Monday, July 24, 2017

Reforming ODOE Will Benefit Everyone

By Melissa Powers, GEI Director and Jeffrey Bain Faculty Scholar and Professor of Law, Lewis & Clark Law School


Ten years ago, Oregon began to position itself as a leader in climate change and energy policy. Governor Ted Kulongoski recognized the economic potential in renewable energy and he sought to establish Oregon as an epicenter for clean energy technology and business. He persuaded several international energy companies, including Iberdrola Renewables, Vestas, and SolarWorld, to make Oregon their U.S. headquarters. He also encouraged the Oregon Legislature to adopt a series of policies that aimed to advance the state’s climate and clean energy leadership. In relatively short order, Oregon became one of the leading developers of wind energy and one of the top states for clean energy employment. For a short time, it seemed that Oregon could become a clean energy powerhouse that would profit from in-state renewable energy development and from exporting innovative technologies, renewable energy, and expertise to other states.

Today, however, Oregon’s climate and clean energy progress has stalled. Only one small new wind farm has come online in Oregon since 2012, our wave energy industry is limping along, and we are on track to greatly exceed our greenhouse gas emissions goals. Our growing solar energy industry is at risk due to the pending expiration of existing incentives and changes to key solar programs. Unless we change course, by creating an administrative framework to guide and implement our climate and energy policies, we will cede our leadership to other states.

Thanks to the work of state and local lawmakers, agency employees, renewable energy industries, clean energy advocates, and the public at large, Oregon has a number of clean energy and climate policies in place. However, under our existing system, agencies implement specific policies on a piecemeal basis, and no single agency has responsibility for developing a bigger-picture strategy or ensuring that agencies coordinate their activities. This piecemeal approach is inefficient and often ineffective. For Oregon to regain its status as a clean energy powerhouse, we need an administrative structure that is capable of guiding Oregon through an ever-changing technical, economic, and political landscape.

Some lawmakers have begun to recognize the importance of effective policy administration. The legislature considered, but ultimately failed to pass, HB 2020, a bill that would have turned Oregon’s Department of Energy into the Department of Energy and Climate (ODEC). This reconfigured agency would have been responsible for developing a comprehensive climate and energy strategy for the state. It would also have coordinated the activities of the dozen state agencies involved in administering Oregon’s climate and energy laws. Finally, HB 2020 would have created a board to oversee ODEC’s work and provide ODEC with additional expert resources and insight. In short, HB 2020 would have created a long overdue administrative framework to ensure that Oregon’s many climate and energy policies work as expected. Although HB 2020 was not perfect, its passage was necessary for Oregon to regain and retain its status as a clean energy and climate leader. Its adoption would have benefitted all Oregonians through improved governance and economic returns. Let’s hope that Oregon’s lawmakers focus on passing HB 2020 or a bill like it during the next legislative session.


Monday, May 1, 2017

Transmission, Part III: Alternative Solutions

By Joni Sliger, Energy Fellow
Distributed generation, like this solar facility in Hawaii,
could reduce the need for new transmission lines.
Credit: SunPower / NREL

Our electricity system depends on transmission infrastructure, and our clean energy future may well depend on the development of new and upgraded transmission lines. This blog series has explored the significance of the transmission system and one way (forming an RTO) to manage the system better for greater regional benefits. This final post explores three ways to advance a clean energy future while minimizing the need for new transmission investments.

1. Build Locally

One way to reduce the need for new transmission is to produce more electricity locally. Our current transmission system carries electricity to us from power plants that may be hundreds of miles away. While it may be desirable to build some lengthy transmission lines to reach distant renewable energy sources, the need for new lines can potentially be offset by siting power sources near demand.

One way to build local is to encourage distributed generation, such as rooftop solar. This requires encouraging individuals and businesses to produce their own renewable energy on-site. For example, in Oregon, one key policy driving rooftop solar is the Residential Energy Tax Credit. If the legislature fails to extend the tax credit beyond its 2017 sunset date, Oregon is likely to see fewer rooftop solar installations and more need for costly transmission investments.

