April 12, 2017

Executive Order Reshapes Climate Policies

President Trump signed an Executive Order on Promoting Energy Independence and Economic Growth, Mar. 28, at the Environmental Protection Agency (EPA) headquarters surrounded by roughly a dozen coal executives and miners. Welcoming his visitors, EPA Administrator Scott Pruitt stated, “We’re no longer going to have a regulatory assault on any given sector of our economy. That’s going to end by the signing of this executive order.”

Touted by White House spokesperson Sean Spicer as “protecting the environment and promoting [the] economy,” the order seeks to “promote clean and safe development of our Nation’s vast energy resources, while at the same time avoiding regulatory burdens which unnecessarily encumber energy production, constrain economic growth, and prevent job creation.”

It directly, and immediately, revokes Obama administration executive orders and memoranda on national security and climate change preparedness as well as guidelines for landscape-level conservation and mitigating environmental impacts. In seven sections, it spells out a sharply pro-fossil fuel energy policy and the broad review, rescission, and reform of programs and regulations that might impede production of electricity from coal, natural gas, nuclear material, flowing water, and other domestic sources, including renewable sources.

The order establishes a 180-day timetable for agency heads to draft a final report detailing specific recommendations that could alleviate or eliminate burdens of agency actions on domestic energy production. It propagated quickly through the EPA and Department of the Interior. An Internet outcry ensued when the Bureau of Land Management (BLM) changed its homepage banner image from hikers in a grassy landscape to an open coal seam on Mar. 31. The BLM banner image changed again on Apr. 8 to a fly fisherman on an open river, as part of planned weekly rotation.

More substantive responses came from both Interior and EPA. Interior Secretary Ryan Zinke issued an order on Mar. 29, following the White House lead, ending the federal coal leasing moratorium. It also targets reexamination of Interior mitigation policies and practices in balance with energy independence and job creation. EPA Administrator Pruitt, in a letter to state governments, reminded them that a Supreme Court order staying the Clean Power Plan relieved states of spending obligations relating to compliance. This reminder was seen by many as political positioning by Pruitt. Days later, on Apr. 4, he named a prominent Clean Power Plan opponent, attorney Samantha Dravis, to lead the agency’s deregulation taskforce.

Internationally, the executive order effectively removed climate change from discussion at last week’s Mar-a-Lago US-China summit, in stark contrast to each of the last four meetings of Presidents Obama and Xi, which featured announcements about important international climate initiatives. The sharp US pivot on climate policy leaves China as the international leader on climate change, a point emphasized by President Xi previously at January’s World Economic Forum in Davos, Switzerland.

The question, however, of the US withdrawing from the Paris Agreement on climate change is unclear. Though promises to withdraw were prominently featured in President Trump’s campaign, many administration allies and industry interests are suggesting a go-slow approach. Congressional opposition to the Paris deal has softened. Senators Jim Inhofe (R-OK) and Bob Corker (R-TN) have expressed less urgency for the US to exit the Agreement given that the new administration’s climate and energy policies preclude the US from implementing domestic policy to achieve the goals of the Agreement. Representative Kevin Cramer (R-ND), a leading ally of the president, sent a “Dear Colleague” letter to him proposing conditions related to US fossil fuels for continuing US engagement in the Agreement.

Coal interests, such as Cloud Peak Energy and Peabody Energy, have been encouraging the White House to remain in the Paris Agreement in order to advocate for coal use in future world energy markets.

However, others underscored a hard line. “The entire administration budget proposal was a pretty big middle finger to the idea of Paris, the [Green Climate Fund], etc.,” said Mike McKenna, a member of President Trump’s Energy Department transition team, in comments to E&E News. He characterized seeking carve-outs for fossil fuels in the Agreement as “a smokescreen to keep people from talking about the uncomfortable fact that the president explicitly promised to exit Paris. Repeatedly.”

The administration is expected to decide on whether to remain in the Paris Agreement by late May, in time for the Group of Seven meetings, May 26 – 27 in Taormina, Sicily.

EPA Budget

Targeted for a 31 percent budget cut and staff cuts up to 25 percent, the Environmental Protection Agency (EPA) is being dramatically reorganized and reshaped. The agency has been ordered to revoke, review, rescind, and revise fundamental energy and climate regulation.

Plans circulating in the press for weeks call for scrapping as many as 56 EPA programs, including pesticide safety, water runoff control, environmental education, and international environmental cooperation. EPA’s Office of Research and Development, responsible for most of the agency’s science work, would receive $250 million less than the current $488 million, down 51 percent, in the administration budget blueprint.

