The Environment, A Bipartisan Issue?: Partisanship Polarization and Climate Change Policies in the United States

Climate Change is a global problem that can no longer be ignored. A special report prepared by the Intergovernmental Panel on Climate Change (IPCC) warns that global temperatures are likely to reach 1.5°C above pre-industrial levels between 2030 and 2052 if they continue to increase at the current rate, that global warming is closely associated with human activity and that it poses significantly increased risks to health, livelihoods, food security, water supply, human security, and economic growth. ⁽¹⁾ In the 2017/2018-year period the global surface temperature was the fourth highest since the introduction of instrumental measures at the Goddard Institute for Space Studies (GISS) ⁽²⁾ and +1.7°C warmer than the average temperatures for the time period 1880/1920, an appropriate base period for an estimate of ‘pre-industrial temperature’ in part because this was the earliest period with appropriate and substantial instrumental measurements and in part because unusually high volcanic activity off-set warming from human-made greenhouse gas activity. ⁽³⁾

The results of a warming planet were felt the world over with higher than usual temperatures that led to record rainfalls, wildfires and, droughts. Thus, even if the target goal of 1.5°C of warming were achievable and achieved, leading climate scientists agree that climate change is transforming our planet in ways beyond their initial scientific estimates. Mitigation and adaptation require a global coordinated response ⁽⁴⁾ but this can pose significant challenges at the domestic level. For the United States, “with its love of big houses, big cars and blasting air conditioners,” ⁽⁵⁾ the challenges are particularly severe; the United States and China together account for approximately 45% of global greenhouse gas emissions. The federal legislation that put in place the Environmental Protection Agency (EPA) and gave it the legislative framework to enable it to do its job remains more or less in place but fifty years on, an updated response to the contemporary climate change challenge is thwarted by the polarization of partisan politics.

This Article considers current U.S. administration responses to environmental regulation from the perspective of political polarization. In Part One, we identify U.S. international climate change obligations and comment on the rollback of Obama-era environmental regulations now taking place at federal level. In Part Two, we locate these policies in the context of the growth of political polarization and partisanship that now characterizes U.S. politics. We note the recommendations of the American Political Science Association (APSA) published in 1950 to the effect that too little party differentiation and an absence of clear political identity are inimical to a two-party system democracy, but suggest that the results of implementation have not been as predicted; contemporary hyper-partisanship indicates that the pendulum has now swung too far the other way.

In Part Three, we note that environmental regulation now divides the Republican and Democratic Parties but comment on research that suggests that, at the level of individual party members, support for a more positive response to tackling climate change may cross party lines. To the extent that party affiliation and loyalty are now matters of personal identity, political agendas at the level of national politics can mask or conceal internal contradictions and inconsistencies and this, we suggest, is the case here.

In Part Four, we note that state level initiatives to counteract the effects of climate change have gathered bipartisan support but are subject to partisan attempts by the federal government to preempt their effectiveness. We note in particular the Trump Administration’s attacks on California and the multi-state lawsuit initiated in response to the withdrawal of California’s vehicle emissions waiver. We note that, although described as non-partisan, the states involved are predominantly Democrat or Democrat-leaning and consider the suggestion that these disputes are primarily about delineating the boundaries of state and federal government authority. We conclude with the observation that, indicators of healthy federalism or not, for a younger generation of voters, these are disputes that concern the existential issue of the age. If for that reason alone, all politicians sooner rather than later will have to respond.

The United Nations Framework Convention on Climate Change (UNFCCC) adopted on 9 May 1992 and opened for signature at the Earth Summit in Rio de Janeiro a month later, represented the first international treaty attempt to respond to the threat of climate change. ⁽⁶⁾ It entered into force on 21 March 1994 and today has 197 signatories, including the United States. ⁽⁷⁾ The UNFCCC called for stabilizing “greenhouse gas concentrations at a level that would prevent dangerous anthropogenic (human induced) interference with the climate system. ... within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened, and to enable economic development to proceed in a sustainable manner.” ⁽⁸⁾ The Kyoto Protocol which entered into force on 16 February 2005 implemented this objective with a principle of common but differentiated responsibilities, putting the burden of reducing greenhouse gas emissions on the 37 industrialized countries with historic responsibility for high levels of atmospheric pollution and exempting more than 100 developing countries, including China and India. ⁽⁹⁾ For this reason the United States did not ratify the treaty and the Bush Administration withdrew in 2001.