2. Invest in New Technologies, like Ocean Energy

Ocean energy, including wave energy and tidal energy, is an under-developed resource that would enable much more local energy production along the coasts.  As I’ve discussed previously, over half of the U.S. population lives within 50 miles of a coastline. According to the Bureau of Ocean Energy Management, wave energy alone could feasibly meet almost a third of the U.S.’s energy needs. Oregon could build short transmission lines out to ocean energy facilities along its coast instead of building lines hundreds of miles long to reach out-of-state resources, like wind farms in Wyoming.

At the forefront of marine energy development, Oregon has enacted a policy position that recognizes the importance of ocean energy. In 2015, the legislature passed a law (now codified as Oregon Revised Statute § 757.811) to mandate that “any regional planning processes . . . adequately consider the transmission of electricity from ocean renewable energy.” While more research and development is needed to bring more ocean energy sources online, Oregon has taken one important step towards smarter transmission planning through this law.

3. Leverage Existing Infrastructure, like Railroads, for Transmission Lines

Electrifying the railroad system offers another way to develop the transmission we need while minimizing the cost and environmental impacts. Instead of paying for expensive siting procedures to, for example, minimize impacts on wildlife, we can leverage the existing railroad system by integrating new transmission lines into the railroads. Electric lines can carry more electricity than the trains need, allowing the railroads to serve as both a clean transportation strategy and a ready transmission solution.

A campaign called Solutionary Rail is advocating for railroad electrification as a way to revitalize rural communities, provide a ‘just transition’ for railroad workers needing employment as the industry moves away from predominantly shipping fossil fuels, and to provide the key transmission infrastructure we need to connect to distant renewable energy sources.  For example, the campaign is pushing first for the electrification of the BNSF Northern Transcon line between Seattle and Chicago. Electrifying this line could provide several benefits, including the transmission necessary for distant wind farms in Wyoming to reach power-hungry urban centers, like Seattle.

Electrified railroads are already a possibility; about half the rail lines in Europe are electric. Even just using existing railroad rights-of-way as a place to co-site transmission lines would facilitate an easier siting process. The U.S. should start looking to the future and invest, for the benefit of its environment, its economy, and its communities.

To attain a clean energy future, the U.S. needs to invest in its transmission system. By building locally, investing in new technologies like ocean energy, and leveraging existing infrastructure like railroads, we can build a better transmission system and a better world. 

Monday, April 24, 2017

Transmission, Part II: A Western RTO?

By Joni Sliger, Energy Fellow
"Photoshop art created from two NREL-Image Gallery
photos of sunset view of electrical power towers combined
with wind machines."
Credit: NREL and Raymond David (Photo Illustration)


A shortage of transmission capacity is a major constraint to the development of renewable energy resources, as I noted in my first blog post in this series on transmission. The Western Interconnection suffers from this shortage—termed a transmission constraint—as well as from transmission congestion, though not as much as other areas of the U.S. do, according to the Department of Energy’s 2015 National Electric Transmission Congestion Study. (The Western Interconnection is the aggregated grid that connects each transmission and distribution system together in all or part of the fourteen western continental states as well as parts of Canada and Mexico.) This post explores one popular idea for improving transmission systems in the West: forming a western Regional Transmission Organization (RTO).

What is an RTO?

An RTO is a third-party entity that manages the transmission systems of every participating utility within the RTO’s territory. (The term RTO is often used interchangeably with the term independent system operator, or ISO, despite some technical differences. As noted below, an RTO might take the form of an ISO.) An RTO balances the grid by managing the dispatch of electricity generation and by operating several wholesale power markets (such as a ‘day-ahead’ market and a ‘spot’ market). As I discussed in my last post, balancing the grid is vital to maintain the proper frequency and to avoid power outages. Ten RTOs now operate in parts of North America, such as the California ISO (CAISO). Together, they manage about two-thirds of the electricity sold in the U.S.

For a third party to manage the transmission system as an RTO, the Federal Energy Regulatory Commission (FERC) must approve it. FERC encourages the “voluntary interconnection and coordination” of electric facilities, such as by RTO formation, pursuant to FERC’s mandate in Section 202(a) of the Federal Power Act of 1935 (currently codified at 16 U.S.C. § 824a) to provide for a more efficient electricity system.

