EnviroPolitics Blog

Federal Courts Help Biden Dismantle Trump’s Environmental Legacy

Trump’s success in appointing conservative judges has so far been no match for his team’s own ineptitude, the skill of the environmental bar and industry’s desire to work with the new administration.

President Joe Biden speaks in the State Dining Room of the White House on March 6, 2021, in Washington D.C. Credit: Oliver Contreras/For The Washington Post via Getty Images

By Marianne Lavelle, Inside Climate News

As the Biden administration begins the daunting job of rebuilding U.S. climate policy, it has gotten help from an unexpected, and perhaps unlikely, source—the federal courts.

In Biden’s first few weeks in office, federal judges scrapped the Trump administration’s weak power plant pollution regulation, its rule limiting science in environmental decision-making and a decision opening vast areas of the West to new mining.

The rulings show that although President Donald Trump left his mark on the federal courts with his record-breaking pace of judicial appointments, his influence has not been great enough to prevent federal judges from playing a part in dismantling his deregulatory legacy. And the series of decisions also allows the Biden administration to move forward with some confidence about its own ambitious regulatory agenda, as White House National Climate Adviser Gina McCarthy explained at a major energy industry conference last week.

“As time goes on, we realize how unsuccessful the prior administration was in actually rolling back good regulations,” McCarthy said in a virtual discussion session at CERAWeek by IHS Markit, an annual conclave of top oil, gas and utility executives. “In the courts, even with the new appointees under the Trump administration as judges, we still won over and over and over again, because there is a law in our country. And when you put on that black robe, you tend to want to do your job.”

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The Biden team’s work on writing new climate regulations begins in earnest soon, with the Senate slated to vote Wednesday on his nomination of Michael Regan, North Carolina’s top environmental official, to head the Environmental Protection Agency. Another point person in executing the Biden climate agenda, Rep. Deb Haaland, (D-N.M.), cleared a Senate committee last week and is on her way to confirmation as the first Native American person to head the Interior Department.

Regan, Haaland and the rest of the Biden climate team may get less help from the federal courts as time goes on. Legal scholars expect that Trump-appointed judges will be skeptical of aggressive government action on climate without explicit authority from Congress, and Trump appointees now occupy one-third of the seats on the appellate bench, including three on the Supreme Court.

But for now, a confluence of factors have given the Biden administration some early legal wins—including the savvy of environmental group litigators, the desire of industry to strike a cooperative stance with the new administration and the legal missteps of the Trump administration.

“We saw that many actions by the Trump administration were a deliberate and illegal effort to permanently limit the ability of EPA to do its job protecting people and the environment,” said Ben Levitan, a senior attorney at the Environmental Defense Fund, one of the groups that have spearheaded the recent challenges. “These decisions clear the way for the Biden-Harris team to turn to the critically important work ahead.”

Trump’s ‘Tortured’ Misreading of the Clean Air Act

The biggest break for the Biden team thus far came at the Ben Levitan, where a three-judge panel issued a decision to vacate the Trump administration’s rollback of President Barack Obama’s signature climate policy, its Clean Power Plan. The day before Inauguration Day, the judges excoriated the Trump administration for designing a toothless regulation on power plant greenhouse gas pollution based on what it said were “a tortured series of misreadings” of the Clean Air Act.

Trump’s EPA argued it had no authority to set standards that encourage steps like switching from coal to natural gas or renewable energy to cut carbon emissions. Instead, the Trump EPA said it could only mandate tweaks like efficiency improvements at individual coal plants (while not addressing natural gas plants at all.) But in reality, such improvements do little to slash carbon; the only commercial technology for achieving large cuts in power plant carbon emissions is to switch to cleaner fuels. As a result, the Trump “Affordable Clean Energy” rule would have curbed greenhouse gas emissions from power plants less than 1 percent.

The three-judge panel ruled that the Trump power plant rule “hinged on a fundamental misconstruction of … the Clean Air Act.” Judge Justin Walker, a Trump appointee on the panel, dissented on the legal reasoning but joined in the judgement with two Obama appointees, Judges Patricia Millett and Cornelia Pillard.

