As Congress leaves for its August recess and prepares for the coming midterm elections, I thought it a good time to update readers on the current goings-on in Capital City and their impact on climate-related programs and policies.
While Trump continues to shock and awe the nation and his staff with tweets and new orders , Congress is facing some important legislative deadlines, many of which will likely end up in can kicking until after the elections. The stars still favor a Democratic takeover of the House and maintenance of the Republican’s Senate majority—slim as it may be.
I don’t recommend anyone betting their farms on those predictions. These are unusual political times and are likely to stay that way at least through the 2020 national elections.
The Administration continues its bid to pack the federal courts with as many conservative judges as the Republican Senate is willing to confirm. In addition to sn historically high number of federal district and appellate court vacancies to fill, Trump has been given a second chance to nominate a Supreme Court (SCOTUS) justice. His choice of Judge Brent Kavanaugh to fill the shoes of Justice Kennedy is playing well with most Republicans—whether Trump’s core supporters or establishment Senators. Kavanaugh has been a judge on the Court of Appeals for the District of Columbia Circuit--considered the nation’s second most important court after SCOTUS and the High Court’s AAA farm club.
Kavanaugh is unlikely to be a pro-environment justice, although he believes climate change is real and that Congress should do something about it. As discussed further on, judicial nominations are also a priority of Senate Majority Leader McConnell and are one of the few areas in which he and Trump are in actual lockstep.
The biggest environmental news of the past few months was the resignation of EPA Administrator Pruitt. After the 12th or 13th ethics charge was lodged against him, Senate and House Republicans started to abandon ship. After the 15th or 16th, The Donald seemed to agree and fired him—despite how much he appreciated the man’s zeal to undo Obama’s entire environmental legacy.
As a farewell present to the nation, Pruitt decided to maintain a loophole in the Clean Air Act (CAA) that exempted rebuilt long-haul diesel rigs from the Act’s emission requirements. Known as gliders, they are old engines that have been put into new bodies to escape compliance regulations.
Glider trucks are about 25 percent cheaper to buy but are estimated to emit 50-times more nitrogen oxide and particulate matter than new trucks sold today. The Sierra Club estimates that for every 1,000 gliders on the road, 160 people die prematurely. This year alone 10,000 units have been sold.
Like most of Pruitt’s decisions, the one to keep the glider loophole in place was immediately challenged in court. Pruitt justified his decision in part on a desire to make trucks more affordable, which is a theme that should be watched for in the future. The Administration seems to be looking to use the cost of regulation to consumers as a deregulation drum beat. The fact is every regulation they look at is termed “costly to consumers and industry” mostly because Trump and company choose not to value any of the potential benefits, e.g., saved lives and jobs in environmental or clean energy industries.
Pruitt's decision was reversed by Andrew Wheeler, who as the number 2 at EPA has now become the acting number 1. Wheeler was an energy lobbyist for the fossil fuel industry. His biggest client, Murray Energy Corporation, claims to be the largest coal mining outfit in America. The company’s president and namesake is also a sizable Republican contributor and has advised Trump to leave the Paris agreement and rescind the Clean Power Plan (CPP).
Wheeler’s reversal of the Pruitt’s glider truck decision should in no way be thought of as a sign of things to come at EPA. Wheeler is every bit as committed to deregulating the environment as Mr. P, although wiser in the ways of Washington and more cautious about backing regulatory rescissions and revisions likely to be overturned in court.
Trump has said of Wheeler “I have no doubt that Andy will continue on with our great and lasting EPA agenda.” NRDC’s Jeff Turentine has said of him:
If you’re hoping Wheeler could represent some sort of departure from Pruitt’s (literal) scorched-earth agenda, he wouldn’t. While it may be impossible to imagine anyone worse than Pruitt to lead our nation’s environmental policy, plenty of individuals could be just as bad. And as he’s shown us on numerous occasions, President Trump has a sixth sense for ferreting these people out and putting them on the executive-branch payroll.
In the coming months, two of the most notable, and for climate defenders problematic, regulatory actions by EPA will be revising the auto and light truck fuel emissions standards (CAFE) and the CPP. Wheeler has indicated that he’s hoping to expedite the revised CPP through the Administration’s review process for public announcement by the end of the year.
The CAFE standards were to have already been released. According to sources Pruitt had signed off on freezing the standards at the 2020 level of 37 miles per gallon (mpg). Obama and the auto industry had agreed to a 54 mpg by 2025. The Administration’s intention to repeal the California exemption that allows the state to set a stricter standard than the feds is also being widely reported.
