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What President Trump’s Energy and Climate Executive Order Does — and Doesn’t Do

By Jeremy Carl • National Review

As one would expect from a president who is a master of political theater, the backdrop for this week’s announcement of his executive order “Promoting Energy Independence and Economic Growth” was dramatic: President Trump, with twelve all-American-looking coal-miners flanking him, announced that he was undoing a number of President Obama’s climate policies, while announcing a number of pro-energy-development ones. As is typical with this president, though, the media were so wrapped up in the theater that the substance of the order was almost entirely buried in many stories.

But while the green lobby was rending its garments and proclaiming the end of the world, more astute observers noticed what Trump’s executive order didn’t do — which was arguably more important than what it did.

Notably, the president did not (1) withdraw the U.S. from the Paris Climate Agreement or (2) start a process to repeal the EPA’s endangerment finding on carbon emissions, which underlies the Obama administration’s Clean Power Plan.

Some (though by no means all) conservatives are up in arms about this, as EPA administrator Scott Pruitt was supposedly particularly active in beating back proposals to challenge the endangerment finding, while Secretary of State Rex Tillerson was allegedly active in lobbying to stay in the Paris Climate Agreement. At first blush, this seems hard to square with the records of two men who were being denounced as enemies of the people by the environmental lobby from the moment of their nominations, but in their early approaches to the issue they are showing a disposition that is more pragmatic than radical.

This is not a surprise to more seasoned observers of energy policy on the right. Those who have actually worked with Pruitt stressed that, contrary to the media caricature, he was not an ideological Don Quixote tilting at windmills. Instead, he is going to carefully and methodically go after EPA overreach while focusing on cleaning up air and water in tangible ways.

The endangerment finding found that greenhouse gases threatened human health and welfare, which provided the legal justification for the Obama administration’s Clean Power Plan. But Pruitt, along with several senior White House aides, argued that attempting to overturn the finding would be a messy and protracted court battle that would be very unlikely to succeed.

Meanwhile Tillerson did not want to rush into immediately withdrawing from the Paris Agreement. with all of the attendant blowback it would cause among key allies, when the administration has more important diplomatic priorities.

Conservative critics of Obama’s climate policies may be justifiably angered at Trump’s refusal to act on these issues in this executive order, but for an administration that cares a lot about winning, it did not make sense to act in a way that would likely result in a loss. If Trump really wants to roll back the endangerment finding, his best bet is probably a revision of the Clean Air Act (which would in and of itself be a bruising fight) that would explicitly strip out CO2 from the law’s jurisdiction. This would meet the demands of conservatives who have long complained that the Clean Air Act is an inappropriate vehicle for regulating greenhouse gases.

As for the Paris Agreement, in theory, Trump should not lend further legitimacy to the largely useless, if not counterproductive, U.N.-based process. But he needs to balance backing out of the agreement with the reality that its demands are unenforceable and mostly symbolic, and that doing so would anger a number of our allies with whom we need to work on more critical matters.

And while the EO was notable for what it didn’t do, what it actually accomplished was substantial.

First, it initiated a formal review of the Obama administration’s technocratic and opaque Clean Power Plan, which is likely to be the first step toward ending it altogether. But while conservatives and the utility industry celebrated this as a big win, the short-term practical effects are likely to be minimal — the specter of the Clean Power Plan played a significant role in shutting down some coal plants, but it is far from clear that the rescinding of CPP will cause them to reopen.

The move does have some potential to make a difference over the longer term, however. The EPA’s carbon dioxide emissions standards for new power plants, first proposed under the Clean Power Plan in 2012 and finalized in 2015, effectively banned construction of all new coal plants that didn’t utilize highly speculative carbon-capture and -storage technology. This played a significant role in taking new coal plants off the table, as utilities could see the writing on the wall. Unlike a rewriting of the endangerment rule, which would be very chancy, there are strong legal justifications for rewriting this rule, should the administration be interested in doing so.

Second, the EO removed the ban on coal leases on federal land, an important win for Trump’s supporters in that industry. But the administration needs to be realistic about the fact that there is not likely to be a coal renaissance even with these orders. Booming supplies of natural gas, thanks to the hydraulic-fracturing revolution, mean that coal will have a difficult time competing in the domestic marketplace. Furthermore, increasing mechanization at mines, particularly in the more productive Powder River Basin, means more jobs are likely to be under threat. The coal-miner issue is more symbolic than substantive, but it does show that Trump is advocating for a constituency that he actively courted.

Third, the EO revisits the Obama administration’s estimate of the “social cost of carbon,” the basis for a good bit of regulatory overreach from the Obama administration. Honest policy analysts, regardless of their views on climate policy, should be able to acknowledge that attempting to quantify such a cost is a fool’s errand — a triumph of scientism over science. The “social cost” of carbon is almost entirely subjective and uncertain. But until someone challenges at the Supreme Court the dubious 2007 Ninth Circuit ruling that gave rise to its use, a recalculation (presumably with a lower value) is the most the Trump administration can do.

Fourth, the administration will revisit the Obama administration’s rules on forcing drillers to detect and stop methane leakage. Since drillers were already financially incentivized to stop this leakage anyway, the rules were often seen as overkill by the industry. Expect to see a friendlier set of rules from this administration.

Fifth, it will reduce pressures to factor in climate change for National Environmental Policy Act (NEPA) reviews. This is one of those esoteric things that could end up being very important for reducing regulation, but it will almost certainly be challenged in the courts.

Finally, the order also repealed a number of smaller Obama orders on how the government deals with climate change, while adding a requirement that agencies report back within 180 days on any rules they have that may be impeding domestic energy production — a task that will provide the basis for future administration EOs and legislation in this area.

Much to their dismay, Obama’s climate partisans are discovering that Trump can also wield a pen and a phone. But complaining Democrats brought this approach on themselves by refusing to do the hard work of lawmaking, confident that Democratic-controlled administrative agencies would enact their agenda.

As the editors of this publication aptly put it in their editorial earlier this week, “If we are to make climate change a priority of the U.S. government, then Congress needs to pass a law establishing what that means and how we are to proceed. “This is a question for elected officials, not for cloistered, unaccountable regulators.“ Trump’s undoing of Obama’s legacy of climate policy by fiat may be a first step in restoring democratic accountability to American climate and energy policy.