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EPA wants your (post Trump) thoughts on PBT chemicals

An EPA environmental news release

WASHINGTON (March 8,2021) — Today, in accordance with Biden-Harris Administration executive orders and directives, the U.S. Environmental Protection Agency (EPA) is asking for additional public input on five final rules for persistent, bioaccumulative and toxic (PBT) chemicals issued on January 6, 2021 under the Toxic Substances Control Act (TSCA). These rules, which went into effect last month, address exposure to toxic chemicals that remain in the environment for long periods of time and build up in the body.

“These rules are intended to provide critical health protections for Americans, including children, workers, other potentially at-risk groups, and the environment,” said Michal Freedhoff, Acting Assistant Administrator for the Office of Chemical Safety and Pollution Prevention. “Re-examining these rules under the Biden-Harris Administration and making any necessary changes to them will ensure we’re delivering on the promise to protect human health and the environment by reducing exposure to toxic chemicals.”

As a first step in its efforts to immediately review these rules, EPA is opening a 60-day comment period for the public to provide new input on:

Whether the rules sufficiently reduce exposure to these chemicals, including exposures to potentially exposed or susceptible subpopulations, and the environment.
Newly-raised compliance issues associated with the final rule on phenol, isopropylated phosphate (3:1) (PIP (3:1)) including the compliance dates for certain regulated articles.
Whether to consider additional or alternative measures or approaches.

This review is being done in accordance with the Protecting Public Health and Environment and Restoring Science to Tackle to Climate Crisis Executive Order, which asks all agencies to review their actions to ensure that they meet statutory obligations, are guided by the best available science, ensure the integrity of federal decision-making, and protect human health and the environment.

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EPA will use the feedback received during this public comment period to determine the best path forward, which could include amending the current rules to include additional or alternative exposure reduction measures or extending compliance dates for certain regulated products and articles. Upon publication of the Federal Register notice, EPA will accept public comments in docket EPA-HQ-OPPT-2021-0202 on www.regulations.gov for 60 days.

As noted above, the notice seeks comment on newly-raised issues associated with the March 8, 2021, compliance date for the prohibitions on processing and distribution of Phenol, Isopropylated Phosphate (3:1) (PIP (3:1)) for use in articles, and the articles to which PIP (3:1) has been added. Stakeholders recently informed EPA that the prohibition on processing and distribution of PIP (3:1) could impact articles used in a wide variety of electronics, from cell phones, to robotics used to manufacture semiconductors, to equipment used to move COVID-19 vaccines and keep them at the appropriate temperature. Stakeholders note that the complexity of international supply chains makes locating the presence of, and finding alternatives to, PIP (3:1) in components challenging. They assert that an extension to the compliance deadline is necessary to avoid significant disruption to the supply chain for a wide variety of articles. It was not EPA’s intent during the development of the rule to have such a broad disruptive impact. Thus, EPA is also announcing its expectation that this specific issue will be addressed as part of the broader re-examination of these rules. Based in part on the information collected as part of the effort announced today, EPA intends to extend compliance dates as necessary for the prohibitions on processing and distribution of PIP (3:1) for use in some articles, and some of the articles to which PIP (3:1) has been added.

For these same reasons, EPA is issuing a temporary 180-day “No Action Assurance” indicating that the agency will exercise its enforcement discretion regarding the prohibitions on processing and distribution of PIP (3:1) for use in articles, and the articles to which PIP (3:1) has been added. The agency is taking this action to ensure that the supply chain of these important articles is not interrupted while EPA continues to collect the information needed to best inform subsequent regulatory efforts and allow for the issuance of a final agency action to extend the March 8, 2021, compliance date as necessary.

Learn about the public comment period and view the documents related to the “No Action Assurance.”
Learn more about the PBT rules.

