How Trump can undo power plan and Paris and navigate endangerment finding

With President-elect Donald Trump selecting Oklahoma Attorney General Scott Pruitt as U.S. EPA administrator last week, how could the Trump administration and the next Congress work to undo the Clean Power Plan and the Paris Agreement? During today's OnPoint, Marlo Lewis, a senior fellow at the Competitive Enterprise Institute, discusses energy and environment policy recommendations for the 115th Congress. Lewis' colleague Myron Ebell, who is now leading Trump's EPA transition team, contributed to these recommendations.


Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is Marlo Lewis, senior fellow at the Competitive Enterprise Institute. Marlo, thank you for joining me.

Marlo Lewis: I'm very glad to be here.

Monica Trauzzi: So, Marlo, each year, CEI releases an agenda for Congress. And this year the report is particularly significant, with President-elect Trump coming into office, and your colleague Myron Ebell contributing to the recommendations, and he's also heading up Trump's EPA transition. In your view, how is the landscape on energy and the environment about to shift over the next four years?

Marlo Lewis: I think it's going to shift dramatically. Because we not only have a Congress that is going to be of the same party as the president, but I think both the congressional majority and President Trump will be in favor of reining in regulatory overreach at the agencies, making sure that all regulations are promulgated pursuant to statutory authority, and also understands that the free market is really the generator of wealth and prosperity and rising living standards, and that one of the main functions of government should be to remove political barriers to wealth creation, entrepreneurship. What we like to say at CEI is, "lifting the rocks so the grass can grow."

Monica Trauzzi: President-elect Trump's pick to head up EPA is Oklahoma Attorney General Scott Pruitt. Pruitt has led the charge against EPA's Clean Power Plan. It's expected that he'll work to undo the plan. The endangerment finding is still at play, though. So how does a Pruitt EPA navigate that?

Marlo Lewis: I think they'll navigate it very carefully. And it's certainly — I mean, in my speculation, it would not be an urgent priority. It might be a long-term priority. There are other kinds of reforms that would address the endangerment finding that would be probably easier to accomplish than actually reversing it through a rulemaking. One of them would be a congressional fix, which is simply legislation that clarifies that the 1970 Clean Air Act did not authorize EPA to make climate policy for the nation. Eventually, they could get around to the endangerment finding.

But, you know, if you put the kibosh on the Clean Power Plan and a number of other regulations that're in the pipeline that could be addressed, say, through the Congressional Review Act, you will make the U.S. economy safe from EPA overreach for the next couple of years. So I don't think this is something that they're going to try right out of the box. I mean, if they were asking me to be a strategist for them, I would say, "Don't do that first. Do these other things first." Like upending the Clean Power Plan is something that can be accomplished in multiple ways.

Monica Trauzzi: And do you think congressional action would be necessary there? Or can it all happen in Pruitt's EPA?


Marlo Lewis: There could be an auxiliary role for Congress in that. Congress could defund any enforcement action on the Clean Power Plan. Which has already been suspended by the Supreme Court. It's been stayed. But EPA has been doing a lot of work on the Clean Power Plan in spite of that. In fact, Gina McCarthy boasted to her staff that "I'm not pausing. I'm not slowing down." So those sorts of actions at the agency could be restricted by Congress. And that would be helpful.

Monica Trauzzi: I want to go back to your suggestion that Congress essentially change the Clean Air Act. First off, does that have any legs? And also, the Supreme Court ruled in Massachusetts v. EPA. So how likely that Congress would go in and try to amend this law?

Marlo Lewis: Well, it's also a long shot, as is overturning the endangerment finding through a rulemaking. But you asked about going to the root of what EPA has been up to under Obama. I think it's pretty clear that even if the endangerment finding is retained, you can still get rid of the Clean Power Plan. EPA argues, "Oh, no. Massachusetts v. EPA changed everything. It now allows us to take a three-sentence provision and turn it into a mandate to restructure the U.S. electric power sector."

Monica Trauzzi: But you need to replace it with something.

Marlo Lewis: Replace what?

Monica Trauzzi: If they take away the Clean Power Plan, it'll need to be replaced with something, certainly, to meet the Paris Agreement.

Marlo Lewis: Right. Well, OK. We're gonna get into another topic there, which I'm glad to do. But basically, what the Trump administration could decide — what Trump's EPA could decide through a rulemaking — is that the 28 states that sued us were correct, and the only actions that EPA is authorized to require under Section 111(d) of the Clean Air Act are those which can be affordably implemented within the fence lines of the regulated facility. And so that would effectively limit the Clean Power Plan to asking utilities very nicely to become more efficient a little bit every year.

Monica Trauzzi: Which most of them are already doing.

Marlo Lewis: Right.

Monica Trauzzi: You wanna talk about Paris. [laughing]

Marlo Lewis: Oh, Paris, yeah.