In the 1990s, FERC began taking significant action to promote RTO formation, when grid management grew increasingly complex as more independent power producers (IPPs) (that is, non-utility electric generators) began seeking transmission access and as some states began restructuring their monopolistic electricity sectors. In 1996, FERC issued Order No. 888 to require that transmission owners provide access to transmission to others on the same terms as they provide to themselves. This is called ‘open access transmission’ and discourages discrimination against IPPs. FERC noted one way to comply with this order would be to have an ISO manage the grid, where the ISO offers everyone the same terms. Order No. 888 thus described several “principles” to guide the formation of ISOs. The term RTO arose after the issuance of Order No. 888. In 1999, FERC promoted RTOs (which it said could take the form of ISOs) in Order No. 2000, which required all transmission owners to propose an RTO for FERC’s approval, report on efforts to form an RTO, or explain why the owner had not pursued participation in an RTO. Order No. 2000 also described the key characteristics and functions of an RTO. FERC does not require a “‘cookie cutter’ organizational format” but will review any proposal that meets its standards.

In short, an RTO is a FERC-approved third-party entity that manages the grid.

What are the Benefits of Having an RTO?

FERC promotes RTOs as a way to encourage a more competitive marketplace, which should theoretically reduce electricity rates for consumers. The ISO/RTO Council notes four major benefits are greater reliability, efficiency, transparency, and market innovation. For example, most renewable energy sources (other than those necessary to comply with a state’s Renewable Portfolio Standard) have been built in RTO territory, where intermittent suppliers, such as solar and wind power generators, enjoy a more favorable market. Short-term markets, such as a spot market, enable intermittent suppliers to sell power as they generate it.  

Another noted benefit is that RTOs eliminate a pricing inequity known as “pancaked rates.” To deliver power, producers must buy transmission services. When the transmission owners operate separately, each can charge a producer for using its transmission system. The pile-up of charges is known as rate pancaking. The total fee may be too high for a producer to afford to use transmission and therefore hinders long-distance transmission, even if necessary to get rural renewable power to power-hungry demand centers. The expense of facing pancaked rates rises with the number of systems one crosses; when one is participating in an RTO, one pays for transmission services but only from the RTO. Rates are not pancaked, which is a major benefit of RTO participation. Indeed, FERC describes the elimination of rate pancaking as a “central goal” of its RTO formation policy.

Additionally, an RTO enables greater efficiency by, for example, consolidating balancing areas. A balancing area is the territory within which an entity (called a balancing authority) must balance the grid to ensure reliability. A balancing area may be as small as an individual utility’s territory. By participating in an RTO, that utility can join its balancing area (or “footprint”) to those of other participants. As can be seen in the following map of the United States, each RTO manages its regional territory as a single balancing authority.  An RTO thus creates a geographically broad wholesale power market that enables participants to buy and sell power produced throughout a large area. This means, for example, that an excess of wind power produced in one state could quickly and easily be transmitted to serve demand in another state.

Credit: Energy Information Administration

Is a Western RTO Possible?

As one can see in the map above, most of the West is outside of RTO territory. CAISO only operates in portions of California and Nevada. Recognizing the potential benefits of forming an RTO, entities in the West have been discussing forming a western RTO. Such discussions are not new. In the early 2000s, there was a proposal called “RTO West.” However, the proposal failed, in part because of the California energy crisis and because of opposition to changing the Bonneville Power Administration’s operations (and potentially raising its very cheap rates). Nevertheless, efforts to form a western RTO continue today.

I have blogged previously on a proposal for PacifiCorp to join CAISO, which could enable more renewables to come online and save consumers money at the same time. Proponents continue to push to expand CAISO and form a western RTO. As an example of the incremental success, this past February, the Balancing Authority of Northern California agreed to participate in CAISO’s Energy Imbalance Market (EIM) starting in 2019. (Though an EIM does not offer all the benefits of an RTO, it has provided significant economic benefits to participants). Unfortunately, the election of (pro-coal) President Trump and concerns about maintaining state control have dampened some efforts to form a western RTO, but proponents promise to persist.