California has been permitted its own mileage rule since CAFE standards were first initiated in 1975, with one brief exception at the end of the G.W. Bush administration. Although California is the only state allowed to set its own standard, 13 other states and the District of Columbia are permitted to follow its lead.
The New York Times is reporting that release of the standards is now being held up by Wheeler over concerns of vulnerability to an inevitable legal challenge. Wheeler is questioning the analysis having to do with the number of auto fatalities that could be avoided under the Obama rule.
The Trump administration is not averse to making up numbers or just leaving out significant information as in its scrubbing links to climate change studies from an Environmental Protection Agency website and canceling an Interior Department study on coal mining risks and suppressing reports on water contamination and the dangers of formaldehyde.
The California exemption will prove much more problematic as a matter of law. What appears not being talked about by Trump and company is the auto industry’s willingness to accept stricter standards than the freeze of the 2020 mileage requirements. The industry has opposed the Obama rule but has been planning for it. For the industry, a higher efficiency standard accompanied by rules allowing greater flexibility to meet it appears acceptable.
Wheeler’s hold-up is evidence of his caution to propose rules, like those for glider trucks, that he feels will be tossed out by the courts. A risk Pruitt was much more willing to take. As for the rest of EPA’s likely regulatory decisions, e.g., methane emissions from drilling and mining operations on federal lands and refusing to recognize the economic benefits of regulations in cost/benefit analyses, look for Wheeler to follow the Trump track.
Look also for Wheeler to continue as the acting number 1 for some time to come—unless of course he is seen by The Donald as a wimp on regulation. Both the Administration and Senate leadership seem at the moment not to want to nominate and confirm a new number 1 at the Agency.
In energy, the President has ordered Secretary of Perry to find once more a way to keep uneconomic coal and nuclear plants online. This time the reason is national security, whereas the last effort was to ensure grid reliability. There is a fair amount of Congressional opposition—particularly on the Senate side—to putting coal plants on life support under any circumstance.
What Republican Senate leaders and Trump are agreed on is continuing to fill the more than 100 available federal judicial vacancies with conservative judges. Other legislative issues are likely to be more problematic up to and after the November elections.
There are fewer than 100 days left before the November midterm elections. The House is now on its month-long August recess. The Senate will take the first full week of August off but will be in session for the rest of the month, setting a new record for the shortest Senate August recess.
House members will be using the month to campaign for fear of losing their majority status. The Senate Majority Leader’s decision to shorten the upper chamber’s usual August recess reflects the priority being placed on getting Trump’s judicial nominees confirmed and on their respective benches. Those nominees he’s looking to have confirmed in the near-term are at the appellate and district court levels—with emphasis on the appellate courts.
Judge Kavanaugh won’t be facing the Senate Judiciary Committee until sometime in September. His handlers now have him making the rounds of individual Senate offices. The battle over Kavanaugh’s appointment started raging just minutes after Trump’s announcement. Democrat’s are demanding to see as much of Kavanaugh’s paper trail—estimated at over a million pages—as possible. The Ds are particularly interested in seeing what he wrote during his tenure as a staff secretary in the G.W. Bush administration and as part of Kenneth Starr’s team’s investigation of President Clinton.
Kavanaugh, as a judge, has written over 300 opinions. McConnell is predictably trying to limit access and has accused the not so loyal opposition of looking to obstruct and delay what most in Washington feel is Kavanaugh’s inevitable confirmation.
McConnell is particularly intent on moving the process along so that confirmation occurs before the midterms. Confirmation before the elections will help make the Republican’s case of accomplishing things in Washington. Democrats believe a delay until after November 6th will better serve their interests in getting voters to the polls.
Even should the Democrats win a majority of the Senate in the elections, however, they cannot stop Kavanaugh’s confirmation as long as the Republicans maintain their current majority—at least not without a few Republicans crossing over. Senate Democrats have only themselves to blame for the simple majority rule for confirming judicial nominees. Frustrated by Republican stalls of Obama nominees, the Democrats lowered the requirement in 2013--proving once again that it pays to be careful of what one wishes for.
Major legislation facing Congress between now and either the beginning of the next federal fiscal year, October 1st, or the end of this calendar year includes the federal budget and the farm bill. Trump is once again making noise about shutting down the government if he doesn’t get the $25 billion for the border wall nobody wants and significant immigration reforms, e.g., resolution of children born in The States to illegal immigrant parents.