Monica Trauzzi: You would like to see — you are recommending in this report that the U.S. exit the Paris Agreement.

Marlo Lewis: Yes.

Monica Trauzzi: How would the U.S. do that?

Marlo Lewis: Well, there are several ways. Some of them are complementary. As you know, under the terms of the Paris Agreement, a party can withdraw if it submits a notification of withdrawal three years after the agreement goes into effect. And then the notification itself becomes effective a year after that. Now, that's not an ideal exit if you're President Trump because that means, under the first four years, basically, of your term, the U.S. is a party to the Paris Agreement. The more dramatic way would be to submit a notification of withdrawal to the parent treaty, which is the Framework Convention. And because we're way past that three-years-effective deadline, that would become effective in one year.

What we would like to see in addition — I mean, we think it's a good idea for Trump to exit by going through the diplomatic formalities. But we also think it would be very important to engage the Senate. Because what we object to most about the Paris Agreement is that it was a deliberate strategy to cut the Senate out of treaty making, under Article 2, Section 2. As President Obama said correctly, this is the most ambitious climate agreement in history, which really means it's the most ambitious environmental agreement in history.

And yet the pretense here was that the Senate has nothing to say about it, and also has nothing to say about whether it should be engaged; that this is simply a unilateral judgment that the executive gets to make: "This is a treaty. This is not a treaty. This non-treaty is something you, the Senate, can say nothing about."

And so we would like Trump to submit the Paris Agreement to the Senate and ask for its advice and consent.

Monica Trauzzi: So that would mean that Trump would not make a decision on his own; it would be up to the Senate. Aren't there diplomatic considerations to make here as well? Exiting the Paris Agreement in any way could have some negative ramifications internationally.

Marlo Lewis: Sure, it could. But the Paris Agreement [laughing] could also have some very significant negative ramifications, not just on the U.S. economy, on the prospects for development of the world's poorest countries. There is a superb analysis that I highly commend done by my friend over at the U.S. Chamber, Steve Eule, who looked at what would be required, assuming consensus climatology, to actually reduce emissions enough to meet the 2-degree-warming target under the Paris Agreement.

And even if the developed world — the United States, Europe, Japan — reduced their emissions to zero by 2050, the developing world would have to reduce its emissions by about 35 percent. If, more realistically, we, the developed world, only reduce our emissions 80 percent, then the developing countries would have to reduce their emissions almost in half. And we're talking about a part of the world where over a billion people don't even have electricity, so —

Monica Trauzzi: And a big part of the Paris Agreement is working to get the developing world, in some cases, leapfrogging technologies, assisting them with adaptation and mitigation. So that is a big part of the Paris Agreement.

Marlo Lewis: It is, Monica. But I think it's very difficult to put your foot on the accelerator and the brake at the same time and actually accomplish anything useful. And so what the Paris Agreement — when you talk about leapfrogging, it's asking the world to somehow ensure that countries that have little to no modern energy all of a sudden become energy — or not all of a sudden, but by 2050 become energy-rich so that they have enough to conquer poverty and grow their economies, but at the same time, abandon all of the energy technologies that have brought the rest of the world into modernity and prosperity. And it's a high-risk project. And I think the way I would characterize it: putting an energy-starved world on an energy diet. And I think it easily becomes a cure worse than the alleged disease.

Monica Trauzzi: I want to get one final question in. Sen. Barrasso's work is cited in your recommendations that you're making for the 115th Congress. He will be the new chair of the Environment and Public Works Committee. And at the top of his agenda is rolling back regulations that he believes inhibit job growth and energy use. Is CEI working with him? If not, would you like to work with him on meeting his agenda?

Marlo Lewis: Well, of course. We want to work with anyone who shares our view that property rights and limited government are the best way to promote the health and welfare of the American people and the world. We do cite him. We cited him — at least, the citation that comes to my mind — maybe you were thinking of something much broader than this — was, he wants to defund the U.N. Framework Convention on Climate Change, which is not just a treaty, but a U.N. agency. And in March of this year, the Framework Convention agency recognized Palestine as a state. And under existing U.S. law, if any U.N. body recognizes a non-state actor as a state, the U.S. cuts off funds to that agency. It's what we did with UNESCO.

So I know that that was referenced in our chapter on climate. Was that what you had in mind, or something - sounds like you had something in mind broader than that.

Monica Trauzzi: That was one of the references, yeah. And so going back to the original question, do you think that his thinking is in line with yours in terms of an agenda that we may see shaping up at EPW?

Marlo Lewis: Yes. We've always considered him a friend and ally.

Monica Trauzzi: OK. We'll end it there.

Marlo Lewis: OK.

Monica Trauzzi: Thank you for coming on the show.

Marlo Lewis: Thank you so much.

Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.

[End of Audio]



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