By contrast, the Paris Climate Agreement which opened for signature on 22 April 2016 and entered into force on 4 November 2016, required nearly every country in the world to commit to lowering their greenhouse gas emissions with a universal accounting system for emissions, and a requirement for individual countries to monitor emissions, and create a plan for emissions reduction. ⁽¹⁰⁾ The effect “for the first time—[brought] all nations into a common cause to undertake ambitious efforts to combat climate change and adapt to its effects, with enhanced support to assist developing countries to do so.” ⁽¹¹⁾ As such, the Agreement represented “a new course in the global climate effort.” ⁽¹²⁾

The long-term goal is to substantially reduce the risks and effects of climate change by keeping the increase in global average temperature to below 2 °C above pre-industrial levels, and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels. ⁽¹³⁾ Greenhouse gas emissions (GGE) contribute to climate change by trapping heat and making the planet warmer. ⁽¹⁴⁾ Signatories to the Paris Climate Agreement agreed to reach “global peaking of greenhouse gas emissions as soon as possible” with 20/20/20 targets: 20% reduction of greenhouse gas emissions, 20% increase in the use of renewable sources of energy and 20% increase of energy efficiency (with a 20 % reduction of energy consumption). As of May 2019, 197 states and the European Union (EU) have signed the Agreement. ⁽¹⁵⁾ 185 states and the EU, representing more than 88% of global greenhouse gas emissions, have ratified or acceded to the Agreement, including three of the largest producers of greenhouse gas emissions: China, the United States and India. ⁽¹⁶⁾ The United States became a signatory to the Paris Agreement in April 2016 and accepted it by executive signature in September 2016, thereby obviating the need for ratification by Congress. ⁽¹⁷⁾ President Obama committed the United States to contributing US$3 billion to the Green Climate Fund, an initiative within the United Nations Framework on Climate Change that seeks to helps developing countries limit or reduce their greenhouse gas (GHG) emissions and adapt to climate change. ⁽¹⁸⁾

The United States and China together account for approximately 45% of global greenhouse gas emissions. The U.S.-China Joint Presidential Statement on Climate Change issued on March 31, 2016, confirmed that both countries would sign the Paris Agreement and signaled U.S. intentions to take a full leadership role in tackling the global problem of climate change. ⁽¹⁹⁾ On September 3, 2016, as the United States and China deposited with U.N. Secretary-General Ban Ki-Moon their respective joining documents, President Obama uttered these remarks:

We have a saying in America—that you need to put your money where your mouth is. And when it comes to combating climate change, that’s what we’re doing, both the United States and China. We’re leading by example. As the world’s two largest economies and two largest emitters, our entrance into this agreement continues the momentum of Paris, and should give the rest of the world confidence—whether developed or developing countries—that a low-carbon future is where the world is heading. ⁽²⁰⁾

However, following the mid-term elections which saw the House flipped and Senate Democratic numbers reduced, the domestic ambitions of Obama’s second term fell victim to political partisanship. With the loss of its legislative majority, the Administration fell back on the power of the presidency to in effect bypass Congress.

Achievements of the second term, including fuel economy standards for light-duty vehicles (passenger cars and trucks), ⁽²³⁾ restrictions on methane emissions and other pollutants, and updating energy efficiency standards for home appliances, ⁽²⁴⁾ were effected in the main by executive orders and regulations, “the tools of the administrative presidency,” ⁽²⁵⁾ leaving them vulnerable to reversal by an incoming regime. ⁽²⁶⁾ The Clean Power Plan ⁽²⁷⁾ unveiled August 23, 2015 was arguably the “most visible” of the Obama’s climate initiatives. ⁽²⁸⁾ The Plan sought to tackle carbon dioxide emissions from existing fossil fuel burning power plants, the largest source of climate pollution in the United States, by requiring a 32% reduction from 2005 levels by 2030. It was immediately challenged by a coalition of Attorneys-General from more than 24 Republican states, was stayed by the Supreme Court, pending a ruling by a lower federal court and has never come into effect. ⁽²⁹⁾

