The Trump administration’s Environmental Protection Agency is moving swiftly to reverse major regulatory policies of the former Obama administration. We sat down and talked recently with two veteran environmental lawyers to discuss what steps the agency headed by administrator Scott Pruitt is taking towards that goal; what business is seeking from the agency; which areas of the environment should be high priority for the agency and the nation, and other issues.
Janet McCabe served as deputy to former EPA administrator Gina McCarthy and acting assistant administrator of the Office of Air and Radiation where she led efforts to implement Clean Air Act standards. During his 16 years in the environmental defense section of the U.S. Justice Department, Tom Lorenzen, now at Crowell & Moring, played a key role in Massachusetts v. EPA, in which the Supreme Court affirmed the EPA’s authority to regulate greenhouse gases under the Clean Air Act and oversaw the government’s defense in major environmental cases in the federal appellate courts.
The interview that follows was edited for length and clarity.
The National Law Journal: Are we seeing anything different in terms of degree or scope, when it comes to environmental policy and regulation?
Tom Lorenzen: With every change in administration, from a Democratic president to a Republican president and back, we see changes. We are seeing, I think, more changes than typical. By “more changes,” I mean they’re trying to bite off more than past administrations have done when they change. In terms of actual changes, I don’t think there’s actually been that much yet, in part because there are so few people at EPA to try to implement what they’re hoping to do.
Janet Mccabe: I think that this administration is showing an extraordinary interest in rolling back virtually every major Obama EPA rule, certainly the ones related to climate change but many others as well. I don’t disagree that many of these have not landed yet, because even for this administration there are processes that they need to go through, but there’s been an effort to review, delay, reconsider, undo an extraordinary number of rules.
NLJ: When we see these announcements from the administration that they’re going to roll back the Clean Power Plan or the Waters of the United States rules, it doesn’t happen that fast or that easily, does it?
Lorenzen: It does not, and I think that’s something that the administration is quickly learning, that while they may talk a good game and while they may issue a lot of executive orders, everything that they really want to do takes a notice-and-comment rulemaking, and that is neither quick nor easy. It’s also subject to judicial challenge, so it’s going to be a long road, and the outcome is not guaranteed.
McCabe: I do agree with that, but I think there are some things that an administration can do on its own, and this administration has done some of those things via executive actions. For example, their change in view of how they will treat the social cost of carbon and the social cost of methane, that is a significant change for any rules going forward, as well as ones that they want to review, that could dramatically change the cost-benefit analysis of rules, either under reconsideration or new ones.
NLJ: One of those areas that you mentioned has to do with judicial review. Tom, I was going to ask you about what has happened recently in the D.C. Circuit, and also you, Janet, in that case, Clean Air Council v. Pruitt, that has to do with the oil and gas methane New Source Performance Standards. Was this a surprise to you, what the D.C. Circuit did here?
Lorenzen: What the EPA attempted to do, was to issue a short-duration stay of the methane rule while EPA reconsiders that rule. It sought to reconsider it under a very narrow provision of the Clean Air Act, Section 307(d)(7)(B), actually requires EPA to reconsider, if someone can show that they are raising a comment that could not have been raised during the public comment period, it arose too late, and it is central to the rulemaking. And if EPA grants reconsideration under that provision, it is allowed to grant a stay of that rule for up to 90 days while it reconsiders.
Here, what the court found is, those issues that were raised all could’ve been raised during the public comment period, and because EPA’s reconsideration was therefore discretionary rather than mandatory, it had no authority to issue the stay. I think what this signals is that the D.C. Circuit is going to be looking and scrutinizing attempts by the agency to stay rules without going through the notice and comment process.
McCabe: The D.C. Circuit is kind of the main squeeze when it comes to review of EPA rulemaking, and I think the signal that it’s sending here is that this administration had better be careful about process as well as substance.
NLJ: What do you think are two or three areas of environmental regulation that are particularly important right now, and why?
McCabe: Without question, climate is a really important existential issue that we all should be paying attention to and working on right now. I think a lot of the messages coming out of the administration about a very clear and explicit change of view on climate and climate science, on their approaches to developing and extracting fossil fuels, are very, very concerning. Another item that I put on the list, although it’s not my field, is the area of toxics, and implementing the dramatic law that was passed last year, the Lautenberg Act, to re-look at the way toxics are looked at. We have so many chemicals that we’re exposed to on a day-to-day basis, and this was a real step forward in how to deal with those.
Lorenzen: Most of industry is moving ahead to address climate change. Most of the states are moving ahead to address climate change, with or without the EPA. EPA’s leadership is important in this area in part because industry, regulated communities, need long-term certainty more than anything else. Having a pendulum swing, where we have a climate regulation and then we withdraw it, and then the next administration comes in and reinstitutes it, doesn’t really do anyone any good.
