When a President Rescinds a Memo

Tuesday’s Executive Order is notable most of all for what it can’t do.

Among the provisions of President Trump’s executive order on climate change was this:

Section 3(c) The Council on Environmental Quality shall rescind its final guidance entitled “Final Guidance for Federal for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews . . . .”

Section 3(d) The heads of all agencies shall identify existing agency actions related to or arising from the . . . final guidance listed [above].  Each agency shall, as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding any such actions, as appropriate and consistent with law and with the policies set forth [in this order.]”

As we observed when the Obama Administration’s GHG memo was finalized, though, CEQ’s climate change mitigation guidance was, if anything, passive.  It didn’t direct or command anything.  After years of discussions about GHG mitigation and its appropriate role in the garden variety NEPA matter, CEQ’s memo went final as a kind of “Dear Colleague” letter, signaling others that it was meant more as a storehouse of prompts and (somewhat stale) information about expected climate change impacts.

Indeed, one has to wonder what was going on at any covered agency that’s worth “suspending, revising, or rescinding,” anyway.  The August 2016 memo wasn’t even published in the Federal Register, probably because CEQ didn’t even have an “acting” chair at the time.  The memo was the action of a headless office which consisted of nothing directorial and of information that virtually no one needed.

Of course, what agencies did or didn’t do in response to the August 2016 memo is very much not the same thing as what these agencies may be doing to investigate, describe, and respond to GHG mitigation opportunities pursuant to NEPA directly.  But as to that, President Trump has very little authority to interpose himself or his denialist politics just to frustrate agencies’ best efforts.  And this post explains why, if the Administration’s order conveys their full intentions on climate change, NEPA may end up being their worst nightmare.

The Unique Nature of NEPA Duties

From the moment President Nixon signed NEPA to today, the Executive Office of the President—of which CEQ is a part—has taken care with the fact that nowhere in the statute is the president or CEQ empowered to tell agencies of the United States how to administer NEPA.  Indeed, the statute’s several directives to agencies (plural) stating their duties seems affirmatively to contradict the notion that NEPA delegates authority to the President or to CEQ to be the Act’s single, authoritative interpreter.  As I’ve argued at length elsewhere, even Article II of our Constitution offers POTUS little room to control or otherwise direct how agencies follow NEPA.  Because NEPA documents are informational—because they support the discretionary judgments of the federal agencies—the President’s power to “take care” that the laws be faithfully executed essentially boils down to ensuring that every agency understand what the text of the statute and the judicial doctrines construing it require.  No more.

And that’s worth remembering at times like this.

The covered NEPA agency is the one with the responsibility to interpret and abide by its terms.  Whatever troubles may still surround the causation element in NEPA’s basic duty to prepare an environmental impact statement (and I’ve written about them at length in this piece soon to be out in the Illinois Law Review), not even the President can order an agency not to consider climate change under NEPA.  Thus, don’t be surprised if NEPA documents keep emerging from agencies of the Trump Administration with climate change considerations all over them.  And, boy, won’t that be embarrassing.  Deep state, indeed!

If Agencies Look for the Science on Climate Change, What They’ll Find Might Shock the Whitehouse

Since about 2003 and the case Border Power Plant Working Group v. U.S. Dept. of Energy, 260 F. Supp. 2d 997 (S.D. Cal. 2003), courts confronting NEPA documents refusing even to mention climate change or GHG mitigation options have consistently rejected them as contrary to NEPA.  Of course, the ruling party in the US today seems deeply, abidingly confident that the science of climate change, indeed, the very notion of mitigation as a moral imperative, is wrong.

As the House Majority’s hearing on climate change science and ‘the scientific method’ seems to have underscored Wednesday, the wider the consensus grows, the more the GOP views it as groupthink of a particularly nefarious kind.  The Washington Post put it this way:

“One way to aid Congress in understanding more of the climate issue than what is produced by biased ‘official’ panels of the climate establishment is to organize and fund credible ‘red teams’ that look at issues such as natural variability, the failure of climate models and the huge benefits to society from affordable energy, carbon-based and otherwise,” said witness John Christy, an atmospheric scientist at the University of Alabama in Huntsville, in his prepared testimony. “I would expect such a team would offer to Congress some very different conclusions regarding the human impacts on climate.”

But these ‘red teams’ are going to have a hard time finding actual evidence of the sort that belongs in the average NEPA document.  My colleague Professor Michael Mann had this to say in response:

“These folks start out with their ideology and then work backwards to decide which science they like and which they don’t,” he said in an emailed comment to The Washington Post. “But that’s not how scientific research works. It’s not a buffet where you get to selectively pick and choose what to believe. It’s not about belief. It’s about evidence.”

Ideology, though, will be a particularly easy target when a NEPA document substituting it for peer-reviewed, legitimate science is brought to court.  The typical forms of scrutiny that federal courts reliably give NEPA documents, especially those keyed to agency arbitrariness in all of its known forms, will be more than enough to handle that kind of POTUS mistake.

What Role for POTUS in NEPA’s Climate Change Future?

The Trump Administration is obviously (if not so productively) struggling with what to do about climate change.  The GOP’s denialism aside, there is very little that climate change mitigation opportunities can add to the garden variety NEPA document unless and until the response to that intersection is coordinated at a higher—perhaps the highest—level of government.  Without high level coordination, NEPA’s contributions to mitigation will remain minuscule.  This might be the Trump Administration’s window of opportunity, though.  Taken seriously, there are ways that NEPA can be harnessed to work constructively with recent reforms under the FAST Act and with the growing consensus on anthropogenic climate forcing.  But it will take some serious ingenuity and a desire to get past the partisan logjam on Capitol Hill.  It remains to be seen if either of those have reached 1600 Pennsylvania Avenue yet.

{Image: The Seal of the Presidency of the United States}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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