“There is no good news – nothing at all.” That’s the view of James R May, distinguished professor of law at Delaware Law School, when it comes to the US president Donald Trump’s record on environmental regulation.
Melodramatic? Certainly not from an environmentalist’s perspective. A recent New York Times analysis, based on research by Harvard Law School, Columbia Law School and other sources, identified 85 environmental rules and regulations that have either been overturned or are in the process of being rolled back. Some are very big-ticket items indeed.
So, what are some of the most egregious examples of regulatory rollback in the US? What is being done to fight back? And is there a danger than the UK could follow Trump’s lead post-Brexit?
When asked to identify particularly harmful changes, May initially sounds intimidated by the scale of the task. “It’s really hard to say which are the most concerning,” he says. “It’s not as if the administration is working along the margins – it’s gone after all of the core programmes in environmental law in the US. Reports have said there are 85, but there are dozens if not hundreds of other rules and regulations that will have an adverse impact on the environment.”
The highest profile retrograde environmental step has to be Trump’s decision to withdraw from the Paris Agreement on climate change. However, this does not change anything domestically in and of itself. There is no equivalent of the UK’s Climate Change Act in the US, so rowing back on efforts to lower carbon emissions involves taking an axe to multiple federal government programmes.
Every single rule that the Obama administration put into effect, the Trump administration has gone after. It’s crazy
For instance, the Trump administration is currently in the midst of weakening the Barack Obama-era Clean Power Plan, which would have required the biggest power stations in the country to reduce their carbon emissions. “It’s highly worrying because the legislation was targeting mercury pollution from coal that accumulates in fish and the people who eat the fish are exposed, women of childbearing age and their children in particular,” says Conrad Schneider, advocacy director at US-based NGO the Clean Air Task Force.
On a roll
Trump is also rolling back on energy efficiency rules for cars. Under rules brought in by Obama, cars would have had to become more efficient, with a 30% emission-reduction requirement by 2025. Historically, California had the worst levels of car pollution in the US and was granted additional powers by the federal government to go beyond federal standards to tackle the problem. Other states could either work with federal standards or adopt the California standard.
After Trump announced his changes, many states opted to go with the California standard, so in the autumn the Trump administration decided to repeal California’s ability to issue standards. It is a battle that is still ongoing. “He is trying to rollback California’s authority and cut off money on the basis that its air quality is too poor,” says Schneider. “On the one hand he is taking away the legal power to fight air pollution, but on the other he is penalising them for having poor air quality.”
Then there is the Clean Water Act, which regulates pollution and wetlands protection. May picks up the story. “The big issue is what is the definition of ‘a water’,” he says. “The Trump administration rolled back regulations so that really the only waters that are protected are waters that you can float a boat on. Any other waters aren’t regulated any longer.”
In an effort to open up federal land to exploration, the Trump administration also weakened the rules relating to the Arctic National Wildlife Refuge, which May says has been “closed to profligate mining forever”. He adds: “With one fell swoop the administration opened it up to oil and gas exploration.”
While many of the changes are the result of industry lobbying – privately owned coal companies were among the biggest Trump campaign doners – some can only be explained by Trump’s well-documented detestation of Obama. For instance, Obama put in rules promoting the use of compact fluorescent light bulbs.
“The Trump administration reversed that and it wasn’t even as though the industry was pursuing it,” says May. “It wasn’t. There is no market for those old light bulbs – they’re are hard to find now. The administration hates everything and anything that the Obama administration did. Every single rule that the Obama administration put into effect, the Trump administration has gone after. It’s crazy.”
One crumb of comfort is that many of Trump’s efforts have been overturned by the federal courts. According to May, 65% of the rule changes have been successfully challenged so far. That is quite an astounding statistic when you consider that the overall loss rate for the Obama administration was 17%. “That 65% batting average is unlike any number for any administration ever,” says May.
Many of the cases are being brought by individual states – mostly, if not exclusively, coastal states controlled by the Democrats. “They’re doing it to protect state programmes, which are on the back of federal programmes,” says May. “The other reason is to protect the planet. The governor of California has said it has a moral responsibility to govern responsibly, no matter what the federal government is doing.”
However, the comfort available from the fact that so many of Trump’s changes are being overturned is limited. Under America’s cooperative federalism model, the federal government issues laws and rules and the states have responsibility for carrying them out. So, for the duration of a lawsuit, the federal rules and regulations – or lack of them – remain in effect. “A lot of damage can still be done while cases works their way through the courts,” says Nicole Ghio, senior fossil fuels programme manager at environmental group Friends of the Earth.
