Climate Change Under Trump: A Q&A with Michael Gerrard

by |November 15, 2016
Michael Gerrard

Michael Gerrard

For those who favor strong action on climate change, the election of Donald Trump is creating plenty of anxiety and concern. Will Trump, who in the past called global warming a hoax created by China, follow through on his threats to defund the U.S. Environmental Protection Agency or cancel the Paris Climate Agreement, which could represent the best chance we’ve had for the world to reduce its greenhouse gas emissions? How can those who are concerned about climate change best fight back?

Michael Gerrard, director of the Sabin Center for Climate Change Law, had some answers.

What actions could President Trump legally take to renege on the Paris Climate Accord, stop the Clean Power Plan (requiring U.S. power plants to cut carbon emissions) or abolish the U.S. Environmental Protection Agency (EPA)?

Donald Trump

Donald Trump

Trump can do two out of the three. He can withdraw the United States’ participation in the Paris agreement. The only parts of the Paris agreement that are legally binding and have any enforcement mechanism relate to monitoring and reporting, and those are requirements that have been in place in similar form for a long time in the U.S. and have been complied with. The portions of the agreement relating to greenhouse gas emissions reductions are not internationally enforceable. The portions that concern financial contributions from the U.S. and the other developed countries to the U.N. programs and to the developing world are also not legally enforceable.

So if Trump were to withdraw the U.S. from the Paris agreement, it would make our country an international pariah, but it would not subject us to legal enforcement.

Paris Accord participants

Paris Accord participants

To formally withdraw from the Paris agreement would take four years, however the U.S. could also withdraw from the entire U.N. Framework Convention on Climate Change, and that could be done in a year. And if the U.S. just stops participating, there’s no enforcement mechanism to make it do otherwise. So the U.S. would nominally be in violation of the agreement, but without clear legal consequence.

There are a number of mechanisms that Trump could use to stop the Clean Power Plan. The legally cleanest would be to formally amend or rescind the regulation. That would require writing a detailed explanation of why that’s being done and then opening it up to a formal notice and commenting process. Nominally the head of EPA, who will be working for Trump, would make the decision on that. If the U.S. Court of Appeals for the D.C. Circuit [where the plan is currently being challenged] upholds the plan, EPA could appeal, could seek review before the Supreme Court and if, by the time it gets to the Supreme Court, there is a new Trump appointed justice, then one wouldn’t be very optimistic about the outcome.

If the D.C. circuit overturns the plan, EPA could refuse to appeal, but there are several environmental groups and pro-regulation states that are parties, so they could seek an appeal to the Supreme Court. Trump could also starve EPA from getting the money to enforce the plan and just indicate he will never enforce it. So there are several different pathways, but all of them lead to killing the Clean Power Plan.

Now the third thing you asked me about is abolishing the EPA. That was sort of talked about early in the campaign, but they haven’t talked about it much lately. There are several reasons why I don’t think that would happen.

First, there are many statutes that give EPA specific tasks, and it would require amendments to those statutes to take that responsibility away. Basically for every environmental statute—the Clean Air Act, the Clean Water Act, the Superfund law, the pesticide law, the toxic substances control law—there are thousands of pages of environmental statutes that require EPA to do something on almost every page.

Additionally, by statute, many operations legally require permits from EPA, so if there’s no EPA and it’s impossible to get permits, it is then impossible to operate factories. So elimination of EPA would require shutting down many factories, which is clearly not what Trump people have in mind. So I don’t think elimination of EPA is seriously on the table. I think it’s much more likely that it will be starved of the funds it needs to carry out the programs that industry doesn’t like.

Pollution along the Monongahela River, PA in 1973

Power plant pollution along the Monongahela River, PA in 1973

Moreover, Trump has said that he’s in favor of clean air and clean water. The main reason the air and water are immensely cleaner in the U.S. now than they were in 1970 is because of the environmental laws enforced by EPA. If we didn’t have a functioning EPA anymore, you’d see a tremendous increase in air and water pollution.

Are any of the past actions of the EPA in jeopardy, like the Corporate Average Fuel Economy (CAFE) Standards or the Endangerment Finding under the Clean Air Act that carbon dioxide is a pollutant?

In 2010, a deal was struck to tighten the CAFE standards out through 2025, however there was going to be a mid-course correction in 2018. Already the automakers are jockeying to have the standards weakened in 2018, so they’re not going to go away, but there is real jeopardy that they will be weakened.

CAFE standards have greatly reduced emissions. Photo: VA Dept. of Transportation

CAFE standards have greatly reduced emissions. Photo: VA Dept. of Transportation

The CAFE standards are far and away the most important thing that the Obama administration has done to fight greenhouse gas emissions. They led to a very large decline in emissions.

