Caitlin McCoy

Biden's stance on fracking has been all over the news; that the Democratic presidential candidate would prohibit the practice on federal land, while allowing current permits to continue. The presidential election is also expected to impact U.S. coal markets - either way it breaks. Wyoming Public Radio's Cooper McKim spoke with Caitlin McCoy, a staff attorney at Harvard Law School's environmental and energy law program, about what that might look like. Caitlin McCoy: “It's almost hard to describe what the potential impact of a Biden administration is without the contrast, I think of a potential Trump administration, because I think... I don't want to sound insensitive, because I know that people's jobs and livelihoods are at stake. And it's really easy for people who don't live in communities that currently depend on coal mining, to just say, ‘for the sake of climate, we have to stop using coal.’ And that said, the writing is on the wall and it has been for a while now. And the market forces that we've seen at play under the Trump administration have been really powerful despite what the Trump administration has done to try to preserve demand for coal. So, I really think the big difference in a potential Biden administration and a second term Trump administration comes in this, in this sort of sense that, I think Trump would essentially leave the industry to just kind of wither on its own, which is somewhat what he's done over the last four years. Yes, there have been actions that have lowered compliance costs and loosened requirements a little bit. But there hasn't really been any big action by the Trump administration to revive demand for coal or to actively support coal mining. And so I think really, the big difference is that a Biden administration will seek to, as Biden has said, accelerate the transition away from coal.”

President Trump has spent the run-up to next week’s election touting himself as the finest steward of the nation’s air and water in generations. “Who would have thought,” he boasted during one stop in Florida, “Trump is the great environmentalist?” But over the course of nearly four years, his administration has steadily loosened oversight of polluting industries, eroded protections for endangered wildlife and stymied Obama-era efforts to address the globe’s most daunting environmental threat: climate change. A Washington Post analysis has found that as Trump’s first term winds to a close, he has weakened or wiped out more than 125 rules and policies aimed at protecting the nation’s air, water and land, with nearly 40 more rollbacks underway...Democrats are already planning how they would revive environmental regulation if they win the White House. Biden has pledged to take executive action to block projects such as the Keystone XL oil pipeline and Alaska’s controversial Pebble Mine, and to rejoin the Paris climate accord to help combat global warming. But overhauling many of the rules altered under Trump would take years, and clawing back oil and gas leases would be nearly impossible. If Trump wins reelection, however, he and his deputies will probably try to shrink the federal government’s environmental role further, cement policy changes into law and finalize dozens of rollbacks they are working on now, said Caitlin McCoy, a staff attorney at the Harvard Law School Environmental and Energy Law Program. “Given the opportunity for a second term, they will initiate and detonate everything they’ve set up,” she said. “We will see even more dramatic action now that all the groundwork is set.”

On this edition of Your Call’s One Planet Series, we're discussing the Trump administration’s actions to weaken or dismantle environmental regulations that are meant to protect the environment, public health and curb greenhouse gases. Over the past four years, the administration has repealed or weakened at least 100 environmental regulations, including fuel economy standards, rules governing clean air, and the regulation of methane emissions. Guests: Caitlin McCoy, staff attorney with the Environmental and Energy Law Program at Harvard Law School. Sharon Lerner, investigative reporter for The Intercept, covering health and the environment.

California Gov. Gavin Newsom's executive order phasing out new gas-powered car sales further inflames a fight with the Trump administration over vehicle emissions policy and is a big bet on a potential Joe Biden presidency endorsing the Golden State's bold move, experts say. California and the federal government are slugging it out in the D.C. Circuit over the revocation of the state's Clean Air Act waiver that allowed it to set its own vehicle emissions standards and run a zero-emission vehicle, or ZEV, program. Newsom on Wednesday reiterated California's defense of its CAA authority with his order directing the California Air Resources Board to craft regulations that lead to zero-emission vehicles making up all new car and light truck sales in the state by 2035. California's first-in-the-nation policy would also require for ZEVs to make up all new in-state sales of medium- and heavy-duty vehicles, including trucks and buses, by 2045. Experts say it's a policy shift that hinges on Biden defeating President Donald Trump in the November election, since there's no chance the Trump administration would reinstate California's CAA waiver or grant a new waiver for the state to carry out an even more ambitious vehicle emissions program than the one covered by the revoked waiver. "California is acting in line with its legal interpretations and in defiance of the Trump administration's interpretations," said Caitlin McCoy, a staff attorney with Harvard Law School's Environmental and Energy Law Program. "The governor's order is a bet on either the courts agreeing with California or a potential Biden administration agreeing with California."

