President Donald Trump’s appointees took their final shots at staving off future climate action this week, even as his presidency careered to an inglorious end with a second impeachment.
Trump’s Environmental Protection Agency on Wednesday finalized a surprise measure to bar future greenhouse gas regulation at oil refineries, manufacturing plants or other facilities beyond coal-fired power plants. The move came the same week that two contrarian scientists working at the White House were reassigned after publishing a series of online reports bearing a White House logo but full of sham arguments denying the risk and extent of climate change.
Like the rapid bursts at the end of a fireworks display, the showy moves are likely to have little lasting impact, legal experts say. They said President-elect Joe Biden’s administration will be able to easily reverse the last-minute rule finalized by the EPA, because it comes so late and it so clearly runs afoul of the requirements for public notice and comment. And as for the climate deniers, contrarian scientists who had never before worked in government, they were demoted amid questions raised on whether they had violated the law as well as protocol.
The last-minute frenzy signals a determination among Trump’s appointees, many of them long-time associates of the fossil fuel industry and anti-regulatory groups, to slam the brakes on climate action in a future that is clearly out of their control.
“The Trump people are trying to throw down as many obstacles to environmental regulation as possible as they walk (or are dragged) out the door,” said Michael Gerrard, founder of the Sabin Center for Climate Change Law at Columbia University. “The question is whether these are speed bumps that can easily be rolled over, brick walls that need to be torn down, or cliffs that cannot be scaled. I think this latest rule is more of a speed bump.”
A Rule Finalized Without Public Comment or Review
EPA Administrator Andrew Wheeler, a former coal industry lobbyist, said that the new rule—published in the Federal Register Wednesday—was an effort to provide clarity to the regulated industry. “EPA’s new significance framework lays out how the agency will determine when stationary sources of greenhouse gases trigger a requirement” for regulation in the future, Wheeler said in a statement.
The rule, in essence, says that no category of polluters can be subject to regulation under the so-called “New Source Performance Standard” section of the Clean Air Act, unless greenhouse gas emissions from the sector exceed 3 percent of total U.S. greenhouse gas emissions. In effect, that limits regulation to coal power plants, while ruling it out for oil and gas operations and manufacturing facilities.
Wheeler included the new limitation on future regulation in a rule that was originally proposed as a plan for easing greenhouse gas limits for future coal plants. Legal experts view that as a critical flaw, since the law requires that the public have a chance to review and comment on new regulations before they are finalized, and the administration must respond to those comments.
“This new rule does not at all resemble the draft rule that it is purportedly built on, nor is it a ‘logical outgrowth’ (which is the legal test for how similar the final rule has to be to the published draft rule),” said Gerrard. “So the Biden Administration can probably say this new rule is invalid and just roll over it. The worst case is that it has to go through a new rulemaking process.”
Kevin Book, an energy policy analyst for the investment firm ClearView Energy Partners, said that the EPA’s political leaders may have expected to have a second term in which to develop the rule that they had published as a proposal months earlier. But, he said they may hope that by adding the argument to the administrative record, it will provide a hook for future legal challenges of greenhouse gas regulations.
Book said that, as with most environmental regulations, there is likely to be a division in the industry over the desirability of a rule like the one Wheeler just finalized. But he said the value of the rule, even for those who might support it, is likely to be greatly diminished by the fact that it is so vulnerable to being overturned. “One thing almost every corporate stakeholder wants is consistency,” Book wrote in an email.
When asked to comment on the potential legal vulnerabilities and the reasons for the dramatic changes to the rule, an EPA spokesman said in an email: “The document speaks for itself.”
A Last Minute Publication of Long-Debunked Theories
While the EPA was engaged in its last-minute rulemaking, two Trump administration appointees overseeing the National Climate Assessment were reassigned after they were involved in soliciting and posting a series of monographs denying the mainstream consensus on climate change to a private website. The documents recycle debunked theories about solar activity cycles and radiation transfer, claim falsely that the Earth is not experiencing record warming and assert that the science of global warming is “faith-based.”
The documents were compiled by David Legates, a former University of Delaware climate scientist, and Ryan Maue, a meteorologist who is a former scholar with the liberatrian Cato Institute. They bore the logo of the White House Office of Science and Technology Policy (OSTP), where the scientists work, and a notice of “copyright” by the office. Federal work products are in the public domain and cannot legally be copyrighted. And it is a violation of federal law to “fraudulently or wrongfully” affix the seal of any department or agency to unauthorized documents. There also are limitations on federal government employees’ use of their titles in some outside activities.
Legates and Maue were removed from their posts at the White House on Tuesday, said OSTP spokeswoman Kristina Baum on Twitter. The reassignment was carried out by Kelvin Droegemeier, a climate scientist who has directed the office since 2018.
“Dr. Droegemeier was outraged to learn of the materials that were not shared with or approved by OSTP leadership,” Baum tweeted. “He first became aware of the documents when contacted by the press. As a result, Dr. Droegemeier took swift action and the individuals responsible have been relieved of their duties at OSTP.”
Droegemeier is widely respected in the scientific community, but has been largely out of public view since he was brought into the Trump administration in 2018.
The White House personnel office brought both Legates and Maue into the National Oceanic and Atmospheric Administration in September. Many NOAA employees believed the two scientists would undermine the agency’s work, because both had been vocal skeptics of climate data and climate models. After the election, both men were detailed to the White House to lead the National Climate Assessment, a project to gauge the state of climate science that the government is legally required to produce every few years. Work has just begun on selection of authors for the new assessment, which will not be published until 2023.
House Science Committee Chairwoman Eddie Bernice Johnson (D-Texas) called for an investigation into whether other federal employees were involved with Legates and Maue in the publication of the climate denial documents, and whether federal resources were misused in the creation and promulgation of the material.
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Marianne Lavelle is the Washington, D.C. bureau chief for Inside Climate News. She has covered environment, science, law, and business in Washington, D.C. for more than two decades. She has won the Polk Award, the Investigative Editors and Reporters Award, and numerous other honors. Lavelle spent four years as online energy news editor and writer at National Geographic. She spearheaded a project on climate lobbying for the nonprofit journalism organization, the Center for Public Integrity. She also has worked at U.S. News and World Report magazine and The National Law Journal. While there, she led the award-winning 1992 investigation, “Unequal Protection,” on the disparity in environmental law enforcement against polluters in minority and white communities. Lavelle received her master’s degree from Columbia University Graduate School of Journalism, and is a graduate of Villanova University.
