“If They Won’t Lead, We Will . . . “

Those were the defiant and recalcitrant words of California’s Attorney General, Xavier Becerra, this past week in response to President Trump’s signing of Executive Order rolling back the Obama EPA’s Clean Power Plan.  These words were music to my ears as I sat through Becerra’s keynote speech at the American Bar Association’s annual environmental meeting.  Not that I’m a supporter of Becerra or the Clean Power Plan, but I am an unapologetic supporter of our federalist system, which enables States to lead and chart their own course on important issues such as environmental protection.  In this case, despite Trump’s action to rescind the CPP, California will stay the course, accelerating its efforts to reduce carbon-emitting sources through a host of clean energy initiatives, including increasing reliance upon renewable fuels, such as wind and solar power.

This is as I predicted – that we will see many States assume a greater leadership role in response to the Trump Administration’s deregulatory policies.

Becerra’s fiery speech was followed by a more subdued panel discussion with Janet McCabe, Obama EPA’s air chief, Jim Connaughton, George W. Bush’s top environmental advisor, and Myron Ebell, Trump’s lead for EPA transition.  Ebell, Director of the environment and energy policy at the Competitive Enterprise Institute, is the architect behind dismantling Obama’s climate policies, and is no fan of the EPA.  However, even Ebell is in agreement with Becerra that States ought lead on energy and environmental policy, rather than be forced to comply with costly top-down edicts from Washington DC.  As an aside, I give credit to my friend, Seth Davis, Chair of ABA’s environmental section, for inviting Ebell to this year’s conference.  Needless to say, there were many who vehemently objected to Ebell’s participation.  Nonetheless, it was a respectful and exemplar dialogue on a politically very charged topic.  And I’m thankful he was included.

As the current disruption plays out in DC, it’s messy and, yes, a bit scary.  Change and uncertainty are really hard, particularly for institutions that have thrived on stability.  In the end, we’ll get through these uncertain times and I believe we’ll do so with a healthier federal-state balance that can lead to better and more sustainable environmental outcomes.

Environmental protection is baked into our DNA and it’s not going away – it will survive, and perhaps even prosper because of (or in spite of) this Administration.

Many are justifiably unsettled by the disruption of our venerable federal institutions.  Yet, if you haven’t read Jonathan Turley’s The Rise of The Fourth Branch of Government, I encourage you to do so.  It helps to explain, in part, the impetus behind this Administration’s effort to deconstruct the administrative state.  Turley is no Trump supporter, but rather is a liberal “rule of law” professor from George Washington University Law School who has expressed alarm at the rapidly growing and unresponsive federal bureaucracy.  I’m not suggesting that I agree with the Trump Administration’s current tactics, but I do believe the reasoning and rationale are sound.

While I have been critical of the proposed EPA budget cuts, but especially those impacting the States and their ability to carry out core environmental programs, I remain confident that from this disruption we will bear witness to greater capacity building at the State and local level.  Deregulation doesn’t necessarily mean less environmental protection.  To the contrary, there are many countervailing forces in effect and working their invisible magic that I believe will lead to more protection.  For example, in some corners, partisan politics is giving way to transpartisan discussions in areas where thoughtful liberals and conservatives are attempting to bridge the political divide.  States are preparing to take up the slack where the Feds may be taking a back seat, including such areas as enforcement.  Environmental and community groups are getting smarter and better organized – deploying big data and analytics to target pollution and polluters – and are amassing war chests to counter federal rollbacks and sue polluters – for a “let the courts decide” strategy.  And equally important, Corporate America remains resolutely committed to pursuing sustainable environmental outcomes, as evidenced by recent announcements by Apple and Walmart.

This is precisely the response we can and should expect, and the reason that those of us who care about these issues must not despair.  Our environmental ethic in this country is strong.

I’m quoted recently in a Mother Jones article “Scott Pruitt is a Nightmare – But Reagan’s EPA Boss Was Worse.”

“The idea that he will just slash and burn the agency, I think, is mistaken,” says Brent Fewell, a D.C. water lawyer and philosophical conservative who served in the number-two spot in the EPA’s Office of Water under George W. Bush. “It’s not that he hates the EPA. He hates overreach.” There are gray areas in the Clean Air and Water acts that the EPA has tried to fill in over time, and Fewell thinks Pruitt has a legitimate point that it’s sometimes gone too far.

 

Environmentalists tend to hear calls for state rights as code for fewer constraints on industry and more pollution. But Fewell says those outcomes aren’t inevitable. He’s optimistic about states assuming an expanded role in environmental protection. States already shoulder a lot of responsibility for implementing federal environmental regulations, but Fewell says the EPA tends to micromanage them, not giving them much freedom to devise their own methods of meeting clean air or water standards. That breeds resentment: “There’s a lot of fighting. I believe if the states are incentivized to be more creative, we could see more environmental protection.”

While EPA’s Pruitt has staked out his position, advocating for more robust and muscular State environmental programs as a reason for a smaller EPA, it will be difficult for the States to “pick up the slack” in the short run if deep cuts to federal funding are made.  While States are resilient and innovative and will find ways to solve their environmental problems with less federal money, make no mistake, it will be bumpy and rough going.

“Pro-jobs, pro-growth and pro-environment,” that’s the mantra we hear.  And I’m a true believer in that vision.  Drill Baby Drill, But Responsibly And Sustainably.  Lest we forget, it’s because of a strong economy that we have a healthy and clean environment – we can afford it.  But so far, the drum beating for more jobs and growth has overshadowed and drowned out the pro-environment part of that equation.  Along these lines, unless we start seeing more pro-environment action by this Administration, it’s only a matter of time before people begin to feel duped and conclude that this was only lip service – smoke and mirrors.

So my plea, Mr. President, I know it’s only  been a few months, but between E.O.’s on immigration, energy, and reorganizing government, please just throw us a bone on the environment – we’ll take anything you got.  Just give us something as a sign of good will that you do care about the environment.

If we are to maintain our high standard of living and clean environment, EPA must remain relevant and a force for good.  Sure, we can live with a smaller EPA, but it must remain an equalizer and umpire ensuring a level playing field, calling strikes and foul balls when appropriate.  And with respect to the 800 pound climate gorilla in the room, my hope is the U.S. remains a force for good on addressing the challenges and opportunities presented by climate change.  For the Feds to retreat and let States assume the mantel of leadership – without a shred of support – would in my humble opinion be a HUGE mistake and missed opportunity.  Such pressing issues require a strong collaborative between federal and state governments.  The fact that Trump has not retreated from the Paris Agreement nor challenged the agency’s endangerment finding is a sign that, at least for the time being, the Administration has not completely abandoned concerns over climate change.

Only time will tell whether I’ve been played the fool (or Fewell) or whether out of disruption will come better outcomes.

 

 

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