VERMONT LAW REVIEW
VOLUME 45 NUMBER 4 SUMMER 2021
ARTICLES
Legitimacy, Legality, Legacy, and the Life of Democracy Joshua Ulan Galperin
Reforming Oil and Gas Leasing on Public Lands Mary Greene
Deconstructing Environmental Deregulation Under the Trump Administration Hannah Perls
Trump at War John Yoo
VERMONT LAW REVIEW
VOLUME 45 NUMBER 4 SUMMER 2021
ARTICLES
Legitimacy, Legality, Legacy, and the Life of Democracy Joshua Ulan Galperin 561
Reforming Oil and Gas Leasing on Public Lands Mary Greene 573
Deconstructing Environmental Deregulation Under the Trump Administration Hannah Perls 589
Trump at War John Yoo 639 Newbury
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For electronic submissions or submissions questions, please e-mail our Senior Articles Editor for 2021–2022, Simeon Brown, at [email protected], or call the Vermont Law Review at (802)-831-1253. Vermont Law Review encourages double-sided printing of submissions when possible. LEGITIMACY, LEGALITY, LEGACY, AND THE LIFE OF DEMOCRACY
Joshua Ulan Galperin*
The Trump Administration challenged notions of good governance. It challenged our expectation of majoritarian legitimacy to the extent only a minority of voters elected President Donald Trump in 2016.1 It challenged our demands for reasoned decision-making insofar as the President sought to dismantle the administrative state and govern by fiat.2 It challenged our expectation of checks and balances in the way it approached appointments and removals to accumulate power at the expense of congressional design.3 These challenges sound in different legal theories, but they all reflect shattered expectations of good governance. And yet, the most lasting legacy of the Trump Administration may have nothing to do with governing. It is hard to guess how historians will view this period, but I write and revise this essay in December 2020 and Spring 2021, having watched the most flamboyant, stunning, and blatant attempt to prostrate the United States’ electoral system.4 This flagging has raised concerns about the continuing legitimacy of democracy.5 But this concern reflects a simplistic and mistaken view of democracy. In fact, democracy remains the solution—not
* Assistant Professor of Law, Elisabeth Haub School of Law at Pace University; M.E.M, 2009, Yale School of the Environment; J.D., 2007, Vermont Law School; B.A., University of Delaware, 2004. 1. See 2016 Presidential Election Results, N.Y. TIMES, https://www.nytimes.com/elections/2016/results/president (last updated Aug. 9, 2017) (showing the election results wherein Hillary Clinton lost the election with 48% of the popular vote and Donald Trump won with just 45.9%). 2. See, e.g., Exec. Order No. 13843, 83 Fed. Reg. 32,755–56 (July 10, 2018) (altering the hiring rules and examinations of Administrative Law Judges); Exec. Order No. 13957, 85 Fed. Reg. 67631–32 (Oct. 26, 2020) (promulgating an executive order to alter the hiring process for federal employees with access to confidential information). 3. E.g., Brief for Petitioner at 2, 4–5, 15, 19, 30, Seila Law v. Con. Fin. Protection Bureau, 140 S. Ct. 2183 (2020); Brief for Respondent at 45, Lucia v. SEC, 138 S. Ct. 2044 (2018). 4. See Where Republicans in Congress Stand on Trump’s False Claim of Winning the Election, WASH. POST https://www.washingtonpost.com/graphics/2020/politics/congress-republicans- trump-election-claims/ (last updated Dec. 15, 2020) (reporting that Trump incorrectly claimed he won the presidential election, and that over 200 Republicans refused to acknowledge Joe Biden as the victor in the 2020 presidential election). 5. Henry Farrel, Trump’s Baseless Claims Damage American Democracy, WASH. POST (Nov. 5, 2020), https://www.washingtonpost.com/politics/2020/11/05/trumps-baseless-claims-damage- american-democracy/; Sam Levine, ‘Corrosive to Democracy’: What Do Trump’s Baseless Claims Really Mean? THE GUARDIAN (Nov. 13, 2020) https://www.theguardian.com/us- news/2020/nov/13/trump-election-voter-fraud-claims-attack-democracy; Jeet Heer, Even a Clownish Coup Can Still Hurt Democracy, THE NATION (Nov. 18, 2020), https://www.thenation.com/article/politics/trump-coup-election-michigan/, Michael Peel, Trump’s Attack on US Democracy Hurts Everyone, FIN. TIMES (Nov. 19, 2020), https://www.ft.com/content/4345612c-6826-40de-a9f2-a97e7e9725d0. 562 Vermont Law Review [Vol. 45:561 the problem. The problem lies in the fact that elections alone do not make a democracy. The solution lies in the complexity of our constitutional arrangement, which despite staggeringly selfish attacks on the electoral process, maintains some stability. It hardly needs repeating. President Trump all but promised that he would not accept defeat in the 2020 presidential election.6 On election night, before all the votes were counted, President Trump declared himself the winner.7 As the vote counting continued over the following days, the President and his followers at times demanded that vote counting should stop and at other times that it should continue. In places such as Michigan, where outstanding ballots significantly favored Joe Biden, the President or his supporters called for an end to counting.8 In places such as in Arizona, where there was more likelihood that uncounted ballots would favor President Trump, Donald Trump’s supporters demanded that counting continue.9 By the end of the week it was clear that Joe Biden had amassed a significant majority of the national vote and had won key states necessary for a victory in the Electoral College.10 Yet President Trump and his allies declared that massive voter fraud had stolen the election.11 Meanwhile, state and federal election officials insisted the election was fair and secure.12 Christopher Krebs, then-Head of the Department of Homeland Security’s Cyber and Infrastructure Security Agency—charged with election security—declared that the 2020 presidential election was secure and free
6. See Kevin Liptak, A List of the Times Trump Has Said He Won’t Accept the Election Results or Leave Office if He Loses, CNN (Sep. 24, 2020), https://www.cnn.com/2020/09/24/politics /trump-election-warnings-leaving-office/index.html (detailing multiple occasions former President Trump claimed he would not cede the 2020 election or give up office). 7. Christina Wilkie, Trump Tries to Claim Victory Even as Ballots Are Being Counted in Several States, CNBC (Nov. 4, 2020), https://www.cnbc.com/2020/11/04/trump-tries-to-claim-victory- even-as-ballots-are-being-counted-in-several-states-nbc-has-not-made-a-call.html. 8. Bill Bostock, Videos Show Trump Protestors Chanting ‘Count Those Votes’ and ‘Stop the Count’ Outside Separate Ballot-Counting Sites in Arizona and Michigan, BUS. INSIDER (Nov. 5, 2020), https://www.businessinsider.com/videos-trump-protesters-michigan-arizona-vote-count-2020-11. 9. Id. 10. Jonathan Lemire et al., Biden Defeats Trump for White House, Says ‘Time to Heal,’ ASSOCIATED PRESS (Nov. 7, 2020), https://apnews.com/article/joe-biden-wins-white-house-ap-fd58 df73aa677acb74fce2a69adb71f9. 11. Susan Milligan, Trump Promotes Voter Fraud Claims in 45-Minute Video Address, U.S. NEWS (Dec. 2, 2020), https://www.usnews.com/news/elections/articles/2020-12-02/trump-promotes- voter-fraud-claims-in-unusual-45-minute-video-address. 12. Eric Turner & Frank Bajak, Repudiating Trump, Officials Says Election ‘Most Secure’, ASSOCIATED PRESS (Nov. 13, 2020), https://apnews.com/article/top-officials-elections-most-secure- 66f9361084ccbc461e3bbf42861057a5; Arielle Mitropoulos & Will McDuffie, State Officials Say They’re Baffled, Offended by False Election Claims, ABC NEWS (Nov. 17, 2020), https://abcnews.go.com/Politics/state-officials-theyre-baffled-offended-false-election- claims/story?id=74243567. 2021] Legitimacy, Legality, Legacy, and the Life of Democracy 563 of significant fraud.13 President Trump fired Krebs within the week.14 Later, Attorney General William Barr, one of President Trump’s most ardent supporters in the Executive Branch, likewise stated that he saw no evidence of widespread voter fraud after a Department of Justice investigation.15 The President pushed Barr out of the Administration shortly thereafter.16 Beyond the dueling public statements about election fraud, President Trump’s legal team filed lawsuit after lawsuit seeking to prevent finalization of the election’s results. They brought multiple suits in each of the battleground states—Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin—that President Trump lost but realistically hoped to win.17 In each suit, the President’s lawyers failed to present adequate evidence of fraud or legal arguments for overturning the apparent results of the vote.18 President Trump and his legal team lost in nearly every case—upwards of 50—including at the United States Supreme Court.19 The State of Texas lead another suit against several other states in an effort to use the constitutional path of original Supreme Court jurisdiction to skip the lower courts, but within days the Supreme Court rejected that attempt as well.20 Finally, driven by the volume and frequency of his public claims about a stolen election, and the foundering litigation strategy, President Trump pursued political and quasi-political options. Trump sought to prevent certification of votes by wooing Republican members of certification