I do want to point to the Waters of the United States Rule, and this very significant question of whether the federal government is going to regulate discharges into these upstream waters, or whether that is going to be the responsibility of the states. That is an issue that is at play right now, potentially before the Supreme Court, as we go forward, and with the administration announcing that they are going to withdraw the Waters of the U.S. rule and replace it with something else.
NLJ: Tom, what are you hearing from clients?
Lorenzen: What most of my clients want is long-term certainty. And you know, a rule that is proposed and goes final but that doesn’t withstand judicial review benefits no one. Ultimately, what they want are things that work within the framework of the law, that ensure environmental protection, but that also make sense from a business perspective. Right now, it’s not clear where we are on it.
NLJ: Do you think there is a “war on science” within this administration?
McCabe: I think that the signals about how this administration is dealing with science are incredibly concerning. We’re talking about science here. This is not policy, this is not legal arguments where you’re trying to interpret and apply Congress’ statutes and legal precedent. This is about what’s happening in the world, and it is being, I think pretty clearly, influenced in significant measure by policy objectives. Not reappointing scientists to scientific review boards, suggesting that climate science is subject to a red team/blue team televised debate. This just doesn’t acknowledge or recognize what science really is, and how it gets done through peer review and over time and increasing understanding and certainty about issues. And the fact that people in science are always learning. We are never going to have the full answer, but does that mean that we delay any action because we don’t know every single answer? No, it never has, and it shouldn’t.
NLJ: With the Clean Power Plan, a lot of businesses and states have already moved forward in that area. Do you see states and business now taking more of the lead in climate than we’ve seen in the past?
Lorenzen: I think they will. I think in part when the federal government is not acting, businesses tend to move forward both because it’s good for their public relations and because many U.S. businesses operate multinationally these days. They have to answer not only to their U.S. customers but to foreign customers, who are all committed to the Paris Accord and to moving ahead with climate change regulation. From the utility perspective, the energy sector, where I have a great number of clients, they are cutting their greenhouse gas emissions because the market is driving them there. Gas is cheap compared to coal. Renewables are becoming cheaper and easier to implement and deploy.
NLJ: Certainly a lot of these challenges are going to get to the U.S. Supreme Court. Where do you see the court today, and how do you see the newest justice, Neil Gorsuch, playing a role?
Lorenzen: I worked with Neil Gorsuch when he was at the Department of Justice. I think he’s going to be a very powerful Supreme Court justice by force of his reasoning and his writing. He is no fan of Chevron deference. That could be a double-edged sword for this administration. Generally, when you have the regulatory pen, you want as much deference as possible if you are trying to undo prior rules or reinterpret law. So it’s not clear where Gorsuch might take the court on that, and might take the administration.
McCabe: I think that in the interest of the planet, I hope that Massachusetts v. EPA is not revisited, and I hope that EPA does not revisit the Endangerment Finding. I think that they’re just setting themselves up for many years of litigation, and losing in the end if they do that. But yes, the court system, as we’ve seen in the D.C. Circuit recent decision, is really important, to make sure that whatever administration is in power is following the law. I agree with Tom that the question of Chevron deference has been much on people’s mind, but people do need to remember that what’s sauce for the goose is sauce for the gander, on all of these decisions, so people need to be thoughtful.
Janet McCabe, 58
Position: Senior Law Fellow, Environmental Law and Policy Center
Specialty: Environmental law and policy, especially air pollution
Past Career Experience: EPA 2009-2017, including as Acting Assistant Administrator of the Office of Air and Radiation; Improving Kids’ Environments 2005-2009; Indiana Department of Environmental Management 1993-2005; Massachusetts Executive Office of Environmental Affairs 1989-1993; Massachusetts Attorney General’s Office 1984-1989
Law School: Harvard Law School
College: Harvard College
Favorite book, movie, or TV show about environmental issues: Numerous books by Gene Stratton Porter about the natural environment in northern Indiana and California.
Tom Lorenzen, 56
Position: Partner, Crowell & Moring
Specialty: Environmental and administrative law
Past Career Experience: 32 years in practice, 16 of those in the U.S. Department of Justice’s Environment & Natural Resources Division, supervising the federal government’s defense of all EPA rules from 2004 to 2013.
Law School: Harvard Law School
Favorite book, movie, tv show about environmental issues: “An Inconvenient Truth,” the documentary by former Vice President Al Gore, 2006; “A Civil Action,” a book by Jonathan Harr, 1996.