Category Archives: Environment

Environmentalists’ fact-free case against Scott Pruitt

By David B. Rivkin Jr. and Andrew M. Grossman, in the National Review

January 18, 2017

Environmentalists know that they don’t like Scott Pruitt, the Oklahoma attorney general whom President-elect Donald Trump has tapped to lead the Environmental Protection Agency. But they don’t seem to know exactly why, based on the fact-free attacks being lobbed in his direction. Could it be that they’re simply mistaken?

Sure, Pruitt’s led the movement of states resisting the Obama-era EPA’s overreaches and challenging them in court. (In full disclosure, he brought us in to represent Oklahoma in its challenge to EPA carbon-emission rules.) But his point in those cases has always been that the EPA has to live within the limits of the law, including the constitutional prohibition on the federal government directing the states to do its bidding. So when EPA overstepped the line, Pruitt took it to court. A desire to see the agency follow the law isn’t exactly disqualifying for an EPA administrator.

It also doesn’t say much about how Pruitt regards the environment. He’s on record as arguing that conservatives should recognize the important role of the EPA in addressing pollution that flows across state lines, which is a uniquely federal problem. But that, he’s said, should be the EPA’s focus. Echoing the Clean Air Act itself, Pruitt’s view is that most pollution is the primary responsibility of states and local governments. Only they can understand and act on the trade-offs involved in environmental protection and have the flexibility to take into account local needs, rather than impose one-size-fits-all nationwide rules.

On that score, Pruitt has practiced what he preached. When Pruitt entered office in 2011, one of the most serious environmental problems facing Oklahoma was poultry runoff, mostly from Arkansas farms, fouling the waters of the Illinois River and Lake Tenkiller in the eastern part of the state. Oklahoma had brought a federal lawsuit against 14 poultry producers in 2005, and it took nearly five years for the case to be teed up for a decision, in 2010.

After waiting two more years for the court to act, Pruitt decided to take matters into his own hands and negotiate a solution directly with Arkansas. The states commissioned Baylor University researchers to study Oklahoma’s water-quality standards and worked together to reduce runoff through increased waste treatment and disposing of poultry waste outside of the river basin.

J. D. Strong, the former head of the Oklahoma Water Resources Board, specifically credits Pruitt with getting all the responsible parties “around the table” to make progress. During Pruitt’s tenure, Strong told Energy & Environment News, the state “made great strides when it comes to actual efforts to clean up scenic rivers in Oklahoma.”

Today, Lake Tenkiller has reclaimed its position as the “emerald jewel in Oklahoma’s crown of lakes” and is popular for fishing and watersports — a result that Pruitt, an avid fly-fisherman, has touted as a point of pride. Meanwhile, the federal court still hasn’t ruled on Oklahoma’s pollution lawsuit.

Pruitt’s record shows that he’s also serious about law enforcement, a core function of the EPA. Some environmentalists have tarred Pruitt as being in the pocket of the energy industry, but energy companies such as BP and ConocoPhillips that he has sued might have a different view of things. The state of Oklahoma accused those companies and others of “double-dipping” by billing the state for environmental-cleanup expenses for underground tanks that had already been paid for by insurance. One of those lawsuits was settled this past June, netting the state $2.8 million.

Pruitt’s record shows that he’s also serious about law enforcement, a core function of the EPA. The other talking point of Pruitt’s opponents is that he’s a climate change “denier,” but they never seem to be able to pin down anything he’s said or written denying the phenomenon — which is notable, given his leadership in opposing the Obama EPA’s climate-change regulations and many opportunities to express that view. What he has said is that “scientists continue to disagree about the degree and extent of global warming and its connection to the actions of mankind.”

That same view is shared by the United Nations Intergovernmental Panel on Climate Change, which has acknowledged that future climate changes “cannot be precisely predicted” and that the mechanisms of climate change “are not yet completely understood.” Even the Obama EPA recognizes that scientists are still researching “how much Earth will warm, how quickly it will warm, and what the consequences of the warming will be.”

If Pruitt is asked at his confirmation hearing whether he believes in climate change resulting from human activity, we know that he’ll respond in the affirmative, based on his understanding of the science. But to his opponents, he’ll still be a “denier,” just because he opposes an unlawful and enormously expensive regulatory program that the EPA’s own model says won’t have any measurable impact on the climate. So much for following the science.

We suspect that environmentalists oppose Scott Pruitt not because of his views on the environment. Instead, they know that he’ll focus on the EPA’s nuts-and-bolts missions of enforcing the law and policing interstate pollution, while forgoing the grand, expensive, and often pointless gestures that have been the EPA’s hallmark under the current administration. That’s their problem.