13. Courtney Norris, As Trump Continues to Push False Claims of Fraud Top Officials Says Election Was Most Secure in History, PUB. BROAD. SERV. (Nov. 12, 2020), https://www.pbs.org/newshour/politics/as-trump-continues-to-push-false-claims-of-fraud-top-officials- say-election-was-most-secure-in-history. 14. Courtney Norris, Trump’s Firing of Top Election Security Official Unsettles Lawmakers, PUB. BROAD. SERV. (Nov. 19, 2020), https://www.pbs.org/newshour/politics/trumps-firing-of-top- election-security-official-unsettles-lawmakers. 15. Katherine Faulders & Alexander Mallin, Barr Had “Intense” Meeting with Trump After AG’s Interview Undercutting Voter Fraud Claims: Sources, ABC NEWS (Dec. 2, 2020), https://abcnews.go.com/Politics/barr-intense-meeting-trump-ags-interview-undercutting- voter/story?id=74516139. 16. See Allie Malloy et. al., Attorney General William Barr Resigns, CNN, https://www.cnn. com/2020/12/14/politics/william-barr-out-as-attorney-general/index.html (last updated Dec. 15, 2020). 17. Emily Bazelon, Trump Is Not Doing Well with His Election Lawsuits. Here’s a Rundown., N.Y. TIMES, https://www.nytimes.com/2020/11/13/us/politics/trump-election-lawsuits.html (last updated Nov. 25, 2020). 18. Id. 19. Adam Liptak, Supreme Court Rejects Republican Challenge to Pennsylvania Vote, N.Y. TIMES, https://www.nytimes.com/2020/12/08/us/supreme-court-republican-challenge-pennsylvania- vote.html?action=click&module=Top%20Stories&pgtype=Homepage (last updated Dec. 10. 2020). 20. Texas v. Pennsylvania, 141 S. Ct. 1230 (2020). 564 Vermont Law Review [Vol. 45:561 bodies.21 When that failed, the President begged Republican-controlled state legislatures to select electors to the Electoral College who would vote for him, despite the official vote tally in their state.22 That political strategy was dead on arrival.23 Finally, in a move with more precedent, but never with success, President Trump hoped his allies in Congress would challenge the final certification of the Electoral College vote.24 Persuading a member of each the House and Senate to participate in such a challenge was easy, but gathering a majority of Congress to support the challenge a longshot.25 After both Senator Mitch McConnell, as the leader of the Senate Republicans, and Vice President Mike Pence, as the Senate’s presiding officers, made clear that Congress would not overturn the results of the election, President Trump turned to mob violence.26 Although people died while a mob attempted to overthrow Congress on behalf of President Trump, even political violence could not change the election results.27 This four-ring circus of rhetorical, legal, political, and militant showmanship amounted to nothing in terms of overturning the election, but it will have lasting implications for public trust in government. For those who are sure their candidate won the election but was nonetheless denied the Presidency, the system failed both miserably and spectacularly. Putting aside the problem that these complaints are entirely meritless, governance does not rest on reality; it rests on belief, and there remains widespread belief that some conspiracy ripped leadership away from their preferred candidate and handed it an imposter. This imposter, President Biden, is illegitimate in the minds of these doubters because he did not actually earn a majority of support from the
21. Tom Hamburger et al., Trump Invites Michigan Republican Leaders to Meet Him at White House as He Escalates Attempts to Overturn Election Results, WASH. POST (Nov. 19, 2020), https://www.washingtonpost.com/nation/2020/11/19/wayne-county-rescind-certifying-election/. 22. See Deanna Paul, Trump Campaign Wants States to Override Electoral Votes for Biden. Is That Possible?, WALL ST. J. (Nov. 21, 2020), https://www.wsj.com/articles/trump-campaign-wants- states-to-override-electoral-votes-for-biden-is-that-possible-11605973695 (“Trump campaign lawyers say Republican-controlled legislatures should use their legislative powers to set aside vote results favoring Mr. Biden and appoint electors to cast votes for Mr. Trump when the Electoral College meets on Dec. 14.”). 23. Id. 24. Kyle Cheney & Melanie Zanona, How Trump’s Allies Could Take One Last Shot to Overturn the Election, POLITICO (Nov. 30, 2020), https://www.politico.com/news/2020/11/30/republic ans-overturn-electoral-college-441459. 25. See id. (explaining how Senate Republicans do not have enough members who would be willing to challenge election results). 26. Ashley Parker, Pence and McConnell Defy Trump—After Years of Subservience, WASH. POST (Jan. 6, 2021), https://www.washingtonpost.com/politics/pence-mcconnell-trump/2021/01/06/b7a a5c1e-503b-11eb-bda4-615aaefd0555_story.html. 27. Mob Attack, Incited by Trump, Delays Election Certification, N.Y. TIMES, https://www.n ytimes.com/live/2021/01/06/us/electoral-vote (last updated Jan. 20, 2021). 2021] Legitimacy, Legality, Legacy, and the Life of Democracy 565
American people. The problem here is that even if the conspiracy theorists had all their facts right—and millions of fraudulent votes stole the election from President Trump—the constitutional system hints, but does not require, popular support for a president.28 Each state can establish its own system for selecting electors to the Electoral College.29 The Constitution does not require that electors vote for the presidential candidate who wins the most votes in a given state.30 Regardless of how states select their electors and regardless of which candidate the Electoral College selects, Congress must certify the final tally and the law allows members of Congress to challenge that certification and trigger political debate.31 In short, elections are paramount. They are the unique spark that ignites democratic government, and they are essential to a functioning democracy. And yet, elections alone are not democracy. Elections may be the engine of democracy, but governing needs more than an engine: it needs wheels to move forward. The political and judicial processes may be those wheels and in the case of the 2020 presidential election, even if a vast conspiracy stole President Trump’s votes (it did not, of course), the legal and political components retain their own, non- majoritarian, validity. If this assertion, downplaying the role of majoritarianism in democracy, gives you pause, you are not alone. Enshrining majoritarian vote counting as the entirety of a democratic system is nothing new. Certainly, majoritarianism provides impulse for policymaking, aggregating individual votes to create some picture of widespread policy preferences.32 And certainly the ability for voters to “throw the bums out” creates some degree of accountability between voters and elected officials, at least in theory. The theoretical basis for majoritarian supremacy is understandable. But it is not clear that the constitutional or practical basis is so overpowering. At least in the legal realm, the singular devotion to majoritarianism at the expense of other aspects of good governance began in earnest only about 60 years ago.33 According to Professor Lisa Bressman, it was the publication of Alexander Bickel’s book, The Least Dangerous
28. U.S. CONST. art. II, § 1, cl. 2. See also id. amends. XII, XX. 29. U.S. CONST. art. II, § 1, cl. 2. 30. Id. 31. 3 U.S.C. § 15 (2021). 32. See Joshua Ulan Galperin, The Death of Administrative Democracy, 82 U. PITT. L. REV. 1, 56–57 (2020) [hereinafter Galperin, The Death of Administrative Democracy] (explaining how officials elected by majoritarian elections are given powers to appoint and monitor unelected officials, thereby at least theoretically building a government from the desires of the majority). 33. Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 479–80 (2003). 566 Vermont Law Review [Vol. 45:561
Branch, that persuaded many to second-guess the role of unelected decisionmakers, particularly federal judges.34 Bickel argued that judges are suspect because they serve lifetime appointments and have attenuated connections to voters.35 From there, majoritarianism snowballed. Judges are unelected, but they are not the only ones. Save the President, the entirety of the Executive Branch is unelected according to pretty much every commentator and, importantly, the Supreme Court.36 If majoritarianism is the sine qua non of legitimate governance, then, by volume at least, most of the federal government is illegitimate. As I will explain, the majority of the federal government is not illegitimate. But recognizing the reality that most of the government is indeed unelected, Congress has at times tried to impose majoritarianism on executive institutions other than the presidency. It has not worked. At the start of the New Deal, the Great Depression forced Congress and the United States Department of Agriculture (USDA) to impose new regulation on farmers in order to stabilize the agricultural economy.37 The general regulatory scheme involved paying farmers to reduce their production, thereby reducing supply and raising prices.38 There were several practical challenges to this strategy. First, farmers had always seen themselves as fiercely independent and skeptical of government intervention.39 Second, to the extent farmers were willing to accept the need for some collective economic program, USDA had, to this point, always been a research and education agency without the resources or experience to implement the regulations necessary to revive the farm economy.40 Thus, to build support for the new regulations and implement these regulations effectively, Congress and USDA decided rules should not come down from Washington, but should instead come up from the farmers themselves.41 To advance this strategy, they settled on something completely new: administrative elections.
