There is no sugarcoating this. Donald Trump’s reelection will lead to substantial setbacks for environmental law and the environment.
During Trump’s chaotic first term, his administration managed to eliminate or modify approximately 125 environmental regulations, but other attempts were defeated in court because proper procedures were not followed. However, Mandy Gunasekara, chief of staff at the Environmental Protection Agency (EPA) during Trump’s first term, has said that experience and “lessons learned” will enable the second Trump administration to be more effective at accomplishing its goals.
Lee Zeldin, Trump’s choice to head the EPA, stated that he intends to eliminate “left-wing” regulations. These likely will include: regulations that require power plants to dramatically cut hazardous, plant-warming pollution, which could have led to the closure of most coal power plants; regulations requiring greenhouse gas reductions from cars, buses, commercial vans, and heavy trucks; and newly finalized regulations that charge a fee to oil and gas producers for methane emissions above a certain threshold.
The Trump administration cannot immediately eliminate these regulations, and the methane regulations would require repeal of the Inflation Reduction Act (IRA). However, Trump’s new Justice Department no doubt will withdraw any opposition to existing lawsuits brought by industry challenging them. Trump’s EPA will then move quickly to replace these regulations with industry-friendly rules.
Trump has said he will repeal the IRA, although he might meet resistance from fellow Republicans. The law was designed to withstand a Republican administration in two ways. First, a significant portion of IRA financial incentives are in the form of tax credits. Eliminating these credits would be tantamount to raising taxes on the corporations that are moving ahead with projects that rely on them. Second, more than 80% of projects receiving IRA incentives are being built in Republican districts. According to Sen. Edward Markey (D-Mass.), repealing the IRA would “kill 343,000 jobs nationwide.”
Prior to the election, 18 House Republicans wrote to Speaker Mike Johnson asking him not to eliminate the IRA clean energy tax credits if the GOP maintained its House majority. However, because the law was passed under a budget resolution, Republicans would only have to secure a simple majority vote in both the House and Senate to repeal the IRA. If a repeal is not feasible, Trump has said that he would claw back funding from the IRA, which could hobble the EPA since it has received roughly $42 billion from the law.
Legal Challenges
The decision earlier this year by the Supreme Court in Loper Bright Enterprises v. Raimondo takes on greater importance under a new Trump administration. The opinion implicitly invited industry to challenge regulations on the grounds that a federal agency lacked authority to issue the regulation. For example, the Securities and Exchange Commission (SEC) rules that require public companies to disclose extensive climate-related information in their SEC filings are subject to numerous challenges. It is likely the Trump Justice Department will no longer oppose those challenges, resulting in the rules being struck down. Future lawsuits attacking EPA regulations under Loper Bright likely will face no opposition as well, which will invite more lawsuits.
While the Biden administration added nearly 5,200 EPA employees during his term, Trump is determined to reduce the number of EPA employees through budget cuts and potentially move many EPA jobs out of Washington. He probably will also reclassify the EPA’s workforce by terminating federal civil service employees and replacing them with political appointees. Trump believes that civil service employees during his first term impeded the radical changes he sought, and he wants to replace them with employees who can be fired for refusing to implement his changes. The reclassification plan would clearly face litigation, but conservative Justices on the Supreme Court are receptive to the argument that federal agencies need to be reined in and subject to greater control by the president.
Project 2025, drafted by former (and perhaps future) Trump staffers, proposes that the EPA “update,” and presumably dilute, the 2009 finding that greenhouse gases endanger public health and the environment. This finding is the bedrock for Clean Air Act climate regulations. While it is hard to imagine that climate change data since 2009 would lead to the weakening of the 2009 finding, it has been a target of conservative groups for years.
Finally, Project 2025 also focuses on the EPA’s annual compilation of greenhouse gas emissions data. Presently, the EPA requires 41 sectors to report their greenhouse gas emissions. About 8,000 facilities within those sectors that exceed certain emissions thresholds form the basis of the EPA’s annual greenhouse gas inventory. Project 2025 proposes reducing the number of sectors reporting emissions, omitting major emitters such as municipal landfills; iron, steel, and cement manufacturing; and carbon capture and storage. This would result in a serious undercount of greenhouse gas emissions.
In this bleak political climate, our country especially needs the Sierra Club, the nation’s most experienced and successful environmental litigation organization, to oppose and seek to limit the setbacks that are coming.
Resource
Methane Fees: https://shorturl.at/UYWbU