Bloomberg Law
Feb. 28, 2020, 9:01 AM

INSIGHT: Harvard’s Lazarus Expects More EPA Blundering on Climate Change

Richard Lazarus
Richard Lazarus
Harvard Law School

Reports emerged in January from inside the Trump administration that the president was preparing a new thrust in his Ahab-like quest to destroy every last fiber of the Obama administration’s programs to address the threat of climate change.

Trump has his sights on one of President Barack Obama’s signature accomplishments—the slashing of greenhouse gas emissions by cars and trucks.

Fortunately, there is good news in the bad news. Law and science still matter and the president’s legal and scientific work in repealing the Obama climate programs during the past three years have been so consistently shoddy that almost every one of his efforts to date is likely to be overturned by the courts.

The president and his political appointees at the Environmental Protection Agency are making the same mistake over and over. They first decide what they want the answer to be, and then try to twist the law and the science to back that conclusion. The problem is that law and science don’t work that way. They are not so easily manipulable.

Trump administration officials first proposed 18 months ago to freeze the new emissions rules—otherwise on their way to reducing vehicle greenhouse gas emissions by 50%—but they had to beat a hasty retreat when it became clear that the supporting calculations in their proposal were riddled with basic math errors. In one critical calculation, they forgot to divide by four and in another they omitted 700 billion miles of driving in an effort to make the case that worse gas mileage would save lives.

Last Ditch Effort

With the November election now only months away, the Trump administration is making one last ditch effort to roll back car emissions regulation established by the Obama administration. Absent credible backing, they are reportedly trying to concoct a study to back up their claim that gas guzzling cars save lives (by discouraging driving).

The drafts currently under review are reportedly riddled with spelling errors (even my home state of “Massachusetts” is misspelled). Try as they might, their underlying analysis fails to make the case that the benefits of repealing the Obama rules will exceed the costs. And the consequences of taking a weak case to court may be greater than they realize.

Massachusetts v. EPA

In 2007, Vice President Dick Cheney circumvented the normal decision making channels and persuaded President George W. Bush to abandon his campaign pledge to regulate greenhouse gas emissions. Bypassing the legal and scientific expertise in the EPA, and overruling the angry objections of several important cabinet members, including EPA Administrator Christine Todd Whitman, Cheney persuaded Bush to instruct the EPA that it lacked legal authority to regulate emissions from cars and trucks.

A petition challenging Cheney’s view of the law filed by a young lawyer working for an environmental organization few people had heard of stunningly made its way all the way to the U.S. Supreme Court.

The Supreme Court’s subsequent decision in Massachusetts v. EPA in 2007 marked the first time in the court’s more than 200-year history that the justices had granted review at the request of environmentalists over the federal government’s opposition and then ruled in their favor.

In his opinion for the court, Justice John Paul Stevens not only rejected the government’s contention that the EPA lacked the legal authority to regulate greenhouse gas emissions from cars and trucks, he made it clear that that the administration had acted arbitrarily and capriciously in refusing to decide whether those vehicle emissions were already endangering public health and welfare.

Past Is Prologue

The Supreme Court’s repudiation of the president’s position was a heavy price to pay for Cheney’s arrogance. The Massachusetts ruling served as the legal basis for the vast array of greenhouse gas emissions-restricting rules of the Obama administration, including the new limits on cars and trucks.

Although the courts are likely to reject many of the Trump administration’s plans to unravel the Obama administration’s climate programs, including its highly successful limits on greenhouse gas emissions from cars and trucks, the courts alone cannot solve the climate crisis. That will take more than the votes of individual judges and justices.

To put the nation back on track will require the votes of the millions of voters across the country who will have to decide how important it is for them to elect a president and congressional leaders willing to take on the climate issue.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Professor Richard Lazarus is on the Harvard Law School faculty and the author of “The Rule of Five: Making Climate History in the Supreme Court” (Belknap Press 2020), which tells the behind-the-scenes story of the Supreme Court’s 2007 decision in Massachusetts v. EPA. He is the Howard and Katherine Aibel Professor of Law at Harvard, where he teaches environmental law, natural resources Law, Supreme Court advocacy, and torts.

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