34. Id. 35. Id. at 480 (describing Bickel’s view that judicial review writ-large is difficult to justify in a majoritarian democracy). 36. Galperin, The Death of Administrative Democracy, supra note 32, at 2. 37. Joshua Ulan Galperin, The Life of Administrative Democracy, 108 GEO. L.J. 1213, 1221– 22 (2020) [hereinafter Galperin, The Life of Administrative Democracy]. 38. Id. at 1222. 39. Id. at 1233. 40. See id. at 1222. 41. See id. at 1223 (noting that up until this point the lack of long-term connection between administrators and farmers created tension). 2021] Legitimacy, Legality, Legacy, and the Life of Democracy 567
Congress and the USDA established a system in which farmers would vote for other farmers to administer the new agricultural laws.42 These county agriculture committees were the first and only experiment in the United States with “administrative democracy” and they still exist today.43 In almost every county in the country, farmers are eligible to vote for and serve on these administrative committees.44 Congress and the USDA develop the outlines of policy and the local committees fill in the details.45 In the early days, these elected committees were primarily responsible for running the supply management programs, which involved measuring crop acreage, setting production limits, confirming that farmers were staying within allotments, and delivering payments.46 These responsibilities have waxed and waned over the years, but they have always included paradigmatic administrative policymaking and adjudication. For instance, today, elected committee responsibilities include jurisdiction-wide policymaking, such as setting a “final planting date,” which indicate a threshold date for planting crops.47 If a farmer plants a crop after the committee-designated date, that farmer is not eligible for certain federal payments.48 In addition, the elected committees are responsible for making individualized judgements about when farmers did plant various crops and other matters of farmer eligibility for federal programs.49 These responsibilities are esoteric insofar as they are limited to local and on-the- ground farming practices, but they are also broadly important as they govern the ground floor of food policy in this country. Especially given their foundational role, the fact that these farmer committees are elected is not a mere curiosity. There are nearly 8,000 elected farmers making policy on nearly 3,000 committees.50 Each committee is composed of three to five elected members who must participate in some federal farm programs and operate a farm within the committee’s jurisdiction.51 The voters are held to the same eligibility
42. Id. 43. Id. at 1217–18. 44. Id. at 1219–20 (explaining how these county agriculture committees serve as localized outposts of federal agencies, geographically divided according to county boundaries or smaller areas within a given county). 45. Id. at 1225–26. 46. See id. at 1222–23 (identifying the need for someone to enforce these programs so that the supply could be held at a lower level and the crop prices could therefore increase). 47. Id. at 1228. 48. Id. 49. Id. 50. Id. at 1216. 51. Id. at 1220. 568 Vermont Law Review [Vol. 45:561 requirements.52 Elected committee members serve three-year terms and can serve up to three consecutive terms.53 They are eligible to serve again after sitting out for at least one term.54 Importantly, it is the elections and term- limits that define who serves and when they serve. Unlike every other officer in the Executive Branch, another government official does not appoint these elected farmers to their offices or have the power to remove them. Only the voters and term limits have that power, making this a unique example of majoritarian administration in a government where every other unit of the Executive Branch is responsive, in some combination, to Congress, the President, or high-level presidential appointees.55 Rather than stimulating good farm governance, the unique electoral system has led to racial segregation, inept administration, and disinterest.56 It is also unconstitutional.57 As one might have expected from a pure majoritarian system, the majority has used its largely unconstrained electoral authority to maintain power. The committee system has disenfranchised Black farmers (in particular, though not exclusively) and to distribute information, money, and government support based on personal relationships and preferences rather than more apolitical and equitable considerations.58 In the recent past, Congress has made a notable effort to reduce this discriminatory exertion of power, but the crux of that effort has limited the bare majoritarian structure of the committees by, for instance, allowing the Secretary of USDA to appoint representatives of underrepresented farmers to the otherwise elected committees. Beyond racism, analysts have, time and again, criticized the committees for simply
52. Id. 53. Id. 54. Id. 55. In fact, USDA regulations purport to allow the Deputy Administrator of the Farm Service Agency to remove committee members for certain bad behavior after a trial-like process, but those regulations are likely invalid. Galperin, The Death of Administrative Democracy, supra note 32 at 26– 27. 56. Id. at 1242. 57. See Galperin, The Death of Administrative Democracy, supra note 32, at 36–40 (arguing that Supreme Court doctrine around appointment and removal would invalidate the process for appointing and removing committee members because the committees are Officers of the United States, but they are not appointed according to the Appointments Clause nor removable by the President or a presidential appointee). 58. See Galperin, The Life of Administrative Democracy, supra note 37, at 1240–42 (describing how committee administrators were able to control which farmers received relevant information and resources—often, for example, directing funds to the landowners rather than the tenant farmers, who were mostly Black). 2021] Legitimacy, Legality, Legacy, and the Life of Democracy 569 being bad at their jobs.59 This should come as little surprise since elections are most likely to select for popularity rather than administrative skills. Of course, one could say the same thing about congressional or presidential elections, but Congress designs policy, which the president implements using a vast array of experts. Neither Congress nor the President is practically responsible for day-to-day operations. However, the incongruence of elections for selecting administrators may not be the only reason the farmer committees have done a poor job of implementing farm programs. Too few farmers have shown interest in serving on or voting for farmer committees, providing only a small pool of candidates from which to choose and an uncompetitive selection process. Voter turnout for these farmer elections ranges from around 4–15 percent.60 In one instance, there were apparently more candidates than voters.61 Finally, the elected farmer committees are unconstitutional. The Constitution provides clear guidelines for appointment of officers of the United States. Depending on the exact role of the officers, the President may appoint with or without Senate confirmation, presidentially appointed agency heads may appoint, or Article III judges may appoint.62 The farmer committees are indeed officers because they carry out statutory duties with “significant discretion.”63 But the committees are “appointed” by voters— not the president, department heads, or judges. This is plainly unconstitutional. Moreover, while the Constitution does not provide direct rules about removing officers from their posts, the Supreme Court has made clear the President, or somebody the President controls, must have the power to remove administrative officers.64 The electoral scheme lodges removal power only in the farm voters—not the President or a presidential appointee. This is yet another constitutional weakness of the electoral system.
