Went to Harvard Law school today, January 30, 2017, to hear Professors Jody Freeman and Richard Lazarus explain what they think will happen to environmental law in the Trump administration. I got there about 10 minutes before the scheduled talk and the room was about a quarter full. Very soon there was a standing room only crowd with people listening from the hall, probably over 70 people, mostly Harvard Law students.
Freeman and Lazarus tag-teamed the presentation, passing the slide clicker back and forth and talking in turn about the issues. They started by remembering the transition from Carter to Reagan and the days of James Watt and Anne Gorsuch, both of whom eventually left government because of public and Congressional pushback. However, now there is probably not be the same environmental firewall as there was under Reagan.
Then they outlined the environmental actions Obama undertook in his eight years, saying he may be the most environmental President so far by instituting fuel efficiency standards and the Clean Power Plan, which covers about two thirds of the USA’s carbon emissions, as well as appliance efficiency standards, allowing solar and wind power siting on public lands, making investments in clean tech and the grid, and protecting millions and millions of acres of public lands, including the Continental Shelf and the Arctic sea. Freeman pointed out that we should pay attention to the undersecretaries and other officials in the administration, calling out David Kreutzer and David Schnare at EPA by name.
Lastly, they told us what Trump might be able to do, including withdrawing from Paris Agreement which would take 4 years and the UN Framework Convention on Climate Change which takes a year. He could refuse to defend the Clean Power Rule or take the plan back for review , weaken or delay CAFE standards (has Trump already rescinded some of the appliance standards or just mentioned doing so?), the rules on greenhouses gases, methane, and mercury. He might be able to rescind the outer Continental Shelf protections and national monument designations but the law id not clear on whether he has the authority to do so.
However, the Administrative Procedure Act may be a limiting factor. He cannot abolish agencies like the EPA but he can do a lot of damage nonetheless. They told us to watch what is happening in the White House Office of Regulatory Affairs and reminded us that the Congressional Review Act allows a new administration to rescind rules going back six months into the last administration, depending on when they start the clock (ah, the law).
Lazarus was most worried about the appointments to the Supreme Court but he did not mention the other Federal judge appointments and the damage that they may do for decades.
One advantage today over the Reagan transition in 1980 is that many industries now are in favor of environmental laws and regulations and there is a robust environmental protection industry. (I wouldn’t necessarily place too much faith in this as Trump and his administration have ignored the fact that solar jobs have increased at a rate of 20% per year for the last two years and that wind tech is the fastest growing job in the nation today. They are stuck in fossil fuelishness and refuse to recognize that coal is declining not because of environmental regulation but because natural gas and renewables are cheaper in most markets these days.)
Freeman and Lazarus gave an environmental law workshop for Democratic Congressional staffers recently and offered the same to the Republicans but were refused. (Up until the Contact Congress, Harvard’s Kennedy School had a crash course for all incoming Congressional Representatives but that program seems to be history.)
