Trump Signs Energy Independence Executive Order

Surrounded by coal miners, industry leaders, the secretaries of Energy and the Interior, the Environmental Protection Agency (EPA) administrator, and the vice president, President Donald Trump on March 28 signed an executive order rescinding or reviewing key provisions of the previous administration’s climate agenda.

“The action I’m taking today will eliminate federal overreach, restore economic freedom, and allow our companies and our workers to thrive, compete, and succeed on a level playing field for the first time in a long time,” Trump said before signing the order at the EPA’s headquarters in Washington, D.C.

The long-awaited order, dubbed by the administration as the “Energy Independence Executive Order,” covers a plethora of Obama-era actions. The rather substantial order:

• Calls on the EPA to begin a reevaluation of the Clean Power Plan (CPP)—the nation’s first carbon emissions standards for existing coal-fired power plants—and the New Source Performance Standards for new-build coal-fired power plants;
• Lifts the current moratorium on new coal leases on federal lands;
• Rescinds a number of former President Barack Obama’s executive orders and presidential memoranda related to climate change;
• Rescinds Obama’s Climate Action Plan and orders departments and agency to take action to suspend, revise, or rescind any existing agency actions related to the Climate Action Plan;
• Calls for a review of the “Social Cost of Carbon” and disbands the Interagency Working Group on Social Cost of Greenhouse Gases and;
• Orders a review of several regulations related to oil and gas development, including rules related to fracking.

Perhaps the most high-profile target of the order is the CPP. The CPP has been a controversial rule for as long as it has been around. The rule, proposed in June 2014, received more than 4 million public comments, both in support and opposition.

The rule as finalized in August 2015 requires states to develop action plans to meet state-specific, federally set carbon emissions reductions goals. The legality of the rule has been questioned in part because “outside the fence line” actions, such as generation shifting, were considered in the development of the state goals.

 “Crushing Attack on American Industry”

“Perhaps no single regulation threatens our miners, energy workers, and companies more than this crushing attack on American industry,” Trump said of the regulation.

The rule was the target of a lawsuit before it was even finalized. Interestingly, the suit, which was thrown out for being premature, was led by Scott Pruitt, Trump’s EPA administrator, who was then serving as attorney general of Oklahoma.

Following its finalization in late 2015, the rule was immediately challenged in court again, this time by a group of 27 states and more than 100 trade groups, utilities, and energy companies. In February 2016 the U.S. Supreme Court granted a stay of the rule, halting any implementation until the legality of the regulation is determined. The case against the CPP was heard by a 10-judge panel at the U.S. Court of Appeals for the D.C. Circuit in September 2016. A ruling in the case is pending.

Throughout his campaign, Trump pledged to revitalize the coal industry, a promise he says he is making good on with the new order. “You know what it says, right?” he asked the coal miners surrounding him as he signed the order. “You’re going back to work.”

A different tune was playing just blocks away, however. As Trump made his opening remarks at EPA headquarters, a group of Democratic senators from the Environment and Public Works (EPW) Committee were holding a press conference, decrying the president’s actions.

“The Clean Power Plan isn’t the coal industry’s problem—market forces are,” EPW Ranking Member Tom Carper (D-Del.) said. “Let’s be perfectly clear: this executive order will not bring back the coal industry. It is an insult to the men and women who voted for him for Donald Trump to say otherwise.”

A Few Missing Pieces

Sen. Sheldon Whitehouse (D-R.I.) noted one item missing from the order: a review of the EPA’s endangerment finding on carbon dioxide. The endangerment finding came about as a result of the Massachusetts v. EPA case. The federal case was decided in 2007 and determined that the EPA is required to regulate carbon and other greenhouse gases under the Clean Air Act. However, to do so, the agency first had to determine that those greenhouse gases endanger public health and welfare. This endangerment finding was completed in 2009.

“The law of the land and the requisite finding, that puts a legal duty on Administrator Pruitt to proceed with regulation of carbon dioxide,” Whitehouse said. “Unless he wishes to behave illegally, then he has to come up with something.”

Pruitt addressed the endangerment finding during his confirmation hearing before the EPW committee, saying that he does not intend to revisit the finding. “I think there is a legal obligation presently for the EPA administrator to respond to the CO₂ issue with the proper regulations,” Pruitt said during his hearing.

Pruitt could revisit the endangerment finding, Whitehouse said, but the senator does not think he will. “If they want to try to go re-litigate that point, God bless them, but I think there’s a reason that Scott Pruitt said he would not re-litigate it when he spoke to us in the Environment and Public Works Committee. He knows it’s a bad conversation. It would be a catastrophic loser for the phony climate denial apparatus,” Whitehouse said.

Silence on the Paris Agreement

Also missing from the order is any indication on what the administration will do regarding the international Paris Agreement on climate change. During his campaign, Trump pledged to “cancel” the agreement, but post-inauguration, his administration has been more tempered on the future of U.S. involvement in global climate efforts. As recently as March 27, a senior White House official stated that the Paris Agreement is still being discussed.

As is to be expected, there are those who are unhappy about the orders failure to address the Paris Agreement and the endangerment finding. “Today’s Executive Order is a positive step toward scrapping President Obama’s climate regime, but there is still work to be done.  The two most important decisions yet to be announced are to withdraw from the Paris Climate Treaty and to re-open the EPA’s Endangerment Finding,” Myron Ebell, director of the Competitive Enterprise Institute’s Center for Energy and Environment, said in a release, noting that both the endangerment finding and the Paris Agreement could be fodder for environmentalists hoping to sue the administration to force action on climate change.

It is important to understand that all these policies are closely connected and that striking down most but not all of them will not be sufficient to undo the damage done by President Obama’s energy-rationing policies.

Reactions Vary

Reaction to Trump’s order elsewhere is a mixed bag. While environmentalists mourn the end of the era of U.S. climate leadership, members of industry are applauding.

Those on the left are searching for a silver lining and finding it in the fact that legally because the CPP is a final rule, the administration can’t simply undo it. “The good news is that the President cannot rescind the CPP by decree. Instead, EPA must start a new regulatory process and its action must comply with law and be based on the facts,” Ken Berlin, president and CEO of the Climate Reality Project, said.

Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, suggested that in the case of the CPP, the order does very little. “Despite the hoopla, the Executive Order has no legal significance at all.  For anything to happen on this front, EPA will need to initiate a notice and comment rulemaking process that has many significant built-in hurdles. The agency will need to propose a rule explaining the legal, economic, and scientific basis for its change of position,” he explained.

At the other end of the spectrum, however, supporters of the actions called for in the new order are celebrating a win in a long-fought battle. “[The American Coalition for Clean Coal Electricity] ACCCE commends President Trump for withdrawing bad regulations that are hurting our economy. The Clean Power Plan is the poster child for regulations that are unnecessarily expensive and have no meaningful environmental benefit,” Paul Bailey, president and CEO of the ACCCE, said.

The U.S. Chamber of Commerce joined in the celebration. “America got good news today when President Trump took bold steps to make regulatory relief and energy security a top priority. American energy resources give us a competitive advantage in the global economy, and the president’s effort to capitalize on those resources is vital to stimulating economic growth,” Thomas Donohue, president and CEO of the chamber said.

—Abby L. Harvey is a POWER reporter.