59. See id. at 1247–49 (noting that, although the farmers brought their agricultural knowledge and experience to the committees, most of the farmers were not similarly knowledgeable or skilled in administering a government program). 60. Id. at 1250. 61. Id. at 1250 n.308. 62. U.S. CONST. art. II, § 2, cl. 2. 63. Lucia v. S.E.C., 138 S. Ct. 2044, 2052 (2018) (quoting Freytag v. C.I.R., 501 U.S. 868, 882 (1991)); accord Galperin, The Death of Administrative Democracy, supra note 32, at 39 (“Because the [farmer] committees’ authority goes well beyond the authority of other administrators that the Supreme Court has already ruled are ‘officers . . . .’”). 64. See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 492 (2010) (citations omitted) (holding that the President must have removal authority over an administrator or over that administrator’s supervisor); Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2197 (2020) (citations omitted) (holding that when an agency has a single administrator at its head, the President must have unbound authority to remove that administrator). 570 Vermont Law Review [Vol. 45:561
The reasons for these failures and the constitutional frailty are complex, but they all stem, in part, from the mistaken belief that what makes a robust democracy is simply majoritarian leadership. To the contrary, robust democracy is only partly majoritarianism. In addition to elections, we should also demand opportunities for individual participation, transparent reason-giving, and careful deliberation. These are not vague preferences but constitutional ideals. Majoritarianism, as I have already described, is the electoral process of aggregating individual votes to drive decision-making or hold officials accountable. There is clearly a majoritarian demand in the Constitution. For instance, Article I provides that members of the House of Representative are chosen by a vote65 and that the House and Senate operate by majority rule.66 But this is not the full scope of constitutional decision-making. Individual participation is also central. The First Amendment, for example, provides a right of individuals to petition government regardless of their standing in a political minority or majority.67 Article III creates a Judicial Branch that will hear individual complaints under the law without direct majoritarian influence.68 The majoritarian aspect of democracy takes a sweeping survey to animate government, but the individual function protects classically liberal notions of independence even in a system with collective majoritarianism. The majoritarian and individualist qualities of democracy account for the idea that each person has pre-political opinions on which they must be able to act in a just political system. Each of us can vote, petition, or sue to champion our preferences, but voting, petitioning, and suing are not ideal avenues for dynamic expression and generation of preferences. The second two democratic qualities—reason giving and deliberation—create opportunities for people to evaluate and spawn new preferences in a more collective governing enterprise. Reason giving means that decision-making is tethered to explanations rather than unadorned edict. Decisionmakers must explain their purpose. Constitutionally, mandatory reason giving is evident in, for instance, the Fourth Amendment’s requirement that a search or seizure be based on reason or the Due Process Clauses’ demands that accusations and reasons precede a deprivation of life, liberty, or property.69 Finally, the democratic necessity of deliberation simply asserts that
65. U.S. CONST. art. I, § 2, cl. 1. 66. See, e.g., id. art. I, § 5, cl. 2 (providing for a two-thirds majority process for expelling members). 67. Maggie McKinley, Petitioning and the Making of the Administrative State, 127 YALE L.J. 1538, 1559 (2018). 68. U.S. CONST. art. III, § 1. 69. Galperin, The Death of Administrative Democracy, supra note 32, at 53. 2021] Legitimacy, Legality, Legacy, and the Life of Democracy 571 coercive decisions flow from consideration and debate. Giving reasons alone is not sufficient. There must be an opportunity to reflect on and judge those reasons. The Sixth Amendment’s procedures for criminal trials, including public hearings, right to witnesses, and, ultimately, a jury, are transparent processes to assure deliberation on evidence.70 The larger structures of bicameralism and presentment are, in the words of Chief Justice Burger writing for a majority of the Supreme Court: “[An] unmistakable expression of a determination that legislation by the national Congress be a step-by-step, deliberate and deliberative process.”71 While the 2020 election seems to have deeply damaged the democratic system—and without a doubt it has, to some, seriously undermined trust in the electoral system—the 2020 election, and the aftermath, are also evidence that a more robust democracy is at work and working somewhat well. In this frantic, obsessively scrutinized, and exhausting process, we have indeed seen all four democratic components: majoritarianism, individualism, reason giving, and deliberation. The election itself, of course, is vital majoritarianism. But it is not just voting for a president. In each state elected officials oversee aspects of voting.72 The Electors in the Electoral College participate in their own majoritarian vote when they actually cast their ballots for President.73 The House and Senate use majoritarian processes to certify the Electoral College vote.74 Even the polycentric constitutional structure, in some states, reinforces the role of majoritarianism. In Georgia, for example, the Governor and Secretary of State are independently elected to carry out distinct tasks among which are oversight and certification of the voting in that state.75 President Trump’s lawsuits represent a powerful tool for prosecuting individual demands. Some of these suits challenged that the vote counting did not fairly represent actual majoritarian preferences, but others, such as a lawsuit in Wisconsin, argued the law should forbid counting certain votes despite an admission that the votes did represent the actual will of voters.76 In other words, the courts provided a forum for individual grievance in the face of majoritarian preference.
70. Id.; U.S. CONST. amend. XI. 71. INS v. Chadha, 462 U.S. 919, 959 (1983). 72. See Roucho v. Common Cause, 139 S. Ct. 2484, 2495 (2019) (quoting U.S. CONST. art. I, § 4, cl. 1) (discussing state legislatures powers in relation to congressional elections). 73. U.S. CONST. amend. XII. 74. 3 U.S.C. § 15 (2021). 75. See GA. CONST. art. II, § III, para. I (investing the Secretary of State with independent election oversight authority). 76. See Complaint at 25–27, Trump v. Evers, No. 2020AP1971-OA, 2020 LEXIS 191 (Wis. Dec. 3, 2020) (arguing that certain absentee votes should not be counted). 572 Vermont Law Review [Vol. 45:561
In the end, the pursuit of individualist justice through the court system failed due, in large part, to the democratic plea for reason giving. Courts require reasoning to justify judicial action and President Trump’s lawyers were unable to muster any effective reasons (read: evidence) for changing the initial vote counts. Courts not only demand reasons, they also give reasons. Courts offered thorough explanations for their decisions and, in the rare instances of dissents favoring President Trump’s claims, dissenting justices also explained their reasons.77 Moreover, the congressional certification process requires express reasoning.78 If a Representative and a Senator object to final certification, the law requires an objection in writing and that the writing state a clear reason for the objection. That reason is then the basis for a deliberative process.79 After the House and Senate receive the reasoned objection the two chambers convene separately for each to debate the objection.80 Throughout the electoral process, one understandably seen as a majoritarian, there is ample evidence of a robust and complete democracy beyond simple majoritarianism, with individualism, reason giving, and deliberation serving important roles. This is exactly as it should be. But oh boy, this high theory about the meaning of democracy and how it is interwoven even through a difficult presidential election does not provide much satisfaction when it appears the nation is pulling apart at every seam. The vote count, state certifications, Electoral College vote, Supreme Court orders, this does not appear to change any minds or stem the literal flow of blood. The hatred, distrust, and inability to even communicate runs deep and may be this country’s undoing. Things are bleak. Perhaps despair is in order. But this is no reason not to celebrate the systems that do, in fact, work. Systems that can maintain stability despite venomous rhetorical, legal, political, and physical attacks. Because our constitutional democracy derives power from several sources of legitimacy—majoritarianism, individualism, reason giving, and deliberation—venomous attacks are not enough to destroy it. There must be near consensus to do away with robust democracy. Today, there is surprisingly widespread objection to the way our democracy functions, but there is no consensus that it has failed. Indeed, the Trump Administration challenged notions of good governance from beginning to end, and in the end, challenged the very democratic basis of our government. People are not behaving as they should, but the system still is.
77. Trump v. Evers, No. 2020AP1971-OA, 2020 LEXIS 191, at 4 (Wis. Dec. 3, 2020). 78. 3 U.S.C. § 15. 79. Id. 80. Id. REFORMING OIL AND GAS LEASING ON PUBLIC LANDS
Mary Greene*
INTRODUCTION ...... 573 I. THE LEGACY OF THE TRUMP ADMINISTRATION’S ENERGY- DOMINANCE AGENDA...... 574 II. MINERAL LEASING ACT AND FEDERAL LAND POLICY MANAGEMENT ACT ...... 576 A. Federal Land and Policy Management Act ...... 576 B. Mineral Leasing Act and the Federal Onshore Oil and Gas Leasing Reform Act ...... 577 III. REFORMING OIL AND GAS LEASING ...... 578 A. Amend Land-Use Plans by Closing More Lands to Oil and Gas Leasing ...... 579 1. The Multiple-Use Sustained-Yield Mandate Is Complex But Discretionary ...... 580 B. The Department of Interior Should More Actively Exercise Its Discretion to Issue Leases ...... 583 C. FLPMA’s “Unnecessary or Undue Degradation” Mandate Limits DOI’s Discretion ...... 586 CONCLUSION ...... 588
INTRODUCTION
The past four years of the Trump Administration’s “energy dominance” agenda will have long-lasting negative impacts on our lands, waters, and local communities. At a time when the climate crisis is becoming ever more apparent, the Trump Administration was resolutely focused on oil and gas leasing to the detriment of all other benefits provided by public lands. In the past four years alone, the federal government has leased 5.4 million onshore acres to oil and gas interests—some for as low as $2 an acre.1 The energy-dominance agenda amounts to little more than a giveaway of our public land. If such actions are to be prevented in the
* Public Lands Attorney; J.D., 2012 Georgetown University Law Center; MEM 2009, Duke University; B.A. 2006, Brown University. 1. New Story Map Details How Last Four Years of Trump Oil and Gas Actions Have Impacted Public Lands and Communities, THE WILDERNESS SOC’Y (Oct. 26, 2020), https://www.wilder nessaction.org/new-story-map-details-how-last-four-years-trump-oil-and-gas-actions-have-impacted- public-lands-and-communities; 30 U.S.C. § 226(b)(1)(B) (2021). $2 per acre is the statutory minimum that the federal government is allowed to lease land. Id. 574 Vermont Law Review [Vol. 45:573 future, it is imperative that the Biden Administration focus on reforming the oil and gas leasing program. This Article focuses on administrative actions, absent any legislative changes, that the Biden Administration could take to start reforming the oil and gas leasing program. However, before looking toward the future, in Part I, I briefly discuss the legacy of the Trump Administration’s policies. In Part II, I then provide a brief overview of the statutes pertinent to the onshore leasing program. Finally, Part III outlines administrative actions the Biden Administration could take.
