What President Biden Could Do for the Environment in His First Ninety Days

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I recognize that some of my readers may be Trump supporters who would prefer not to see a Biden administration. And, of course, one should not count one’s chickens too early. That said, there can be little debate that the Trump administration has been more hostile to sound environmental policy than any administration in modern history. From the start President Trump identified environmental protection as the territory of Obama liberals and played strongly to his populist base and big fossil fuel industry donors by dismantling every protection in sight. So, a Biden administration has a lot of work to do restoring the positive direction set in previous administrations. Here is where I think he should start.

Rejoin the Paris Accords

Almost every nation in the world, including the United States, signed the Paris Accords in 2015. The central aim of the Accords is to coordinate a global response to climate change by keeping a global temperature rise this century well below 2 degrees Celsius and to find the means to limit the temperature increase even further to 1.5 degrees Celsius.

But Trump is a climate change denier, and his fossil fuel backers have a financial stake in things remaining as they are. On November 4, 2019, the Trump administration began the official process of withdrawing the United States from the Paris Accords, which will not be completed until the day after the November 2020 election. Upon withdrawal, the U.S. will no longer be committed to reach its emissions reduction targets under the Accords.

Why does this matter? First, the United States is one of the two largest emitters of greenhouse gasses in the world so relaxing our efforts to reduce these emissions will have a hugely negative effect on the world’s ability to reach the Paris goals. Second, the United States is an environmental policy and technology leader in world. Our absence from the Accords takes our gravitas and leadership out of the equation. It weakens our international soft power and opens the door to preening by the Chinese.

How could a Biden administration reverse Trump’s withdrawal? The Paris Accords are a non-binding expression of national commitment. President  Obama was able to enter the United States into the agreement through executive action, since it imposed no new legal obligations on the country. Candidate Biden has pledged to recommit the country to the Paris Accords, and can do so most likely through similar executive action. Legislation is also possible.  Experts believe that the United States could rejoin the Accords in a matter of a few months. It is inconceivable that other nations would oppose our rejoining.

Appoint Environmentalists to Head Environmental Agencies

What a concept. But President Trump’s first appointment to head the EPA was Scott Pruitt, a notorious climate change skeptic. As Oklahoma’s Attorney General, Pruitt sued the EPA 14 times. Pruitt’s replacement, Andrew Wheeler, is a former coal industry lobbyist who has proposed dubious rules limiting the kind of scientific information the EPA can consider. One that called on the EPA to consider only “double blind” studies of the sort used in drug trials was called “breathtakingly ignorant” by the Union of Concerned Scientists. The Biden administration should be able to improve upon the quality of the EPA Administrator in short order.

The Department of the Interior sets policy and manages the implementation of many environmental statutes through a group of key agencies, including the Fish and Wildlife Service, the Forest Service, the Bureau of Land Management, the National Park Service, and others. Having a Secretary with environmental sensitivity and purpose could make a huge difference.

President Trump has seemed mainly interested in using the Department of Interior as a conduit to reward his friends in the extractive industries by shrinking protected land and opening federal lands to resource exploitation. Trump’s first appointment to Interior, Ryan Zinke, has been called “the most anti-conservation Interior secretary in our nation’s history.” President Biden’s appointment of a Secretary of Interior will be significant and closely watched.

Revive Obama’s Executive Order Requiring All Federal Agencies to Enhance Climate Preparedness and Resilience

In 2013, President Obama issued Executive Order 13653 instructing all federal agencies to identify global warming’s probable impact on their operations and take the actions necessary to protect against that impact. The importance of this is obvious. In 2016 alone the United States suffered 15 extreme weather and climate-related disasters each exceeding $1 billion in losses. Moreover, the Pentagon has for years regarded global warming as a significant threat to American national security.

But in March 2017, shortly after taking office, President Trump rescinded Obama’s Executive Order. In this order, Trump clearly set out the reason for this rescission:

It is the policy of the United States that executive departments and agencies immediately review existing regulations that potentially burden the development or use of domestically produced energy resources [oil, natural gas, coal, and nuclear energy resources] and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law. “Burden” means to unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilization, transmission, or delivery of energy resources.

It is not immediately obvious why unburdening the production of domestic energy required the rescission of Obama’s direction to plan for climate disasters, but there you have it. President Biden should immediately rescind this absurd Order and restore good sense to the nation’s efforts to protect itself against the effects of global warming.

Establish Science, Not Politics, As the Guiding Principle of Environmental Policy

President Trump has politicized agencies that are only effective and credible when they rely on the best science. This has happened since the beginning of the Trump administration. For example, he has marginalized the EPA’s Science Advisory Board by prohibiting any member but the Chairman from reviewing decisions regarding agency regulations. His 2021 budget proposes eliminating funding for that agency’s Climate Change Research Program. Pursuant to a direction from a Trump executive order EPA terminated the National Advisory Council on Environmental Policy and Technology. The BLM issued a final environmental impact statement for drilling in the Arctic National Wildlife Refuge and concluded there was no climate crisis.

The list of anti-science policies and actions during the Trump administration is quite long. These have been catalogued by Columbia University Law School’s “Silencing Science Tracker.” Within the first ninety days of a Biden administration, he could issue an executive order directing federal agencies to act only after giving heightened consideration to the best data and scientific opinion available, and he could restore to a prominent role the various science advisory bodies Trump has marginalized or dismantled.