Hopefully the movement to expand CAISO and form a western RTO continues to spread and will bring the benefits of an RTO to the West. Until then, renewable developers may continue to face the unnecessary costs of pancaked rates, for example. 

Wednesday, April 19, 2017

A Stable Climate is a Fundamental Right and a Massive Economic Opportunity


By Ed Jewell, Energy Fellow
Photo Credit: C-SPAN. James Inhofe talking nonsense.

Youth plaintiffs from Oregon have filed a lawsuit against the United States government in the District Court of Oregon alleging that the federal government’s failure to take meaningful action on climate change violates a fundamental right held by the plaintiffs that is protected by the U.S. Constitution. Last November, youth plaintiffs survived a motion to dismiss, and Juliana v. United States of America is now scheduled to go to trial in either late 2017 or in 2018 (barring any successful delay tactics on behalf of the federal government). 

For more background on the case, see this Charged Debate post from February 7, 2017 in which I provide an overview of the parties and the plaintiffs’ legal theories.

The plaintiffs in Juliana allege that the right to a stable climate is an unenumerated fundamental right protected by the U.S. Constitution. Because the federal government helped cause the danger created by an unstable climate, they allege that the government has an affirmative duty to restore the climate to a stable condition.

The Due Process Clause of the Fifth Amendment provides, “No person shall be . . . deprived of life, liberty, or property, without due process of law.” Plaintiffs in Juliana argue that the federal government has violated this Constitutional guarantee through the leasing, permitting, subsidizing, and promoting of fossil fuel development at home and abroad. The direct result of these activities is the combustion of fossil fuels, which inevitably results in the release of greenhouse gases. The accumulation of greenhouse gases in the atmosphere leads to an altered climate system with property, health, and livelihood impacts on plaintiffs. Therefore, the plaintiffs assert, the government’s direct actions have helped to create the harm imposed upon plaintiffs’ liberty and property interests without satisfying the requirements of due process.

An “unenumerated fundamental right” is a right that is not explicitly written in the Constitution but is nonetheless protected by the Constitution. In McDonald v. City of Chicago, the U.S. Supreme Court held that it is proper for the courts to recognize an unenumerated fundamental right if it is either: 1) deeply rooted in the history and tradition of the U.S., or 2) fundamental to our nation’s scheme of ordered liberty. Judge Aiken, the District Court of Oregon judge hearing Juliana, wrote, “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”

The right to privacy is an example of another unenumerated fundamental right protected by the Constitution, under which numerous more specific rights are protected. The U.S. Supreme Court rested its decisions in Roe v. Wade (articulating a woman’s right to choose whether or not to have an abortion), as well as its decision in Griswold v. Connecticut (upholding the right to purchase contraception regardless of marital status), and its recent decision in Obergefell v. Hodges (articulating the right to marry the person of one’s choosing, even if that person is of the same sex) under the right to privacy. While the right to choose, the right to purchase contraception, and the right to same-sex marriage are not explicitly protected by the Constitution, they are all protected under the umbrella of an unenumerated right to privacy.

The proper relationship between the judiciary and the political branches is a key theme in Juliana. On the one hand, it is the judiciary’s duty to interpret and declare the law. On the other hand, the Constitution allocates policymaking authority to the political branches. Because the courts do not write laws, judges exercise caution before pronouncing an unenumerated fundamental right. However, certain terms in the Constitution, such as the word “liberty” in the Due Process Clause, are undeniably vague and require interpretation by the courts. As the Court recently stated in Obergefell v. Hodges, “[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” Thus, Juliana hinges on the question of whether the government’s failure to take meaningful action on climate change has crossed the threshold from mere policy decision to constitutional violation.

Judge Aiken was careful to limit her holding in her Order on defendants’ motion to dismiss to recognizing that a “climate system capable of sustaining human life” is a fundamental right. In so limiting her holding, Judge Aiken took care to ensure that the judiciary is properly fulfilling its Constitutionally prescribed role as a check on the political branches, but is not straying into policymaking. Judge Aiken did not state that there is a Constitutional right to a climate system as it existed before the industrial revolution, or to a pristine environment totally devoid of human impact. To make such a declaration would be to make a policy determination that environmental purity is more important than other policy objectives. Instead, Judge Aiken held, “In this opinion, this Court simply holds that where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a claim for a due process violation.” Seems fair.

