Energy and Environmental Regulation in the Age of Trump: The Role of the States

February 16, 2017

NOTE: Images in this archived article have been removed.

Who’s Responsible?

It’s hardly surprising that many eyes are turning toward state capitals as Plan B targets of opportunity for maintaining the momentum of clean energy technologies and continued safeguard of the environment.

Given the negativity surrounding the future of federal environmental regulation and President Trump’s tapping of on the record doubters and deniers to fill key cabinet posts, it is easy to appreciate the motivation behind this bifurcated strategy. The obvious question is: will such a strategy succeed?

It is a question, I fear, without an entirely satisfactory answer. Success at the state level may prove more elusive in the future, given the current political environment, than in the past.

This is not to say the news is all bad. It is to suggest that clean energy and environmental advocates need to consider various factors as they develop their priorities and strategies. It is also a warning not to be surprised by any inconsistency between popular support and political will. Climate change and clean energy were secondary issues in the November elections.

It should not be surprising, therefore, that doubters and deniers at the state level appear unconcerned and emboldened by the goings on in Capital City.

Cooperative Federalism

Over the past decade or more, the role of the states has been expanding, as it has needed to. There is little question that important benefits accrue from well-designed synergistic state/federal partnerships.

An example of beneficial collaboration—deliberate or otherwise—is the symbiotic relationship between federal tax credits and state renewable portfolio standards. Local mandates, when accompanied by federal incentives, are certainly more easily met and politically more palatable when existing together.

Equally, the connection between environmental regulation and clean energy and environmental technologies has repeatedly proven advantageous–both to the environment and the marketplace. Renewable energy systems are not simply stand-alone sources of heat and power. They are solutions employed to meet carbon reduction targets, increase community resilience, a source of new jobs and investment opportunities.

The state-federal regulatory relationship is traditionally referred to as cooperative federalism. The term is the guiding principle of multiple federal environmental Acts, including Clean Air, Clean Water and the Surface Mining Control and Reclamation.

According to the American Bar Association:

Congress purposefully allocated varying levels of regulatory and enforcement responsibility to the states, in recognition of the states’ historic role as the traditional protectors of local lands and waters and the geographic differences between states that must   be taken into account in environmental regulation.

Conceptually cooperative federalism seems a simple—if at times unbalanced—equation. Federal regulators establish certain targets, i.e. parameters, within which the states are free to choose how they wish to meet them.

In practice, the federal-state relationship has proven extremely contentious. Nowhere has the hoped for purposeful partnership proven more argumentative than in recent efforts to regulate GHG emissions from new and existing electric generating units.

Federal authors of the Clean Power Plan (CPP) believed it to be a shining example of cooperation between federal regulators and state decisionmakers. The attorney generals and governors of 27 states, however, saw the Plan as commandeering the right of the states to mind their own business and, considered the word cooperative a euphemism for co-option.

Plaintiff states in the case of West Virginia v EPA argued:

…the Clean Power Plan commandeers States in violation of the Tenth Amendment because it leaves States no choice but to alter their laws and programs governing electricity generation to accord with and carry out federal policy, and is unconstitutionally coercive because it threaten[s] to disrupt the electricity systems of States that do not carry out federal policy.

Regulatory resistance, by the Trump administration and a majority of U.S. senators and representatives, promises to have a deleterious impact on the concept underlying major federal environmental laws. The collaborative relationship obviously fractures once either or both of the partners no longer wants to play.

Will the states choose to soldier on without their federal partner? Some will—others won’t. We’ve seen evidence of this in wake of the ordered stay of the CPP.

Despite SCOTUS’ suspension of the Plan pending the outcome of the multiple legal challenges, nearly 20 states continued to develop carbon reduction plans.  An almost equal number suspended planning, while the remainder are assessing the situation.

The 2016 election has changed things. Some states, like California, New York and Ohio, have already given some indication they will continue to promote clean energy technologies and to limit GHG emissions.