The 2016 election victory of Donald J. Trump as 45^th President of the United States barely four months after U.S. accession to the Paris Agreement, signaled a change of pace in American leadership on climate change policy on both domestic and international fronts. ⁽³⁰⁾ In the intervening period, there have been no significant U.S. initiatives to combat climate change. On the contrary, Obama’s key domestic and international measures have been systematically attacked. ⁽³¹⁾ On June 1, 2017, President Trump announced his intention to withdraw the United States from the Paris Agreement, thereby signaling a step back from international leadership on environmental issues. On the domestic front, “[t]he Trump Administration’s tumultuous presidency has brought a flurry of changes—both realized and anticipated—to U.S. environmental policy.” ⁽³²⁾

President Trump’s first actions on taking office included the appointment as head of the EPA of Scott Pruitt, a ‘climate change denier’ who has refused to acknowledge the connection between climate change and human activity and lost little time in initiating the roll-back of Obama era achievements and regulations that now characterizes this Administration. ⁽³³⁾ Under the leadership of his successor Andrew Wheeler, a former coal industry representative and lobbyist, ⁽³⁴⁾ the EPA has replaced the Clean Power Plan ⁽³⁵⁾ and announced a replacement of the WOTUS (Waters of the United States) rule with the likely effect that polluters will no longer need a permit to discharge potentially harmful substances into many streams and wetlands. ⁽³⁶⁾ Rules regarding fracking on public lands and coal leases on federal land have been repealed; ⁽³⁷⁾ restrictions on automobile tailpipe ⁽³⁸⁾ and methane emissions ⁽³⁹⁾ are to be relaxed and against the advice of its own scientists and lawyers the EPA has failed to ban new uses of asbestos when “many developed countries ... including the United Kingdom, Japan, South Korea, France, Italy, Spain, Australia, Germany, the Netherlands and Finland” have already done so and Brazil has recently voted to do the same.” ⁽⁴⁰⁾ Pesticide safety rules have been rolled back or eliminated on the basis that the data supporting objections to the use of the pesticide was “not sufficiently valid, complete or reliable.” ⁽⁴¹⁾

The change of pace has happened primarily at federal level; at State level, by contrast, numerous actions have been implemented to counteract the effects of climate change and initiatives promoted for a more responsible use of natural resources. ⁽⁴²⁾ What is clear, however, is that environmental regulation is very much a partisan issue. President Trump, himself a climate change denier, ⁽⁴³⁾ campaigned on a platform of deregulation so that, as from day one, as Larsen and Herndon put it, the CPP was a “dead reg walking”. ⁽⁴⁴⁾

This has not always been the case; the current framework of environmental legislation was put in place under a Republican administration and in a spirit of general environmental concern. As his first official act President Richard Nixon signed the U.S. National Environmental Policy Act (NEPA) into law on January, 1970. The Clean Air Act of the same year received no opposition in the Senate and only one hostile vote in the House. ⁽⁴⁵⁾ President Nixon’s support at the signing ceremony was effusive:

As we sign this bill in this room, we can look back and say, in the Roosevelt Room on the last day of 1970, we signed a historic piece of legislation that put us far down the road toward a goal that Theodore Roosevelt, 70 years ago, spoke eloquently about: a goal of clean air, clean water, and open spaces for the future generations of America. ⁽⁴⁶⁾

President Barack Obama famously remarked that “[t]his country (the United States) is founded on compromise. ⁽⁵²⁾ The horizontal division of powers that is built into U.S. constitutional arrangements “forces national leaders to seek cooperation from an array of independent actors, all with their own bases of political power and formal authority” ⁽⁵³⁾ and requires “exceptional skill at negotiation and conciliation.” Currently, however, as Professor Bullman-Pozen observes, the “rise of ideologically coherent, polarized parties means that partisanship matters more for the competition it generates than for the cooperation it inspires.” ⁽⁵⁴⁾ Partisanship and polarization give Americans political representatives “who struggle to cooperate across party lines at an unprecedented rate, resulting in high profile fiscal and policy battles, government shutdowns, and an inability to resolve problems or enact legislation that guides the nation’s domestic and foreign policy.” ⁽⁵⁵⁾

