What the election results mean for environmental protection

By: - November 6, 2020 6:00 am
Image: Adobe Stock

Four experts reflect on what’s likely to come next in Washington and Raleigh

Not since before the Nixon administration, which created the EPA in 1970, have environmental protections been under such a sustained attack — an attack that threatens the planet’s very habitability.

Over the past four years, the Trump administration rolled back, or attempted to roll back, 100 environmental laws and policies in order to placate polluting industries. According to the Harvard Law School regulatory rollback tracker, this included withdrawing on Tuesday from the Paris Agreement, an international pact to reduce greenhouse gases and mitigate climate change; weakening protections for agricultural workers who are often exposed to pesticides; unraveling protections under the Clean Water Act and Clean Air Act; and absolving the chemical manufacturing industry from financial responsibility rules under 40-year-old statute known as the “Superfund” law.

Policy Watch spoke with four environmental law and policy experts about what we could expect under a second Trump administration (in short, a further rapid and destructive evisceration of environmental protections), or conversely, a Biden administration (likely a long, slow and challenging reconstruction and repair of important regulatory frameworks).

We also discussed what to anticipate in Gov. Roy Cooper’s second term, even as Republicans, which still have the upper hand at the General Assembly, did not regain a supermajority. The Senate could lose environmental advocate Democrat Harper Peterson, who is trailing former state Senator, Republican Michael Lee, by just under 2,500 votes, according to unofficial results. But former Sens. Andy Wells and Harry Brown, both Republicans who pushed through many anti-environmental bills, are gone, having resigned or opted not to run.

Responses were edited for length and clarity.

  • Michelle Nowlin, supervising attorney for the Duke University Environmental Law and Policy Clinic
  • Nat Mund, director of federal affairs, Southern Environmental Law Center
  • Derb Carter, senior attorney, SELC
  • Peter Ledford, general counsel and director of policy, NC Sustainable Energy Association
Michelle Nowlin

Policy Watch: First, let’s imagine what will happen under a Trump reelection scenario.

Michelle Nowlin: It’s been an absolute gutting and an abomination, and I’d expect that to continue. Trump has turned back the dial to pre-industrial times with environmental regulations. He has clearly set an agenda — pro-fossil fuels — and has issued 159 executive orders on environmental and energy policies. All of them rescind or modify current regulations and issue directives to encourage coal and gas development. He reopened the Outer Continental Shelf to oil and gas development and refused initially to include North Carolina in a small regional moratorium simply because we have a Democratic governor.

He’s pulled back regulations on coal ash disposal; now clay liners aren’t necessary for the ponds, which even unlined, can continue to receive waste. He’s opened public lands for oil and gas extraction and coal mining.

He reduced energy efficiency standards for domestic appliances and fuel efficiency standards for cars, which provided financial savings for consumers.

He altered the terms of cost-benefit analysis of polluting industries, which was mandated by Ronald Reagan. Co-benefits such as increased public health and environmental protection are no longer considered. Trump has been putting the thumb on the scales and giving preferential treatment to polluting industries. It’s basically saying we’re not even going to value saving lives and hospital visits.

On the agriculture side, he’s putting billions into bailouts for commodity farmers [those that grow corn, soybeans, cotton] who been hurt by his trade policies. And there’s nothing for our non-commodity farmers. Farm bankruptcies are up 20 percent. Foreign investors and hedge funds are buying those farms.

His actions are not in line with what the public wants and values. We count be at a worse place in farm and environmental policy. But people don’t know what’s been happening.

Nat Mund

Nat Mund: We know that the Trump administration was the most anti-environmental administration in history. There have been about 100 environmental rollbacks, and we’ve been in court on many of them. [It has attempted] to gut the Clean Water act, the mercury pollution rules from power plants, that started under George W. Bush), [and] NEPA — the National Environmental Policy Act, the Magna Carta of environmental laws. NEPA allows public input and communities to have a voice in federal decision-making.

PW: Most of these have been by executive order, right?

Mund: Mostly executive orders, yes, and [EPA] rulemaking because Congress didn’t pass that many environmental laws. People want clean air, clean water and a voice in federal decision-making. Congress doesn’t want to look like they’re impacting these things.

PW: OK, what happens if Joe Biden wins the presidency?

Nowlin: As a member of the Senate, he was not an environmental leader by any stretch. But even though he wasn’t a leader, he participated in the bipartisan effort to pass environmental laws. He’s already said in his platform that he would take up where Obama left off, like the Clean Power Plan. He would institute stronger protections against climate change, rejoin the Paris Agreement. Even if he doesn’t rejoin the agreement, that’s not necessary for us in North Carolina to make progress against climate change and rising sea levels. Look at solar and wind development; Cape Hatteras is one of the windiest places. 

And Biden has the financial chops to look at the economic risks of climate change and to prioritize investments that limit damage and promote resilience.

Mund: Whether Trump wins again and we have to continue to stand in the door and push back against that or work with a different administration on unwinding that stuff — we still have to be here. We’ll be working on clean air, clean water, environmental justice, and working against climate change. And we’ll be pushing Biden to reverse Trump’s changes. Some reversals can be done via executive order. Some are still in court, some were in rulemaking, so there will need to be public comment to reverse them. There’s so much to look at. 