A court-ordered environmental analysis of the Dakota Access pipeline may suffer from fatal flaws if it is conducted under the Trump administration's new National Environmental Policy Act regulations, some legal experts say. The U.S. Court of Appeals for the District of Columbia Circuit last week upheld a lower bench's requirement for the Army Corps of Engineers to conduct an environmental impact statement (EIS) to support the agency's permit for the 1,172-mile crude oil pipeline to cross beneath Lake Oahe, which straddles the Dakotas. President Trump's NEPA overhaul is directly at odds with a July 6 ruling by U.S. District Court for the District of Columbia Judge James Boasberg, who cited D.C. Circuit precedent discussing federal agencies' duty to consider indirect environmental effects of pipeline operations when preparing an EIS, said Caitlin McCoy, a staff attorney at the Environmental & Energy Law Program at Harvard Law School. "That's kind of interesting because we have the new regulations, where they don't bar consideration of indirect effects, but they discourage consideration of indirect effects," McCoy said. "But you have the judge basically saying to the agency, 'I want to see consideration of indirect effects.'" She said she will be watching to see whether the D.C. Circuit reaches a similar conclusion as it weighs whether Boasberg, an Obama appointee, correctly required an EIS...An additional change to watch will be how the Army Corps treats "reasonable alternatives" in its analysis of the Dakota Access pipeline. The new NEPA regulations set parameters for considering alternatives that are "technically and economically feasible" and "meet the purpose and need of the proposed action." Alternatives must also "meet the goals of the applicant" — in this case, Dakota Access developer Energy Transfer Partners LP. "I can just see a million ways to shoot down any possible alternative you come up with using these three new criteria," said McCoy. "Especially because it's such an odd situation where the pipeline is already built and in operation."

One of the first challenges brought against the Trump administration’s Clean Water Act rule redefining federal jurisdiction over the nation’s waters was dismissed by a federal judge in Oregon late Thursday. The Oregon Cattlemen’s Association had sued the EPA and the U.S. Army Corps of Engineers in May for bringing non-navigable, small streams and wetlands under Clean Water Act protection in the Navigable Waters Protection Rule. Judge Michael W. Mosman of the U.S. District Court for District of Oregon, ruling from the bench on a preliminary injunction sought against the water rule, dismissed the claims “due to lack of standing” without prejudice. That means the cattlemen group can file an amended claim at a later date, said Earthjustice attorney Anna Sewell, who attended the virtual court proceeding on behalf of Columbia Riverkeeper, an intervenor in the case. Mosman also formally denied the cattlemen’s preliminary injunction on lack of standing. The EPA said the decision means the Navigable Waters Protection Rule will continue to be implemented in Oregon...During the hearing, Mosman grilled the Pacific Legal Foundation attorney about Oregon cattlemen’s standing to file the lawsuit, Sewell said. “It’s pretty tricky because the Oregon cattlemen will have to prove the new water rule creates some kind of compliance burden for them,” Caitlin McCoy, a staff attorney with the Harvard Law School environment and energy law program, said Friday. McCoy said the Oregon cattlemen will have to show that the land they ranch on currently has streams or wetlands will require permits under the current water rule for any kind of dredge and fill activity. “That’s the harm they will suffer and that is the harm they have to show to get standing,” McCoy said. More importantly, the other cattlemen and ranchers groups. which have filed nearly identical challenges in federal courts in Washington and New Mexico to that of the Oregon cattlemen, also will have to make sure “their complaints don’t fall into the same pitfalls that the judge in Oregon identified.”

