Environmental Protection Agency chief Scott Pruitt ― the former Oklahoma attorney general who made his name by suing the agency more than a dozen times and says he does not agree that human activity is a primary contributor to global warming ― isn’t even enough of a hard-line climate change denier for some players in President Donald Trump’s administration.
A schism is brewing within the administration over what to do about a somewhat-obscure EPA ruling that, for the last eight years, has been the bedrock of policy to fight global warming: the scientific conclusion that greenhouse gases cause climate change, which is bad for humans and should be regulated.
A 2007 Supreme Court ruling found that the agency is obligated to regulate any type of air pollution that “may reasonably be anticipated to endanger public health or welfare” under the 1970 Clean Air Act. The George W. Bush administration’s EPA determined that greenhouse gases were, in fact, a danger, but decided not to do anything about it. The Obama administration’s EPA took the issue up shortly after taking office and, in December 2009, issued its conclusion ― commonly called the endangerment finding ― which compelled the agency to start regulating those emissions.
The endangerment finding is the foundation of all of Obama’s global warming regulations, including the Clean Power Plan, which strictly limits emissions from power plants, the major contributors of U.S. emissions.
With an executive order signed Tuesday, Trump began the process to dismantle the power plant rules, which the Supreme Court had already blocked in response to the state lawsuits Pruitt spearheaded in his previous job.
However, the order Trump signed made no mention of the endangerment finding. It’s unclear if earlier drafts had addressed it, since the Trump campaign had said in written statements that he would overturn the finding, but it was Pruitt who argued against including it, Politico and CNN reported, insisting the language would trigger a difficult, years-long legal battle.
Pruitt’s approach puts him at loggerheads with Myron Ebell, the emphatic climate science denier who led Trump’s EPA transition team. Soon after the inauguration, Ebell, who oversees global warming and environmental policy at the libertarian Competitive Enterprise Institute, submitted a petition to the EPA requesting the agency reconsider the endangerment finding. The EPA has yet to respond. On Thursday, Ebell accused the White House of playing hot potato with a process he says is critical to prevent courts or a future administration from policing greenhouse gases, which he does not believe cause global warming.
“There’s a kind of passing of responsibility here,” Ebell told The Huffington Post by phone on Thursday. “I don’t know what advice [Pruitt] has listened to, but I’ve consulted a lot of lawyers on this, too.”
“If I had it my own way, I would advise the president to reopen the finding,” he added.
Ebell acknowledges that leaving the endangerment finding in place would make undoing the Clean Power Plan a legal nightmare.
“If you take down the building but leave the foundation, you’re going to get in trouble,” Ebell said. “We need to excavate the foundation and cart it away. The endangerment finding is the foundation.” (He tempered the comparison moments later, admitting: “I don’t like analogical thinking. It’s very misleading to think analogically.”)
But overturning the endangerment finding wouldn’t be easy. White House attorneys would need to prove in court that the finding was arbitrary and capricious. Meeting that standard would require them to debunk the overwhelming scientific consensus that greenhouse gas emissions cause global warming.
“I don’t see on the horizon anything that would permit them to overturn this and have it legally upheld,” said Lisa Heinzerling, a law professor at Georgetown University who is credited with crafting the strategy of states and environmental groups in Massachusetts v. EPA, a 2007 ruling that said the EPA should regulate greenhouse gases. “That’s because of the strength of the scientific evidence and because of the law.”
The legal odds are overwhelmingly in environmentalists’ favor. In 2012, the D.C. Circuit Court of Appeals dismissed a challenge to the endangerment finding from Pruitt himself. The court’s reading of the Clean Air Act found that the law requires a precautionary approach to scientific uncertainty. As a result, the roughly 3 percent of actively publishing climate scientists who don’t believe that greenhouse gases cause global warming represent too small a fraction to tilt the scales in favor of doubt, Heinzerling said. Plus, the Clean Air Act gives exclusive jurisdiction to the D.C. Circuit, meaning the Trump administration would need to sway the same court that unanimously upheld the endangerment finding five years ago.