Other states, including Florida, Wisconsin and Oklahoma, will not be supporting low-carbon alternatives and may in fact rollback policies now on their books. Even states continuing to address harmful emissions and wanting to deploy clean energy alternatives will do so differently—some more aggressively, others less.

Writings on the Wall?  (no, not that wall)

This early in the new year there are already caution signs emerging to suggest state governments may not be as friendly a field upon which to continue the battle against climate change and for supporting deployment of clean energy technologies.

With all the sturm un drang surrounding Washington and the White House, it is easy to forget the 2016 elections were also about state capitals and governors’ mansions. The world woke up on November 9, 2016 to large lettered headlines declaring Donald’s defeat of Clinton/Republicans maintain control of Congress!

It also rose to discover the President-elect’s party captured 25 state governments—lock, stock and barrel. In total, Republicans now rule 31 state governing structures, while the Democrats can claim only 6.

I am loath to paint with too broad a brush and understand Republican state officials may not hold the same opinions as the President or members of their Congressional delegations. Neither are Republicans within a state necessarily of the same mind. Governor Kasich is currently battling Republican colleagues in the legislature over efforts to maintain the state’s mandate in support of renewables.

National party platforms and positions will influence the design of state policies and programs, as well as defining the state/federal relationship.

Denial by a growing number of sitting governors simply cannot be ignored. I have previously written about Governor Walker’s directive to the Wisconsin Department of Natural Resources to purge its website of language validating climate change and suggesting human culpability.

Governor Walker is not alone in his efforts to erase any suggestion that the global climate might be suffering at the hands of we humans.  Add to the list the names of Governor Scott in Florida and 20 other governors and state attorneys general identified by the Center For American Progress Fund in 2016 denying anything is amiss.

It should be noted the list includes the name of Scott Pruitt—the possibly soon to be Administrator of EPA. Had this list been drawn up earlier, it would have undoubtedly included the name of the ex-Governor of Texas–now Trump’s nominee for Secretary of Energy–Rick Perry.

Their move to Washington means the highly aggressive state challengers they left behind now have sympathetic federal ears in which to whisper their opposition to top down regulation—giving new meaning to the phrase collaborative federalism!

Image RemovedThe map was created by the folks at Think Progress. It is an interactive illustration of what is going on in the states. Should you wish to, click on this link. It will provide some very good information detailing the goings on in the various jurisdictions.

In the next installment of this series, I will be discussing in more detail some of the writings on the wall, including the ones I see suggesting that resistance to environmental regulation at the federal level may now be trickling down to the states.

I hope also to discuss how support for environmental activism and the transition to a low-carbon economy might also be bubbling up.

Click back in a day or two for more on energy and environmental rulemaking in the age of Trump.

PS :  A [very serious] word before I go

State level opposition to climate and clean energy policies and programs must be considered in a larger and connected context. There is a correlation to be made between the rise of today’s conservatism and tomorrow’s understanding of the existence and consequences of climate change.

Conservative control of state houses and governors’ mansions also means capture of educational systems. Is there reason to think: once climate deniers dominate boards of education, the textbooks our children and grandchildren will be reading in school will be as purged of references to global warming as websites in Wisconsin, Florida and the U.S. EPA, NASA, Departments of Energy, Agriculture and Interior?

I don’t actually know but in the words of the 45th President of these here United States:

I’ve heard many people saying………………

Lest I be tarred with my own brush, I am just as worried about the left editing textbooks to reflect their world visions as I am the right.

To be politically correct is to be honest and unafraid of open debate. The future of our world depends upon it.

Joel Stronberg

Joel B. Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years of experience, based in Washington, DC. He writes about energy and politics in his blog Civil Notion ( and has recently published the book Earth v. TrumpThe Climate Defenders' Guide to Washington Politics based on his commentaries. He has worked extensively in the clean energy fields for public and private sector clients at all levels of government and in Latin America. His specialties include: resiliency; distributed generation and storage; utility regulation; financing mechanisms; sustainable agriculture; and human behavior. Stronberg is a frequent presenter at conferences and workshops.

Tags: American climate policy, environmental regulations, Federal regulations