The Donald’s latest Twitter tantrum on the 2019 budget is likely bluster. Surely, the last thing Republicans want before the midterms is for the government to be shut down over the wall? Immigration is just too contentious an issue to be settled in the two months between now and September 30th. The most likely scenario will be the passage of the usual continuing resolution, if not for the entire fiscal year at least through December. Trump, however, remains the wild card in what seems less than a full deck.
The same may be said of the Farm Bill, which stalled in conference as the House was leaving town. Pat Roberts (R-KS), chairman of the Senate Agriculture Committee, was hoping to have the vote to start the negotiations with the House last week. Since that didn’t happen, the legislation may not be passed before the September 30 deadline, in which case a continuing resolution is likely to extend the time needed to reach some agreement—or not.
The Senate’s version of the bill would continue the Rural Energy for America Program (REAP) and provided support for farmers’ energy audits and renewable energy development. These provisions are missing from the House bill. Ann Mesnikoff, Federal Legislative Director for the Environmental Law & Policy Center (ELPC) commented on the differences of the two bills, saying: “The Senate Farm Bill’s continuation of REAP and the energy title with mandatory funding stands in stark contrast to the flawed House bill that eviscerated both the energy title and mandatory funding for REAP and other programs.”
All other legislation talked about between now and election time, e.g., a new tax bill making the temporary middle-class credits of the prior bill permanent should be considered background noise. Efforts to get Trump to declare his trade wars over will continue being made by Republicans.
The tariffs are hurting farmers, who would prefer having their foreign markets opened again than the $12 billion in “welfare” payments the White House is offering. Trump’s truce with the EU is of little consolation as the real ag monies are made in China. The current tariff efforts by Congress seem not to include those levied earlier by Trump on photovoltaic panels.
Also, readers should look for intra-party maneuvering to replace House Speaker Ryan in the next Congress. The two major contenders, at the moment, are Kevin McCarthy (R-CA) who has been Ryan’s number 2 and Jim Jordan (R-OH) co-founder of the very conservative House Freedom Caucus. Whether Ryan’s replacement will sit as the Speaker of the House or the House Minority Leader will depend on the outcome of the midterms.
The November midterms
Beyond all the predictions and counter-predictions of a Blue Wave sweep of either or both chambers of Congress, two things of particular interest should be considered by activists in advance of the November vote. First, there will be a special election in Ohio’s 12th Congressional District. The seat was vacated by Republican Pat Tiberi when he became head of the Ohio Business Roundtable.
The special election is a preview of the November contest between Democrat Danny O’Connor and Troy Balderson, currently a Republican state senator. Whoever wins in August will hold the seat for less than a 100 days. Ohio, however, is a bellwether state and the outcome of next week’s special election could be quite telling.
Whether in Ohio’s coming special election or the November midterms, women will continue to be one of, if not the, most influential bloc of voters. White college-educated suburban women, a largely are showing a preference for a Democratic Congress by a margin of 58 to 33 percent, according to the most recent NBC/Wall Street Journal poll. In 2014, white college women voters – according to merged NBC/Wall Street Journal surveys – preferred a Democratic Congress to a Republican one by just two points (46 to 44 percent).
Black women in 2018 have stepped up their political game considerably and are likely to make a big difference particularly in states like Alabama, Florida, Georgia, Maryland, Michigan, Mississippi, North Carolina, Ohio, Pennsylvania, Virginia, and the District of Columbia. Black women have already proven a significant voting bloc in presidential, Senate and local races across the country.
Donna Owens writes that:
…the National Coalition on Black Civic Participation (NCBCP) and its offshoot — the Black Women’s Roundtable — launched the Unity ’18 Black Voting & Power Building “Time4APowerShift” campaign in Atlanta, Georgia. The goal is to leverage the impact of the Black vote and collective leadership, with a special emphasis on the South, Black women, and young voters.
Climate activists would do well to remember that women—whether Democrat or Republican—have traditionally been more accepting of climate-science and supportive of efforts to regulate the environment than men. I am guessing this year they will also be more likely to exercise their right to vote.
Who wins and who loses in the November midterms will undoubtedly make a difference in what Congress and the Trump administration will be able to accomplish for the remainder of the 115th Congress and the two-year life of the 116th. Whatever the outcome of the election, however, the conflict between progressives and populists will continue into and beyond the 2020 general elections.
In the final analysis, whether Trump and company can continue to deregulate the environment will depend less on who will be elected and more on what they stand for and willing to do. So far, climate has barely been mentioned in the campaigns of either Republicans or Democrats. Fortunately, there is still time for voters to make their priorities known.
Photo credit: Mirah Curzer on Unsplash
Joel B. Stronberg
Joel Stronberg, MA, JD., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.