Energy and Environmental Regulation in the Age of Trump: The Role of the States, Part 2

February 23, 2017

Scott Pruitt has now been sworn in as the new Administrator of the U.S. Environmental Agency. It is likely the dismantling of the Clean Power Plan (CPP), and ultimately much of the Agency itself, will begin in short order.

Pruitt’s public record suggests he is the embodiment of President Trump and coal-state Republicans and Democrats ideal of what an EPA Administrator should be. His prosecutorial record is replete with challenges to the regulatory authority of the Agency he now leads; authority granted by Congress and confirmed by the courts.

The air and water acts he has sought to limit are not the products of President Obama. They are long-standing laws of the land, dating back to the early 1970s. The years Richard Milhous was in residence at 1600 Pennsylvania Avenue.

Notwithstanding the dirty tricks Nixon will be most remembered for, credit him for creation of the agency Trump is now intent on demolishing and enactment of the mandate that today protects the air we breathe.

The 45th President is not alone in his desire to dismember. Diminishing EPA has been a decades long priority of the Republican Party, coal-state Democrats, right-leaning think tanks, the U.S. Chamber of Commerce, many manufacturers, the fossil fuel industry and a host of others; opponents, who have come into power in the wake of the 2016 elections. Pruitt is only the latest to don the leather mask of mayhem.

How whittled EPA will become is still a question in need of an answer. Time will tell; but, clues abound.

Nominee Pruitt testified that a significant revision—if not outright rescission– of   the CPP would begin with a rulemaking process, as prescribed by law. He assured Senator Sanders (I-VT) that he [Pruitt] believe[s] the EPA has a very important role at regulating the emissions of CO2. Whether the role is as regulator or conduit to the states was never made clear in his confirmation hearings.

Attorney General Pruitt and a dozen or so cohorts from other states challenged EPA’s 2009 endangerment ruling and lost. Nominee Pruitt told Senator Marky (D-MA) the endangerment finding needs to be enforced and respected….and he [Pruitt] knew of nothing that could cause a review of that finding.

It is fair to speculate, if still too early to assume, Administrator Pruitt believes protection of the environment a matter more for the states than the federal government. His record as Oklahoma’s lead lawyer strongly suggests his intention to pass through as much of the Agency’s regulatory responsibility as the law will allow.

Additional confirmation for this conclusion can be found in the President’s  own campaign promises, the 2016 Republican Platform, the oft mentioned motives of various members of the Trump transition teams and passage of recent Congressional joint resolutions striking from the books all the Obama-era environmental regulations unfortunate enough to have been published after June 13, 2016.     

Administrator Pruitt recently told EPA personnel that:We as an agency and…a nation can be both pro-energy and jobs  and pro-environment….we don’t have to choose between the two. I think our nation has done better than any nation…protecting our natural resources and…environment, while also respecting  the economic growth and jobs our nation seeks to have.

Whatever the environmental achievements made to date, they were accomplished under a federal/state partnership at odds with that envisioned by Administrator Pruitt and promised by President Trump.

A partnership historically characterized by a dominant federal partner with the authority to establish targets and compliance parameters, within which the states  are required to operate. Accepting the conclusion our nation has done better than any nation, the question remaining is: can it continue to do so, even after the promised reforms are accomplished and the relationship of the partners radically altered?

This is not a question of political philosophy, but of practical reality. A reality that must be considered within the current context of proposed reforms.

There is nothing in my experience or judgement to suggest the only satisfactory federal/state regulatory relationship is as defined by the Obama administration and reflected in the CPP. I agree with Mr. Pruitt’s propositions that:

  • neither the Agency nor the nation need choose between economic growth, including new jobs, and protection of our natural resources; and,
  • it is possible to be both pro-energy and pro-environment.

What gives me pause is understanding how rolling back federal regulations, rescission of federal funding for anything related to climate change and, returning regulatory authority to the individual states is pro-environment.

States are certainly capable of protecting the health and welfare of their citizens. They do it every day through various laws, regulations, and standards, e.g. marriage, education and buildings.

States are no strangers to the regulation of energy and the environment. Had it not been for enactment of state renewable portfolio standards (RPS) the market for clean energy technologies like solar and wind would not be the source of jobs and investment opportunities it is today—nor would the nation’s transition to a low-carbon economy be nearly as far along. Do not the states lead in fracking regulation?