But, for the rest of us, Pruitt will be a welcome breath of fresh air.

David B. Rivkin Jr., and Andrew Grossman practice appellate and constitutional law in Washington, D.C.

Source: http://www.nationalreview.com/article/443958/scott-pruitt-trump-epa-climate-change

Obama’s empty climate agreement

Paris is Copenhagen all over again — more presidential climate change grandstanding without concrete results.

By DAVID B. RIVKIN JR. & ANDREW M. GROSSMAN, 10 December 2015 in USA Today

The world is watching as diplomats in Paris hammer out the final details of a new climate agreement involving over 150 countries. The goal, said President Barack Obama, is “an agreement where … each nation has the confidence that other nations are meeting their commitments.”

But the world’s attention may be misplaced. There is no reason to believe that this agreement will conclude any differently from the last three, with nations reneging on commitments to drive down greenhouse gas emissions and to provide billions of dollars in foreign aid to finance reductions in the developing world.

That’s a big problem for the president: reciprocity has always been Congress’s chief concern when it comes to climate-related measures that threaten to drive up energy prices and sap the United States’ international competitiveness. The lack of binding commitments for developing nations like China and India is a big part of what killed consideration of one previous agreement, the Kyoto Protocol, in the Senate. And that, as well as general opposition to new greenhouse emissions regulations by congressional Republicans, presages the same result in Congress this time around.

Despite the messaging coming from the White House, as a legal matter, the president actually does need Congress’s support to complete any kind of meaningful deal. That legal reality is having serious consequences in Paris, where U.S. participation in the final deal is an overriding imperative. For one, it rules out any firm financial commitments. The Constitution, after all, assigns the power of the purse to Congress, and so the president cannot, on his own, set the U.S. foreign aid budget for years into the future.

Likewise, the president cannot unilaterally commit the US to binding emission-reduction targets. The Senate and executive branch have both understood for years that any “targets and timetables” for emissions must be put to a ratification vote. When the Senate ratified the United Nations Framework Convention on Climate Change in 1992, it extracted a promise from the George H.W. Bush administration to that effect. And when President Bill Clinton signed the Kyoto Protocol in 1997, it was failure to secure Senate ratification that blocked the U.S. from becoming a party and stopped it from becoming binding under U.S. law. In foreign-affairs law, these are extraordinarily strong precedent for the proposition that any binding reductions must be put to Congress.

The Obama administration’s solution to these seemingly intractable problems is to structure the deal as what it calls a “hybrid agreement.” Under this approach, only measures dealing with emissions reporting would be binding on parties. The rest would constitute what diplomats call “political commitments” — in other words, empty promises that are not legally enforceable. In short, the agreement will contain little in the way of substance.

That is not, however, how it will be touted to the American people. The administration, having identified the Paris agreement as a key plank of the president’s “climate legacy,” has sent a gaggle of senior officials to the negotiations and launched an all-out publicity barrage. The chief focus so far has been on the agreement’s longwinded aspirational language, including the likely-to-be-declared long-term goal of “decarbonisation of the global economy over the course of this century.” But that, like the other “commitments,” will have all the legal force of a fortune cookie message.

For those participating in the Paris talks, there should be a sense of déjà vu. The negotiations over the 2009 Copenhagen Accord marked the Obama administration’s climate-diplomacy debut, and the United States played a lead role in drafting the deal. Its key provisions? Aid payments to to developing nations and “quantified economy-wide emissions targets.” President Obama called it “meaningful and unprecedented breakthrough.” Structured to avoid the need for ratification, the accord was not legally enforceable and quickly came to be viewed, on its own terms, as a complete failure.

One that the president appears determined to repeat in Paris.

David B. Rivkin, Jr., who served in Republican administrations, and Andrew M. Grossman, who previously worked at The Heritage Foundation, are attorneys at Baker & Hostetler. 

Source: http://www.usatoday.com/story/opinion/2015/12/10/paris-climate-change-constitution-treaty-column/76676732/

Obama Cynically Cut China Deal To Force Energy Price Hikes On U.S Consumers

Whiplash is an occupational risk for those keeping track of President Barack Obama’s muscular exertions of executive power. In just the few weeks since his party’s shellacking in the midterm elections, the president has made major moves on immigration, Internet regulation, and air pollution, just to name a few.

One problem with activist government is that too many actions that merit serious concern and skepticism fall by the wayside. Among them is the president’s announced climate deal with China, which hit front pages a week after the election before sliding into obscurity, overtaken by so many other events. But like the president’s immigration actions, this actually is something new, and more than a little sinister.

