Environment and Energy in the 2016 Presidential Contest

Doug Williams

Professor of Law

Saint Louis University School of Law

July 25, 2016

Recent headline-grabbing issues in the 2016 presidential contest between Hillary Clinton, the Democratic nominee, and Donald Trump, the GOP candidate, have largely centered on personality, credibility, and trust. A citizen’s decision to vote for one candidate or the other may turn less on policy positions than on how that citizen assesses the seriousness of Hillary Clinton’s (and the Democratic National Committee’s) email woes or Donald Trump’s xenophobia and praise of (and maybe assistance from) foreign despots.

The large influence of personality and likeability are, of course,nothing new in political contests, but it seems more prominent in the current one, given the out-sized personality of the Republican candidate and the long, bumpy political history of the Democratic candidate. In my estimation, the outcome of this fall’s spectacle -- and I use the word “spectacle” deliberately – is likely to turn more on which candidate’s personality turns off voters the most. Indeed, these two candidates have the highest “negatives” of any presidential candidates in U.S. elections history.[1]

That being said, this article focuses on a set of important environmental and energy policy issues and provides an overview of the positions Donald Trump and Hillary Clinton have taken on them. And there are clear and substantial differences between Trump and Clinton on just about every issue of importance to our energy and environmental future. Once you get past the boilerplate stuff like “I support abundant and cheap, clean energy and clean air and clean water,” the differences between Clinton and Trump are pretty stark, stemmingin many cases from disagreements about what our environmental and energy problems really are.

Notwithstanding the low priority voters generally assign to environmental issues, there is a couple of energy/environmental issues that may actually have some small impact on the way citizens vote. Of these, climate change is this most prominent. So I will start with that.

Climate Change

Climate change, which many people, including myself, believe is the most important environmental issue we have ever faced, is gaining prominence as a potentially important election issue. A March Gallup poll showed that nearly two-thirds of Americans -- 64% --are “worried a great deal/fair amount about global warming.”[2]Also, a May NBC News/Wall Street Journal poll showed that, when asked to identify one or two things that should be a top priority for the federal government, 8% of registered voters chose climate change.[3] So, not surprisingly, it is one of the energy and environmental issues about which the candidates have had quite a bit to say.

It is pretty clear that Trumpand Clinton have significantly different views on the issue. Hillary Clinton believes climate change is a serious problem and sides with the consensus scientific view that human activity, particularly emissions of greenhouse gases, is a key driver of global warming. She describes the phenomenon as “an urgent threat and a defining challenge of our times”; she targets “carbon pollution” as something that must be “slashed.”[4]Her position seems to have been given a great deal of thought. She has very detailed plans about carbon emissions reduction targetsand how to achieve those reductions. More on that in a minute.

Clinton also considers climate change a ”justice” and “civil rights” issue, based on an assessment that low income communities and communities of color will experience more severe impacts from climate change than more affluent and privileged communities. That is a position that is consistent with scholarly assessments of the impacts of climate change.[5] She has pledged to create an “Environmental and Climate Justice Task Force” to address these disparate impacts. This is one piece of a larger political strategy designed to ensure that the effort to address climate change is as broad-based and widely accepted as possible – an approach that, in Clinton’s words, “doesn’t leave anyone out or behind.”[6]

Trump’s statements on climate change in the past and during his campaign are a bit muddled. On the campaign trail, he sounds like a classic climate change denier. He has described the phenomenon, sometimes colorfully, as

  • “a hoax,”
  • “bullshit,”
  • “not a big problem at all,” and
  • “a big scam for a lot of people to make a lot of money”

In 2012, he also described climate change as a “concept . . . created by and for the Chinese in order to make U.S. manufacturing non-competitive.”[7]

But, notwithstanding the statements just noted, he has also said that there has been “a change in weather,” and that human activity may have “a minor effect” on that change.[8] And in 2009, he signed a full page advertisement in the New York Times urging President Obama to take aggressive action at the international negotiations on climate change in Copenhagen. That same ad said that unless “meaningful and effective measures to control climate change” are taken, “it is scientifically irrefutable that there will be catastrophic and irreversible consequences for humanity and our planet.”[9]

Likewise, when it comes to his own property and livelihood, climate change seems real enough to Trump to warrant investments in adaptation to its effects. His enterprise, Trump International Golf Links Ireland,wants to build sea walls around a golf course in County Clare to reduce the risk of flooding associated with sea-level rise and extreme weather events. In a regulatory filing earlier this year, Trump’s company sought permission from local governmental authorities to construct the wall. An environmental impact study submitted with the application, Trump’s company assigned causal responsibility for rising sea levels and extreme storms to global climate change.[10] It seems there is a divergence in beliefs and assessments of risks between Trump the businessman and Trump the candidate.

