Donald Trump is set to assume the presidency on January 20, 2017. At Environmental Law Next we are taking a look at what that will mean for American environmental law. We will be providing our own perspective as well as directing our readers to the insights of others that are keeping an eye on what appears likely to be a distinctly new era in the field.
Mr. Trump indicated that he would diverge drastically from his predecessor’s approach to environmental protection. On the stump he promised time and again that he would significantly roll back environmental regulations, and even eliminate the EPA altogether.
It is unlikely Mr. Trump will be able to dump the EPA outright, even if he actually wants to. It would take an act of Congress and might be too much to stomach even for some Republicans. And unless the “nuclear option” is invoked in the Senate, the Democrats there will retain the ability to filibuster even a united Republican effort. Similarly, regulations on the books cannot just be erased with the stroke of a pen. But by substantially reducing enforcement activities and re-writing some key regulations, Mr. Trump could go a long way towards neutralizing the agency for the duration of his presidency.
What would a retreat of the federal government from this space mean for the environment? Certainly it would suffer, and probably not insignificantly. But a crippled EPA would not lead to a wholesale abandonment of environmental standards. Rather, meaningful environmental regulation would be transferred to the states – at least those states with progressive environmental agendas – and result in a patchwork of substantive standards and enforcement procedures. The authority is already there. Most states have been delegated the power to administer some of the major federal environmental regulatory regimes, such as Clean Air Act and Clean Water Act permitting, in addition to their own environmental protection laws. There are also citizen suit provisions in many statutes that allow environmental groups and others to compel compliance through the courts.
Regulatory gaps might also revive, to some extent, the role of tort law in controlling the degree to which industrial pollution is permitted to harm individuals. But the effectiveness of tort remedies for protecting common environmental resources – surface and ground waters, clean air and toxic-free land – is rather limited. Tort claims, which require proof of causation tied to specific damages, are ill-suited to combating complex, multiple-source environmental degradation. Acid rain, dangerous levels ground level ozone, and the pollution of major water bodies, for example, are typically caused by the collective emissions from hundreds or thousands of facilities; none of them on their own might be problematic or actionable in tort.
Even with the proper authority to intervene, courts lack the expertise to fashion efficient and effective environmental remedies. Most states rely on the EPA to determine proper technical requirements and health-based standards. Questions such as what is the acceptable level of lead in drinking water? How much particulate matter in the air is too much? And what are the proper procedures for cleaning up an oil spill? demand resources and experience to answer well. These questions are also inextricable from policy decisions more properly made by a political branch of government.
Moreover, tort law is generally reactive. There is often no cause of action until it is too late and the damage is done. No court order can revive an endangered species after it becomes extinct.
Mr. Trump claims he will bring a business friendly efficiency to environmental protection while also “ensuring clean air and clean, safe drinking water for all Americans.” Accomplishing both will require that EPA maintain its leading role.