If political polarization, is now the defining feature of early 21^st century politics, ⁽⁵⁶⁾ partisanship in U.S. politics is hardly a new phenomenon. ⁽⁵⁷⁾ George Washington in his farewell address of 1796 warned against partisanship, condemning parties as: “[d]ivisive, disruptive, and the tools of demagogues seeking power.” ⁽⁵⁸⁾ Washington feared that partisanship would lead to a “Spirit of Revenge” in which politicians would not govern for the good of people, but only to obtain and maintain their grip on power. ⁽⁵⁹⁾ As a result, he warned Americans to guard against would-be despots who would use parties as “Potent engines ... to subvert the power of the people and to usurp for themselves the reins of government”. ⁽⁶⁰⁾ Despite this warning, as historians have noted, much, if not most, of U.S. political history has been characterized by high levels of partisanship with a post war interval of muted party conflict representing something of an exception. ⁽⁶¹⁾

Partisanship in the sense of loyalty and polarization in the sense of division are not the same and the one does not necessarily imply the other. In contemporary U.S. politics however the position seems to be that they do. American parties, in general terms, have become progressively more programmatic, cohesive and, ideologically distinct. ⁽⁶²⁾ An increase in party distinctiveness has been accompanied by a measurable rise in party conflict. ⁽⁶³⁾ Van Houweling reports that an increasing proportion of Congressional votes—more than 90%—involves parties voting against the other. ⁽⁶⁴⁾ And when party conflicts do occur, both Representatives and Senators exhibit more loyalty to their parties than they did in the past. ⁽⁶⁵⁾ This tallies with the results of other studies of Congressional voting behavior to the effect that between the 1950s and the 1970s only 60% voted on party lines, but this figure rose to over 70% in the 1980s and continues to rise to today’s levels. ⁽⁶⁶⁾

In 2018, the Washington Post identified a potential culprit: a “little-known report” that “keeps popping up in commentary on the state of American politics,” and its authors blamed for contemporary political gridlock. ⁽⁶⁷⁾ The report in question, Toward a More Responsible Two-Party System, ⁽⁶⁸⁾ written in 1950 for the American Political Science Association (APSA) was the product of a four-year inquiry into how governmental processes designed “for an untried federal republic in an undeveloped corner of the eighteenth-century world” might best be adapted to meet contemporary needs. ⁽⁶⁹⁾ Specifically the report was critical of what it saw as the major weakness of the 1950s political framework: the parties were too similar to each other and lacked the necessary structures to operate effectively at national level. Moreover they were too unwilling to engage in conflict. Clearer ideological distinctions and “meaningful national programs” were needed to provide voters with real political choices, and thereby ensure democratic accountability:

The fundamental requirement of accountability is a two-party system in which the opposition acts as the critic of the party in power, developing, defining and presenting the policy alternatives which are necessary for a true choice in reaching public decisions. The opposition most conducive to responsible government is an organized party opposition. ⁽⁷⁰⁾

Fifty years later Viscount James Bryce, a Scot, wrote of the differences between “intelligent Republicans” and “intelligent Democrats”:

Neither party has, as a party, anything definite to say on these issues; neither party has any clean-cut principles, any distinctive tenets. Both have traditions. Both claim to have tendencies. Both have certainly war cries, organizations, interests enlisted in their support. But those interests are in the main the interests of getting or keeping the patronage of the government. Distinctive tenets and policies, points of political doctrine and points of political practice, have all but vanished. They have not been thrown away, but have been stripped away by time and the progress of events, fulfilling some policies, blotting out others. All has been lost, except office or the hope of it. ⁽⁷²⁾