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Investors want emission reductions at landfills

Greenhouse gas emissions contributing to climate change are under growing scrutiny from regulators and investors alike. Finding the most precise way to measure them remains a complex effort.

By Leslie Nemo , Waste Dive

Waste companies have long been comfortable dealing with regulations about tracking and reducing greenhouse gas emissions, but heightened attention may make that more complex in the years ahead.

The pressure to address contributions to climate change is starting to come from new sources. Growing numbers of customers and investors are insisting that all industries — waste included — record greenhouse gas emissions and shrink their carbon footprints. In a relatively short period, considering how a company may be exacerbating the effects of climate change morphed from a peripheral concern for investors to a mainstream inquiry.

“I continue to be impressed by how quickly this conversation has changed, and how rapidly it’s evolved in the last few years,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental & Energy Law Program.

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In January, for example, the chief of the investment group BlackRock, which has holdings in several major waste companies, wrote a letter to CEOs surging them to bring their net emissions to zero by 2050. In many cases that objective would be more aggressive than the climate targets set by the industry’s largest companies. The request comes with force, as the firm has begun to hold companies accountable for their climate-related choices.

The financial group’s announcement happened within a week of the inauguration of U.S. President Joe Biden, who leads an administration that has promised stronger action on climate change and emissions reduction measures – including a focus on methane. Any actions making good on the promises could potentially include actions affecting landfills. All together, the facilities accounted for 17.3% of human-caused methane emissions in the U.S. in 2019, and clocked in as the third largest source of the gas, according to the latest emission data released by the U.S. EPA.

Even if advocates for emission transparency and reduction aren’t talking specifically about landfills yet, those are the facilities waste companies will have to address most directly to meaningfully lower emissions.

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NY State Attorney General Letitia James names two to run sexual harassment investigation against Gov. Andrew Cuomo

Attorney General Letitia James on Monday named Joon H. Kim and Anne L. Clark to run the investigation into sexual harassment allegations against Gov. Andrew M. Cuomo. Credit: Charles Ecker

By Yancey Roy, Newsday

New York Attorney General Letitia James announced Monday she has selected Joon H. Kim, a former U.S. attorney, and Anne L. Clark, an employment discrimination lawyer, to run the investigation into sexual harassment allegations against Gov. Andrew M. Cuomo.

Kim served as the acting U.S. attorney for the Southern District of New York from 2017-18. He had been Preet Bharara’s deputy in the office until President Donald Trump fired Bharara. Kim filled the job until he was replaced by Trump appointee Geoffrey Berman.

Clark is a private attorney who has “successfully represented plaintiffs in numerous sexual harassment and other employment discrimination cases” in the public and private sector, according to James.

“Joon H. Kim and Anne L. Clark are independent legal experts who have decades of experience conducting investigations and fighting to uphold the rule of law,” James said in a statement. “There is no question that they both have the knowledge and background necessary to lead this investigation and provide New Yorkers with the answers they deserve.”

Related news stories:
Cuomo Inquiry to Be Led by 2 Lawyers, Including Ex-U.S. Attorney (New York Times)
Cuomo Probe to Be Led by Ex-Federal Prosecutor, Bias Lawyer (Bloomberg)

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After Championing Greener Building Codes, Local Governments Lose Right To Vote

The nonprofit consortium that oversees much of the nation’s building codes just gave the construction and gas industries more control over the process.

The International Code Council, a nonprofit that oversees building codes for much of the Americas, has implemented a change t

By Alexander C. Kaufman, Huffington Post

The private consortium that oversees the model building codes for much of the United States and parts of the Caribbean and Latin America on Thursday stripped local governments of their right to vote on future energy-efficiency codes.

The decision came more than a year after the construction and gas industry groups that wield heavy influence at the International Code Council objected to aggressive new energy codes for which government officials voted.

The change, though technical and wonky, marks what environmental advocates say is one of the most consequential roadblocks to decarbonizing the U.S. economy. It also illustrates the limits of both the new Biden administration’s powers and the causes for which activists can mobilize public support. Local governments, members of Congress, environmentalists and architects overwhelmingly opposed the proposal.