If plaintiffs ultimately succeed on their claim that there is a fundamental right to a stable climate capable of sustaining human life, the judiciary’s authority to constrain and direct the actions of the executive and legislative branches will be tested to its full extent. Additionally, the judicial system’s ability to act expeditiously and require remedial action of the political branches on a timeframe that is meaningful in relation to the scientific imperatives of quick and decisive action on climate change is uncertain. Without all three branches of government pulling together in the same direction, the U.S. Constitutional system favors maintenance of the status quo over quick and decisive action.

Juliana is an important and interesting case that is pushing the conversation on climate change and potentially reframing the issue from one of partisan bickering to one of Constitutional proportions, but climate change mitigation will require the political branches to cooperate. While Juliana seeks to compel the judiciary to hold the political branches to account, this alone is not enough.

The viability and benefits of a transition to a clean energy economy must be broadly recognized in order for climate change to be mitigated in a meaningful manner. On an optimistic note, solar energy already provides more jobs than the coal, oil, and gas industries combined. Additionally, because of the disbursed nature of renewable resources, renewable energy development has inherent potential to benefit landowners in rural districts, potentially providing more disbursed vested interests and greater overall political viability than a moral call to action on climate change.

Juliana is a powerful component of the transition to a sustainable economy because it brings to light the regrettable reluctance of the political branches to fulfill their obligations to the American people to maintain the conditions necessary for ordered liberty to prevail. Juliana alone, however, is not sufficient to achieve a stable climate system. To successfully mitigate climate change, more people must experience the economic benefits of renewable energy, political pressure must be increased, technological development must continue, state and local governments must fill the void in the absence of federal leadership, and private companies must lead the way until sense returns to the political branches.

Tuesday, March 21, 2017

Transmission 101: Exploring the Hidden Currents

By Joni Sliger, Energy Fellow
"Photoshop art created from two NREL-Image Gallery photos of
sunset view of electrical power towers combined with wind machines."
Credit: NREL and Raymond David (Photo Illustration)

Hailed as the world’s largest machine, our nation’s transmission and distribution infrastructure is a critical component of our electricity system. These power lines carry electricity from every electric power plant to every electricity consumer. Investing in this infrastructure is necessary for the transition to a clean energy future. This blog series explores the issues surrounding transmission, both nationally and in the Pacific Northwest, and considers various options for meeting our transmission needs in the 21st century. This first post offers a basic introduction to transmission in the United States.

What is Transmission?

Transmission, in the electricity world, refers to the flow of electricity from its generation source, like a power plant or a wind farm, to a local substation, typically over long distances. The infrastructure that carries this electricity is the transmission system. At the substation, the transmission system connects to the distribution system, which carries electricity on to consumers. One may view a map of the nearly 200,000 circuit miles of transmission lines in the U.S. on the Energy Information Administration’s U.S. Energy Mapping System.

As electricity travels on a power line, some of it is lost due to inefficiencies in the system. For example, power lines may unintentionally produce heat, which uses up some of the electricity on the line. Heat losses are a common problem: consider the remarkably inefficient incandescent light bulb, which loses 90% of the electricity it draws to unintentionally producing heat. The energy lost in transmission or distribution is called a ‘line loss.’

In the U.S., 5 to 6% of the electricity generated is lost due to line losses nationally. Inside Energy provides an interactive graphic of the line losses in each state; Wyoming loses the least power at only 2.2%, while Idaho loses the most at 13.3%. Losses vary depending on whether a state has more transmission lines or more distribution lines. Transmission lines travel farther distances than distribution lines, but they have fewer line losses, because they operate at a higher voltage. High-voltage lines can carry more electricity to consumers, ensuring more sales. However, the voltage is too high for household use, so transformers reduce the voltage at the substation and along the distribution system.

To sum up, transmission and distribution lines carry power from a generating source to a user. Transmission lines carry power farther distances but are more efficient, because they operate at a higher voltage than distribution lines.