While the causes of the current “hyper-partisanship” ⁽⁸¹⁾ are complex, it is undoubtedly the case that political factionalism at the national level is closely tied to and mirrors an intensification of ideological polarization at the level of the electorate. ⁽⁸²⁾ It has been suggested that structural practices such as the district boundary gerrymander and the presidential primary can bear some responsibility. Low-turnout primaries, it is said, permit extremist positions to prevail over the center. ⁽⁸³⁾ Gerrymandering of congressional districts by reference to party allegiance further limits the influence of moderate voters. ⁽⁸⁴⁾ In this connection the recent decision of the U.S. Supreme Court in Rucho, which puts partisan gerrymandering beyond the reach of the federal judiciary is unfortunate. ⁽⁸⁵⁾ Historically, of course, as the Chief Justice remarked, the practice is not new ⁽⁸⁶⁾ and is not confined to one party,—Rucho itself concerned both the Republican map in North Carolina and a Democratic map in Maryland. ⁽⁸⁷⁾ The point should not however be overstated; what seems to be happening is what the Chief Justice called a “natural” gerrymander; ⁽⁸⁸⁾ as Kamarck explains “in recent years Americans seem to have “sorted themselves” into like-minded communities.” ⁽⁸⁹⁾ Brookings researchers Galston and Mann agree:

Because people increasingly prefer to live near others who share their cultural and political preferences, they are voting with their feet and sorting themselves geographically. … Many more states and counties are dominated by one-party supermajorities than in the past. Contrary to widespread belief, reducing the gerrymandering of congressional districts would make only a small dent in the problem. ⁽⁹⁰⁾

Underlying this is the continuing rise of identity politics; as political theorists and psychologists confirm, ⁽⁹²⁾ affiliation to a political party and the values that it promotes have become important indicators of personal and social identity with the result that politics now lends itself to be conducted in terms of tribes and tribalism rather than specific issues. ⁽⁹³⁾ In the words of Professor Appiah “American politics ... is driven less by ideological commitments than by partisan identities—less by what we think than by what we are. Identity precedes ideology.” ⁽⁹⁴⁾ Or—as the headline writer put it—“all politics is identity politics.” ⁽⁹⁵⁾ Yet, as Appiah also points out, “the collective identities they spawn” can be riddled with contradictions. ⁽⁹⁶⁾ Nowhere is this more true than in relation to the environment.

In terms of demographic, research identifies a Republican core constituency that is predominantly white, attends church regularly, has a conservative mindset on social issues such as immigration, same-sex marriage and racially equality, and responds to anti-abortion and gun control cues. ⁽⁹⁷⁾ Top priorities, according to a Pew Research Center report, are terrorism and the economy. ⁽⁹⁸⁾ Democratic voters on the other hand are racially and ethnically diverse, are socially liberal, see their top policy priorities in terms of reducing health care costs, improving education, protecting the environment and securing Medicare and are universally opposed to President Donald Trump. ⁽⁹⁹⁾ “None of these,” states the report, “is among the five leading top priorities for Republicans and Republican-leaning independents (Medicare and health care costs rank sixth and seventh, respectively).” ⁽¹⁰⁰⁾ On global climate change the partisan gap is particularly wide: “two-thirds of Democrats and Democratic leaners identify global climate change as a top priority, while just 21% of Republicans and Republican leaners say the same.” ⁽¹⁰¹⁾

Another report published seven months later concluded that the percentage of Americans who regard global climate change as a “major threat” to the well-being of the United States grew from 40% in 2013 to 57% in 2019 but the rise in concern is mainly on the part of Democrats; opinions among Republicans on this issue remain “largely unchanged”. ⁽¹⁰²⁾ In terms of voting behavior, a 2018 Pew survey found that for Democrats seeking party nomination, climate change is now “centre stage” with 82% of registered Democrats agreeing that environmental issues would be “very important” to their vote, an increase from 69% since 2016. Amongst registered Republicans the figure was 38%, roughly unchanged since 2008. ⁽¹⁰³⁾ The Report concludes that the role of environmental issues in the general election “remains unclear.”