Perhaps the Trump campaign will ultimately acknowledge climate change but view it as a part of a natural cycle rather than the result of human-caused emissions of greenhouse gases. This would support his apparent campaign position, which seems to reject any proposal to make significant reductions in greenhouse gas emissions and, as we will see in a moment, promote aggressive production and use of coal and other carbon-rich energy resources. He has grudgingly acknowledged in some interviews that climate change “could be a man-made something,”and that he’s “not saying there’s zero” human influence on the climate. But if there is any such influence, Trump claims it is insignificant.[11] In fact, he wants to meet with Pope Francis to see if the pontiff was, in Trump’s words, “serious” in calling for drastic reductions in emissions of greenhouse gases to address what the pope believes are the dire threats posed by, and the moral failings associated with, human-induced climate change.[12] Curiously, on the other hand, Trump says he is very worried about the threat of global warming resulting from nuclear warfare.[13]

Now . . . I recognize this last statement is very likely sarcastic,designed more to change the subject than address a very serious issue. But it also can be viewed as a classic “Trumpism” along the lines of his fantastical promise to build a wall along the Mexican border and force the Mexican government to pay for it. It also likely reflects the very small amount of attention candidate Trump and his campaign staff have actually devoted to climate change policy. Butwe have to consider the possibility that some of his supporters may take itseriously, as they seem to have taken seriously his “Mexican wall” promise and other fantastic statements Trump has made, such as his veiled suggestion that President Obama is really in league with and giving support to terrorists.[14] So, let’s consider the idea that nuclear warfare represents the biggest threat of a warming planet.

Here I go. Frankly, if we have a global nuclear weapons exchange, global warming can’t be considered a serious worry, and Trump’s suggestion that it might be may diminish the really horrible effects that would likely ensue from even a small exchange of nuclear weapons. Moreover, Trump iswrong. Those who have thought about and studied the potential effects of nuclear warfare are actually concerned that a nuclear exchange will bring about a decades-long “nuclear winter” that includes “killing frosts.”[15] But that scenario comes from the scientific experts after years of careful study, and not surprisingly, Trump does not seem to pay any attention to them.

But I digress. So, if we take the basic positions of the candidates’ as backdrop, we may want to consider what might perhaps be a much more consequential issue: Where do the candidates stand on the measures that have been adopted by the current administration as a response to global climate change? Will they generally support or try to reverse the Obama administration’s initiatives on climate change? Let’s take a look at two such legal and policy initiatives which form the core of President Obama’s response to climate change – the recently concluded Paris Agreement on Climate Change and the Environmental Protection Agency’s Clean Power Plan.

The Paris Agreement, which has been signed by 174 nations, including the U.S., has not been ratified by the U.S. Senate. But, consistent with the President’s fairly generous view of executive constitutional authority, President Obama claims that it can be treated as an executive agreement for which Senate ratification is not required.[16] In accordance with the terms of the agreement, the Obama administration announced an “intended nationally determined contribution,” or INDC, under which the U.S. will reduce2005-level greenhouse gas emissions by 26-28% by 2025. The administration has also pledged to use its best efforts to reach the 28% mark.[17] This commitment is voluntary and there are no clear enforcement provisions in the agreement, leading many to conclude that the commitment is non-binding and legally unenforceable.[18]

The Clean Power Plan, or CPP, was promulgated by EPA under the federal Clean Air Act utilizing statutory authority that has been used only sparingly in the past, and for air quality problems that are very different from climate change.[19] It is the first set of national standards governing emissions of carbon pollution from existing power plants, which are the largest source of greenhouse gas emissions in the U.S. If, and when it is fully implemented, the CPP is expected to reduce 2005-level greenhouse gas emissions from the U.S. power sector by 32%.[20] For that reason, it is the principal regulatory measure the administration is banking on to reach its Paris agreement commitments. But the CPP’s legality is more or less up for grabs, with legal experts having radically different views on the question, which involves very complex issues of statutory interpretation.[21] The Supreme Court, in a highly unusual move, stayed the implementation of the CPP pending judicial review of the merits of EPA’s action in the D.C. Circuit.[22]

Trump’s position on the Paris Agreement is pretty clear. He opposes it. He has said that, if elected, he would “cancel” the agreement and “stop all payments of U.S. tax dollars to U.N. global warming programs.” But it is pretty clear that Trump does not understand the Paris Agreementand the U.S.’s obligations under. First, assuming the agreement enters into force, the agreement includes provisions governing a nation’s withdrawal from the accord. To make an official withdrawal, the U.S. could not simply cancel its endorsement; it would have to wait three years and then give a one-year notice of intent to withdraw.[23] These provisions would effectively push any formal U.S. withdrawal beyond the first term for a President Trump. And while Trump could presumably take action to withdraw the U.S. from the agreement, no President would have authority to “cancel” an international agreement that 174 nations have signed off on.[24] It is likely, however, that should the U.S. withdraw, the Paris Agreement would wither on the vine.