The nation's largest gas utility is suing a California energy agency for considering how to phase out natural gas in buildings and other energy sectors, accusing it of violating a state law that promotes the fossil fuel. The lawsuit led by Southern California Gas Co. (SoCalGas) against the California Energy Commission (CEC), filed in state court, alleges that officials violated the law earlier this year when they issued a forecast of California's energy needs for the next decade. That forecast found the state's climate laws would require a long-term decline in the use of natural gas for power generation, paired with a push to electrify cars and buildings' heating systems. By releasing the forecast — but forgoing a separate report on how to "maximize the benefits" of natural gas for the climate and consumers — the state neglected its duties under a 2013 law known as the Natural Gas Act, according to the lawsuit. Caitlin McCoy, a staff attorney at Harvard Law School who has researched opposition to gas phaseouts, said the utility would likely be the first of many in tangling with regulators over gas phaseouts. "This case is one to watch because California is on the forefront of climate action and decarbonization," wrote McCoy in an email. "So we will likely see California's efforts to phase out natural gas replicated in other states and SoCalGas's efforts to challenge phase out replicated by other companies." ...McCoy said that she believed the language of the state's Natural Gas Act could be flexible enough to allow the state commission to move forward with gas phaseout policies. "There is a good argument to be made that the language doesn't bind the CEC to the continued use of natural gas," wrote McCoy.

Days after entering office, President Donald Trump made a promise: He would eliminate two rules for every one signed into existence. Since then, he has sought to make good on that pledge and more – touting his reversal of a “regulatory assault” on the economy at a White House event on July 16, saying, “The American people know best how to run their own lives.” Although many Americans have praised the president’s deregulation efforts, many disagree with a loosening of rules that has been particularly sweeping in the arena of environmental policy. As the graphics with this story illustrate, more than 100 rollbacks have been launched, over issues as diverse as toxic substances, energy extraction, and Environmental Protection Agency (EPA) efforts to combat climate change. Some legal experts say that the changes, despite often resting on shaky scientific ground, could in some cases leave a lasting legacy – undermining the leeway of future environmental policymakers to set a different course. “They’re advancing these regulatory changes that create more flexibility, but in the process they’re trying to...reduce EPA’s authority well into the future to ever try to come back under a new administration,” says Caitlin McCoy, a staff attorney at the Harvard Law School’s Environmental and Energy Law Program. When the EPA replaced the Obama-era Clean Power Plan with the Affordable Clean Energy rule last June, it not only marked a momentous win for Mr. Trump’s deregulatory project. It also finalized a narrower meaning for the phrase “best system of emissions reductions” for the country’s power plants. The administration’s new legal interpretation could be tricky to undo, says Ms. McCoy. If elected president, Joe Biden would “have to confront the fact that, a year earlier, the same agency said they didn’t have that authority” to mandate cleaner electricity, she says. Administrations may change, “but through the lens of administrative law, it’s the EPA, and it’s supposed to have a certain amount of consistency all the way through.”

The Dakota Access pipeline could still be shuttered, despite an order late yesterday that thawed a district court freeze on the controversial project. The U.S. Court of Appeals for the District of Columbia Circuit yesterday blocked an earlier order to shut down and drain the pipeline, finding that a lower bench had not "made the findings necessary for injunctive relief" (E+E News PM, Aug. 5). At the same time, the D.C. Circuit is — at least for now — upholding the U.S. District Court for the District of Columbia's decision to vacate an easement for the pipeline's crossing beneath Lake Oahe. The D.C. Circuit found that U.S. District Court for the District of Columbia Judge James Boasberg hadn't abused his discretion by declining to send the pipeline's permit back to the Army Corps of Engineers without vacating it. The Army Corps is still required to conduct a more robust National Environmental Policy Act analysis to support the approval, pending review by the D.C. Circuit...To make those findings, the D.C. District Court would have to apply a four-factor test to the plaintiffs' argument in a separate analysis, according to the D.C. Circuit. Instead, the lower bench had concluded that "vacating the easement would automatically require the pipeline to be shut down," said Caitlin McCoy, a staff attorney at the Environmental and Energy Law Program at Harvard Law School. The D.C. Circuit suggested the district court could still choose to issue an injunction to shut down Dakota Access if the Army Corps plans to continue to allow the pipeline to operate without the easement that the district court had scrapped. If that happened, Dakota Access developer Energy Transfer Partners (ETP) could appeal the decision to the D.C. Circuit again, which could then choose to uphold or dissolve the injunction, said McCoy. "There's still a lot of legal back-and-forth ahead," she wrote in an email.