The only way to overturn the finding that CO2 is a regulated pollutant would be to establish that there is no valid scientific basis for the endangerment finding. I think that would be a very unwise attempt by the new administration, because every court that has examined the issue has affirmed that there is ample scientific evidence of climate change. Instead EPA would be more likely to cut back on or not enforce the regulations that grew out of the endangerment finding.

This is not a unique moment in time. There have been prior times when anti-environmental administrations came into office, and that always led to despair, but it never lasted.

But this time seems different because it’s so critical to deal with climate change now, and with the Paris accord we have a chance.

It is horrible that we are losing momentum, but nobody knows what Donald Trump really believes deep down, if anything. So it’s all going to be play it by ear. Now it’s not a good sign that he has appointed an ardent climate denier [Myron Ebell] to his transition team, and if he actually becomes EPA administrator, that would be a really bad sign. Then we’ll have to see how long he lasts.

It’s very similar to the situation after the election of Ronald Reagan, because Reagan, of course, was also hostile to EPA. He put in as EPA administrator Anne Burford, who did not want EPA to do much. Reagan also put James Watt in charge of the Department of the Interior. Both of them only lasted only about two years, because it became apparent that these agencies performed really important functions.

Do states and cities still have free rein to do what they want to fight climate change?

Yes. With respect to…power plants and factories and so forth, federal law is a floor, not a ceiling, so states may impose more stringent requirements if they wish.

Smog over Los Angeles, 1973

Smog over Los Angeles, 1973

With respect to motor vehicles, the Clean Air Act allows California to adopt its own motor vehicle standards if they are approved by EPA. They can be tighter than national CAFE standards. This is because when the Clean Air Act was first enacted in 1970, California already had a motor vehicles emissions control program to control the terrible smog in Los Angeles, and part of the deal that led to the enactment of the Clean Air Act in 1970 was that California, because of its very serious air pollution problems, could adopt its own standards. If EPA approves standards for California, other states may then adopt the California standards instead of the national standards.

The Oregon-based case of 21 young Americans who claim that the U.S.’s failure to take enough action on climate change is unconstitutional just cleared a legal hurdle and will go to trial next year. What are the implications of this?

It was a great victory. It’s one of the only two decisions issued by a court of the world saying that governments have a fundamental duty to protect the climate regardless of statutes. The other decision was a case called Urgenda in the Netherlands. The Urgenda case actually ordered the government of the Netherlands to reduce the country’s greenhouse gas emissions, whereas the Oregon case hasn’t yet gotten that far. The Urgenda case is now under appeal. The Oregon case will no doubt be appealed. Unfortunately, the case would eventually go to the Supreme Court, and if there is a Trump appointee, that would not bode well for the survival of the case. So I’m not looking to this case as the silver bullet.

What’s the most effective thing that organizations or other entities could do to fight climate change now?

The states still have broad powers, and in those states that politically support action on climate change, there’s a great deal they can do. I think we will also need a lot more attention paid to the impact of future climate change on particular localities or businesses so that preparations can be made for sea level rise, coastal storms, heat waves and other events that can happen. And the more businesses and localities that truly confront the threat that climate change imposes to them, the more we’ll prepare for that climate change and also the more political pressure we hope will be exerted on the federal government to act on these threats.

Photo: Stephen Melkisethian

Photo: Stephen Melkisethian

What organizations do you feel are most effective?

There are certainly groups that are doing a lot of organizing…Earthjustice strikes me right off the bat. But right now, many of the environmental groups are regrouping, trying to figure out what the best tactics are. There will be various groups reflecting various points on the political and tactical spectrum. I think we will see a number of strategies emerge in the next few weeks.

What are the best actions that individuals who are discouraged can take?

There is a lot of political action that can be taken at the state and local level. In some states, pressure can still be exerted on Republican members of the Senate so that there isn’t a majority vote in favor of certain anti-environmental actions. We need to support Democratic candidates, but we also need to give Republican senators a very hard time. Some of the races were close, so we need to make it clear to them that anti-climate votes will not be appreciated.

In addition, many of the regulations are still on the books, and the statutes provide for citizen suits to enforce them. This means that if EPA is not carrying out the statute or if an emitter is violating the statute, a citizen can go to federal court and seek an order that compels compliance.

Photo: Jim the Photographer

Photo: Jim the Photographer

Ultimately, though, people need to run for office. We need a new generation of political candidates who will run for office on an environmental and progressive platform, and put up real challenges to the entrenched Republicans. And we can all support those that do.

I’m reminded of the old labor saying after the slaying of the principal union organizers, “Don’t mourn, organize!”


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