Top lawyers at EPA under Clinton, Bush, Obama discuss agency's future

Three former general counsels for the U.S. Environmental Protection Agency spoke on a panel at South Hall on Wednesday.

Three former general counsels for the U.S. Environmental Protection Agency spoke on a panel at South Hall on Wednesday. Buy this photo
Emma Richter/Daily

 

Wednesday, September 13, 2017 - 3:59pm

More than 100 people showed up Wednesday afternoon at South Hall for a panel with three former general counsels for the U.S. Environmental Protection Agency, hosted by the University of Michigan Law School's Environmental Law and Policy Program.

The panel, comprising the EPA's top lawyers during the Clinton, Bush and Obama administrations, intended to review the major environmental challenges during each of their tenures as well as discuss the future of environmental policy in the Trump administration.

Stephanie Campbell, a graduate student in the School for Environment and Sustainability, said worries about the Trump administration drove her to come to the panel.

"When all this was coming down last fall, when we heard who won the election, there was a lot of worry and concern inside the environmental school especially regarding what this would mean," she said. "This seemed like a good opportunity to get more of a practitioner's perspective."

Current law and rules promulgated by the EPA obligate it to regulate greenhouse gases, as the EPA has determined climate change poses a threat to the health and well-being of the citizens it serves. That decision was made in 2007 in a Supreme Court case, Massachusetts v. EPA, in which the court decided, 5-4, that if the EPA made such a finding of endangerment, it was obligated to regulate greenhouse gases under the Clean Air Act.

One of the panelists, Roger Martella, was serving as EPA general counsel under former President George Bush when the decision was handed down. The decision came as a complete surprise to Martella: Rather than trying to act on climate change with existing laws, Martella said, the general expectation was that Congress would first have to pass new ones.

"This is all probably totally understood, second nature to everybody today — 2007 doesn't seem like it was that long ago, but it was 10 years ago," he said. "This kind of shocked everyone's universe. Environmental lawyers will say they were thinking about it, but the regulatory community in the federal government didn't have any preparation for the fact that we might actually be addressing climate change based on existing laws as opposed to waiting for Congress to do something."

Following the decision, he said, Bush favored making a big push to begin regulation, but concerns quickly arose about the viability of passing such complicated regulations in the short period of time Bush had left in his second term.

The Clean Air Act, passed by Congress in 1963, was designed to regulate specific and localized air pollutants like lead, ozone and particulate matter. Greenhouse gases — which are emitted by every gasoline- and diesel-fueled vehicle on the road –– were not in the initial picture.

When Avi Garbow — one of the panelists — arrived at the EPA as the Obama administration's deputy general counsel, though he was later promoted to general counsel. His first task, after verifying the integrity of the science behind the endangerment finding, was promulgating regulations to reduce greenhouse gas emissions.

The EPA's first target was mobile source emissions, or emissions from vehicles, which Garbow said were relatively easy, as they were predicated near fuel-efficiency standards, which allow people to save money on gas. Garbow added that states also carried some of the burden of regulation.

"The statute allowed the state of California, given some factors that were ostensibly peculiar to it — its size — to issue its own regulations and standards," he said. "The world's automakers want to be able to sell cars not just in California, but elsewhere, so it really brought parties together to try to make sure that there were uniform standards. You can't put out a Nissan Sentra that's compliant in California and a totally different one that's compliant in Virginia."

Once the EPA began to shift toward regulating stationary sources of greenhouse gases, like forcing power companies to implement more renewable energy, though, the public wasn't as supportive.

But the concept of the EPA regulating greenhouse gases began long before that. After a tense encounter during a House appropriations hearing, Jonathan Cannon, a panelist and general counsel to the EPA during the Clinton administration, became the lawyer in charge of providing the initial legal argument that the EPA had the authority to regulate greenhouse gases.

"My boss, Carol Browner, who was an administrator, was there testifying on the agency budget," Cannon said. "Tom DeLay, who was the majority whip at that time, came blustering into the hearing with some EPA document that he'd gotten and he accosted the administrator with his document in a question saying, 'Do you take the position that the EPA has the authority to address climate change under the CAA?' And she said, 'Yes, I believe it does.' And he said, 'Well I would like a legal opinion on that issue.' And she turned to me and said, 'Yes, a legal opinion will be forthcoming.' She had not talked to me before that. I didn't have an opinion at that point."

Though there is widespread concern over the intentions of the Trump administration and EPA Administrator Scott Pruitt regarding climate action, Cannon said that as long as the endangerment finding remains valid, the current administration can’t institute any dramatic change.

"So far — and I could be wrong — but my best information is that so far, the administration has not moved to withdraw the endangerment finding," he said. "EPA Administrator Pruitt has talked about some sort of science review process that presumably could lead up to that, but right now they're not disturbing that, which means they have a set of legal issues related to the existence of that endangerment finding on the books, upheld by the D.C. circuit, creating certain obligations under the clean air act or arguably so."

The other panelists agreed that while there is cause for concern, there are procedural roadblocks in the administration's way that would slow any drastic actions, and actions outside the federal government could still outweigh those.

Despite President Donald Trump's decision to leave the Paris climate accord, Garbow pointed out, due to provisions within the accord, the earliest the United States could withdraw is Nov. 4, 2020 –– one day after the next presidential election. And Martella — currently the general counsel for General Electric's Environment, Health and Safety division — said "business is doing what it needs to do" on climate change.

Cannon agreed, stating he was hopeful for the future.

"The hopeful thing is that as the current administration abdicates this place and begins to withdraw these regulations there are a lot of things happening outside the federal regulatory sphere," he said. "So, although regulation will remain an important component, these are hopeful signs, and I think we all ought to think about ways we can support, foster and extend these trends in a way that may make what Washington does, at least for the moment, less crucial."

Campbell said she came away from the panel having had her faith in the legal system restored.

"I thought what was really interesting was ... that we can't just depend on our political system to solve all of our problems and put all of our eggs in that one basket, but that it is also about community action at the local and regional levels that really can drive climate change action forward, so there's a lot of hope there," she said.