Valentina Dotto

 

Less than a week away, tensions surrounding the U.S. midterm elections are at a high.

 

Two years since a polarizing victory by Donald Trump and the Republican Party, the midterm elections represent a crossroads for a plethora of social, economic, and environmental issues. For Americans and non-Americans alike concerned particularly by the ever-dire reality of climate change, it is hoped that the midterms may produce greater resistance against the alarming culture of climate change denialism demonstrated by the current Trump administration. President Trump and his administration have consistently denied new climate change initiatives or outright attacked former President Obama’s key domestic policies on the issue. Further, the administration has coordinated short and long-term goals designed to inflict constant blows to the environmental legislative framework currently in place. Massive budgetary cuts. Appointments of partisan and industrial appointees to manage key environmental sectors. Stacking the Courts with climate science sceptic judges. While more scandalous headlines about the Trump administration have ensnared the world, considerable damage has been quietly done to both environmental policies and the environments the policies were intended to protect. 

Let’s now have a closer look at the administration’s 'accomplishments.'

The Trump administration submitted discretionary budget for 2018, ‘America first: A Budget Blueprint to Make America Great Again’ presented a 31% slash for the Environmental Protection Agency. 50 environmental programs were subsequently eliminated along with 3200 jobs. The budget slash has stopped further funding for other Climate Change related programs, including the Clean Power Plan, the first federal policy that put limits on carbon dioxide pollution from the utility sector, the biggest emitter of greenhouse gases. It also cuts funding in half for the Office of Research and Development, the Superfund clean-up program and the Office of Enforcement and Compliance. All work on Climate Change and wildland fire science research has been terminated with any mention scrubbed clean from government websites. The only projects left untouched are the water and wastewater infrastructure projects. The 2018 National Security plan has put industry before environment, even defining ‘Climate Change’ as a ‘hoax’ and a roadblock to the administration’s ‘Make America Great Again’ project. While these orders are being branded as helping the American people by creating jobs, they also send the message that, at the federal level, Climate Change is no longer a priority in policy decisions.

The Administration has also been busy opening more land for energy development and allowing drilling in nearly all-American waters and national parks. The US government holds title to about 500 million acres of land across the country, including national parks and forests, wildlife refuges and tribal territories, stretching from the Arctic to the Gulf of Mexico under which lie vast quantities of natural gas, coal, and uranium. In 2015, in the middle of Obama’s presidency, oil output from federal land made up one fifth of the national total, down from one third during the Bush Administration in 2010; offshore drilling leases also fell 15%. For environmentalists, these changes have represented admirable efforts to prioritise American lands and waters. 

Others did not think so. On his 2016 campaign trail, Trump accused former President Obama of ‘denying millions of Americans access to energy wealth sitting under our feet’, referring to Obama administration restrictions on leasing and banning coal extraction. After his victory, Trump quickly appointed Rep. Ryan Zinke of Montana, a noted climate change sceptic and coal mining advocate, as head of the Department of the Interior, a department which directly manages most federal land. The Department has since allowed for the opening of more than 90% of federal land to oil and gas development while comprehensively reviewing all national monuments, protected lands similar to national parks, and national parks to allow for more industry development. 

 

Protections for some of the most beautiful environmental, topographical and cultural treasures have been significantly diminished. Located in San Juan County in south-eastern Utah, the Bears Ears National Monument (pictured above) is a sacred place to the local Native American tribes. The Monument’s English name mirrors the same names given by each of the local tribes which refer to the striking ‘Bear Ears’ – two burnt-red buttes – which tower above the grassland. Designated by President Obama in 2016, the monument once covered 1.3 million acres but on 4 December 2017 it was dismembered, leaving only 228.784 protected acres which were further split into two separate areas. An astonishing geological wonder, the Utah Grand Staircase Escalante Monument, designated by President Bill Clinton in 1996, was also slashed by half by the Trump administration. Its 1.8 million acres were reduced to just over a 1 million acres, split into three areas. 

Turning now to the oceans, the Trump administration has also agreed to new offshore oil and gas drilling of most U.S. coastal waters, giving energy companies the possibility to leases off the coast of California for the first time in decades and opening up more than a billion acres in the Arctic and along the Eastern Seaboard. Last April, President Trump signed an executive order requiring the Interior Department to reconsider an Obama-era plan regarding the five-year offshore drilling agreement which had invoked a provision of a 1953 law, the Outer Continental Shelf Act, blocking new lease sales on 94% of the outer continental shelf (the submerged offshore area between state coastal water and the deep ocean). The ban, the new Administration has declared, ‘deprives the country of potentially thousands and thousands of jobs and billions of dollars in wealth’. In the next 18 months, the Interior department will open up 25 of the 26 regions of the outer continental shelf leaving only the North Aleutian Basin exempted from drilling. The Interior Department has also rescinded an Obama-era rule that would have added regulations for fracking of federal and tribal land and repealed all offshore drilling safety regulations that were put in place after the Deepwater Horizon spill. And only just last month, Congress opened the Arctic National Wildlife Refuge (ANWR) to oil and gas drilling as part of the tax overhaul.

The incredible speed at which these legislative changes have occurred has been aided by the appointment of political and industrial Trump allies in key environmental sectors. ProPublica and the Sabin Center have published a list of more than 400 officials that President Trump has appointed to agencies across the federal government. Of those, 57% lack expertise that would be directly relevant to the core missions of the department and agencies that they have joined. Most of them are recent college graduates with almost no work experience apart from involvement in the Trump campaign and other GOP campaign. The rest are made up of public relation professionals who, while having connection to the industries that are regulated and managed by the agencies, do not have any experience in regulating, governing or managing those industries. Of those appointed to the Environmental Protection Agency (EPA) only 1 of the 11 appointees have direct experience in environmental protection and regulation. Lack of relevant expertise relevant to energy policy and regulation is also a major issue in the Department of Energy (DOE) and the Department of Commerce where respectively, 61% and 68% were unprepared for the job. 

