The ominous climate change report the Trump administration released on Thanksgiving weekend could provide legal ammunition for states such as California, which are suing or threatening to sue the federal government over weakened regulations on fossil-fuel industries, automobiles and other contributors to a warming climate.
“Absolutely, we will use every bit of that report,” California Attorney General Xavier Becerra said Wednesday in Washington, where he appeared with acting Environmental Protection Agency administrator Andrew Wheeler.
In line with the administration’s position, Wheeler downplayed the report, known as the Fourth National Climate Assessment, saying it was launched during the Obama administration, assembled by career federal employees and did not reflect Trump’s economic priorities.
California has filed more than 20 environmental lawsuits against the Trump administration the last two years, joining other states in challenging rollbacks on methane emissions, hydraulic fracking and fuel efficiency standards for automobiles. More lawsuits are expected as the EPA finalizes rules to weaken the Clean Power Plan — an Obama-era rule aimed at reducing pollution from coal plants — and revoke California’s authority to set its own vehicle tailpipe standards.
Some of this litigation hinges on whether the EPA must regulate greenhouse gas emissions and protect public safety under the Clean Air Act. Following a landmark Supreme Court decision, the EPA in 2009 issued what is known as the “Endangerment Finding,” which requires the agency to take action to reduce emissions of carbon dioxide, methane and other heat-trapping gases. Trump’s EPA has not challenged that finding, meaning that it is obligated to comply.
David Hayes, a deputy Interior Secretary during the Obama and Clinton administrations, said the recent climate assessment details threats to public safety posed by climate change, which California and other states are sure to cite as they make their arguments in court.
“This provides more ammunition for lawsuits that are out there asking the EPA to take action,” said Hayes, who now heads the State Energy and Environmental Impact Center, which assists attorneys generals on environmental matters.
Jeff Holmstead, a Washington-based lawyer and assistant EPA administrator during the George W. Bush administration, said that litigants will no doubt cite the federal report.
But some of the ongoing litigation and policy making, he said, involves questions of whether the Obama administration exceeded its authority in setting regulations, such as the Clean Power Plan. The Trump administration is now modifying rules on those grounds, he said.
“This report won’t be relevant in those situations,” said Holmstead, a partner with the Bracewell law firm in D.C.
Becerra and the EPA’s Wheeler appeared separately Wednesday at an energy event organized by The Washington Post.
Both were asked about the federal climate assessment, which assembled a range of studies to forecast impacts of climate on different parts of the country, and under different scenarios of expected warming. Some of the most dire forecasts involved California and the Southwest, which could experience a tripling of large fires, heat wave fatalities and water shortages according to the report.
Wheeler said he believed that “man has an impact on climate,” as does carbon dioxide. He said that the president’s main concern was that media, citing the report, projected that climate change could significantly damage the nation’s economy.
Wheeler, a former industry lobbyist, added that he hadn’t read the report before it was released and made no effort to review it. “If we had intervened and made changes to the report we would have been accused of manipulating the scientific recommendations of the career staff,” he said.
Since releasing the climate assessment on Friday, the day after Thanksgiving, the Trump administration has worked to discredit its findings.
In a briefing Tuesday, White House Press Secretary Sarah Huckabee Sanders said the report, complied by 14 federal agencies, was “not based on facts.” Trump, in an interview with the Post later that day, said he doesn’t see impacts of climate change, and sees himself as part of a group of people with “very high levels of intelligence” who are non-believers in the reported science.
Becerra said he looks forward to using the report in litigation his office has filed against the administration, along with other attorneys general.
“In this particular case, the facts speak dramatically, and it comes out of his own shop,” said Becerra. “For him to not read the report, to ignore what it says, it just confirms what disturbs so many people about the Oval Office.”
Neither Becerra nor Wheeler gave any indication if the EPA and California are close to striking a deal on greenhouse gas emissions for automobile fleets.
The EPA and Department of Transportation want to roll back emissions requirements agreed upon by California and the EPA in the Obama administration. California has threatened to go with its own standards, prompting the Trump administration to threaten to revoke California’s authority to set pollution rules stronger than the federal government’s.
If the two sides can’t reach a settlement, it could lead to years of litigation. It could also force U.S. auto companies to make plans for two separate sets of automobiles — one for California and states that have adopted its rules, and one for the rest of the country.
Becerra said Wednesday he’s confident California will prevail in any litigation. But if the case ultimately reaches the Supreme Court, as many expect, the addition of Justice Brett Kavanaugh makes the outcome much less certain than when Justice Anthony Kennedy was the court’s swing vote.
“California and the Trump administration and auto companies all have an incentive to works something out,” said Holmstead, the former EPA official.
“The auto companies would like to have the certainty on a one-nation program. California doesn’t necessarily want to roll the dice with the courts...and the Trump administration wants something that is sensible for the auto industry. So I still think there is a decent chance we will see some kind of compromise.”