Why then shouldn’t the states take the lead in clean air regulation? The answer lies in Article 1 of the U.S. Constitution. Section 8 of the Article enumerates the powers of Congress, including regulation of inter-state  commerce and weights and measures.

Look not to the list of responsibilities reserved for the federal government; but, consider the reason why federal authority was given primacy in these instances. The foundation of President Trump’s posture on environmental regulation is interference with the smooth and profitable operation of business.

DJT cites costs and job losses as examples of harms to the nation’s businesses caused by federal clean air and water rules. Quoting Administrator Pruitt: in this nation, we can grow our economy, harvest the resources God has blessed us with, while also being good stewards of the air, land and water.

In the real world, good stewards must regulate; and, good regulators seek to protect the health and welfare of the nation on the basis of sound information and in conformity with the smooth operation of the marketplace.

Passing federal responsibility for setting GHG emission standards to individual states and territories differs little from allowing each jurisdiction to establish its own system of weights and measures. How efficient is a business required to label a 16-ounce package of mac and cheese a pound in Pennsylvania and 2 pounds in California?

Pruitt, himself, appears aware that differing standards for the same thing are neither good for business nor a regulatory model to be embraced. He has been evasive in responding to questions concerning California’s on-going authority to issue its own new car emission standards.

California was granted a waiver as part of the 1970 amendments to the CAA. The seriousness of the state’s pollution required it to adopt more strident standards than either the federal government or other states in the union.

California’s waiver experience portends some of the practical problems and consequences associated with single state establishments of environmental regulation, including:

  • Defacto regulation of all jurisdictions to the strictest state standard, because industries find it expensive to manufacture the same product, e.g. an automobile, to different regulatory requirements;
  • Competition between states to lure business and industry with the least environmental regulation;
  • Legal conflicts between the states because pollution does not recognize borders–based on claims that lax environmental standards in one state negatively impact the health and welfare of down-wind/down-stream populations;
  • Decreased economic growth because of increased regulatory uncertainty and a wait and see attitude, while regulations are challenged in court and/or until all states have their environmental regulatory structures in place and vetted;
  • Suits brought against states by companies claiming infringement of inter-state commerce; and,
  • Mandamus actions directed against federal executives and agencies. Actions asking courts to order the national government to regulate GHG emissions, in accordance with the letter, spirit and authorities of  the CAA and established judicial precedents. Cases based on the failure of state regulations protect equally the health and welfare of citizens in-state and out.

Beyond the legal and operational problems raised by the Trump Administration’s implied regulatory scheme, rumored reductions in federal agency budgets will prove similarly problematic. Included in EPA’s annual appropriations, for example, are grants for state and local air pollution control agencies to carry out their responsibilities under the Clean Air Act.  In recent years, federal grants have approximated $200 million annually.

These funds represent 60 percent of program budgets, as the states have matching requirements they must meet. The loss of $200 million of operating capital combined with significant reductions in federal environmental research will place onerous burdens on the states, further limiting their rulemaking capability.

I cannot claim the CPP is a perfect regulatory scheme. It isn’t.

It is, however, a starting point not to be dismissed out of hand. There are certainly ways to give states more latitude in their efforts to comply with national emission standards. Regulations that apply equally across all markets.

More than five years of public discourse and 4 million comments offer President Trump and Administrator Pruitt a wealth of information. Surely that information should be mined for practical and politically acceptable reform of the CPP.

Administrator Pruitt has promised to respect the 2009 endangerment finding. Why then start over, only to suffer repeating years of comments and likely decades of litigation?

Whether one denies or believes the science of climate change, it cannot be doubted that the people of this nation are owed a modicum of continuing protection from pollution’s acknowledged harms.

What was it again that Scott Pruitt said? I remember:

 …in this nation, we can grow our economy, harvest the resources God has blessed us with, while also being good stewards of the air, land and water.

I couldn’t have said it better myself.


Teaser photo credit: What? You hired me to keep the canaries quiet—you won’t hear a peep out of ’em. (Photo from Pinterest)


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 environmental policy, energy regulation, environmental regulation