I. THE LEGACY OF THE TRUMP ADMINISTRATION’S ENERGY- DOMINANCE AGENDA
Fossil fuels produced on federal lands account for approximately 24% of all U.S. carbon-dioxide emissions.2 Lands leased during the Trump Administration will contribute to these emissions for decades to come. In general, leases issued under the Mineral Leasing Act (MLA) are granted for a primary term of 10 years,3 which is extended indefinitely if qualifying drilling operations are in place, the lease contains a well capable of producing in paying quantities, or if the lease is entitled to receive an allocation of production from an off-lease well.4 A lease conveys to a lessee the right to :
[U]se so much of the leased lands as is necessary to explore for, drill for, mine, extract, remove and dispose of all the leased resource in a leasehold subject to: Stipulations attached to the lease; restrictions deriving from specific, nondiscretionary statutes; and such reasonable measures as may be required by the authorized officer to minimize adverse impacts to other resource values, land uses or users not addressed in the lease stipulations at the time operations are proposed.5
In short, once the lease is conveyed there is very little the Biden Administration can do to alter the outcome. Oil and gas leases lead to
2. See MATTHEW D. MERRILL ET AL., FEDERAL LANDS GREENHOUSE GAS EMISSIONS AND SEQUESTRATION IN THE UNITED STATES: ESTIMATES FOR 2005–14 1, 8 (2018), https://pubs.usgs.gov/sir/2018/5131/sir20185131.pdf. This number includes upstream (extraction-based) and downstream (user-based) emissions. Id. 3. 30 U.S.C. § 226(e). 4. 43 C.F.R. §§ 3107.1–.3 (2020). 5. 43 C.F.R. § 3101.1–2. 2021] Reforming Oil and Gas Leasing on Public Lands 575 drilling rigs, roads, pipelines, and pollution—permanently scarring public lands, harming wildlife, destroying habitats, and contributing to degraded air and water quality.6 While a significant amount of oil and gas leasing has occurred under every administration, the extent of leasing under the Trump Administration is particularly jarring. Not only did the pace far exceed any we have seen before,7 the Trump Administration also opened areas that were once thought protected, valued for their pristine wilderness and for their cultural significance.8 Because little can be done to prevent development once the leases are conveyed, these leases stand to be a persistent environmental legacy of the Trump Administration.9 Indeed, in its waning days, the Trump Administration rushed to push through a lease sale in one of America’s last pristine ecosystems: the Arctic National Wildlife Refuge.10 Holding the largest stretch of wilderness in the United States, the refuge is home to caribou, wolves, migratory birds, and three species of bears, including polar bears.11 Local indigenous populations rely on these resources to sustain their culture and way of life, therefore drilling in the arctic will spell disaster not only for the wildlife but also for the
6. The Climate Report 2020: Greenhouse Gas Emissions from Public Lands, THE WILDERNESS SOC’Y, https://www.wilderness.org/sites/default/files/media/file/TWS_The%20Climate %20Report%202020_Greenhouse%20Gas%20Emissions%20from%20Public%20Lands.pdf (last visited May 14, 2021) (“[T]he lifecycle emissions from the production and combustion of fossil fuels produced on public lands as a result of the federal leasing program are equivalent to over 20% of total U.S. GHG emissions.”). 7. See Emily Holden et. al., Revealed: The Full Extent of Trump’s ‘Meat Cleaver’ Assault on US Wilderness, THE GUARDIAN (Oct. 26, 2020), https://www.theguardian.com/environment/ng- interactive/2020/oct/26/revealed-trump-public-lands-oil-drilling (showing that the Trump Administration offered as much land in four years as the Obama dministration offered in all eight years). 8. See, e.g., Notice of Sale to be Issued for Coastal Plain Oil and Gas Leasing Program Dec. 7, BUREAU OF LAND MGMT. (Dec. 7, 2020), [hereinafter Notice of Sale] https://www.blm.gov/press-release/notice-sale-be-issued-coastal-plain-oil-and-gas-leasing-program-dec- 7 (announcing sale of land in the Arctic National Wildlife Refuge). See also Emily Holden, Trump ’turns back the clock’ by luring drilling companies to pristine lands, THE GUARDIAN (FEB. 12, 2020), https://www.theguardian.com/environment/2020/feb/12/trumps-legacy-drilled-public-lands-and-the- resulting-carbon-emissions (reporting the Trump administration enticed energy companies to lease “pristine lands” through cheap rates). 9. 30 U.S.C. § 226(i)–(m) (2021). 10. Notice of Sale, supra note 8. See Alex DeMarban, ANWR lease sale fizzles for Trump administration, with revenue falling far short of hopes, ANCHORAGE DAILY NEWS (Jan. 7, 2021), https://www.adn.com/business-economy/energy/2021/01/06/anwr-lease-sale-brings-in-144-million-in- bids-mostly-from-alaska-state-owned-corporation/ (reporting that the livestream lease sale, which occurred on January 6, only raised $14.4 million dollars, “with the vast majority of winning bids submitted by a development corporation owned by the state of Alaska.”). 11. See Wildlife & Habitat, U.S. FISH & WILDLIFE SERV., https://www.fws.gov/refuge/arctic/ wildlife_habitat.html (last visited May 14, 2021) (“The [Arctic] Refuge’s rich pageant of wildlife includes 42 fish species, 37 land mammals, eight marine mammals, and more than 200 migratory and resident bird species.”). 576 Vermont Law Review [Vol. 45:573 communities that rely on this wildlife to survive12 Along with its contributions to climate change, the Trump Administration will leave behind a legacy of scarred lands and destroyed wilderness that could be impossible to undo. For this reason, it is vital that new reforms are developed to prevent such outcomes in the future. While legislation ultimately is needed for longstanding change, there are two significant administrative steps the Biden Administration can take to start implementing reforms: (1) rewriting land-use plans; and (2) fully utilizing the discretion granted to the Department of Interior to not issue leases in certain areas.