In July, a climate task force convened by Democratic presidential candidate Joe Biden embraced a 2030 goal of zeroing out greenhouse gas emissions from all new buildings. The plan followed a wave of climate activism targeting buildings, which are often the biggest source of urban emissions as they draw electricity from the grid and guzzle natural gas for heat. Dozens of cities in California and Massachusetts have sought to restrict the use of gas in new structures, provoking pushback by oil and gas associations, utilities, and other groups. But efficiency researchers say activists' favored alternative to natural gas — electric heat — is still a costlier option for consumers. Mass adoption of electric heating could overload the grid without significant infrastructure upgrades, other analysts warn. And an all-electric push would drag gas utilities into an existential fight, experts say, creating risks to ratepayers and company workforces...California cities have faced their own headwinds enacting bans. Berkeley has been sued by the state restaurant association — a group backed in part by gas utilities — saying chefs depend on "the intense heat" provided by a natural gas flame. This spring, a union representing employees of Southern California Gas Co. (SoCalGas), the nation's largest gas distributor, managed to postpone a vote over a gas ban in San Luis Obispo by threatening to bus in attendees without observing social distancing, the Los Angeles Times reported. Caitlin McCoy, a staff attorney at Harvard Law School's Environmental & Energy Law Program, said recent battles over gas bans remind her of the conflicts over hydraulic fracturing, in which local and state officials vied for the upper hand in deciding where drillers should be allowed to operate. "All of that has come roaring back with these different natural gas ordinances," she said.

Donald Trump announced this week one of the biggest rollbacks of established environmental law in a generation, declaring in a speech in Atlanta that his administration was moving forward with a fundamental overhaul of the 50-year-old National Environmental Policy Act (NEPA)...Trump’s overhaul of NEPA reverses those protections and processes. If it survives the expected legal challenges, it will undo 50 years of NEPA precedent and interpretations by federal agencies and the courts and make it much more difficult for communities burdened by pollution or worried about climate change to push back on destructive projects.  “Less projects will now go through environmental review, and when an environmental review is performed, many impacts will be excluded from discussion, consideration, and public knowledge,” Caitlin McCoy, a fellow for the Environmental and Energy Law Program at Harvard University, told Sierra. “We will not have a full accounting of the impacts of these projects, how they will affect our health, environment, and communities.” ...In the past, projects could be evaluated for their impact on the environment in the future, such as on climate change. When projects emit greenhouse gases like carbon dioxide and methane, those gases build up in the atmosphere over time and cause damage over time. Under the new regulations, impacts that occur either later in time or are geographically removed in distance from the project can no longer be considered. “Climate change is a tremendous and breathtaking threat to our planet and our lives,” McCoy said. “There is almost no deeper irony than the fact that these changes to our foundational environmental statute are laser focused on excluding climate impacts from environmental review. And it’s happening now during a global pandemic, which seems to be more deadly if you breathe polluted air, when we’re reckoning with racial justice, and, at a time when the climate crisis is accelerating.”

The Trump administration gave its final rewrite of a rule on how agencies conduct environmental reviews a better chance of surviving legal challenges by backing away from clear language that may have been vulnerable to attack, but in doing so, it may have created new problems by leaving certain terms up to agencies to define. The White House on Wednesday stepped back from the proposed rule's total ban on consideration of a project's "indirect" effects on the environment during a National Environmental Policy Act review, while declining to completely spell out what types of projects are exempt from NEPA reviews. By avoiding hard-line positions that environmental groups and more liberal states could have challenged as arbitrary or capricious, the White House Council on Environmental Quality gave more protection to its final rule from one line of attack. Yet the choice to be less clear leaves blanks for federal agencies to fill — and that opens a Pandora's box of potential litigation, experts say. "So much is going to depend on the way that this is implemented," Caitlin McCoy, a staff attorney with the Environmental & Energy Law Program at Harvard Law School, said. "By opening up a lot of different elements of these regulations to interpretation in order to avoid taking hard positions that could be challenged as arbitrary, CEQ is just exposing all of the agencies to a huge round of litigation." ...That means while the rule might be more legally sound and helps fulfill the goal of narrowing the types of projects that require NEPA reviews — creating more certainty for project proponents and speeding up the process — there still will be lots of chances for opponents to thwart those aims at the agency level, McCoy said.