“Bottom line is the enviros would welcome that fight,” said David Bookbinder, who in 2007 served as counsel to The Sierra Club in the Supreme Court case that laid the groundwork for the endangerment finding. He’s now chief counsel at the Niskanen Center, a libertarian think tank.
“The president can’t just stand up and say, ‘no endangerment finding,’” he added. “The court would say, ‘Everything you told us you now think is wrong is based on what? Some crank scientists representing 1 percent of the world’s science and their nutcase views?’ It’s not going to fly. They have to have a rational basis for doing this.”
But Ebell’s not the only Trump associate who wants him to try to throw the endangerment finding out.
Breitbart News, the far-right news site run until recently by chief White House strategist Steve Bannon, accused Pruitt of “failing to drain the swamp at the EPA” in a blaring headline Monday. Citing unnamed sources, James Delingpole, a London-based columnist and hard-line skeptic of climate science, accused Pruitt of putting his political ambitions ahead of his promise to “take on the Green Blob.”
“True, his credentials as a climate sceptic are not much in doubt. Yes, he might even agree with President Trump that there’s a swamp out there that sorely needs draining,” Delingpole wrote a day before the executive order came out. “The problem is, insiders explain, is that the future of the EPA is of far less interest to Pruitt than his prospects of becoming either one of Oklahoma’s next senators or its next governor.”
Come next election, we’ll punish him at the ballot box.
H. Sterling Burnett, Heartland Institute research fellow, on Donald Trump
Absent White House support, zealous critics of climate action say they plan to lobby members of Congress to pass a bill to strip the EPA of its regulatory powers by amending the Clean Air Act. Possible allies include Rep. Lamar Smith (R-Texas), the antagonistic chairman of the House Committee on Science, Space and Technology; and Sens. John Barrasso (R-Pa.) and Jim Inhofe (R-Okla.), who once infamously displayed a snowball on the Senate floor as proof that global warming doesn’t exist.
A spokeswoman for the House Science Committee said there is no current legislation being considered. Mike Danylak, a spokesman for the Senate Committee on Environment and Public Works, which Barrasso chairs, said, “Congress has never explicitly given the EPA the authority to regulate carbon dioxide as a pollutant, and the Senate EPW committee has no plans to do so.” But he said Barrasso is not exploring legislation to target the endangerment finding. Inhofe’s spokesperson did not return a request for comment.
“If Congress passed that law, Trump would sign it,” said H. Sterling Burnett, a research fellow on energy and the environment at the Illinois-based Heartland Institute, a conservative think tank. “That would put the kibosh on it right there.”
The White House referred HuffPost to the EPA, which did not respond to a request for comment.
Burnett said he’s holding out hope that Trump will fulfill his campaign promise to overturn the endangerment finding and, ultimately, withdraw from the 195-country Paris Agreement, the historic first global deal to reduce carbon emissions that includes the U.S. and China. But he sees battle lines being drawn in the White House. He views Secretary of State Rex Tillerson ― who has said the U.S. should maintain its seat at the negotiating table by remaining in the agreement ― and the president’s eldest daughter, Ivanka Trump, and her husband, Jared Kushner, who serves as a top adviser to the president, as getting in the way of that.
“To the extent that he has people pushing back on this within his own administration, it’s a matter of the public’s responsibility to hold his feet to the fire,” Burnett said of Trump. “He didn’t say ‘I’ll renegotiate the Paris Agreement.’ He said he’d withdraw. It’s public. It’s out there. It’s in print.”
He warned that failure to do so could turn voters against Trump if he runs for reelection in 2020.
“Come next election, we’ll punish him at the ballot box,” Burnett said. “If he doesn’t reverse the endangerment finding ― which he’s said is a terrible thing, it’s job killing ― if he doesn’t do that, we’re going to hold him accountable.”
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