II. MINERAL LEASING ACT AND FEDERAL LAND POLICY MANAGEMENT ACT
This next Part provides a brief outline of the major statutes pertaining to onshore leasing, the MLA,13 as amended by the Federal Onshore Oil and Gas Leasing Reform Act (FOOGLRA),14 and the Federal Land Policy Management Act (FLPMA).15
A. Federal Land and Policy Management Act
Enacted in 1976, FLPMA governs the way in which public lands are administered by the Bureau of Land Management (BLM) under the principles of “multiple use and sustained yield . . . .”16 The multiple-use sustained-yield mandate enshrines the concept of meeting the needs of both present and future generations. To that end, BLM must manage lands in a way that protects important ecological, historical, environmental, and archaeological values, while at the same time recognizing “the Nation’s need for domestic sources of minerals, food, timber, and fiber . . . .”17 FLPMA tasks BLM with inventorying public lands, and with developing land-use plans (LUPs) for these inventoried lands.18 All subsequent resource management decisions must be consistent with these
12. The impact of President Trump’s energy dominance agenda, THE WILDERNESS SOC’Y ACTION FUND (Oct. 26, 2020), https://storymaps.arcgis.com/stories/417110924baa4f57896165e3f5e96 a11. 13. Mineral Leasing Act of 1920, Pub. L. No. 66-146, 41 Stat. 437 (1920). 14. Federal Onshore Oil and Gas Leasing Reform Act of 1987, Pub. L. No. 100-203, 101 Stat. 1330-256 (1987). 15. Federal Land Policy and Management Act, Pub. L. No 94-579, 90 Stat. 2743 (1976). 16. 43 U.S.C. § 1701(a)(7) (2021). 17. 43 U.S.C. § 1701(8), (12). 18. 43 U.S.C. §§ 1711(a), 1712(a). 2021] Reforming Oil and Gas Leasing on Public Lands 577 underlying LUPs.19 Central to the development of LUPs is the determination of which lands are eligible for oil and gas leasing.20 Once BLM has determined which lands are eligible for oil and gas leasing, the MLA dictates how leasing occurs.21
B. Mineral Leasing Act and the Federal Onshore Oil and Gas Leasing Reform Act
In 1920, President Woodrow Wilson signed the MLA into law to “promote the mining of coal, phosphate, oil, oil shale, gas, and sodium on the public domain.”22 The MLA confers sole authority over the Federal mineral estate, regardless of the surface management agency, to the Department of Interior.23 Since the MLA’s inception in 1920, Congress has amended the MLA many times, including, pertinent to this Article, by FOOGLRA in 1987.24 The MLA, as amended by FOOGLRA, grants the Secretary of Interior the discretion to lease public lands that are “known or believed to contain oil or gas deposits . . . .”25 An interested party submits an expression of interest (EOI) to BLM nominating certain parcels to lease.26 BLM reviews nominated parcels for availability, compliance with the National Environmental Policy Act (NEPA), and other legal and policy requirements.27 After reviewing the parcels, BLM will post a proposed lease sale notice along with NEPA compliance documentation.28 Once BLM has made a final determination as to which leases will be included in
19. 43 U.S.C. § 1713. 20. Thomas R. Delehanty, Executive Authority to Keep It in the Ground: An Administrative End to Oil and Gas Leasing on Federal Land, 35(2) UCLA J. ENV’T L. & POL’Y 145, 155, 183 (2017). 21. 30 U.S.C. § 226(b)(1)(A) (2021). 22. Mineral Leasing Act of 1920 ch. 85, 41 Stat. 437, 437 (1920). 23. 30 U.S.C. § 226; About the BLM Oil and Gas Program, BUREAU OF LAND MGMT. https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/about (last visited May 14, 2021). 24. See Federal Onshore Oil and Gas Leasing Reform Act of 1987, Pub. L. No. 100-203, 101 Stat. 1330-256 (amending the MLA in 1987). 25. 30 U.S.C. § 226(a). 26. 43 C.F.R. § 3120.3-2 (2020). 27. 43 C.F.R. § 3120.4-2. See Expression of Interest (EOI), BUREAU OF LAND MGMT., https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/leasing/parcel-nominations (last visited May 14, 2021) (explaining how parcels are reviewed for availability and environmental concerns after an EOI is submitted). 28. 43 C.F.R. § 3120.4-2. 578 Vermont Law Review [Vol. 45:573 the sale, the agency posts a Notice of Competitive Lease Sale at least 45 days prior to the start of the lease sale.29 The MLA dictates that eligible lands must be leased to “the highest responsible qualified bidder” via a competitive bidding process.30 Leases for which no bids are received are subsequently leased under a noncompetitive process.31 Lease sales are to be held for each State “where eligible lands are available” at least quarterly[,]” 32 and leases are issued for a primary term of ten years and continue “so long as oil or gas is produced in paying quantities . . . .”33
III. REFORMING OIL AND GAS LEASING
As stated above, the Trump Administration’s “energy-dominance” agenda has prioritized oil and gas leasing above all other uses of public lands. It has resulted in leasing not only millions of acres but also in leasing areas in pristine wilderness once thought out of bounds to development. .34 The Biden Administration issued an order pausing oil and gas leasing on public lands.35 While the pause will afford the administration time to review the oil and gas leasing program, the Order is not a permanent solution. Although never tested, an outright permanent ban on leasing on public lands is unlikely to withstand legal scrutiny. The purpose of the MLA is “[t]o promote the mining of coal, phosphate, oil, oil shale, gas, and sodium on the public domain.”36 To that end, the introduction to the Act very clearly states: “Deposits of coal, phosphate, sodium, potassium, oil, oil shale, gilsonite (including all vein- type solid hydrocarbons), or gas, and lands containing such deposits owned by the United States . . . shall be subject to disposition . . . .”37 Similarly,
29. Id.; U.S. DEP’T OF INTERIOR, BUREAU OF LAND MGMT., INSTRUCTION MEMORANDUM NO. 2018-034, UPDATING OIL AND GAS LEASING REFORM – LAND USE PLANNING AND LEASE PARCEL REVIEWS (Jan. 31, 2018), [hereinafter MEMORANDUM NO. 2018-034] https://www.blm.gov/policy/im- 2018-034. 30. 30 U.S.C. § 226(b)(1)(A). 31. 30 U.S.C. § 226(c)(1). 32. 30 U.S.C. § 226(b)(1)(A). 33. 30 U.S.C. § 226(i). 34. See, e.g., The Impact of President Trump’s Energy Dominance Agenda, supra note 12 (noting how these lands “provide critical habitat for many plants and animals, clean water and offer fantastic opportunities for recreation and exploration.”). 35. DEP’T OF INTERIOR, ORDER NO. 3395, TEMPORARY SUSPENSION OF DELEGATED AUTHORITY (2021) https://www.doi.gov/sites/doi.gov/files/elips/documents/so-3395-signed.pdf. 36. Mineral Leasing Act of 1920, ch. 85, Pub. L. No. 146, 41 Stat. 437 (1920). 37. 30 U.S.C. § 181 (emphasis added). 2021] Reforming Oil and Gas Leasing on Public Lands 579
FLPMA notes that as part of its multiple-use mandate, BLM must manage lands in a way that recognizes the Nation’s need for, among other resources, “domestic sources of minerals . . . .”38 An attempt to ban all leasing would arguably be counter to congressional intent—and to the purposes of both the MLA and FLPMA. Although leasing moratoria issued by the BLM have been upheld by the courts,39 moratoria are, by their very definition, temporary. An outright permanent ban on all public lands would require congressional action. That said, there are still significant short-term and long-term steps an administration can take to reform leasing on public lands. The following Parts look at two actions: reducing the acreage of lands deemed eligible for oil and gas leasing when developing LUPs and fully utilizing the Department of Interior’s discretion to not issue leases in areas that would be better managed for other resource values.