What are the Problems with Transmission?

With almost 200,000 miles of transmission lines in the U.S., one may be surprised to hear that a lack of transmission capacity is a major constraint to bringing renewable energy sources online. Unfortunately, our current transmission system suffers significant limitations.

Time plays two roles in affecting transmission systems. First, the passage of time decreases the efficiency of transmission systems. Over time, transmission lines suffer physical wear and tear and become less efficient. Additionally, new technologies are discovered, so the lines become outdated. Most transmission lines in the U.S. are based on 1950s technology. Replacing these lines and associated infrastructure with newer technologies is often referred to as ‘modernizing the grid.’

Second, time affects the demands on the transmission system. In the U.S., electricity must be kept operating at 60 Hertz, the frequency of choice for our systems. Grid operators constantly monitor the system to ensure its frequency is stable. If the frequency changes too much, the system crashes, causing brownouts or blackouts. As consumers draw power off the grid, electricity must be available to replace it, so that operators can balance the grid. If more electricity is available than consumers need, producers have to throw it away. Advances in energy storage technologies, like modern battery systems, may soon enable producers to save this excess energy and avoid the use of ‘peaking plants.’ Peaking plants operate only when demand is at a high, even if only for a few hours or days a year; with such limited use, the construction of peaking plants is very expensive relative to the energy they produce. Without energy storage, the transmission system cannot take advantage of changes in energy demands.

Transmission lines can only carry so much electricity at one time. Their capacity varies with the age and efficiency of the technology of the line; newer lines can operate at higher voltages, which allows them to carry more power, while suffering fewer line losses, as noted above. With only a limited amount of capacity available, generators have to compete to get their electricity to the market for sale. A congested transmission system, where too little transmission capacity is available, creates a bottleneck that constrains electricity from getting to where it is needed. Financing the deployment of new sources requires access to a market, so bottlenecks are a significant impediment to possible development.

Where transmission lines are located affects whether generators face a bottleneck or not. Unfortunately, most transmission lines are currently located far away from the best sites for renewable energy development. As my colleague, Amy Schlusser blogged previously, we primarily built our transmission system to carry power from large, fossil fuel-fired power plants to power-hungry urban centers. In rural areas, where the potential to develop renewable energy is often greatest, there is often a lack of available transmission or capacity. In short, our transmission lines are built in the wrong places for a future powered by renewable sources.


To bring more renewable energy sources online, the most obvious solution is to build more transmission lines. This is extremely expensive and faces challenges in siting. Concerns include conflicts with local private property owners (and NIMBYism) as well as conflicts with other needs, such as environmental regulations to preserve wilderness and protect wildlife, such as sage-grouse. Other options exist though, such as more distributed generation and offshore energy development, as I’ll discuss later on in this series. Before discussing possible solutions, however, this series will next look deeper in how the transmission system operates, particularly in the Pacific Northwest, and explore open-access transmission policies, pancaked rates, balancing areas, and more. 

Thursday, February 23, 2017

An EPA Adversary Now Helms the Agency

By Ed Jewell, Energy Fellow

Photo Credit: epa.gov
Last week, Scott Pruitt was confirmed as the Administrator of the Environmental Protection Agency, largely along party lines and despite the impending release of emails ordered by an Oklahoma court regarding Mr. Pruitt’s contacts with the oil and gas industry (because who cares about a few emails?). Unsurprisingly, given President Trump’s overtures to the fossil fuel industry during his campaign and early days in office, his selection of Mr. Pruitt represents a bigly gift for the oil and gas industry.

Scott Pruitt Is More Concerned With Protecting the Oil and Gas Industry Than Protecting the Environment

Unlike some of President Trump’s other nominees for cabinet positions, Mr. Pruitt is familiar with the work of the agency that he has been nominated to lead. In his previous job as the Attorney General (AG) of Oklahoma, Mr. Pruitt sued the EPA over a dozen times in efforts to block implementation of rules to protect clean air and water.