Both constituencies are now easily and directly targetable via social media and can be, and are, mobilized by the respective party organizations in support of an identified party agenda. Party platforms however, come in packages of specific goals and priorities that do not necessarily mirror the priorities of the individuals who are prepared nevertheless to vote for them. As Pew researcher Drew DeSilver reminds us, both parties need to be seen in terms of coalitions united less by the specifics of party agendas but more by perceptions of common values and shared understandings. ⁽¹⁰⁴⁾

Thus in terms of party behavior, there is no doubt that the thirty years since the environmental legislation of the 1970s, have seen the partisan divide on environmental issues in Congress grow “exponentially more bitter and ideological.” ⁽¹⁰⁵⁾ Equally, research also supports the view that Republicans are more likely than Democrats to be skeptical of climate change science. ⁽¹⁰⁶⁾ Nevertheless a Pew Research Center survey conducted in March/April 2018 rather surprisingly found that, after a year of Trump Administration change in climate and energy regulation policies, “pockets of partisan agreement” could be found:

majorities of Americans said the federal government is doing too little to protect key aspects of the environment including water (69%), air quality (64%) and animals and their habitats (63%). And two-thirds of Americans (67%) said the government is doing too little to reduce the effects of climate change. ⁽¹⁰⁷⁾

“The history of the American administrative state” asserted then law professor Elena Kagan, is the history of competition among different entities for control of its policies[…]. We live today in an era of presidential administration.” ⁽¹¹³⁾ President Obama’s environmental initiatives by-passed Congress and were largely implemented using the tools of the administrative presidency, namely executive orders and agency rulemaking. The Trump Administration uses the same methods to reverse these initiatives, thereby contributing to what may be termed the “ebb and flow” of forty years of U.S. environmental policy, the underlying issues of which relate directly to the dynamics of federal-state relations. The twist in the saga is that the actions of the current administration are apparently less about federalism and more about political point-scoring and the personal animosity of the President towards environmentally conscious states, specifically the state of California.

Experience under the Trump Administration, comments Professor Farber, suggests “industry capture or reflexive ideological opposition to regulation—or both.” ⁽¹¹⁴⁾ The EPA may be a “central instrument of the modern regulatory state” but, as the Environmental Council of the States points out, cooperative federalism, in the sense of power-sharing between the 50 states of the union and the federal government, is built into the framework of U.S. environmental regulation. ⁽¹¹⁵⁾ The EPA sets standards at national level which are implemented at state level by state agencies with EPA authorization to carry out federal programs. ⁽¹¹⁶⁾ States can negotiate opt-outs, i.e. authorization to set their own standards which can be higher but not lower than the federal base line. This is a model that applies across most environmental statutes, including the Clean Air Act, the Clean Water Act, Safe Drinking Water Act, and the Resource Conservation and Recovery Act. ⁽¹¹⁷⁾ It presupposes a collaborative approach but where states and federal government share the same regulatory terrain but their political priorities diverge, states can and do argue that the federal government is exceeding its authority. Federal environmental regulation then becomes the battleground on which the divisive issue of the respective boundaries of state and federal authority can once again be played out.

President Obama’s policy of environmental regulation with its emphasis on national rules and uniform standards, shifted the balance of authority back from the states to the federal government; President Trump’s agenda reverses this, pulling back from federal regulation, and shifting responsibility back to the states. ⁽¹¹⁸⁾ From one perspective, this is broadly in line with a long-term pattern of U.S. environmental federalism whereby the federal role strengthens and diminishes in line with partisan political ideology. Republican President Ronald Reagan, for example, took office with an agenda aimed at freeing up businesses from the burden of excessive regulation. ⁽¹¹⁹⁾ From another perspective the current nature of intergovernmental relations appears to be shaped less by traditional divisions of political ideology and partisanship and more by a states pushback against an executive that in the words of the Environmental Council of the States, is damaging the “[c]onstructive, collaborative, and respectful engagement between state and federal governments [that] is an essential element in the protection of [the] nation’s public health and environment.” ⁽¹²⁰⁾

