President Donald J. Trump’s project to take a chainsaw to duly authorized and appropriated funding — and eviscerate the very federal agencies that safeguard public health, safety, education and economic security — is generating a mounting resistance from leading scholars and angered citizens alike. In the balance resides not only the nation’s core institutions but also our ability to respond to overarching challenges, including that presented by dangerous climate change.
Early reaction has focused on the indiscriminate firing, by Trump and his eager junior partner Elon Musk, of hundreds of federal workers tasked with mission-critical assignments. Especially glaring was their sacking of 350 National Nuclear Security Administration (NNSA) employees, because that action so manifestly jeopardized the near-term stability and security of the U.S. nuclear weapons arsenal.
Fortunately, in the face of an outcry from nuclear security experts, the Trump/Musk duo was forced to backpedal, and the NNSA is in process of rehiring the recently fired nuclear experts. At this writing, however, the duo has not similarly backed down from their dismissal of hundreds of Federal Aviation Administration workers — even as that agency presses to investigate a rash of deadly air crashes over the last month.
Through Feb. 22, at least 81 lawsuits have been filed to challenge the Trump/Musk actions, on the grounds that they violate statutory or constitutional law. The actions challenged include the duo’s freeze on government grants, loans and assistance programs; their termination of public watchdogs at eight federal agencies; their acquisition and disclosure of Americans’ personal financial records to the unauthorized White House unit (the so-called “Department of Government Efficiency”) that Musk is heading; their removal of health-related data from publicly accessible government websites; their reopening of the notorious Guantanamo prison as a detention center for undocumented immigrants; and more. (See Table 1: Executive Orders Already in the Dock.)
Some of the actions obviously violate the law. These include the executive order seeking to upend the constitutional right to birthright citizenship (as guaranteed by the 14th Amendment). They include, as well, executive orders targeting vulnerable minorities that are predicated on “unadulterated animus” — for instance, the obsessive depredation of transgender people. Judges, I think, will simply enjoin these moves — that is, if the judges themselves do not succumb to intimidation.
But other executive orders, although potentially harmful to core public concerns, may not be overturned by any near-term legal challenge. Why not? Due to lack of standing. A litigant has standing (that is, authority) to bring a case in federal court only where they’ve incurred actual or imminent injuries that are fairly traceable to the challenged action. And it may take a bit of time for injuries to materialize that are provably traceable to federal inaction or neglect.
A Feb. 18 executive order blandly titled “Ensuring Accountability for All Agencies” falls squarely in that category. Deriding “previous administrations [that] allowed so-called ‘independent regulatory agencies’ to operate with minimal Presidential supervision,” the order places the White House Director of the Office of Management and Budget (OMB) in a squarely supervisory role over all federal agencies — with power to “adjust” their “apportionments by activity, function, project or object, as necessary and appropriate, to advance the President’s policies and priorities.”
It also declares that “[t]he President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch… No employee of the executive branch acting in their official capacity may advance an interpretation of the law… that contravenes the President or the Attorney General’s opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General.”
What’s wrong with all that?
For one thing, it virtually requires the administrators of each of the federal agencies to secure the president’s personal sign-off on every significant move and even, if they know what’s good for them, before their agency’s own serious consideration of any initiative. In conjunction with the order’s investiture of budget clawback power in OMB, it will require each agency’s department head constantly to be on edge and on guard. Towards that point, the order also requires “the heads of independent regulatory agencies [to] establish a position of White House Liaison in their respective agencies.”
The resulting triple self-checking is a recipe for agency paralysis, to the lasting detriment of average Americans and vulnerable communities alike who, of necessity, depend on federal leadership to establish and enforce minimum standards in public health, income support, environmental protection, food safety, transportation safety, civil rights, security of financial transactions and the like.
I should also note, even at the risk of putting too fine a point on it, that the anticipated paralysis will be especially acute in light of Trump’s own documented refusal to read substantive briefing reports.
How will any agency administrator even begin to seek Trump’s informed consent on any substantial initiative that arguably restricts the freedom of action of one or another of Trump’s corporate donors — including from fossil fuel titans, not to mention anything that might even incidentally reach Musk’s exceptionally wide-ranging financial interests?