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Under the new system, the building codes that govern energy systems and insulation ― once subject to a vote by the city and state governments tasked with implementing them ― will instead fall under a separate “standards” process that, despite soliciting input from local officials, will give industry more control over the outcome.

The ICC said it would create a new body to help oversee the process and give government officials “the strongest voice on the committee,” promising “one-third of the seats” on that entity to “government regulators.” It’s unclear which groups would occupy the other two thirds.

“Well, my sense is the committee will be comprised of people who have an interest in energy efficiency and building science,” Dominic Sims, the ICC’s chief executive, said in a phone interview. “So, I don’t know that there’s that big of a separation between people.”

The committee is a significant departure from the old process, which allowed government officials from across the country — including representatives from cities’ sustainability and energy departments — to register to vote on the codes.

Sims said it would actually hasten the transition away from fossil fuels.

“I will say this: The impetus and the discussion around this issue is not just about the last 12 months,” he said. “Each code cycle, it’s been different. There’s been winners and there’s been losers. That sort of unevenness has not produced quick enough results, or else we’d be at net zero already.”

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Opinion: Facing the facts — nuclear subsidies or a huge spike in greenhouse gases

I spent much of my law career fighting nuclear proliferation in New Jersey. But the ongoing reliance on fossil fuels puts our state, our country and our planet in danger

By R. WILLIAM POTTER, writing in NJ Spotlight

By now, everyone but the most ardent climate-change deniers recognizes the “inconvenient truth” of global warming and climate change. But it’s more than merely a truth; it’s an “existential threat” to the planet and its 9+ billion inhabitants who have less than a decade to mend their ways and prevent the worst consequences caused by relying primarily on fossil fuels.

That threat is recounted in gruesome detail in “The Uninhabitable Earth — Life After Warming,” by journalist David Wallace-Wells. He quotes peer-reviewed studies warning that “at 2 degrees (of warming) the ice sheets (covering the poles) will begin their collapse, major cities will become unlivable and heat waves will kill thousands each summer … And this is our best-case scenario.”

What about the worst case? With continued reliance on burning fossil fuels — natural gas, coal, petroleum — the world will heat up by 6 to 8 degrees, and “the oceans would swell 200 feet higher, flooding two-thirds of the world’s major cities …” Much of New Jersey would be swallowed up by a combination of sea-level rise and land subsidence.

Climate-change deniers insist the evidence is inconclusive, despite thousands of scientists independently attesting to the looming threats. They also argue that we cannot afford to make major changes in our energy systems, such as those proposed in the Green New Deal — which they insist will lead us down the slippery slope to a Venezuelan-style socialism.

The climate-change deniers are not only wrong, but also delusional. We are in the midst of a moral equivalent of war, and each of us must pitch in and do his or her part to stave off the worst of the truly catastrophic climate-change scenarios.

The ZEC part of the puzzle

Now pending before the Board of Public Utilities — following the enactment of the “Zero Emission Certificates Act” — is a petition by the Public Service Enterprise Group to continue to charge consumers roughly $300 million a year above the market rate for electricity fueled by natural gas rather than power from PSEG’s three nuclear units. Part of their argument is that Salem 1, Salem 2 and Hope Creek emit zero greenhouse gases.

In its petition, the company asserts that the nuclear plants cannot compete with natural gas on a price-only basis. Hence, they will be shut down and decommissioned unless the BPU awards the company more zero-emission certificates (ZECs) as compensation for the myriad societal benefits conferred by continued operation of these nuclear units.

No doubt, $300 million sounds like a lot of money. But it’s worth it and well spent if it helps us avoid increased reliance on natural gas. That “cheap” alternative is pumped into the state from the fracking fields of Pennsylvania, which emit methane, a greenhouse gas that is a staggering 86 times more damaging to the environment than CO2 emissions from a coal-fired power plant — as measured over an equally staggering 20-year period.

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