There’s so much to do. The Trump administration has really been pushing back on environmental justice and pretending it’s not an issue. It’s important for the Biden administration to listen to these communities.

PW: What can we do? How do you hold people accountable outside of the voting booth?

Mund: It’s always important to write your members of Congress. Make those phone calls, write the letters. Tell them what you want them to do. Even in the Trump administration, they were so gung-ho to open the Atlantic Coast to offshore drilling. But a nonpartisan set of folks said we don’t want this, and it led the Trump administration to back away entirely because people spoke up.

Derb Carter

PW: What can we expect from Gov. Cooper’s second term, as well as the continued Republican control of the General Assembly?

Derb Carter: It’s going to be a continuation of the past four years, or at least past two, since there’s no longer a legislative supermajority that can overcome vetoes. There had been a steady flow of legislative repeals or lessening of environmental protections in the state, but lawmakers seem to have understood that [things had changed with the demise of GOP supermajorities] so we saw less of them in the last session.

On the other hand, given their past record we’re not expecting to see any significant efforts to restore protections to the environment — clean air and clean water — in the state. The big challenges like climate change, we’re not likely to see any movement by the legislature. But I’m ready to be surprised.

There is still the question of emerging contaminants in drinking water, like PFAs and GenX. We’ve only begun to address that and it requires more effort.

PW: Do you think the legislature will continue to exact revenge on the Department of Environmental Quality by cutting its budget?

Carter: DEQ has pretty much been cut to the bone to the point that [it could affect] DEQ’s responsibilities for implementing federal environmental programs. I would hope the legislature would not use the budget to try to achieve further reductions in environmental protections. They have some control over the budget, but not total control, since the governor has been pushing back. 

What we could see is that the governor does retain significant amount of executive authority to take actions that are necessary to protect the environment or change the state’s direction on energy and addressing new problems like climate change.

PW: The governor also has important appointment power.

The legislature made a run at trying to appoint the majority of members on some of these executive commissions that operate under executive agencies. The state Supreme Court ruled in McCrory vs. Berger that the legislature can’t have the majority of appointments on the Coastal Resources Commission and the Environmental Management Commission. The governor has appointments on key commissions and considerable authority regardless of what the legislature decides what it wants to do. They can try to pass a statute that he can veto.

PW: Do you think Lt. Gov. Mark Robinson, a climate change denier, will wield any influence over the Energy Policy Council. He would lead that body. 

That group doesn’t have a lot of power. It issues a lot of reports. The process of Executive Order 80, the Clean Energy Plan, concludes at the end of this year. From there, we need to make the transition to clean energy in the most economically feasible way as quickly as possible.

Peter Ledford

Peter Ledford: I don’t see a drastic change at the state level. Certainly Sen. Harper Peterson was a champion of clean energy, and his loss slightly shifts the makeup of the Senate. But there’s still bipartisan support for clean energy issues. Market-based solutions could move forward, but mandates will be harder in a Republican-controlled General Assembly.

With the re-election of Gov. Cooper, I expect the clean energy work will continue. Since Executive Order 80 and the Clean Energy Plan there are some issues, like carbon regulation, that can receive bipartisan support. The utility business model, for example, opening up markets, modernizing some laws that are more than 100 years old. 

PW: Can you elaborate on those laws?

In other states, electricity generators compete based on price and quality, and compete against one another.

PW: That would be a huge change from the regulated monopoly we have now.

Right now the electric utilities earn money based on the amount that they invest in their infrastructure, and that’s an incentive to spend more money. Their profit is based on how much product they sell, which is an incentive to sell as much electricity as possible. But it’s possible to decouple that by using performance incentives they might get an additional rate of return for.

Depending on where your are, clean energy paired with battery storage can come in cheaper than [fossil fuels]. And while it’s not cutting edge, energy efficiency is important. House Bill 329 stalled during in the Senate in the last session; it would have increased energy efficiency  in state buildings. But the Utilities Commission just approved a plan that rewards Duke if they meet energy efficiency targets and penalizes them if they slip too far.

In terms of emerging technologies, it will be interesting to see what happens to the wind energy in North Carolina. The wind moratorium has expired. The state Department of Commerce issued an RFP [request for proposals] for an offshore wind study. It’s promising. Virginia has adopted aggressive offshore wind numbers and I want to see North Carolina get in on that as well.

The game changer is energy storage. Prices for battery storage are falling precipitously. We’re starting to see solar developers pair battery storage with their projects. And retrofitting existing solar farms with batteries, including on the utility grid. Duke has its first project approved by the Utilities Commission in Hot Springs. Duke is installing battery storage instead of rebuilding a transmission line; it’s more cost-effective than to upgrade the line through the mountains.

PW: What about biogas? That is controversial.

Biogas is tricky. It’s certainly a way of dealing with a waste stream from hog farms. It captures methane and reduces some of the emissions. The bigger, broader question for environmental justice advocates is the location of the hog farms, generally. The impact on those communities might be mitigated somewhat, but not fully. There’s no easy solution.

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Lisa Sorg
Lisa Sorg

Assistant Editor and Environmental Reporter Lisa Sorg helps manage newsroom operations while covering the environment, climate change, agriculture and energy.