The second statement Trump has made that reveals his misunderstanding of the agreement is his claim that the Paris agreement “gives foreign bureaucrats control over how much energy we use on our land, in our country.”[25] But this is simply an unsupportable interpretation of the agreement. As I noted above, the Paris Agreement relies on INDCs, which are voluntary pledges to reduce carbon emissions made by the signatory states. And while the size of these pledges may be influenced by international pressure, no international entity or group of “foreign bureaucrats” have authority under the agreement to prescribe the size of each country’s INDC.

More recently, Trump and his advisors seem to have taken a look at the actual terms of the agreement and now recognize how difficult it might be to withdraw from the agreement. Rep. Kevin Cramer, Trump’s energy advisor recently said that Trump might “pivot away” from his pledge to cancel the agreement. And Trump himself is now saying that rather than “cancel” the agreement, he will “rein it in as much as possible.”[26]

Short of withdrawing, Trump may be able to jeopardize any chance that the Paris Agreement will lead to effective action on climate change. He could do so by reversing or obstructing administrative actions taken by the Obama administration to address climate change. And that brings us to Trump’s views on the Clean Power Plan – the centerpiece of the Obama administration’s climate policies. Trump opposes it. He has described the CPP as a “job-destroying Obama executive action[]” that he plans to “rescind” during his first 100 days in office.[27] While Trump cannot legally “rescind” the CPP because it is a product of EPA’s authority under the Clean Air Act, not presidential authority, there are a number of actions he could take to effectively kill the plan – actions such as supporting strict budget restrictions on the agency and congressional efforts to amend the Clean Air Act to deprive EPA of authority to regulate greenhouse gas emissions, making new executive appointments to the agency, and the like.

Indeed, he has threatened to abolish what he calls the “Department of Environmental Protection,” which presumably means the U.S. Environmental Protection Agency, which by the way is not a department, despite efforts in the past to elevate the agency to that status. Trump says EPA is a “disgrace,” is “making it impossible for our country to compete,” and involves “tremendous amounts of money, tremendous fraud, tremendous abuse.”[28] He has not given any particulars on what his claims of “fraud” and “abuse” involve.

Clinton, on the other hand, endorses the Paris Agreement as “ambitious” and a “testament to America’s ability to lead the world in building a clean energy future where no one is left out or left behind.”[29] It is unclear whether she shares President Obama’s view that the agreement need not be ratified by the Senate. But she has stated that she intends to aggressively use executive power because “climate change is too urgent a threat to wait on Congress.”[30] In fact, Clinton has proposed to up the ante, so to speak, by increasing the amount of reductions the U.S. will achieve by 2025 from 26-28% to 30% of peak 2005 levels. She has also proposed to make further reductions in greenhouse gas emissions, putting the country on a path to achieving an 80% reduction from 2005 levels by 2050. She has pledged to defend and implement the Clean Power Plan.[31]

Clinton has also endorsed several other Obama administration initiatives and, in some cases, has proposed to expand them. These include CAFÉ (corporate average fuel economy) standards, regulating methane emissions from new and existing sources in the oil and gas industry, implementing the Renewable Fuel Standard, and strengthening model building codes and appliance standards.[32]

The candidates also differ in their views on new initiatives on climate change. It is not entirely clear whether Trump will endorse or propose any effort to address climate change, whether on the mitigation or adaptation side. There is no hint of any such proposal in either his public statements or on his website. The only suggestion that Trump might support some form of federal response to climate change, and it is a faint suggestion, can be found in remarks by Representative Kevin Cramer, who Trump has enlisted as an energy advisor. Despite a reputation of being a climate denier, Cramer said, “[t]he American people wants to see something done on climate change. But we don’t have to throw oil and gas and coal and fossil fuels under the bus to do that.”[33] This suggests that the Trump campaign is beginning to think more carefully about climate policy, but it also confirms that climate change apparently is not something the Trump campaign has thought very much about.

Clinton, by contrast, has some specific and ambitious proposals to add to the toolbox of policies to address climate change. Most of these proposals deal with efforts to promote and enhance renewable energy. So, at this point, I would like to shift to a general discussion of the candidates’ energy policies.