Climate law and Policy in a Changing Political Landscape


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Last Tuesday’s elections results left many in the Bren community with questions and concerns regarding the future of environmental law and policy.  In response to significant student interest, Bren environmental law professor, Jim Salzman, hosted an open class to address what a new presidential administration could mean for our climate and environmental policies.

The house was packed.

As news of Jim’s talk  spread across social media, requests for Jim’s comments and perspective began bubbling up from the larger Bren network, particularly from Bren alumni. And while Professor Salzman probably won’t be able to ring you up and personally “send over some reassurances” (as some have requested), he’s hoping this summary will do.

 

CHAPTER ONE: TAKE A DEEP BREATH.

“The first point I want to make is that people need to take a chill pill. In many respects, we have been here before. And there are two quick ways to think about that:

  1. ENVIRONMENTAL POLICY IS A PENDULUM
    Republican-Democratic “switching” in the White House goes back to 1950.  Eisenhower is there for eight years; Kennedy/Johnson for eight; Nixon for eight years; Carter, four years; Reagan/ Bush for twelve; Clinton for eight years; Bush, eight; Obama for eight”

    • GOP Eisenhower – 8 years
    • Dem Kennedy/ Johnson – 8 years
    • GOP Nixon – 8 years
    • Dem Carter- 4 years
    • GOP Reagan/ Bush – 12 years
    • Dem Clinton – 8 years
    • GOP Bush – 8 years
    • Dem Obama – 8 years

    “And so to a certain extent, it didn’t matter who was going to be running this year.  Given historical cycles, one would have expected that the party in power might flip.”

  2. WHEN OUR ADMINISTRATIONS CHANGE, SO DO OUR POLICIES
    “Now we may see some dramatic changes, but we have been here before.<Quick story- Reagan Administration, 1980> When I worked with the Department of Justice, Reagan came in with a very powerful anti-regulatory agenda.  He appointed someone to head the EPA who refused to implement Superfund. During this time, the EPA created something they literally called “the hit list,” which was a list of civil servants the political appointees they thought were too “pro-environment.” And over time these individuals were essentially phased out, assigned to broom closets and menial tasks where they had little influence. Environmental policy largely stalled during this period and environmental groups were on the defensive. When the H.W. Bush and Clinton administrations took charge, environmental policy moved forward again.

So it’s hard to know how the Trump administration will play out. But if you look at the course of environmental law and policy through the second half of the twentieth century through to today, you’ll see that environmental policy is cyclical.  The net result has been gains in environmental protection, but at an uneven pace and sometimes things move backward for a period.

For the past eight years, the environmental community has mostly been on the front foot.  Now it’s playing defense.  It’s not going to be fun. But it’s also not unusual.”

 

CHAPTER TWO: STRUCTURE MATTERS

“So what does this mean for climate change? Well for the Paris Agreement, it may not mean a lot. Certainly if it’s a one-term presidency.  For one thing, the Paris Agreement is a bottom-up agreement. It’s a grassroots structure and countries are going to do what countries are going to do. It’s not top-down; it’s not a mandate. It’s not Kyoto.

Secondly, other countries are making individual commitments for their own reasons. I don’t think China is going to change their policies whether the U.S. is in this or not because they are interested in the co-benefits of reducing other pollutants. That’s not going to change.”

 

CHAPTER THREE: MARKETS AS A DRIVING FORCE

“The fact is, most of the reductions we are getting in greenhouse gas emissions have almost nothing to do with who is in the White House. It’s market driven. Natural gas is very cheap right now, and as a result, oil and coal are having trouble competing. Our emissions are dropping in large part because of fuel switching driven by a change in the market.

So when Trump says he bringing jobs back to coal? Good Luck.  He will have to figure out how to change the global market.

As for the Clean Power Plan, the Trump administration will most certainly unravel that quite quickly.  But that doesn’t mean the market isn’t still at work. Calculations have been done that suggest that the West Coast, the Northeast, and the mid-Atlantic would meet the clean power plan objectives by 2020 anyway. There may be changes in the Southeast and Midwest so that it may not happen quite as quickly, but overall, the ambition of the Clean Power Plan wasn’t that great. It’s certainly true that we are losing at least four years of making climate progress at the national level, but this has always been a long-term strategy.“

 

CHAPTER FOUR: THE CHANGING ROLE OF THE U.S.

“What does matter is that the U.S. will not be a leader on climate.  Inevitably some other country will take the lead and the U.S. will become a laggard again.  Also, the U.S. will most likely not be forthcoming with aid to developing countries to make some of these energy transitions.

Again, if it’s a two-term presidency, that could be significant. If it’s a one-term presidency it’s not good, but I don’t think it’s a huge deal.”

 

CHAPTER FIVE:  THE FUTURE OF ENVIRONMENTAL POLICY AND REGULATIONS

“Trump is not going to eliminate the EPA. To do so, Congress would have to drastically amend the pollution laws – Clean Air, Clean Water, Safe Drinking Water—those are not campaigns you want to run against.  If you want to be more than a one-term president, you don’t go swinging at the Clean Air Act, though he may try to address parts of these regulations.

The bigger risk is going to be an attack on regulations more generally. There are a lot of anti-regulatory folks who, in the first one hundred days, want to pass laws that make regulations much more difficult and more expensive.  We will have to see.  But one of the big questions is the extent to which Congress is a “rubber stamp” for the Trump administration. There are a lot of reasons to think that may not be the case.

My own view is that we are going to see larger changes on the ground in public lands management. Pipelines are going to go through much more quickly. More oil drilling on the outer continental shelf and on public lands.  More coal exploration. Fewer Clean Water Act restrictions on mountain-top mining. But again, this is all going against the current global economic trend of very low coal and oil prices. Which means that even if you have the right to explore, it’s not at all clear that it’s a financially smart decision to do so. “

If we follow the pattern of the Reagan and Bush years, there will be much more activity at the state and NGO level, making up for the federal inactivity.“

 

CHAPTER SIX: HAVE HOPE (AND CLEAR EXPECTATIONS)

“So look. Is environmental policy more threatened than two weeks ago? Absolutely.  Does this mean the end of environmental protection? No.

Environmental policy is a full-contact sport. There is a lot of conflict. Sometimes we win, and sometimes we lose. And folks at the Bren School have seen a lot of victories over the past eight years. But there are a lot of defeats in the environmental movement, too.  And I think that over the next four to eight years, there may be some challenges, but I don’t think that means that we can’t achieve a lot too, though it may be happening at the state and nongovernmental levels.”

 

Jim Salzman is the Donald Bren Distinguished Professor of Environmental Law with joint appointments at the Bren School and the UC Los Angeles Law School.  He helped develop the environmental law curriculum at the Bren School and has taught the popular core course, Environmental Law and Policy, for over a decade.

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