Jonathan Adler, of Case Western Reserve University School of Law in Cleveland, OH, warns that drastically reducing EPA’s budget would undercut the Trump administration’s efforts to overhaul environmental policy. Reorganizing programs, as the administration proposes, requires staff and resources. “If you cut an agency too much, all you’ve really done is hand the agency’s priorities over to the courts and litigants,” Adler observed.

Fiscal Year 2017 Budget Faces April 28 Deadline

Congress has yet to pass 11 of the 12 appropriations bills required to fund the federal government. A stop-gap “continuing resolution,” maintaining spending at previous fiscal year levels, was passed in Dec. 2016, extending funding through Apr. 28, 2017. The Senate returns from a spring recess on Apr. 21, the House on Apr. 25. Congressional leadership is united in a distaste for a government shutdown and is projecting swift passage of the remaining 11 appropriations bills.

Agencies without an enacted appropriation bill by that Apr. 28 legislative deadline would need Congress to pass a 5-month continuing resolution to fund agencies for the rest of fiscal year 2017 (FY17). Omnibus continuing resolutions, as might be required in this case, tend to inspire mistrust from conservative Republicans and liberal Democrats alike. Conservative House Republicans often break with mainstream party strategies, derailing attempts for Republican-majority block votes. Representative Mark Meadows (R-NC), chairman of the conservative House Freedom Caucus, observed, “There should not be a shutdown clock because no one is talking about it.”

Democratic votes, however, will almost certainly be needed to pass any FY17 budget agreement. House Democratic Whip Steny Hoyer (R-MD) is calling on Republicans to offer clean legislation, free of any contentious riders or poison pills such as border wall funding or additional domestic cuts recently proposed by the White House. Representative Tom Cole (R-OK), a senior appropriator, called for a bipartisan bill that could win Democratic votes.

Senate Minority Leader Chuck Schumer (D-NY) hinted at a possible Democratic filibuster for a spending package that includes funds for building a border wall. Senate Interior and Environment Appropriations Subcommittee Ranking Member Tom Udall (D-NM) also pointed to concerns about EPA funding levels and unresolved policy issues related to the budget as a sticking point to its passage.

Representative Morgan Griffith (R-VA), Freedom Caucus fiscal leader, commented that “it would be tough” to support a budget deal without additional defense and border wall funding, adding that no one was working toward a shutdown, but “Sometimes you are left with no choice.”

House Targets EPA’s Use of Science

The House of Representatives, led by the Science, Space, and Technology Committee Chairman Lamar Smith (R-TX), advanced two legislative efforts targeting the Environmental Protection Agency (EPA) and its use of science. The “Honest and Open New EPA Science Treatment (HONEST) Act,” H.R.1430, passed the House on March 29, and the “EPA Science Advisory Board Reform Act of 2017,” H.R.1431, passed on March 30. ESA joined with other scientific societies in opposing the HONEST Act.

Both bills are reintroduced versions of measures that were paired together and passed the House in previous years. H.R.1431, introduced by Science Committee Vice Chairman Frank Lucas (R-OK), targets EPA’s Science Advisory Board (SAB), the group established in 1978 that provides outside scientific advice to the EPA administrator and reviews EPA’s scientific research and information. The Board’s almost 50 members hail primarily from academia. The bill would overhaul membership requirements of the SAB by requiring that 10 percent of its members come from state, local, or tribal governments and would also allow industry representatives to serve on the SAB. Additionally, it would exclude from Board membership researchers receiving EPA grants.

The HONEST Act, which has previously been introduced by Representative Lamar Smith as the “Secret Science Reform Act,” targets the EPA’s use of science by requiring that any science used to inform agency regulations be transparent and reproducible. While Rep. Smith claims that “this legislation ensures that sound science is the basis for EPA decisions and regulatory actions,” critics warn that the bill would limit EPA’s ability to rely on important scientific research and would make it easier for industry to bring lawsuits against new rules. Under the HONEST Act, the EPA could only use studies with data that is publicly available online – a requirement that would limit the research eligible for agency use – or would have to make the data available themselves – a requirement that would be both time- and cost-intensive for the EPA. Personally identifiable and confidential business information would be excluded from the data requirement.

Science, Space, and Technology Committee Ranking Member Eddie Bernice Johnson (D-TX) strongly opposed the HONEST Act: “If Republicans don’t want to be labelled as flat-earth science haters, I think they would want to listen to what scientists say instead of lecturing them about things they don’t understand. In reality this bill isn’t about science. It’s about undermining public health and the environment. That is why a host of public health and environmental groups are actively opposing the bill.”

