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Some see Pruitt's shift on climate change as an attempt to mollify critics

Oklahoma Attorney General Scott Pruitt seemed to break with President Donald Trump at his confirmation hearing Jan. 18, agreeing that climate change is not a hoax and with the U.S. EPA's finding that carbon dioxide and other greenhouse gas emissions endanger human health and welfare and therefore need to be regulated.

While his statements appear to be a change in position that might thrill environmental groups and clean energy advocates alike, an expert cautioned against any celebrations of Pruitt's support for climate change initiatives.

"There is no reason to put any great weight into anything that he said yesterday, because he was an applicant for a job," Michael Burger, executive director of Columbia University's Sabin Center for Climate Change Law, said in a Jan. 19 interview. "He was trying to get the job and look good in front of the cameras that he knew were trained on him."

In an exchange with Sen. Edward Markey, D-Mass., during his confirmation hearing, Pruitt said the endangerment finding "is there and needs to be enforced." He also agreed with Markey that climate change is not a hoax, in reference to previous comments made by the president that the phenomenon was created by the Chinese.

Jeff Holmstead, an attorney for Bracewell LLC, said Pruitt's comments were profound, and should reassure EPA staff, environmental groups and clean energy advocates that Pruitt will not move to revoke the endangerment finding.

"I believe that the environmental community should feel reassured that he's not interested in reversing the endangerment finding. But I don't think you'll ever get any of them to say that on the record," said Holmstead, who served from 2001 to 2005 as assistant administrator for the EPA's Office of Air and Radiation under Republican President George W. Bush. "They are never going to say a nice word about Scott Pruitt. It's in their interest to portray him as an environmental enemy. And he's not that."

Policy shift

Pruitt's comments at the hearing were certainly different than opinions he has expressed previously, Burger said. Pruitt was among the attorneys general that led an unsuccessful legal challenge of the endangerment finding when it was issued. At the time, Burger said Pruitt argued that the finding was not the law of the land and was in fact illegal. The U.S. Court of Appeals for the District of Columbia Circuit upheld the finding, and the U.S. Supreme Court declined to review that decision.

Burger said Pruitt more than anyone knows that the endangerment finding is in fact the law, given his participation in the legal case. "His willingness to admit that doesn't say very much. It's kind of like being willing to acknowledge that climate change is not a Chinese hoax," Burger said. "If you're going to set the bar that low, well then you're setting the bar very low."

Moreover, Pruitt's legal history as an opponent of the EPA and "very visible willingness to serve as a mouthpiece" for the fossil fuel industry is more telling of Pruitt's plan for the agency, Burger said.

SNL Image

Oklahoma Attorney General Scott Pruitt testifies at his confirmation hearing Jan. 18 on Capitol Hill.

Source: Associated Press

"If you match Scott Pruitt's record over his years as attorney general ... and you compare that to some highly qualified, very almost inconsequential acknowledgements that he made while trying to appear like somebody who ought to be at the head of the EPA in front of a senate panel, I think you go with the years and years and years of evidence rather than the few hours of trying to look good in front of the cameras," Burger said.

But Pruitt's new stance does hint at how he may act as administrator. Rather than unraveling Obama administration climate change policies in their entirety, Burger suggests Pruitt will move to review them and perhaps return with rules that are weakened.

The shift on climate change among conservatives is part of a larger reframing of the issue in general, Burger said. Opponents of climate change regulation previously denied the climate was changing at all. But now Burger said outright denial is giving way to skepticism, with opponents agreeing that changes are happening, but questioning the impact of human activity. Burger expects to see Republican politicians recommending a wait-and-see approach to regulation of greenhouse gases.

Part of that reframing also includes shifting the narrative on former President Barack Obama's environmental policies. Burger said Pruitt was suggesting in his hearing that he believes certain pollutants should be regulated, but disagreed with how Obama's EPA went about doing so and will seek a different way of regulating.

"And when they say different there can be no doubt that they mean less stringent, less ambitious, and less protective of human health and well-being," Burger said.

Burger does not believe the endangerment finding itself is vulnerable to repeal given the immense scientific evidence gathered by the EPA to justify a finding that greenhouse gases endanger public health and welfare.

"It's a lot easier to poke holes in other people's arguments, both legally and non-legally, than to develop a coherent and strong argument on your own," Burger said. "To file a lawsuit challenging the endangerment finding is one thing. To come up with a rational science-based decision or document that reaches the conclusion that greenhouse gas emissions are not contributing to climate change and that climate change is not endangering human health and welfare, you know you're going to lose that in court."

The EPA based the endangerment finding on information from the Intergovernmental Panel on Climate Change, the National Climate Assessment, the U.S. Global Change Research Program, and university, private sector and industry scientists.

"The science is so out of whack weighted towards the reality of climate change and the fact that human beings contribute to it," Burger said. "There's no record that they could put together that would withstand judicial scrutiny, or public scrutiny. They'd be cherry picking studies from industry-funded scientists."

So if Pruitt and the new EPA cannot undo the endangerment finding, Burger said regulations that stem from that finding will also be difficult to repeal because the finding means that greenhouse gases need to be regulated. Instead, Burger expects Pruitt to put regulations like the Clean Power Plan on hold and possibly develop new regulations that can replace the existing ones.

Regulating existing sources

Holmstead believes the Clean Power Plan is officially dead, and he doubts whether the rule would have ever been implemented even under a Clinton administration. Nevertheless, the Trump administration still has to deal with the endangerment finding.

So Holmstead expects to see the EPA ask the D.C. Circuit to put the Clean Power Plan litigation, as well as other outstanding cases, on hold while they are reviewed. Obama did something similar after assuming the presidency from George W. Bush, and Holmstead said courts are often willing to grant such motions.

From there, Holmstead believes the EPA will build a performance standard for new power plants consistent with the requirements in the Clean Air Act based on the most efficient coal-fired power plants currently operating in the country. He also thinks the agency will remove carbon capture and sequestration as a requirement for new coal-fired plants, paving the way for new plants to be built.

This is where a key argument in the Clean Power Plan litigation comes into play. Opponents of the carbon-cutting rule contend that power plants cannot be regulated under Section 111(d) of the Clean Air Act because they are regulated under Section 112. The Clean Air Act requires the EPA to set standards for existing sources of pollution upon the promulgation of such standards for new facilities under certain circumstances.

Holmstead believes the EPA will have to clarify the confusion surrounding two competing House and Senate amendments that touch on the regulation of sources under both statutes. The EPA could simply change the language eliminating the requirement to regulate existing sources for greenhouse gases.

But the EPA could find this move difficult, because some energy industry stakeholders believe the D.C. Circuit was not sympathetic to this argument at the September 2016 oral arguments on the Clean Power Plan. In light of the court's possible opposition to the so-called 112 exclusion, Holmstead said the EPA may instead choose to regulate carbon emissions from existing power plants. That regulation would likely provide guidance to states on efficiency improvements that can be made at a power plant, and the EPA would then allow states to set individual performance standards for their power plants that are based on heat rate improvements.

Holmstead said he has heard from his clients that coal-fired power plants can still be made more efficient to cut down on carbon emissions. But coal-fired generators have been cautious of pitching such renovations of their facilities for fear of triggering the new source review requirement for power plants, which would impose stricter emissions limits on them.

"There are improvements to be made out there, and I think you achieve some level of emission reduction. The question of whether it's meaningful is in the eye of the beholder," Holmstead said.