The Environmental Council of the States is a non-profit, non-partisan association whose membership comprises all 50 states plus the District of Columbia and Puerto Rico. ⁽¹²¹⁾ It notes that the states have assumed more than 96% of the delegable authorities under federal law and is committed to a model of cooperative federalism which sees the states rather than the federal government as the primary implementers of environmental protection statutes. ⁽¹²²⁾ In a recent letter sent to EPA Administrator Andrew Wheeler, ECOS expressed concern about EPA unilateral actions, lack of discussion and absence of advance consultation with the states that violate the principles of cooperative federalism and calls on the EPA “to return to the appropriate relationship with the states as coregulators under our nation’s environmental protection system.” ⁽¹²³⁾ This “unusually bold move” ⁽¹²⁴⁾ is not a complaint about partisanship—most of the group’s current cabinet members are Republicans ⁽¹²⁵⁾—but about federalism; states “across the country from Kentucky to Alaska,” California Environmental Agency Protection Agency Secretary, Jared Blumenfield, told Bloomberg Environment “are all alarmed at the tenor of the U.S. EPA.” ⁽¹²⁶⁾

What seems to have provoked the ECOS response is what looks like a politically-motivated attack on “the nation’s left-most state” that may be designed to energize the President’s base ⁽¹²⁷⁾ but as an example of federal overreach is having the effect of bringing the states together in a spirit of environmental solidarity. In the space of days, the Trump administration mounted three separate attacks against California. In reverse order, on 26 September, 2019 (the same day as the ECOS letter) EPA administrator Andrew Wheeler sent a letter to the Governor of California accusing the state of allowing untreated human waste matter to pollute its water and expressing concern “that California’s implementation of federal environmental laws is failing to meet its obligations” under the federal Clean Water Act and Safe Drinking Water Act. ⁽¹²⁸⁾ The letter requested a written response within 30 days outlining in detail how California intends to address the concerns and violations and demonstrating that the state has “the adequate authority and capability to address these issues.” ⁽¹²⁹⁾

Two days previously, Andrew Wheeler had sent another letter to the California Air Resources Board, complaining that California had the “worst air quality in the United States,” had filed incomplete plans for fighting air pollution, and had “failed to carry out its most basic tasks” under the federal law. ⁽¹³⁰⁾ The letter threatened sanctions, including cuts to federal highway funding, a substantial penalty for a state that receives more federal highway funding than any other state in the Union. ⁽¹³¹⁾

Four days before that, on September 20, the EPA formally announced it was withdrawing California’s waiver under the Clean Air Act to set its own vehicle emissions standards. ⁽¹³²⁾ This move was not unexpected. The EPA and Department of Transportation (DOT) signaled this intention in the notice of proposed rulemaking (NPRM)—the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021–2026 Passenger Cars and Light Trucks (SAFE Vehicles Rule)—in August 2018. ⁽¹³³⁾ According to the agencies’ press release the aim was to “give the American people greater access to safer, more affordable vehicles that are cleaner for the environment.” ⁽¹³⁴⁾ DOT secretary, Elaine L. Chao, claimed the federal action “meets President Trump’s commitment to establish uniform fuel economy standards for vehicles across the United States, ensuring that no state has the authority to opt out of the nation’s rules and no state has the right to impose its policies on the rest of the country.” ⁽¹³⁵⁾ Critics point up the inconsistency of requiring the state to take action to combat air pollution while removing its main mechanism for tackling the problem. They say the waiver which has been in operation since 2013, has enabled California and 13 other states to set standards above those of the national rule, including a zero-vehicle emission (ZEV) mandate ⁽¹³⁶⁾ and has been the foundation for California to become an environmental leader in reducing greenhouse gas emissions and improving air quality. ⁽¹³⁷⁾

On September 20, California, 23 other states, ⁽¹³⁸⁾ the District of Columbia, New York City, and Los Angeles filed a lawsuit in the federal district court for the District of Columbia. The states asserted that the preemption regulation exceeded the NHTSA’s authority, that the regulation contravened the Energy Policy and Conservation Act of 1975 and the Clean Air Act, and that NHTSA failed to consider the regulation’s environmental impacts as required by the National Environmental Policy Act. ⁽¹³⁹⁾ The states have the support of nine nonprofit organizations that have filed a similar lawsuit. ⁽¹⁴⁰⁾