The projected cost to the EPA of implementing the legislation is another source of disagreement over the HONEST Act. In 2015, when Rep. Smith introduced the previous “Secret Science Reform Act,” the Congressional Budget Office (CBO) analysis found the cost estimate, or score, of the measure to be $250 million annually for the first several years. However, the CBO analysis for this version of the legislation used a different approach to projecting the estimated cost. By ignoring studies that do not already comply with the transparency requirement of the bill, an approach that would significantly limit the amount of research available for EPA use, this year’s analysis estimates a cost of $5 million over 5 years. It acknowledges potential annual costs of $100 million if the agency were to continue relying on the same number of scientific studies as it has in recent years, but places the $1 million annual cost as the most likely outcome.

Following the release of this analysis, a report by Bloomberg BNA revealed that this cost estimate did not take into account analysis from EPA staff because EPA leadership never sent staff comments on the costs and burden of implementing the legislation to the CBO. Instead, leadership claimed that there would be no burden at all on the agency. In response to this report, Senator Tom Carper (D-DE), ranking member of the Senate Environment and Public Works Committee, sent a letter to EPA Administrator Scott Pruitt requesting all EPA records related to the cost analysis of the bill.

The HONEST Act and the EPA Science Advisory Board Reform Act have now gone to the Senate. In the last Congress, veto threats from President Obama’s administration prevented passage of similar measures. It remains to be seen whether they will be able to receive the 60 votes necessary to pass in the Senate before being signed into law by the president.

Quick Reads

ESA and Multisociety Letters on Appropriations
Now that the federal appropriations process for FY 2018 is underway, ESA is submitting funding requests for agencies and programs relevant to ESA members. So far, letters and testimony have been sent to Congress requesting robust funding for NSF, USGS, and USDA programs, and others are in progress. In addition, ESA is signing on to several joint letters. View the letters on the ESA Correspondence to Policymakers page, which will be updated as letters are completed. For more information on the appropriations process and certain agency budgets, check out ESA’s Federal Budget Tracker for FY 2018.

March for Science
The March for Science will take place in Washington, DC, with satellite marches in cities around the world, on April 22. ESA has joined many other organizations and scientific societies in supporting the mission of the March to publicly communicate science as a pillar of human freedom and prosperity. If you have not already done so, read ESA’s announcement, and RSVP if you plan on participating in the March for Science in DC or another city.

NSF Directorate and Office Advisory Committees Membership Recommendations
The National Science Foundation is requesting recommendations for membership on its scientific and technical federal advisory committees, including the Advisory Committee for Biological Sciences. These external advisory committees provide advice on program management, discuss current issues, and review and provide advice on the impact of policies, programs, and activities of the directorate or office of NSF.

Lacey Act Ruling Allows Transportation within the Continental US for Injurious Species
In a unanimous ruling, the U.S. Court of Appeals for the District of Columbia Circuit affirmed a lower-court decision that, as a matter of law, the Lacey Act does not prohibit transportation and commerce of species listed as injurious between the continental states. The U.S. Fish and Wildlife Service (USFWS) can no longer restrict the commerce and transportation of species listed as injurious within the 49 continental states (excluding the District of Columbia). The lawsuit was brought by United States Reptile Keepers Association against the Department of the Interior and USFWS. Along with reptile keepers, the aquaculture industry will now be able to expand its trade across state lines. Whether the ruling will be appealed to the Supreme Court is uncertain.

House Science Committee Chairman Challenges Consensus Climate Science
The House Committee on Science, Space, and Technology held a full committee hearing on March 29 titled “Climate Science: Assumptions, Policy Implications, and the Scientific Method,” during which Rep. Lamar Smith (R-TX), committee chairman, questioned the validity of climate science and the scientific consensus on climate change. Scientists testifying included three majority witnesses –Judith Curry, John Christy, and Roger Pielke Jr. – and one minority witness, Michael Mann. The charged, and frequently contentious, hearing fits with the committee’s recent pattern of questioning the validity of certain scientific research and of devoting congressional attention to the scientific process and scientific data.

CEQ Withdraws Agency Guidance on Emissions and Climate Change
The White House Council on Environmental Quality (CEQ) has withdrawn its guidance for federal agencies on “Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews.” This withdrawal for further consideration complies with the president’s executive order from March 28, “Promoting Energy Independence and Economic Growth.”

EPA Shuts Down Climate Adaptation Program
The Environmental Protection Agency has begun to move away from climate change work, shutting down a program that worked on adaptation to climate change. The four staffers who worked on the adaptation team have been reassigned within the EPA Office of Policy.

Congressional Updates

Climate Solutions Caucus Adds New Members
The bipartisan House Climate Solutions Caucus has added new members, bringing the total membership to 34, evenly split between Democrats and Republicans. The latest members of the caucus are Rep. Tom Reed (R-NY) and Rep. Anna Eshoo (D-CA). Rep. Carlos Curbelo (R-FL), co-chair of the caucus, issued a press release on the ten newest members.

