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The View From The Pacific Northwest: What to Watch in Environmental Law and Policy Post-Inauguration, Part 1

Posted in Clean Air Act, Clean Energy, Cleanup & Superfund, Climate Change, Emerging Policy, Legislation, Natural Resources and Environment, Regulatory

On Friday morning, I boarded a plane in Chicago and by the time I touched down in Seattle, Trump had been sworn into office. We’ve received a number of questions from clients and friends asking us how the regime change will impact environmental law and policy in the Pacific Northwest. The quick answer is one that recognizes that state-level politics (which drives much of the environmental policy in Washington) has not changed in the seismic manner that federal politics have with this election. And, at federal agencies, while we are already seeing leadership changes (for instance, Dennis McLerran is no longer the head of Region 10), the staff of those agencies will not dramatically change—so the people that have made day-to-day decisions across multiple administrations will still be doing so.

But, Trump certainly considers himself a man of action, and took a number of symbolic steps immediately. His nominee to run EPA, Scott Pruitt, has campaigned against EPA’s major policies on climate change as the Attorney General of Oklahoma, and Trump’s stance on energy is dramatically different than Obama’s was. So, what are the key issues to watch if you follow environmental law and policy in the Pacific Northwest?

Over the next three days, I will share my thoughts on three areas of environmental law and policy: carbon regulation and climate policy, tribal relations, and cleanup of sediment sites in the Pacific Northwest. If, at any point you think of issues that you would like addressed or analyzed, please feel free to leave a comment below, or send me an email.

Carbon Regulation and Climate Policy
Governor Inslee’s administration (and the people of Washington) have been very active on the carbon front. Last September, Washington’s Department of Ecology promulgated the Clean Air Rule, placing limits that decline over time on businesses that emit 100,000 metric tons of carbon dioxide or more annually. Last November, a ballot initiative that would have resulted in the first carbon emission tax in the United States was defeated. The Washington Environmental Council is working on a legislative proposal to do the same—and likely will push to put the proposal on the ballot if it is not passed by Washington’s legislature this session. Governor Inslee proposed taxing carbon emissions as a way to fund the large budget gap associated with the McCleary decision by the State Supreme Court.

How does the Trump Administration fit into all of this? First, the Clean Power Plan is in jeopardy, although as I wrote when that plan was proposed, it likely would not have impacted carbon emissions in Washington State because the mandated reductions under the plan would be met by the already-planned phase-out of the TransAlta coal-fired power plant. The biggest impact on Washington’s efforts to regulate carbon at the state level may be Scott Pruitt’s actions at EPA if he is confirmed. His confirmation hearing last week provided a bit of insight into how he may address those state-level efforts. Maggie Koerth-Baker posted a good analysis at FiveThirtyEight of Scott Pruitt’s confirmation hearing testimony.

To summarize, Pruitt stated he believes in climate change, and that human activities contribute “in some manner,” and that EPA does have a role in addressing climate change. He made statements that he is a big believer of state rights, although Pruitt did not make firm statements on whether states should be able to adopt more stringent regulations (like Washington would be doing with respect to a carbon tax) than federal regulations. One hint of Pruitt’s thinking was that he did not promise that California’s annual waiver under the Clean Air Act granted by EPA that allows it to promulgate more stringent vehicle emission standards would be renewed (it wasn’t in the waning days of the George W. Bush administration). Frankly, given the importance of climate change as a wedge issue in the past election, and Trump’s promise to be an active president, it could be that we’ll see moves to “occupy the field” with respect to carbon regulation, shutting states out of the mix and preempting efforts like those undertaken by Governor Inslee over the past few years. If that happens, expect that such actions will be sorted out in a courtroom.

So, certainly stay tuned—there is much to still come on this issue.

Tomorrow I will look at how Trump’s policy shifts may impact one of the most important considerations in environmental law and policy in the Pacific Northwest and how Washington and the federal government address obligations under long-standing treaties with numerous Native American tribes.

 

  • This administration’s most lasting legacy may be its choice of nominees and appointees to the Federal judiciary. Although no nominations have yet been announced to district courts in the Northwest nor to the Ninth Circuit, the nomination of Damien Schiff of Pacific Legal Foundation to US Court of Federal Claims may indicate this administration’s philosophy on environmental law?