Mr. Pruitt was also instrumental in building a network of Republican AG offices dedicated to fighting EPA efforts under the Obama administration. As chairman of the Rule of Law Defense Fund, Mr. Pruitt and his cohorts sought to slow or thwart implementation of major environmental and public health programs such as the Cross State Air Pollution Rule, Clean Air Mercury Rule, EPA’s update to its national ambient air quality standards for ground-level ozone (smog), the Clean Power Plan, and others. Co-litigants with Mr. Pruitt in these suits against the EPA included the American Fuel & Petrochemical Manufacturers, National Mining Association, Murray Energy, Peabody Energy, Southern Company, American Petroleum Institute, and other representatives of some of the most polluting industries on Earth.

Mr. Pruitt’s actions show greater concern for the interests of the oil and gas industry than for public health and the environment. The New York Times has described Mr. Pruitt’s relationship with oil and gas industry executives as an “unprecedented, secretive alliance.” In 13 out of the 14 challenges to federal environmental regulations that Mr. Pruitt was part of, energy companies that had contributed money to Mr. Pruitt or to Pruitt-affiliated political campaign committees were co-parties. Additionally, Mr. Pruitt copy-and-pasted a letter (with minor, unsubstantial alterations) from an oil and gas company onto Oklahoma AG letterhead, and sent the letter to the EPA representing it as the work of the AG’s office, thereby using the seal of his public office to lend an imprimatur of public interest to the arguments of the oil and gas industry.

One of the core tenets of Mr. Pruitt’s regulatory philosophy is that environmental regulation should be left to the states. However, under his direction, the Oklahoma AG's office cut its environmental enforcement division and redirected resources into a newly created federalism division. Thus, Mr. Pruitt’s actions demonstrate his beliefs that not only should environmental regulation be left to the states (calling into question why he is in charge of the EPA) but that states should then abdicate responsibility for environmental protection as well (calling into question why he is in public service).

Pruitt’s EPA Will Face Legal Roadblocks to Rolling Back Most Obama Era Regulations

While Mr. Pruitt was effective at organizing opposition to the Obama administration’s regulatory efforts, his challenges often failed in court. Courts upheld numerous EPA rules challenged by Mr. Pruitt and his coalition, making them more impervious to challenge from within the agency.

Furthermore, judicial review of administrative actions constrains the ability of the EPA Administrator to make or reverse policies adopted by previous administrations, particularly policies that have already gone into effect. Familiar doctrines such as Chevron deference and arbitrary and capricious review provide outer limits on the Administrator’s discretion. Agencies may be entitled to substantial deference from the courts, but agency actions are far from unfettered.

It is quite common for incoming EPA administrators to take different positions on matters within the agency’s jurisdiction than outgoing administrators. While the agency is allowed considerable latitude in its policy positions, it still must be able to adequately explain why it is changing course and must point to substantial evidence in the record to support its decision. It is not simply enough for the agency to say that there is a new administration in town and so now the agency is going to rescind previous rules. Perhaps most illustrative of this principle is the G.W. Bush administration’s failed efforts to undo the Clinton administration’s Roadless Rule for certain areas of the nation’s national forests.

Therefore, most of the Obama administration’s environmental regulations—which were amply supported by scientific evidence and in many cases have already been upheld against legal challenges (many of them from Mr. Pruitt)—will be tough for Pruitt to undo. Particularly given that numerous federal environmental statutes, existing regulations, and the best available science all contradict his lasseiz faire dressed up as federalism viewpoint.

The early days of the Trump administration are not indicative of an administration that is predisposed to the thoughtful, deliberative process required to compile the necessary administrative record to withstand judicial scrutiny. Additionally, the administration’s actions to undermine the EPA’s work, including efforts to slash the agency’s funding and impugn the role of science in policy making, will likely work against the administration’s anti-regulatory rulemaking efforts by opening the actions to judicial challenges.

Given the current legal structure, Mr. Pruitt's office faces impediments to fulfilling its agenda. Which goes a long way in explaining Steve Bannon's recent statements that efforts are underway to dismantle the regulatory state. So long as Americans continue to push back on the unconstitutional overreach of the Trump administration, and prevent wholesale change of our system of government, the environmental regulations that have protected U.S. water quality, air quality, and public health will likely still be in place when the American political system regains its senses. Just keep pushing back.