Senate Democrats Ask Pruitt for Explanation
Following the release of the president’s executive order, 11 Senators sent a letter to EPA Administrator Scott Pruitt asking for answers on how EPA intends to comply with the executive order’s requirement that the agency review and consider rescinding or revising the Clean Water Rule. The letter raises concerns about the negative consequences of implementing the rule and asks Pruitt for clarification on how EPA will ensure water quality if it reverses the rule. ESA joined other scientific societies in supporting the Clean Water Rule.

Legislative Updates

Congressional Review Act Resolutions Become Law

Two joint resolutions passed by Congress in March have been signed by the president, undoing the Obama-era regulations they target. H.J.Res.57, disapproving a Department of Education rule relating to accountability and state plans under the Elementary and Secondary Education Act of 1965, was enacted on March 27. H.J.Res.69, disapproving a Fish and Wildlife Service rule limiting how certain wildlife could be killed on national wildlife refuges in Alaska, was signed on April 3. These joint resolutions were part of Congress’s push to use the Congressional Review Act to reverse Obama-era regulations with a simple majority.

Congress Passes Weather Forecasting Bill

On April 4, Congress passed the bipartisan Weather Research and Forecasting Innovation Act of 2017, H.R.353, a bill designed to improve NOAA’s weather research and support improvements in weather forecasting and prediction of high-impact weather events. The bill was introduced in the House by Rep. Frank Lucas (R-OK), with an identical Senate version sponsored by Sen. John Thune (R-SD).

Legislation Introduced in the Senate

  • Save Our Seas (SOS) Act of 2017 (S.756). Introduced March 29 by Sen. Dan Sullivan (R-AK), this bill would reauthorize and amend the Marine Debris Act to promote international action to reduce marine debris.
  • Clean Air, Healthy Kids Act (S.767). Introduced March 29 by Sen. Michael Bennet (D-CO), this bill would provide that the Executive Order entitled “Promoting Energy Independence and Economic Growth” and signed on March 28, 2017, shall have no force or effect.
  • S.826. Introduced April 4 by Sen. John Barrasso (R-WY), this bill would reauthorize the Partners for Fish and Wildlife Program and certain wildlife conservation funds and establish prize competitions relating to the prevention of wildlife poaching and trafficking, wildlife conservation, the management of invasive species, and the protection of endangered species.
  • S.896. Introduced April 7 by Sen. Richard Burr (R-NC), this bill would permanently reauthorize the Land and Water Conservation Fund.

Legislation Introduced in the House

  • H.R.1716. Introduced March 23 by Rep. Nydia Velazquez (D-NY), this bill would prohibit any hiring freeze from affecting the Environmental Protection Agency.
  • Stop Arctic Ocean Drilling Act of 2017 (H.R.1784). Introduced March 29 by Rep. Jared Huffman (D-CA), this bill would prohibit drilling in the Arctic Ocean.
  • Congressional Leadership In Mitigating Administration Threats to the Earth (CLIMATE) Act (H.R.1812). Introduced March 30 by Rep. Bradley Scott Schneider (D-IL), this bill would provide that the Executive Order entitled “Promoting Energy Independence and Economic Growth” (March 28, 2017), shall have no force or effect and prohibit the use of federal funds to enforce the Executive Order.
  • Udall-Eisenhower Arctic Wilderness Act (H.R.1889). Introduced April 4 by Rep. Jared Huffman (D-CA), this bill would preserve the Arctic coastal plain of the Arctic National Wildlife Refuge, Alaska, as wilderness in recognition of its extraordinary natural ecosystems and for the permanent good of present and future generations of Americans.
  • Great Lakes and Fresh Water Algal Bloom Information Act (H.R.1893). Introduced April 4 by Rep. Robert Latta (R-OH), this bill would require the administrator of NOAA to create an electronic database of research and information on the causes of, and corrective actions being taken with regard to, algal blooms in the Great Lakes, their tributaries, and other surface fresh waters.

From the Federal Register

Public Meetings:

DOE – Biological and Environmental Research Advisory Committee (April 20-21)

NOAA – Office of Oceanic and Atmospheric Research (OAR) Science Advisory Board (April 24-25)

Opportunities for Public Comment and Recommendations:

Bureau of Land Management – Nominations for Resource Advisory Councils
Request for public nominations by May 30 for the BLM Resource Advisory Councils that have members whose terms are scheduled to expire. RACs provide advice and recommendations to the BLM on land use planning and management.

Fish and Wildlife Service – Proposed Rule on Threatened Species Status for Yellow Lance
Proposal to list the yellow lance as a threatened species under the Endangered Species Act and request for comments by June 5.