A. Amend Land-Use Plans by Closing More Lands to Oil and Gas Leasing
FLPMA delegates authority to BLM to create and amend land-use plans to observe the principle of “multiple use and sustained yield.”40 A significant component of these plans is the designation of which lands will be opened to oil and gas leasing.41 Historically, BLM has operated under the presumption that all lands not specifically closed by Congress or withdrawn by the President should be deemed eligible for leasing.42 This practice overwhelmingly favors oil and gas development to the detriment of other public land uses and values—and is arguably contrary to FLPMA’s multiple-use mandate. As a result of this practice, 90% of the 245 million acres of public land managed by BLM are open to oil and gas leasing, leaving only 10% to be
38. 43 U.S.C. § 1701(a)(12) (2021). 39. See, e.g., Krueger v. Morton, 539 F.2d 235, 240 (D.C. Cir.1976) (holding the Secretary of the Interior’s decision to suspend the issuing of permits was not an abuse of discretion under the MLA). 40. 43 U.S.C. § 1712(c)(1). 41. Land Use Planning and NEPA Compliance, U.S. DEP’T OF INTERIOR, BUREAU OF LAND MGMT. (2020), https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/leasing/land-use-plan ning. 42. See, e.g., Report to Secretary Ken Salazar Regarding the Potential Leasing of 77 Parcels in Utah, U.S. DEP’T OF INTERIOR, BUREAU OF LAND MGMT. 1, 6 (2009), https://www.eenews.net/features /documents/2009/06/11/document_gw_02.pdf (“[The Utah RMPs] adopted a broad planning level presumption that the large majority of available BLM lands should potentially be made available for oil and gas development, including lands with wilderness characteristics and lands immediately adjacent to the National Parks.”). 580 Vermont Law Review [Vol. 45:573 actively managed for other purposes.43 Compounding the problem, BLM routinely makes land available for oil and gas development that, due to their low probability of ever being developed, would be far better suited for other uses.44 Currently, 26.6 million acres of public lands are under lease and yet fewer than half these acres—about 12.7 million—are actively developed.45 While not all these lands are being actively drilled, they are also not being managed for long-term conservation goals that would benefit recreation, wildlife, or a multitude of other potential uses.46 Yet BLM continues to lease vast acres of land for oil and gas development—often at incredibly low rates.47 This allows oil and gas companies to engage in speculative leasing, thereby hoarding public lands that would be more appropriately managed for other purposes. The Biden Administration should work towards developing LUPs that embrace the multiple-use mandate and more equitably balance public-land values. BLM has significant discretion in developing LUPs, and nothing in FLPMA requires BLM to open any lands to leasing that have not been specifically closed by Congress or the President. To the contrary, one can argue BLM has not only the discretion but the obligation to balance other resource values—such as conservation, wilderness, and recreation—with mineral resource needs to determine what lands it should open to oil and gas leasing and which it should close.
1. The Multiple-Use Sustained-Yield Mandate Is Complex But Discretionary
Congress tasked BLM with managing its lands in accordance with the multiple-use sustained-yield mandate. As the Supreme Court stated in Norton v. S. Utah Wilderness Alliance: “‘Multiple use management’ is a
43. Open for business (and not much else): Analysis shows oil and gas leasing out of whack on BLM lands, THE WILDERNESS SOC’Y, [hereinafter Open for business] https://www.wilderness.org/articles/article/open-business-and-not-much-else-analysis-shows-oil-and- gas-leasing-out-whack-blm-lands (last visited May 14, 2021); BLM Land FAQs, THE WILDERNESS SOC’Y, https://www.wilderness.org/articles/article/blm-lands-faqs#:~:text=A%3A%20The%20Bureau% 20of%20Land,than%20any%20other%20government%20agency (last visited May 14, 2021). 44. Kate Kelly et al., Backroom Deals, CTR. FOR AMERICAN PROGRESS (May 23, 2019), https://www.americanprogress.org/issues/green/reports/2019/05/23/470140/backroom-deals/. 45. Oil and Gas Statistics Table 2 Acreage in Effect, U.S. DEP’T OF INTERIOR, BUREAU OF LAND MGMT. (2020), https://www.blm.gov/programs-energy-and-minerals-oil-and-gas-oil-and-gas- statistics; Oil and Gas Statistics Table 6 Acreage in Producing Leases, U.S. DEP’T OF INTERIOR, BUREAU OF LAND MGMT. (2020), https://www.blm.gov/programs-energy-and-minerals-oil-and-gas-oil- and-gas-statistics. 46. Open for Business, supra note 43. 47. Id. 2021] Reforming Oil and Gas Leasing on Public Lands 581 deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put . . . .”48 FLPMA defines multiple use as:
[M]anagement of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; the use of some land for less than all of the resources; a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values; and harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.49
Section 202 of FLPMA further defines criteria BLM must consider in the development and revision of land-use plans. Among these criteria are the requirements that BLM:
• [G]ive priority to the designation and protection of areas of critical environmental concern; . . .
• [C]onsider present and potential uses of the public lands;
• [C]onsider the relative scarcity of the values involved and the availability of alternative means (including recycling) and sites for realization of those values;
48. Norton v. S. Utah Wilderness All., 542 U.S. 55, 58 (2004) (quoting 43 U.S.C. § 1702(c)). 49. 43 U.S.C. § 1702(c) (2021). 582 Vermont Law Review [Vol. 45:573
• [W]eigh long-term benefits to the public against short- term benefits . . . .50
In short, BLM must carefully weigh the values of a wide variety of public land resources, and also account for these values both now and in the future. Significantly, the definition of multiple use makes clear that BLM’s focus should not necessarily be on the greatest economic return but instead should consider the relative values of the resources.51 Although a difficult task, the careful balancing required by FLPMA simply does not support a presumption in favor of oil and gas leasing over other uses. Courts have upheld the notion that FLPMA does not mandate the prioritizating development on public lands. In New Mexico ex rel. Richardson v. Bureau of Land Mgmt., BLM argued that it could not consider closing the entirety of the Otero Mesa to development because doing so would violate the concept of multiple use.52 The United States Court of Appeals for the Tenth Circuit flatly rejected this argument, stating:
It is past doubt that the principle of multiple use does not require BLM to prioritize development over other uses. . . . Accordingly, BLM’s obligation to manage for multiple use does not mean that development must be allowed on the Otero Mesa. Development is a possible use, which BLM must weigh against other possible uses—including conservation to protect environmental values.53
However, even if favoring oil and gas leasing is permitted by FLPMA, it is certainly not required. FLPMA is not a prescriptive statute. It describes the goals BLM must reach in developing LUPs, but not the ways in which BLM should achieve these goals. As a result, the statute grants significant discretion to BLM to fully consider the wide range of values provided by public lands and to develop LUPs that reflect this plethora of values. Included in this discretion is the authority to close lands to oil and gas leasing, above and beyond those already closed by Congress or the President.54
50. 43 U.S.C. § 1712(c)(3),(5)–(7). 51. 43 U.S.C. § 1702(c). 52. New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 710 (10th Cir. 2009). 53. Id. (emphasis in original). 54. 43 U.S.C. § 1714(a). 2021] Reforming Oil and Gas Leasing on Public Lands 583
While any planning decision must comply with all applicable laws and regulations, such as NEPA,55 clearly, BLM has authority to close more lands to oil and gas leasing at the land-use planning stage. The possibilities include: closing lands with low potential for oil and gas development that should be actively managed for other values, closing lands with high-value wilderness and wildlife habitat, closing lands with high-value cultural resources, and closing lands with high-value recreation access. Because LUPs are often in place for decades, and because all management actions must comply with an LUP, an LUP that more appropriately balances public-land resources will have longstanding value.
