The “Endangerment Finding,” Climate, and EOs

After a tough and disappointing week trying to pass healthcare legislation with a fractious Republican party, President Trump issued an executive order today focused on repealing environmental regulations that the Trump White House has determined are harmful to growth and business. Among other environmental policies the executive order specifically targets:

  • Opening public land for coal mining
  • Easing Obama-era regulations designed to encourage federal offices and agencies to reduce carbon emissions
  • Opening the door to ease regulations on fracking and offshore drilling

What the executive order does not address, however, is the 2009 “endangerment finding.” In a landmark 2007 Supreme Court case, Massachusetts vs. EPA, the court determined that greenhouse gasses were in fact covered under the Clean Air Act and that the EPA could regulate them if they chose to do so. In 2009, the EPA commissioner issued the endangerment finding ruling that greenhouse gasses pose a threat to human health and welfare and can therefore be regulated by the Environmental Protection Agency.

President Trump can attempt to challenge the endangerment finding but so far has not signaled that he is willing to do so. While the many other provisions in the executive order are devastating to environmental policies put in place by the Obama administration, the fact that the endangerment finding is not specifically targeted is encouraging – for now. President Trump can order the EPA to weaken enforcement of the Clean Air Act, and EPA Secretary Scott Pruitt has indicated that he is willing to do so. But as long as the endangerment finding exists in its current form, the EPA will be subject to legal action.

It’s unclear what this executive order’s final impact will be – and many of Trump’s previous ones are in some ways more symbolic than practical. Reverting to the executive order as a means of getting things done helps Trump in three ways:

  1. He can unilaterally issue executive orders that seem to keep his campaign promises.
  2. He does not have to build a coalition or consensus among members of his party.
  3. He gets a quick jolt of headline-grabbing attention (accolades from his supporters and hot outrage from his detractors) while controlling the news cycle.

However, Trump’s executive orders have proven only marginally successful as a means of enacting his agenda. If you approach government as a business, as Trump has indicated he would like to, then the CEO shares a vision and issues an order and asks his or her employees to implement it. The endangerment finding which is tied to a 2007 Supreme Court case runs up against the limit of the executive branch and the effectiveness of the executive order. That may be why he chose not to take on the endangerment finding.

At some point, President Trump will have to try to govern and help shape legislation. This will require that he share a positive vision for all Americans and work with others to implement it. Executive orders will only take him so far.

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