Most likely, one agency head after another will scramble to curry Trump’s favor. Indeed, we’ve seen it already. Thus, in a Feb. 4 press release entitled, “ICYMI: Administrator Zeldin’s ‘Powering the Great American Comeback’ Unveiled at the EPA,” the Environmental Protection Agency praised Trump for “step[ping] away from an easy lifestyle.” It also informed readers, including agency personnel, that EPA Administrator Lee Zeldin is “affectionately known in America First activist circles as ‘the Legend of Zeldin,’” for his willingness to “take on one of the most entrenched bureaucracies in a capital city full of them.” It then proceeds to pronounce that:
“Zeldin and his team are announcing ‘Powering the Great American Comeback’ [an initiative that] consists of five major pillars. The first is pushing for ‘Clean Air, Land, and Water for Every American.’ The second is to ‘Restore American Energy Dominance,’ and the third is for ‘Permitting Reform, Cooperative Federalism and Cross-Agency Partnership.’ The fourth pillar is to ‘Make the United States the Artificial Intelligence Capital of the World,’ and the fifth is ‘Protecting and Bringing Back American Auto Jobs.’”
Several problems obviously infect EPA’s release. Most importantly, the contemplated restoration of “energy dominance” is directly at odds with its saccharin goal of “clean air, clean land and clear water for every American” — given that “energy dominance” in the Trump Administration contemplates the full “unleashing” of the fossil fuel industry. (See Table 2: Executive and Cabinet Actions Removing Environmental Safeguards and “Unleashing American Energy.”)
In particular, virtually unrestrained production and use of oil, gas and coal by the U.S. and the lesser but still important high-historic-emitting nations — in descending order, China, Russia, Brazil and Indonesia — has already resulted in a substantial overshoot of the safe level of atmospheric CO2. Figures 1 (a) and (b) immediately below illustrate the continued growth and, indeed, acceleration in recent years of fossil fuel emissions. (Figure 1: Fossil Fuel CO2 Emissions. Source: Climate Science, Awareness and Solutions, Columbia University.)
Moreover, in combination with a decline in selected aerosol emissions (emissions of which tend to reduce global warming) we are now in the midst of an exceptionally lethal period of global warming acceleration — as the renowned climate scientist James E. Hansen and colleagues have pointed out. (See Figure 2. Source: Climate Science, Awareness and Solutions, Columbia University.)
Continuation on our present path serves only to amplify the chance of non-linear sea-level rise and a slowing or potential shut-down of the Atlantic Meridional Overturning Circulation (AMOC). Because the AMOC transmits heat from the Southern Ocean to northern latitudes, its disruption could shift rainfall patterns (imposing drought on millions), accelerate sea-level rise along the U.S. eastern seaboard, and induce both significant temperature falls and agricultural failure across Europe.
Other impacts of continued or accelerating global warming include recurrent and amplified wildfires across the American West, as occurred most recently in the Los Angeles burn — not to mention the 2020 wildfires up the McKenzie River Valley to the east of Eugene. This simply does not end well for our children and their progeny, unless we can turn things around without much additional delay.
I’ve written this piece while attending a conference in Washington, D.C. that is concerned with the fate of federal environmental law in 2025 and beyond. A comment here by Shawn Latourette, the state of New Jersey’s commissioner of Environmental Protection, merits reporting here because it ties in with the EPA announcement. Virtually every practitioner of environmental law, he claimed, favors some sort of “permitting reform,” but in the present “overarching umbrella of chaos and confusion” induced by Trump’s unlawful orders and actions, nothing productive is likely to be achieved.
Still, and perhaps especially at this stage, creative pathways need to be forged so that we might secure a measure of progress even in the face of the atavistic changes at the agencies and in the White House. At the 43rd Public Interest Environmental Law Conference, Feb. 27 to March 2 at the University of Oregon, environmental law practitioners and activists alike will no doubt consider creative ways to constrain the drive by Trump officials to vastly accelerate exploitation of fossil fuel and other natural resources within and beyond our borders.
I suggest adding, as well, the need to restrain the administration’s drive to undermine the rule of law. Because without that, we are close to sunk. It is frankly difficult to determine whether we are now in the early or late stage of the battle to preserve the rule of law, the foundation of our democratic republic. The entire topic is one to which we should have occasion soon to return.