Going Rogue on Climate Change: States Respond to Trump’s Policy Changes
Rare is the day the New York Times editorial board refers to politicians as “minions,” but on June 7th, its contributors did just that. This reproach, directed at members of President Trump’s staff, was unsheathed in reaction to the administration’s dismantling of Obama-era environmental policies.
The Times is far from unique: in March, The Washington Post insinuated that the President has less intelligence than does a child; European Union leaders have warned that America’s backseat in climate mitigation will lead to their taking back seats in other policy areas; and even the Wall Street Journal, without mentioning the environment specifically, asserted that “if he doesn’t show respect for the truth, most Americans will conclude [Trump is] a fake president.”
Such uncommon criticism has been prompted by uncommon policy on the part of President Trump and his administration. Despite the oft-cited statistics on Americans’ perceptions of environmental issues—most notably, that 68% believe global warming is caused by humans, and only 19% want the Environmental Protection Agency weakened—the man at the top prioritizes short-term economic gain in coal states. Over the din of the Russia investigations and the GOP’s current iteration of a healthcare bill, it is hard to pay attention to the nitty-gritty of environmental policy.
To list a few of the recent changes: President Trump disbanded the executive group that analyzed the “Social Cost of Carbon” and suggested appropriate regulations, deregulated environmental standards on consumer goods like air conditioners, began the process of deregulating clean water provision, and, more notably, has both exited the Paris Climate Accords and moved to scrap the 2014 Clean Power Plan. In sum, an independent study conducted in April concludes in the best case scenario the Trump presidency will result in 18% more carbon dioxide in the atmosphere than under President Obama’s trajectory; in the worst case scenario, the projected carbon increase is 35%.
Though the scale of President Trump’s policies is dramatic, states and cities have the same tasks as always. Local governmental entities have historically taken the driver’s seats in climate policy by virtue of their being the ones controlling the energy grid, public transportation, and natural disaster relief and prevention. In fact, cities and states have dealt with environmental issues independent from any Congressional aid since 2007.
Thankfully, as per Newton’s Third Law, unprecedented actions call for unprecedented reactions. Local governments are enhancing efforts in reaction to the administration’s actions. For example, Massachusetts enacted a law requiring the increased sourcing of renewable energy and has committed to deriving 80% of its energy from renewables by 2050. New York has been working to increase its solar, hydro, and wind production. California hopes to soon boast a greater number of fuel-efficient vehicles on its roads and has introduced a cap-and-trade system for carbon allocation. And these governments are far from alone: 22 states have decided to follow the outline of the Paris Climate Accords, even without the support of the federal government.
There is nothing the President can do to counteract these measures except revoke funding. Though the Trump administration aims to reduce EPA spending by 31%, private individuals have assumed some of the financial onus for environmental protection; richer states like New York and California will likely be able to maintain spending levels.
More difficult for states and local governments to impact is the international sphere. Twelve of the 22 states abiding by the Climate Accords are members of the U.S. Climate Alliance, which is an agreement among states to uphold the Paris Accords. The Alliance, led by Governors Jay Inslee (D-WA), Andrew Cuomo (D-NY), and Jerry Brown (D-CA) includes the pledges of governors from Oregon, Minnesota, Vermont, Rhode Island, Massachusetts, Connecticut, Delaware, Virginia, Hawaii, and Puerto Rico.
Going beyond interstate pacts, California has entered into a climate agreement with China—the Under 2 Memorandum of Understanding (Under 2 MOU)—along with ten other states and 164 jurisdictions worldwide. Under 2, originally conceived of by Governor Brown and President Winfried Kretschmann of the German state Baden-Württemberg, is a pact to limit global temperature increases to under two degrees by 2100.
With regards to California’s actions, UCLA professor Ann Carlson commented in an interview with Al Jazeera that “[it] really is unprecedented to make a state governor a de facto leader of strong climate policy…in the US.” But while these states’ actions may be unheard-of in substance there is a long legal legacy that the Trump administration may draw on to sue environmentally-concerned states.
The legality of the Climate Alliance and states’ participation in the Under 2 MOU is contingent on whether the initiatives fall under the jurisdiction of the Compacts Clause, Article I, Section 10 of the Constitution. The Clause mandates that “No State shall, without the Consent of Congress…enter into any Agreement or Compact with another State, or with a foreign Power.” Taken at face value, these pacts appear to be violations of the Clause.