Reversing Anti-Environment Regulations

President Biden will be unable in the first ninety days to reverse many of the harmful regulatory rollbacks and changes wrought by the Trump administration. All of these have been listed by the Harvard Law School’s Regulatory Rollback Tracker. This is because any such action must proceed deliberately and be based on a reasonable assessment of all factors, usually involving public testimony or input. He will not simply be able to change a regulation because he believes it is the ill-conceived product of the previous administration. Trump learned this lesson the hard way, most recently in connection with reversing Obama’s DACA order deferring deportation of children brought here illegally.

But President Biden can direct that these be triaged and that the process for reversing the most significant of them be started. The list is long and tantalizing. It includes Obama’s Clean Power Plan setting standards for power plant emissions, which the Trump administration repealed. The Clean Power Plan was a primary means to reach the nation’s Paris Accords emissions commitment.

There may be other, more important steps President Biden could take immediately to restore the correct course on the environment. The plate will certainly be full. One thing is certain — January 2021 cannot come soon enough for the environment.

Trump Flails Again at Environmental Law and Policy

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While we were distracted by a pandemic, a recession, and an uprising in the streets, Donald Trump attempted to upend decades of environmental law and policy with the stroke of his pen. In an executive order dated June 4, 2020, President Trump directed all federal agencies to use “emergency powers” to speed infrastructure work, specifically waiving or bypassing where possible the National Environmental Policy Act, the Endangered Species Act and the Clean Water Act. Trump justified this order on the basis of the “economic emergency” existing in the country created by the national COVID-19 response. This shouldn’t surprise us – Trump has used every excuse to undermine environmental regulations from the start of his Administration, often favoring oil, gas and coal interests. But the scope of this executive order is audacious.

Bypassing the National Environmental Policy Act (NEPA) by fiat is a big deal. NEPA was one of the first laws ever written establishing a broad national framework for protecting the environment. It requires all branches of government to consider environmental effects prior to undertaking any major federal action. It does not mandate or forbid any particular action. NEPA applies to the construction of airports, buildings, military complexes, and highways, parkland purchases, and other federal activities.

Environmental Assessments (EAs) and Environmental Impact Statements (EISs), which are assessments of the likelihood of impacts from alternative courses of action, are required from all federal agencies when planning these large projects. NEPA regulations already call for speedy production of evaluative work and concise analysis, as well as reductions in paperwork and red tape.

Trump’s executive order identifies the types of infrastructure projects to receive this expedited treatment. These are transportation infrastructure projects, such as highways, “civil works” projects within the purview of the Army Corps of Engineers, and “infrastructure, energy, environmental and natural resources” projects on federal land.

The President’s executive order claims that agencies have been given by regulation “appropriate flexibility . . . for complying with NEPA” in emergency situations by consulting with the Council on Environmental Quality about alternative arrangements. This is true as far as it goes. But the regulation Trump’s order relies on goes on to say that “agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.” 40 CFR 1506.11. No mention is made in Trump’s order of any limitation on his power to waive the regulation, even though one clearly exists, and there is also no mention of a sunset for the emergency declaration.

Another target of Trump’s order is the Endangered Species Act (ESA). It requires federal agencies to consult with the Fish and Wildlife Service about the impact of proposed federal action upon endangered species. The ESA contains language permitting expedited consultations in emergencies. It does not authorize waiving or bypassing the consultation in emergency circumstances. Furthermore, “this provision applies to situations involving acts of God, disasters, casualties, national defense or security emergencies, etc.” On its face, it does not apply to an economic emergency of the sort Trump has declared.

The final statutory target of Trump’s executive order is the Clean Water Act. The order directs the heads of all agencies to identify planned or potential actions the permitting for which may be subject to “emergency treatment” under law by the Army Corps of Engineers. These agency heads are directed to use the emergency procedures to “the fullest extent possible and consistent with the law to facilitate the Nation’s economic recovery”

Trump’s efforts to roll back environmental regulations have been well documented. Harvard Law School students have created a Regulatory Rollback Tracker, which provides information on each regulation affected by Trump’s campaign and the consequences of the rollback to the environment. The list of such rollbacks covers several pages.

Trump’s hostility to environmental regulations can be traced to the strong relationship he has developed with the energy industry, and particularly wealth energy industry donors, and also the Republican Party’s historic aversion to regulation. But now he has a compelling new reason – the threat of a recession to his reelection chances. The June 4 executive order is sure to come under legal fire from environmentalists, but Trump’s anxiety about his reelection may have created a fatal flaw in the order. While he declared the COVID-19 pandemic to be a national emergency, he did not declare the economic recession that followed the pandemic a national emergency. It is doubtful that he could have done so.

Some observers are not convinced this order will have a large negative impact on the environment. They point out that federal agencies already have emergency procedures to permit expedited review, but none of these permit ignoring the statutes or waiving an otherwise required review. If the agencies fail to follow their own procedures, their actions will be invalidated.

In the end, the June 4 executive order may simply be more flailing on Trump’s part in a manner that gets maximum heat and light but does little damage. Constitutionally, the President does not have the authority to overrule or temporarily nullify acts of Congress that have become law. It is a certainty, however, that Donald Trump is the least environmentally sensitive President in modern history. He will do whatever damage he can. He has to go.