That said, there is still much that states can do to protect the environment and reduce carbon emissions. It also helps that many of the listed utilities companies in the US are voluntarily committing to substantial carbon emissions cuts. “States do have the discretion to enact stronger environmental laws,” says Schneider. “States are striking out on their own and showing leadership, but it is more difficult [without federal support].”
Ghio adds: “It creates disparities between the states. California is large enough that if we put standards in place, a large number of companies will follow our standards. But having different rules in different states is not effective and given the scale of the climate crisis we really do need a unified national response.”
Which level playing field?
So, it is clear that the Trump administration is doing its utmost to roll back environmental regulations in the US. But as the UK prepares to leave the EU, is there a danger our government will follow Trump’s lead? After all, most environmental law in the UK emanates from Brussels and Boris Johnson’s administration has set out its intention to diverge from European standards after Brexit.
“It’s a question that is reliant on who is leading the ship,” says Emily Lydgate, senior lecturer, at Sussex Law School, University of Sussex. “If we have an independent regulatory scheme there is certainly a lot more discretion for the UK government to change its environmental legislation, including weakening that legislation.”
In the event of a no-deal Brexit especially, it is also likely that the UK would seek a trade deal with the US and it would hardly be negotiating from a position of strength. “It’s true that the UK government is considering making a conscious decision to move away from a level playing field with the EU and towards a level playing field with the US,” says Viviane Gravey, lecturer at Queen’s University Belfast and co-chair of Brexit & Environment, a network of academic experts analysing how Brexit is affecting the environment.
Lydgate says the implications of a trade deal with the US are likely to be mixed. “In terms of environmental standards, actually the US is fairly progressive in its approach in trade agreements,” she says. “So, unlike the EU it includes enforceable commitments not to lower environmental protection in order to benefit trade and investment.”
However, Lydgate adds that an increase in US imports could damage the UK’s efforts when it comes to tackling carbon emissions. “The US is a large industrial country that isn’t participating [in the Paris Agreement] and doesn’t have a national internal carbon pricing mechanism,” she says. “That means that manufactured goods being exported have high embedded carbon, so there is an issue as to whether that could undermine the UK’s climate framework.”
Quite how serious the implications of a UK-US trade deal would be is not known, but Lydgate and Gravey have already spotted some troubling developments, not least divisions in the cabinet. “I am definitely concerned,” says Gravey. “Are we going to have a Singapore-style low-regulation model? Or will we have what Michael Gove was talking about around having this ambition for regulatory competition and a race to the top with Europe?”
For his part, Schneider puts it succinctly: “The bottom line is that Britain should not follow the Trump administration’s example. It’s bad for the citizens and it’s bad for the environment.”
Just 10 of the regulations Trump has rolled back
- The Trump administration has revoked climate change standards for federal infrastructure projects, such as roads and bridges, that were introduced by the Obama administration. It also reversed Obama policies aimed at mitigating the impact that federal projects have on natural resources or ideally leaving a net positive legacy.
- The administration jettisoned a directive for federal agencies to minimise impacts on natural resources when approving development projects. In addition, it revoked an Obama executive order that set a goal of cutting the federal government’s greenhouse gas emissions by 40% over 10 years.
- An Obama executive order promoting climate resilience in the northern Bering Sea region of Alaska has also been revoked. The result is that the area is now vulnerable to oil and gas exploration.
- The administration withdrew another Obama rule stipulating that climate change must be considered in managing natural resources in national parks. It also got rid of a planning system designed to minimise harm from oil and gas activity on sensitive landscapes, such as national parks.
- Trump’s team watered down a 2016 law mandating safety assessments for potentially toxic chemicals. It also dismissed a proposed ban on chlorpyrifos, a pesticide that has been linked to developmental issues in children.
- An Obama-era rule that required braking system upgrades for high hazard trains hauling flammable liquids was jettisoned.
- Protections for multiple tributaries and wetlands that were regulated under the Clean Water Act were also withdrawn.
- The administration revoked a rule preventing coal companies from dumping mining debris into local streams and jettisoned a proposed rule aimed at reducing pollution at sewage treatment plants.
- A planned new rule requiring groundwater protections for certain uranium mines was abandoned.
- The administration watered down federal rules regulating the disposal and storage of coal ash waste from power plants.