The states involved, are, broadly speaking, those signed up to ECOS which calls itself non-partisan but in terms of its membership is almost entirely Democrat or Democrat-leaning. ⁽¹⁴¹⁾ The same is true, again broadly speaking, of other “bipartisan” state climate change coalitions. Led by the Governors of California, Washington and New York, the same State Governors plus the Governor of Puerto Rico have come together to form the United States Climate Alliance, a “bipartisan” coalition with a commitment to uphold the objectives of the 2015 Paris Agreement within their borders, “by achieving the U.S. goal of reducing greenhouse gas (carbon dioxide equivalent) economy-wide emissions 26–28% from 2005 levels by 2025and meeting or exceeding the targets of the federal Clean Power Plan.” ⁽¹⁴²⁾ Representing 55 percent of the U.S. population and an $11.7 trillion economy “an economy larger than all countries but the United States and China” the Alliance is committed to a program of climate leadership at home and international engagement across borders. Above all it seeks to refute the argument that action on climate change and positive economic growth are not compatible:

The climate and clean energy policies in Alliance states have attracted billions of dollars of new investment and helped create more than 1.7 million clean energy jobs, over half the U.S. total. Independent analysis highlighted in the Alliance’s 2018 Annual Report shows that Alliance States are not only outpacing non-Alliance states in reducing their emissions, they are also growing their economies at a faster pace. Between 2005 and 2016, Alliance States reduced their emissions by 14 percent compared to the national average of 11 percent. In that same time period, the combined economic output of Alliance states grew by 16 percent while the rest of the country grew by only 14 percent. The Alliance is demonstrating that climate leadership and economic growth go hand-in-hand. ⁽¹⁴³⁾

From another perspective, a different narrative emerges. Faced with a situation of legislative gridlock, states and cities have put aside partisan differences and come together with businesses and civil society to form bipartisan coalitions with a shared commitment to reducing emissions within their communities. America’s Pledge, an initiative spearheaded by former New York Mayor and U.N. Special Envoy Michael Bloomberg and California Governor Jerry Brown, recently published a report detailing how growing coalitions of states, cities, colleges, businesses, and other “real economy” actors are working together with climate change initiatives, despite the Trump Administration’s announced intention to take the United States out of the Paris Agreement and commitment to reviving the coal industry. ⁽¹⁴⁷⁾ As Paul Bodnar, managing director at the clean-energy-promoting Rocky Mountain Institute and a co-author of the report, told the Guardian newspaper:

There have been—cities working together, states working together, businesses working together. What’s changed in the last year and what’s new is this cross-cutting perspective. When states pass laws that help cities’ [emissions] strategies, or when states’ renewable portfolio standards are designed to help businesses—that’s really where we’re seeing really interesting, high-impact results.” ⁽¹⁴⁸⁾

At Congressional level too there are indications that environmental concerns can cross the partisan divide. Both chambers of Congress have established bipartisan Climate Solutions Caucuses. The House Climate Solutions Caucus, chaired by Ted Deutch (D-FL-22) and Francis Rooney (R-FL-19). currently comprises 23 Republicans and 41 Democrats. The Senate Climate Change caucus is a very recent initiative announced by Senator Michael Braun (R-IN) and Senator Chris Coons (D-DE). They are currently its only members but have plans for equal numbers of Republicans and Democrats yet to be announced. ⁽¹⁵³⁾

In an interview for NBC News, Rep. Rooney welcomed the Senate initiative, but said that efforts to get more Republicans interested in climate change have been challenging. ⁽¹⁵⁴⁾ Moreover the work of Niskanen Center researcher, Professor David Karol suggests that the profile of the GOP Climate Solutions Caucus is unlikely to be typical of the wider party. ⁽¹⁵⁵⁾ Nevertheless these developments may be straws in the wind. As Professor Karol reminds us, there is a “generation gap in the GOP on environmental issues, especially on the subject of climate change” with 57% of Republican and Republican-leaning millennials believing there is “solid evidence” of climate change. ⁽¹⁵⁶⁾ To quote Karol again:

[t]he role of present-day coalitions in determining politicians’ preferences will only hold as long as political costs remain small. If political costs were to rise, then coalitional allies would likely follow Members of Congress to more pro-environmental positions. Anticipating such a shift, some Republicans may take forward positions on environmental issues to gather a reputation for issue leadership and distinguishing media attention. ⁽¹⁵⁷⁾