Just as alarming, more than 28% of Trump administration appointees to these environmental sectors have close ties to the fossil fuel industry, having been on the shareholders board of major oil companies; and several are registered lobbyists who have lobbied on behalf of the industries they would be regulating or managing. Some who are not registered as lobbyists have actually played a very similar roles as industry consultants. For instance, of those appointed to the Environmental Protection Agency (EPA) 64% have ties to the fossil fuel industry. Moreover, some appointees have emphatically denied or expressed strong doubt about the scientific consensus on human-induced Climate Change; others have also expressed ideological opposition to environmental regulation. Most of the appointees have exhibited ethical lapses and conflict of interest during their mandate, with most appointments already violating the administration’s own ethics rules. The Trump Administration is secretly issuing waivers to these rules. The revolving door of lobbyists and government officials into government buildings is not new in Washington, but the current Administration is more vulnerable to these conflicts of interest since, President Trump eliminated a critical ethics provision that prohibits lobbyists from joining the agencies they have lobbied in the past two years and, issued a provision to keep visitors logs secret, ending government transparency about those who may be trying to influence federal policy.

Donald Trump signing the controversial Energy Independence Executive Order at the Environmental Protection Agency (EPA) Headquarters in Washington, DC, March 28, 2017, with EPA Administrator, Scott Pruitt, and US Secretary of the Interior, Ryan Zinke.
 

Lastly, the new administration has inserted its anti-environmentalist agenda at the highest level: the judiciary. So far, President Trump has made two appointments to the Supreme Court: Neil Gorsuch and Brett Kavanaugh, both of whom are conservative, originalists, and will undoubtedly affect the balance of judgement of the court.  More importantly, the Trump Administration has been appointing a greater share of federal court judges than any first time President in forty years with more vacancies arising from elderly judges leaving their positions. Appointments to the lower federal courts matter because they hear most of the federal docket. Only 15% of cases move past a district court judges to the Circuit Courts and an even smaller fraction moves up to the Supreme Court. The cases that do move up are constrained by the proceeding of the district court where judges make the findings of facts and this has a substantial impact on the outcome of the case. 

To date, 111 of 879 authorised judgeships with lifetime appointments are vacant and 33 of them have been vacant for more than two years. President Trump’s picks have been so far whiter, more male and less qualified than at any other time in recent history. Of the fifty-eight people nominated to lifetime appointments, fifty-three are white, three are Asian-American, one is Hispanic, and one is African-American. For each appointment, the Trump administration has consulted a list of suggestions by the Federalist society and the Heritage Foundation, both of which are conservative partisan societies. Previously, appointments were reviewed by the non-partisan American Bar Association, but they are no longer consulted during the process. This makes the nominees more vulnerable to partisan politics, as recently witnessed with the highly controversial confirmation of Brett Kavanaugh as a judge of the Supreme Court.

However, it is extremely important to recognise three crucial concurring factors working against the current Administration’s best efforts to reverse the current environmental legal and policy framework. Moreover, depending on how well Democrat candidates do, their party could challenge the Republican legislative agenda in Congress, gaining new powers to investigate the Trump administration and then attempt to pass more federal laws that recognise climate change and try to stem its progress. For now, this holds small but crucial promise.

  1. President Trump, like Obama before him, has faced difficulties getting Congress to pass laws due to the highly partisan political environment. Thus, he has had to rely on other means like executive orders, regulatory decisions and executive agreements, both abroad and at home. This will be exasperated if the Democrats were to win a seat majority in Congress, most likely provoking numerous gridlocks on the most controversial environmental matters.
     
  2. Policies implemented through executive actions can be easily repealed through another executive action. But, since these regulations were issued with substantive criteria and procedural requirement specified by law; if the correct procedures and criteria are not followed these can be subject to legal challenges. 
     
  3. Most State governments and Energy sectors have looked at their best interest by shifting the action on themselves thus challenging federal action policy. State, Federal, and Administrative law on Energy and the Environment requires notification and review, and these are hard to reverse. Therefore, while the current ‘Climate Deregulation Plan’ puts the Administration squarely on the side the industry, most States -especially coastal States, more vulnerable to the effects of Climate Change- have opposed most of the Administration legislative changes. Even State governments that are led by Republicans -e.g. Governor Rick Scott of Florida- vehemently oppose loose environmental regulations and offshore drilling which could kill the thriving tourism and fishing industry.

 

While the Trump Administration can try to neutralise these factors by further gutting environmental agencies, installing more political appointees in key environmental sectors and by stacking the Courts with partisan judges, this will not likely change the underlying law, the bone of the current Environmental Legislation. The U.S. has a solid foundation of Democracy therefore, scrapping all notions of environmental protection has proven impossible given the resistance from the other branches of Government.  For now, the Check and Balances in place in the U.S. Constitutional framework have averted the worst tendencies of this administration. Hopefully, the midterms will redress the current imbalance restoring some of the environmental policies eliminated during the last 22 months of the presidency. Given that, according to the IPCC, we will only have 12 years to steer our Climate System back on track. There is no time to lose. 

 

 

Valentina Dotto is a Ph.D. researcher in Law at Birmingham City University. Her research involves the study of the Public Trust Doctrine in the context of Environmental Law. She is also a member of the World Commission on Environmental Law (WCEL). 

Cover Image: James Marvin Phelps