EPA strategies aim at climate change programs

A specialist in environmental law from Harvard indicated that the recent set of regulatory modifications from the Trump administration aimed at climate change initiatives will undo advancements made over the years.

Richard Lazarus, the Charles Stebbins Fairchild Professor of Law at Harvard Law School, remarked that the late U.S. Senator John McCain characterized the first Trump administration’s tactic for reducing government programs as using a “meat cleaver” instead of a scalpel.

“I would argue that Trump 2.0 in the first 71 days has been more similar to a nuclear explosion, with a target on climate change-related programs,” Lazarus stated on April 1, during a virtual discussion about the administration’s revised aims for the Environmental Protection Agency revealed last month.

Regulatory flip-flopping is commonplace, Lazarus noted, as different administrations reverse what they perceive as detrimental actions and excesses of their predecessors. Nevertheless, the current efforts in Washington D.C. extend far beyond just diverging views on regulation, questioning the very necessity of regulation itself.

Carrie Jenks, executive director of HLS’ Environmental and Energy Law Program, concurred, noting that in mid-March the EPA outlined a plan comprising 31 actions it would undertake, addressing matters such as climate change regulation, power plant greenhouse gas reporting obligations, and support for electric vehicles. The actions also encompassed reevaluating limitations on the oil and gas sector, mercury standards impacting coal power plants, wastewater regulations for oil and gas extraction, air quality thresholds, among others.

Assessments by Lazarus and Jenks were part of a dialogue organized by the Salata Institute for Climate and Sustainability. The hour-long event, part of its “Harvard Voices on Climate Change” initiative, was supervised by Salata Institute Director James Stock, Harvard’s vice provost for climate and sustainability and the Harold Hitchings Burbank Professor of Political Economy.

A significant initiative from the administration, they stated, is the initiation of a formal reevaluation of the 2009 “endangerment finding.”

This finding, mandated by the Supreme Court in 2007, determined that the accumulation of greenhouse gases in the atmosphere poses a threat to human health. It served as the legal foundation under the Clean Air Act for government oversight of climate-warming gases such as carbon dioxide and methane.

Jenks characterized the finding as “a catalyst” for ensuing regulations, thus an appealing target for those attempting to weaken federal action on climate change. However, disputing the decision on scientific grounds might be challenging, given the robust nature of the established science.

Instead, Jenks suggested the administration may attempt to claim that the EPA lacks the legal authority to oversee greenhouse gases or possesses the discretion to refrain from doing so.

“I believe they are pursuing more legally precarious strategies that would have more detrimental consequences if they succeed,” Jenks stated. “Every action taken by the EPA under [Barack] Obama, [Joe] Biden, and even the initial Trump administration recognized climate change, and the debate revolved around how to regulate, not whether to regulate. Currently, however, I believe it is markedly different from previous scenarios.”

Regardless of the approach taken, Jenks mentioned that they will need to undergo a procedure of proposing regulatory modifications, gathering public feedback, and finalizing the rule, which requires time and allows environmental organizations and others who disagree to express their viewpoints.

“I’m certain those actions will subsequently be subject to litigation, and any regulatory actions must be based on the statutory criteria mandated by Congress for the EPA to consider, which generally includes at least one element related to emissions or pollution reduction,” Jenks remarked.

Jenks anticipates the EPA will act swiftly; however, that may become problematic if staff reductions diminish the agency’s expertise on these issues, as the fundamental justification for regulatory changes must be backed by supporting data.

Additionally, Lazarus stated that the Republican-controlled Congress might opt to utilize the Congressional Review Act as a means to challenge environmental regulations. This law empowers the House and Senate, by a simple majority, to nullify a rule from any federal agency and prohibits that agency from reissuing the rule or establishing a similar one unless allowed by Congress.

This tactic was evident in February when Congress annulled the EPA’s regulation implementing the “waste emissions charge” on methane emissions stipulated in the Inflation Reduction Act. Lazarus noted that while the IRA mandates companies emitting methane to pay the charge, there are presently no regulations in place for its execution, leaving both companies and the fee in uncertainty.

Congress may also apply the same strategy to eliminate California’s power to exceed federal standards on vehicle emissions, which has facilitated California in establishing the strictest standards across the nation and, once set, can be adopted by additional states.

The IRA itself is facing backlash as the administration attempts to retract financing across various programs intended to encourage climate-positive initiatives. Similar to the decisions that stripped USAID, neglecting to utilize funds allocated for congressionally sanctioned IRA programs on climate change is unlawful, Lazarus asserted. Yet, the administration seems unconcerned about violating the law and is aggressively pushing for rapid changes.

“They don’t hesitate to compel the courts to intervene, and litigation requires time,” Lazarus commented. “The practical consequence of a freeze and a breach of contract is that it takes time to reverse it. Meanwhile, funds aren’t being allocated. Contractors aren’t receiving payments. Salaries are unpaid. Leases are unfulfilled. At this moment, there’s turmoil among all those beneficiaries nationwide. The Trump administration will continuously alter its legal justification, rendering it quite elusive, simply stating, ‘We’re delaying it,’ or ‘We need to examine it more thoroughly.’ The practical repercussions are quite significant.”

Ultimately, Jenks and Lazarus concurred that the impact on individual lives could inflict the most considerable damage. Regulatory changes can be revoked or amended and new regulations enacted, but layoffs, reassessments, and adverse working conditions jeopardize the agency’s scientific and legal expertise that has provided continuity from one administration to another.

While certain dismissals and other personnel actions taken by the new administration may be halted or reversed by the courts, numerous individuals are leaving voluntarily due to demoralization and the need to meet financial obligations.

“Many are departing,” Lazarus noted. “The loss of not just regulations but potentially career expertise, along with the funding from the IRA, could be profoundly harmful.”