One key provision stands in the way of litigation. An “Agreement or Compact” for the purposes of the Compacts Clause has been defined, through court precedent, as being a binding contract; neither the US Climate Alliance nor the Under 2 MOU is binding. Agreements among states or between states and foreign powers to work toward a common goal does not constitute a compact and thus are not subject to the Compacts Clause.
Furthermore, in order for the federal government to legally limit interstate measures on climate change, it must prove that the pacts have harmed governance on a national level (as decided in Virginia v Tennessee).
Precedent indicates that if anyone does interfere with these states’ agreements, it will be the Executive branch, not Congress, to act. This runs contrary to the Compacts Clause. The Executive, more specifically the State Department, has historically handled the oversight of such agreements without protest from the Legislative branch.
However, in an interview with The Politic, Hawaii Deputy Attorney General Bill Cooper did note that using precedent as a predictor of future behavior of the Trump administration is unreliable.
“Trying to determine the future actions of the Trump administration is about as reliable as putting your money in the lottery,” Cooper told The Politic.
Cooper outlined two potential courses of action the administration may take.
First, “the Republican party has always claimed that the Tenth Amendment to the U.S. Constitution, i.e. states’ rights, should be upheld to prevent federal government overreach.” If the Executive continues to align with the traditionally Republican position, the U.S. Climate Alliance should not face any challenges and states’ rights to act independently will be upheld.
On the other hand, “the Trump administration has benefited from extraordinary amounts of political contributions from the fossil fuel industry,” explained Cooper. This could tip the possibility of a suit in the other direction.
Thus far, as Cooper predicted, the Trump administration has followed the Tenth Amendment route—mostly, he thinks, because the President does not want to relive the blowback he received for leaving the Paris Accord. The far more likely lawsuit goes in the opposite direction. A series of cases are being brought against the Trump administration for climate negligence.
Perhaps most visibly, eleven states—including the usual suspects, New York, California, and Massachusetts—are in the process of suing President Trump for his deregulation of the environmental standards of consumer products. The Northern Cheyenne people, situated in Montana, are using legal recourse to prevent the President’s use of public land for profit via coal mining (which he does by leasing land in generous contracts that benefit big businesses and exploit taxpayers). Earthjustice and the National Resources Defense Council are suing over the removal of protection of undeveloped waters.
The legal bases for these cases are much stronger than that which would be used to fight states’ pacts. In the 2007 case Massachusetts v EPA, the Roberts court ruled that greenhouse gases (GHG) should be considered potentially detrimental to citizens’ health. The court then ordered the defendant to conduct a review of the threat GHGs pose.
In 2009, under the Obama-appointed head of EPA Lisa P Jackson, the Agency published the “endangerment finding,” which concluded GHGs were a threat to Americans’ health, and thereby obligated the federal government to GHG emissions.
New York Attorney General Schneiderman has also raised the issues of the Energy Policy and Conservation Act (EPCA) and the Administrative Procedures Act. In an interview with The Politic, the office of Illinois Attorney General Madigan explained that “under the [EPCA], the Department of Energy has a duty to set energy efficiency standards for things like appliances and industrial equipment.”
Romany Webb, climate law fellow at Columbia’s Sabin Center, explained in an interview with The Politic that “the success of [the suits] and how many such actions are brought depends on what the Trump administration does.” Because of the President’s unpredictability, it is nearly impossible to foresee on which bases suits will be brought.
Corroborating Attorney General Schneiderman’s concern about procedure, Webb also commented that “the procedural points could become an issue of challenge” and mentioned a suit could potentially argue the federal government has violated the National Environmental Policy Act.
Partners at the international law firm Hogan Lovells confidently predict that the future of the environment rests in the hands of the the U.S. Supreme Court and the D.C. Circuit Court. Current precedent dictates the federal government’s obligation to protect the environment but, as justices are replaced, precedent may change.
The ultimate goal of all suits in question, brought to the current courts or the next set of justices, is, according to Attorney General Madigan’s office, “to hold the administration accountable for its actions.” Despite all of the alleged “minions” lurking in the federal government, there is an army of independent-minded lawmakers, nonprofits, and ordinary American citizens doing just that.