A Method to His Double-Dealing Madness

Taken at face value, the deal doesn’t make any sense—at least, not from the United States national-interest perspective. The United States agrees to costly massive cuts in greenhouse gas emissions: 26 to 28 percent below 2005 levels by 2025, far more than the 17-percent cut the president previously targeted. In return, China agrees to…do nothing for 16 years, until 2030. Its emissions won’t increase beyond their level that year, according to the agreement. While this might appear to be a concession, it really isn’t: although emissions are growing at a rapid clip in China today, most projections see them leveling off right around—you guessed it—2030. In other words, this may be the most one-sided deal since the Dutch purchased Manhattan.

But there is a method to what would otherwise seem to be pure madness. As the numbers suggest, the deal has just about nothing to do with China, which will go on its merry way building coal-fired plants to slake its thirst for cheap and secure energy. But it has everything to do with Americans’ continued reliance on coal-generated electricity.

Radically cutting U.S. greenhouse gas emissions has been a central goal for the president since taking office. The centerpiece of this drive was supposed to be a cap-and-trade system, but that was dead on arrival even when Democrats controlled Congress. So the Environmental Protection Agency (EPA) has been dutifully marching forward with a slew of politically-challenged and legally-questionable regulations, from its first wave of permitting requirements for new facilities emitting greenhouse gases (struck down in part by the Supreme Court) to its proposed “performance standards” for new power plants (withdrawn and then re-proposed following legal objections) to its recently-proposed “Clean Power Plan” to cap emissions from existing power plants (already the subject of litigation and withering criticism).

The China Deal Is Smoke and Mirrors

But unilateral action has its risks. If EPA stumbles at all in its roll-out of the Clean Power Plan, that could delay environmentalists’ goal of regulating existing plants for years, particularly if Obama’s successor doesn’t share his priorities. Even if the agency does meet its internal deadlines, there’s still no guarantee the next administration won’t roll back its plans.

This is where the China deal fits in. It provides political cover by creating the appearance—really, the false impression—that the United States isn’t alone in sacrificing economic growth to lower emissions and, in particular, that the president isn’t putting U.S. businesses at a competitive disadvantage to Chinese industry.

There’s also diplomatic cover, in that the next president will be at least hesitant to walk away from an international agreement, binding or not. Much diplomacy is conducted informally, and, all else being equal, nations and their leaders do well to keep their word.

And there’s a measure of legal cover. To be sure, an executive agreement like this one is not legally binding—a treaty, after all, has to be ratified by the Senate, which the president knows is politically impossible. But the courts are generally more deferential to policy decisions that have foreign-policy consequences, given the president’s unique competence and authority in that area. Expect our bilateral “obligations” to China to occupy a place of prominence in legal briefs defending the Clean Power Plan, which is conveniently referenced in the U.S.-China executive agreement, from the legal challenges that are sure to follow its introduction.

Will the Courts Care?

Savvy as it may be, the China deal is also remarkably cynical and has the air of being too-clever-by-half. Lacking the power to simply change domestic laws—well, at least until recently—President Obama is attempting a partial end-run through the exercise of his potent but carefully circumscribed foreign-policy powers. There’s absolutely no reason the deal had to be with China; the Seychelles or Tonga would have worked just as well.

This treads a bit too close to Justice Scalia’s concern, expressed in a treaty-power decision last year, that the Obama administration’s position was a recipe for circumventing the Constitution’s limitations on federal power. Under an unbounded treaty power, he explained, “negotiating a treaty with Latvia providing that neither sovereign would permit the carrying of guns near schools” would be sufficient to resuscitate the statute prohibiting the carrying of firearms near schools that the Courtpreviously struck down for exceeding Congress’s enumerated powers. Notably, at oral argument, Solicitor General Donald Verilli said it was simply “unimaginable” that the president or Congress would abuse foreign-policy powers to aggrandize their own authority in domestic affairs.

And yet. Remember when it was unimaginable that the president would act unilaterally to alter the legal status of millions of immigrants?

As with the president’s immigration actions, the creative repurposing of executive power that underlies the China deal will have unexpected consequences. If international agreements become just another tool of domestic policy, subject to reconsideration every four or eight years, will it diminish the standing of our word among nations? Or will it ossify U.S. domestic policy, as policy choices are taken off the table to comply with existing agreements?

The key question is whether Congress and the courts will recognize the China deal for what it is—a cynical exercise of bogus internationalism directed entirely at domestic affairs—and treat it accordingly.

Messers. Rivkin and Grossman practice law, with a particular focus on constitutional litigation, at BakerHostetler in Washington DC. Rivkin served at the Justice Department and the White House counsel’s office under presidents Reagan and George H.W. Bush.

Source: http://thefederalist.com/2014/12/03/obama-cynically-cut-china-deal-to-force-energy-price-hikes-on-u-s-consumers/