President Trump's rewrite of a Nixon-era environmental law — if it withstands expected legal challenges and the November election — could have major implications for energy projects, including oil and gas pipelines nationwide. Trump yesterday announced the completion of rules to overhaul the National Environmental Policy Act, vowing the move would lead to quicker turnarounds for buildings and "better roads, bridges, tunnels and highways." He reserved his remarks on energy to bash his presumed Democratic presidential challenger, former Vice President Joe Biden, using the second official White House event in two days to accuse Biden of pitching an energy plan that "would kill" oil and gas development...As critics expected, the final rule excludes the word "cumulative" effects from the NEPA review process. The plan stated a project's effects that are "remote in time, geographically remote, or the product of a lengthy causal chain" should generally not be considered. That means impacts like greenhouse gas emissions that contribute to larger problems over time are less likely to be weighed in consideration of projects. The rule also stated effects under the purview of the law "do not include those effects that the agency has no ability to prevent due to its limited statutory authority." Caitlin McCoy, an attorney at Harvard Law School's Environmental and Energy Law Program, said the language in the final rule is "intentionally vague." "It'll be up to the agencies," she said...McCoy noted that the final rule states that projects using "minimal federal funding" would not trigger a NEPA review. The catch, she noted, is that the rule gives no dollar amount for what counts as "minimal."

The Trump Administration wants faster reviews of pipeline and other large projects, but its latest move to achieve that leaves the question of climate impact assessment for such projects unclear. Overhauling NEPA marks the Trump Administration's latest efforts to cut down on what it sees as "mountains and mountains of bureaucratic red tape in Washington, D.C.," the president said in his Wednesday speech. His administration first proposed its changes to the 50-year-old law in January, and in June Trump signed an executive order loosening compliance requirements for the law in response to COVID-19-related delays. Fundamentally, the law's changes are twofold, Caitlin McCoy, staff attorney at Harvard's Environmental and Energy Law Program, told Utility Dive: it would reduce the number of projects subject to NEPA review and exclude certain effects of the project from being considered significant. For a project to trigger NEPA review, it needs to pose "significant" impacts to environmental quality or be federally funded, but under revised NEPA standards, projects would be exempt if they received "minimal federal funding" or "involvement" from the government, said McCoy. It's unclear whether a pipeline would trigger NEPA under these rules, she said — the Federal Energy Regulatory Commission needs to issue a certification for interstate pipelines, but "it has no control over whether the project is ultimately built or not, how it operates, pipeline safety or security." ... If a project does trigger NEPA, it is less clear how climate impacts, such as greenhouse gas emissions, hydrofluorocarbon emissions and other climate-related incidentals common to major infrastructure projects would be considered, said McCoy. The White House Council on Environmental Quality (CEQ) initially proposed reviews focus only on "direct effects" of a project, but now says effects "generally not be considered if they are remote in time, geographically remote, or the product of a lengthy causal chain." The word "generally" has been added since the change was first proposed and could leave the door open to considering potential climate impacts, McCoy said.

The Trump administration is rolling back major environmental protections that require the US government to comprehensively analyze how proposed projects like pipelines and highways affect surrounding communities. Trump announced the changes on Wednesday afternoon from a UPS airport hub in Atlanta, where he backed the widening of commercial truck lanes on Interstate Highway 75. The White House said projects like the Atlanta expansion would have taken seven years to permit and now should take less than two years. The White House Council on Environmental Quality finalized the changes to the regulations under the National Environmental Policy Act (Nepa), which the Republican president Richard Nixon signed into law in 1970. The new rules reduce the number of projects subject to review, narrow the scope of reviews and exclude effects related to climate change from being considered significant...Less than 1% of projects funded or permitted by federal agencies require full environmental impact statements under the law. But those that do are significant. Before Nepa, “you could wake up one day and see half your neighborhood bulldozed,” said Caitlin McCoy, a staff attorney for the Environmental & Energy Law Program at Harvard. In 1956, the federal government demolished hundreds of houses in an African American neighborhood in St Paul, Minnesota, to make room for Interstate 94. “We’ve spent so much time talking about the Trump administration’s ‘rollbacks’, and most of that has been focused on how the Trump administration has sought to undo regulations that were put in place under the Obama administration … but this one is really significant because these regulations have been in place since 1978 and only small changes have been made over the years,” McCoy said. “It shows how far the Trump administration is willing to go and how emboldened they feel three and a half years in.”

