The staggering results of the 2016 election prompted headlines suggesting that Donald Trump , with the help of Republican Congress, would radically reverse Obama’s legacy of climate, energy and the environment. But what is the reality of this threat? The short answer is: the picture is much more complicated, and definitely less dark, than the titles suggest.
While Donald Trump could try to cancel several settlements, the process would be long, arduous and only partially successful. Moreover, any large-scale legislative attack on environmental laws will probably not succeed without a majority free from obstruction in the Senate, which the Republicans do not.
The analysis below is frank about the bad news (some of which are bad indeed), but also includes the best news about the substantial legal, policy and practice barriers a Trump-led regulatory redress would face.
The bad news by Donald Trump
It is possible for Donald Trump to withdraw unilaterally from the Paris Agreement on Climate Change. (It is not a treaty, it only requires the exercise of executive power). Even without formal withdrawal, it could abandon the United States ‘commitment and leadership of US needs little effort to reduce the greenhouse gas by considerable amount with up to 28 % by 2025
The best news Donald Trump
Donald Trump can not unilaterally abolish the EPA. Presidents do not have the power to abolish the agencies by a mandate from the executive. Donald Trump would need Congress to authorize him to do so. It is true that the EPA was created by a decree, but it was at a time when Congress had delegated to the President the power to reorganize the executive (within certain limits). This authorization has since expired. And since then, Congress has passed many environmental laws delegating broad powers to the EPA, requiring it to set standards of air and water pollution, among other things. These duties come from statutes and Trump can not eliminate them. Donald Trump could ask Congress to do it of course. It could also ask the Congress a skeletal agency budget to starve the EPA funds, but it can not zero the agency’s budgets on its own either. In reality, a president who wants to eliminate or “demolish” the EPA would need a majority of the House, 60 votes in the Senate and the ability to overcome vehement opposition from the environmental community and public health. It’s not going to happen.
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The fate of the clean energy plan in particular
The Court of Appeal of the Commercial Court is currently reviewing the legality of the Clean Power Plan. The Court could make a decision at any time, but given the complexity of the issues, it is unlikely to do so until December or January. If the Court did not decide the case before the inauguration of Donald Trump, it is possible that immediately afterwards Donald Trump’s new Ministry of Justice could ask the CoC not to decide on the matter and Refer the case back to the new Donald Trump EPA. If the Court were to grant that application, the new Donald Trump EPA could then quash and amend the rule.
If the DC Circuit has already decided the matter at the time Donald Trump takes office (or if the Court has not yet rendered its decision but rejects the request for removal) and the Court cancels the Clean Power Plan, Donald Trump Department of Justice May choose not to appeal, indicating that she wishes to leave her dead. However, all interveners in the state and the environment who participated in the litigation by the EPA will appeal. The Supreme Court would decide whether or not to grant the review.
A determined and united effort by Donald Trump and a Republican Congress could certainly bring a substantial blow to Obama’s legacy on climate, energy and the environment. Immediately, Trump could renounce US leadership on international climate negotiations, which would paralyze the Paris Accord. But any attempt to disentangle substantive and meaningful regulatory initiatives over the past eight years will be long, complicated and difficult – and ultimately only partial, because of the legal, political and practical barriers to such an approach.
There will be many turns and turns to come in the months and years to come, as this process takes place at the White House, Congress, agencies and courts. It is very likely that the country is considering a partial setback, but the reality is not as bad as the whole confusion suggests.