily to permit the Dakota Access pipeline project, without considering environmental justice impacts on the Standing Rock Sioux tribe.
Environmental groups, states, and tribes have planned or filed lawsuits over virtually every aspect of the Trump energy agenda. “We’re going to meet them in court, we’re going to sue them, and we’re going to prevail,” Mitchell Bernard, chief counsel for the Natural Resources Defense Council (NRDC), said in a video the environmental group produced.
But Congress could short-circuit that litigation strategy with measures like the provision passed by the House last week allowing withdrawal of Obama’s “Waters of the U.S.” rule without public notice, comment or any of the other requirements that apply to federal departments and agencies. The Trump administration already has begun rescinding the rule, which was written to protect wetlands from dredge and fill material and created new permitting and reporting requirements that the oil, gas and coal industry abhor. The rider that the GOP tucked into an $800 billion budget bill would hurry the repeal and reduce possibilities for legal challenge.
“That doesn’t sound like America to me,” said Rep. Marcy Kaptur (D-Ohio), calling it “a very slippery slope to government by fiat.” But after a mere 10-minute debate, the majority by voice vote flicked away a Democratic effort to remove the provision, which now could be folded into must-pass budget legislation for the fiscal year beginning Oct. 1.
Preventing Presidents from Halting Pipelines
House members also aim to ease energy development long after the Trump presidency ends, even if voters elect a successor who wants to reinstate pro-climate policies.
For example, the “Promoting Cross-Border Energy Infrastructure Act,” passed by the House on July 19, would ensure no future president acts to block an oil or gas pipeline or electric power project that crosses a U.S. border, as President Barack Obama did with Keystone XL.
The bill would take away presidential permitting authority and put decisions in the hands of a small independent agency, the Federal Energy Regulatory Commission, which has the mission of ensuring reliable energy for consumers at reasonable rates.
If enacted, the law “tips the scales in favor of massive controversial oil and gas pipeline and electric transmission projects,” said Rep. Louise Slaughter (D-N.Y.), voicing futile opposition on the House floor. All Republicans and 17 Democrats voted for the bill.
Blocking Future Coal Lease Moratoriums
Another bill would make it impossible for a future administration to declare a moratorium on federal coal leasing, as the Obama administration did in its final year. The pause provided time to conduct the first review in decades of coal royalty rates, especially in light of coal’s role in climate change.
Under an order signed by Trump, his secretary of Interior, Ryan Zinke, lifted the moratorium soon after taking office.
That move is being challenged in court by four states, environmental groups and a Native American tribe in Montana. But Rep. Liz Cheney (R-Wyo.) introduced legislation that would require future administrations to seek Congressional permission before imposing any such moratorium—circumscribing the authority that the Interior Department has had under federal mining law since 1920.
“It’s an important bill even though we’ve seen a change in policy from the past administration,” Cheney said last week at a hearing in the House Natural Resources Committee. “We’ve got to make sure we’re protecting our coal industry across the board from the potential of future political shifts.”
Officially Ignoring the Social of Cost of Carbon
At the same hearing, the committee looked at legislation to bolster the Trump administration’s move against “social cost of carbon” calculations in regulatory decision-making. That is a method used by economists to estimate in today’s dollars the damages expected to be caused in the future by current emissions of greenhouse gases.
It’s a key concept in conducting cost-benefit calculations while keeping in mind that the harm from today’s pollution continues long into the future.
Jenkins, sponsor of the so-called “Transparency and Honesty in Energy Regulations Act,” blamed the loss of coal jobs in his state on regulations that were justified by taking account of the social cost of carbon—particularly the Obama administration’s Clean Power Plan (although the Clean Power Plan had been stayed by the courts.)
Jenkins’ bill mimics the wording of Trump’s March 28 executive order requiring federal policymakers to look back to guidance from President George W. Bush’s Office of Management and Budget (OMB) on how to calculate the social cost of carbon. That approach gets around a legal problem: federal courts have made clear the costs of greenhouse gas pollution need to be weighed in regulatory decision-making. But under the 2003 OMB guidance, carbon emissions can be calculated as having zero cost or even benefits. (The guidance steeply discounts future impacts and allows for no consideration of effects outside U.S. borders.)
NRDC Legislative Director Scott Slesinger said the result is a perverse elimination of climate change from the environmental cost and benefit analysis that the law requires. “It’s like saying ‘Let’s look at the health impact of cigarette smoking, but don’t count cancer’,” he said. Jordan, of the League of Conservation Voters, called it “seeking to codify climate denial.”
These Efforts Are Flying Under the Public Radar
Most of the legislative proposals shoring up the Trump energy agenda originate in the House, and their fate is unclear in the Senate, which already has rejected an effort to undo Obama-era methane regulations by legislative fiat, and where appropriators are less tolerant of budget riders.
Still, Senate negotiators may feel pressured to go along with some provisions to pass budget legislation that would keep the government up and running after the fiscal year ends on Sept. 30.
Senate supporters of the Trump energy agenda already have introduced their own version of the “Ozone Standards Implementation Act” that the House passed on July 18. That bill would help EPA Administrator Scott Pruitt delay implementation of the Obama administration’s standards regulating smog emissions for a year. The House-passed legislation would give states until 2025 to comply with the revised standards and would change long-standing law to allow the EPA to revise the standards every 10 years instead of every five.
Both the NRDC and a coalition of environmental, health and labor groups have published online running tallies of budget provisions that affect regulations, but they lament that the Congressional efforts to cement the Trump agenda have not received attention while the health care repeal effort and Russia investigations crowd out media coverage.
“It’s incredibly cynical,” said Slesinger, “and unfortunately it’s going on pretty much under the radar.”Φ
Marianne Lavelle is a reporter for InsideClimate News. She has covered environment, science, law, and business in Washington, D.C. for more than two decades. She has won the Polk Award, the Investigative Editors and Reporters Award, and numerous other honors. Lavelle spent four years as online energy news editor and writer at National Geographic. She also has worked at U.S. News and World Report magazine and The National Law Journal. While there, she led the award-winning 1992 investigation, “Unequal Protection,” on the disparity in environmental law enforcement against polluters in minority and white communities.