President Donald Trump is expected to announce his final plans to expedite permitting for major infrastructure like oil pipelines and road expansions in Atlanta on Wednesday, a move that environmentalists say will bypass public input. The proposal to update how the 50-year old bedrock National Environmental Protection Act (here) (NEPA) is implemented is part of Trump’s broader campaign to cut environmental regulation to boost industry and fast-track projects that often take years to complete - an effort that has been blocked or slowed down by courts...The White House Council on Environmental Quality (CEQ) proposed the changes to NEPA in January, kicking off a public comment period. Officials had called the proposal “the most significant deregulatory proposal” of the Trump administration. Just last week (here), a federal judge ordered the Dakota Access pipeline to shut down because the Army Corps of Engineers had failed to do an adequate NEPA impact study and the Supreme Court blocked construction of the Keystone XL line from Canada pending a deeper environmental review. The CEQ received over 1 million comments after the January proposal, many of which opposed the changes and offered evidence that they could have “harmful results,” said Caitlin McCoy, a staff attorney for the Harvard Law School Environmental and Energy Law Program. This could make the rule vulnerable in lawsuits, she said. “CEQ will need to show that it grappled with these adverse comments and considered all of the important aspects of making these changes, otherwise aspects of the regulations could be ruled arbitrary and capricious,” she said.

In a major defeat for the Trump administration, one major pipeline project was canceled and two others shut down this week after years of sustained grassroots opposition. While the outcome for two of the pipelines remains uncertain, this week’s developments represent a major victory for a diverse coalition of community activists, volunteer residents, Tribal members, scientists, farmers and landowners, climate activists, and outdoor enthusiasts who spent years fighting to keep the pipelines off their lands... “This decision demonstrates the power and the importance of NEPA,” Caitlin McCoy, a staff attorney with the Harvard Law School Environmental and Energy Law Program, told Sierra. “When you read the decision, you see the way the court talks about the importance of an agency considering all the impacts of a project before undertaking that project. The blame lies with the Army Corps of Engineers, which has been working for years to downplay the impacts of this pipeline when it was clear all along that there were significant impacts. Instead of taking the time to do the full EIS, there was a rush to get this project going as soon as possible.” The Trump administration and its Council of Environmental Quality are soon expected to announce a rollback of NEPA regulations in an attempt to limit the scope of what projects can trigger a NEPA review. Even if the administration does so, however, it will not affect the Dakota Access pipeline review, according to McCoy, as the judge has already indicated the court expects a full EIS under existing regulations and case law.

Four major automakers will remain neutral in a legal standoff over the Trump administration’s plan to substantially weaken federal fuel economy standards developed under the Obama White House, according to early media reports. Ford, Volkswagen, Honda and BMW plan to file a joint motion today in a Washington, DC., appeals court that will give the companies a say on final auto rules should courts reject the Trump administration’s proposed change, but that will not take a position on the proposed change itself, according to reports by Bloomberg and Reuters. In March, the Trump administration rolled out a long-awaited rule change that would require automakers to improve fuel economy standards by only around 1.5% per year. That would be much lower than the roughly 5% per year improvement that a rule issued by the Obama administration in 2009 and updated in 2012 has required...Experts who have followed the legal tug-of-war over whose standards should prevail were not surprised by today’s news that the four automakers had chosen to remain neutral. "I think most people watching these cases expected the companies to either support the challengers [California, the other states, and energy companies]...or to intervene the way they have neutrally to protect their interests. I don’t think anyone was expecting these four companies to side with the Trump administration," said Caitlin McCoy, a staff attorney at Harvard Law School's Environmental Law and Energy Program. "That said, I assume that California, the other states and energy companies challenging these rules hoped that these four companies would side with them rather than remaining neutral because it would send a message to the court about the feasibility of complying with more ambitious standards and the willingness of the industry to be subject to higher standards. Perhaps the companies feel that their agreement with California sends that message and so they don’t need to side with the challengers in the case to demonstrate that," said McCoy.