B. The Department of Interior Should More Actively Exercise Its Discretion to Issue Leases
Once BLM deems lands eligible for oil and gas development under the land-use planning process, the Secretary of Interior still has considerable discretion when determining whether to issue a lease. In authorizing the Secretary to issue leases, the MLA states: “All lands subject to disposition under this chapter which are known or believed to contain oil or gas deposits may be leased by the Secretary.”56 The word may is discretionary in nature.57 It creates no obligation on the part of the Secretary to lease lands subject to disposition; it only creates the authority to do so. Further, despite BLM’s practice of regularly leasing lands with no known potential for development,58 the clause “which are known or believed to contain oil or gas deposits” arguably restrains the Secretary from leasing lands which contain no such deposits. Admittedly, not all language in the MLA is discretionary. For example, the statute states: “Lease sales shall be held for each State where eligible lands are available at least quarterly and more frequently if the Secretary of the Interior determines such sales are necessary.”59 However, BLM points to this language to suggest that lease sales are required.60 This is not the
55. 43 U.S.C. § 1712(c)(8)–(9); National Environmental Policy Act of 1969, Pub. L. No. 91- 190, 83 Stat. 852 (1970). 56. 30 U.S.C. § 226(a) (2021) (emphasis added). 57. Fogerty v. Fantasy, Inc., 510 U.S. 517, 533 (1994) (“The word ‘may’ clearly connotes discretion.”). 58. See, e.g., Speculative Leasing, TROUT UNLIMITED, https://www.tu.org/energy/low- potential-lands-campaign/ (last visited May 9, 2021). 59. 30 U.S.C. § 226(b)(1)(A) (emphasis added). 60. See, e.g., U.S. DEP’T OF INTERIOR, BUREAU OF LAND MGMT., DOI-BLM-CO-050-2020- 0037-EA, PRELIMINARY ENVIRONMENTAL ASSESSMENT FOR THE DECEMBER 2020 COMPETITIVE OIL & GAS LEASE SALE 10 (2020), https://www.blm.gov/sites/blm.gov/files/EA_WRFO_KFO_Sept%202020 584 Vermont Law Review [Vol. 45:573 case. The lease sale is only required if eligible lands are available. The key is, therefore, whether eligible lands are available, and BLM has the discretion to determine whether eligible lands should be made available. Courts have consistently upheld this discretion. As the Supreme Court stated in Norton: “A land use plan, however, is a tool to project present and future use. Unlike a specific statutory command requiring an agency to promulgate regulations by a certain date, a land use plan is generally a statement of priorities; it guides and restrains actions, but does not prescribe them.”61 Although the Court in Norton was not debating the issuance of a lease, the holding applies: even if lands are deemed eligible for oil and gas leasing in a land-use plan, BLM is not required to lease these lands. BLM has both the discretion and the obligation to review nominated parcels and determine, in the context of FLPMA’s multiple-use mandate and as a result of environmental reviews, if nominated lands should in fact be made available. Despite this discretion, BLM treats nominations of eligible lands as a signal that these lands should be made available for leasing. Overwhelmingly, after an interested party nominates a parcel of land, BLM reviews the nominated parcel consistent with its NEPA and FLPMA obligations, attaches required notices and stipulations, and makes the land available for lease.62 In essence, BLM reviews look at how the nominated parcel should be offered rather than whether it should be offered in the first place.63 BLM’s response to public comments requesting withdrawal or deferral of releases shows that BLM presumes that once a parcel is nominated, BLM is obligated, to some degree, to lease the land.64 While
_Draft.pdf (“Offering quarterly oil and gas lease sales is mandated to the BLM . . . .”). See also, e.g., U.S. Department of the Interior Budget and Policy Priorities for Fiscal Year 2020: Oversight Hearing before the Committee on Natural Resources, 116th Cong. 30–34 (2019) (testimony of Michael Nedd, Deputy Director, Bureau of Land Management) (“Under the Department's commitment to responsible energy development, the BLM now consistently conducts quarterly lease sales, as required by the Mineral Leasing Act.”). 61. Norton v. S. Utah Wilderness All., 542 U.S. 55, 56 (2004). 62. See, e.g., MEMORANDUM NO. 2018-034, supra note 29. The memorandum explains: “Therefore, the BLM will not routinely defer leasing when waiting for an RMP amendment or revision to be signed. Rather, when making leasing decisions, the BLM will exercise its discretion consistent with existing RMPs and the State Director should consult with the Washington Office (WO) before deciding to defer leasing of any parcels.” Id. 63. Id. 64. See, e.g., U.S. DEP’T OF INTERIOR, BUREAU OF LAND MGMT., RESPONSE TO PUBLIC COMMENTS 4TH QUARTER (DECEMBER) 2020 COMPETITIVE OIL AND GAS LEASE SALE ENVIRONMENTAL ASSESSMENT DOI-BLM-WY-0000-2020-0010-EA (2020) (responding “no response 2021] Reforming Oil and Gas Leasing on Public Lands 585 deferrals or withdrawals do occur, they tend to be a result of political pressure or court cases.65 As a result of this presumption, BLM overwhelmingly favors oil and gas leasing on public lands above other uses. This preference is clear just in the numbers: in 2020BLM held over 400 oil and gas lease sales in the West66 and offered nearly 52 million acres for oil and gas lease sales throughout the entire country between 2010 and 2019.67 Many of these sales were in key habitats for threatened species, on land with low potential for oil and gas development, or in areas valued for their hunting access and wilderness.68 A key example of this preference is leasing within habitats vital for the threatened greater sage-grouse. Despite efforts in 2015 to establish plans to protect the greater sage-grouse, including a commitment to prioritize leasing outside sage-grouse habitats, BLM continues to offer thousands of acres of priority habitats for oil and gas lease sales.69 Under the Trump Administration, leasing in sage-grouse habitats significantly increased, with little attempt to adhere to a prioritization commitment.70 Since January of 2017, over 637,000 acres of priority sage-grouse habitat has been offered for lease.71 BLM only deferred leases in priority habitats when forced to do so as a result of court decisions
required” to WildEarth Guardians’ comment stating FOOGLRA “simply requires BLM to consider oil and gas leasing on land consistent with RMP” and “just because land is identified for leasing does not mean that it must be leased.”) (emphasis in original). 65. See, e.g., Niina H. Farah, BLM Halts Leases After Sage Grouse, Climate Legal Brawls, E&E NEWS (Nov. 14, 2019), https://www.eenews.net/stories/1061543717 (discussing how the Idaho District Court ordered a preliminary injunction to prevent leases on sage grouse habitat). 66. See Oil and Gas Statistics Table 15 Competitive Oil and Gas Lease Sales by BLM State Offices, U.S. DEP’T OF INTERIOR, BUREAU OF LAND MGMT. (2020), https://www.blm.gov/programs- energy-and-minerals-oil-and-gas-oil-and-gas-statistics. The following states were included when calculating the number of oil and gas lease sales in the West: Colorado, Montana, Nevada, New Mexico, Utah, and Wyoming. 67. See Oil and Gas Statistics Table 11 Acres Offered for Lease and Acres Sold, Calendar Years 2009–2020, U.S. DEP’T OF INTERIOR, BUREAU OF LAND MGMT. (2020), https://www.blm.gov/pro grams-energy-and-minerals-oil-and-gas-oil-and-gas-statistics. 68. Speculative Leasing, supra note 58. See, e.g., U.S. DEP’T OF INTERIOR, BUREAU OF LAND MGMT., FIRST QUARTER 2020 COMPETITIVE OIL AND GAS LEASE SALE ENVIRONMENTAL ASSESSMENT DOI-BLM-WY-0000-2020-0003-EA (2020), https://eplanning.blm.gov/public_projects/nepa/1502328/2 0008128/250009583/20191113.201Q.EA.pdf (analyzing impacts to Wyoming March 2020 lease sale). 69. See generally See GRANT GARDNER ET AL., OIL AND GAS DEVELOPMENT ON FEDERAL LANDS AND SAGE GROUSE HABITATS (2019), https://www.eenews.net/assets/2019/07/29/document_pm _01.pdf (discussing oil and gas development in sage-grouse habitats since 2015). 70. Id. at 6. 71. See id. at app. B1–B6 (totaling the lands leased in Priority Habitat Management Areas (PHMA) from February 2017 to March 2019 across the six-state study area). 586 Vermont Law Review [Vol. 45:573 in MWF v. Bernhardt and Western Watersheds v. Zinke.72 However, many of these deferrals were simply added to later lease sales.73 The Biden Administration can put policies in place to revert presumptions in favor of oil and gas lease sales. BLM should review nominated lands and acknowledge that it has the authority to reject the nomination of lands where oil and gas development would cause harm to other valuable public-land resources.
C. FLPMA’s “Unnecessary or Undue Degradation” Mandate Limits DOI’s Discretion
Although BLM’s discretion to reject a lease nomination arguably extends to its discretion to accept a nomination, FLPMA’s “unnecessary or undue degradation” clause places some limits on this discretion. FLPMA requires that “[i]n managing the public lands the Secretary [of the Interior] shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands.”74 Presumably, this action extends to leasing decisions and should prevent BLM from issuing any leases that would cause “unnecessary or undue degradation of the lands.” FLPMA does not define “unnecessary or undue degradation” (UUD), but two relevant cases have examined the requirements this standard imposes on BLM.Although the decision was focused on BLM’s FLPMA obligations as they pertain to wilderness-study areas, the Tenth Circuit in Sierra Club v. Hodel briefly addressed BLM’s discretion under the UUD standard.75 BLM argued: the UUD standard “breath[es] discretion at every pore” and the provision was not a “standard capable of judicial application, and thus that its decisions whether to enjoin private activities which affect public lands fall beyond the purview of judicial review.”76 The Tenth Circuit disagreed,
72. See Montana Wildlife Federation v. Bernhardt, No. CV-18-69-GF-BMM, 2020 WL 2615631, at *8–10 (D. Mont. May 22, 2020) (holding the 2018 IM and the lease sales violated the FLPMA). See also W. Watersheds Project v. Zinke, 336 F. Supp. 3d 1204, 1211–12 (D. Idaho Sept. 21, 2019) (summarizing why the court granted preliminary injunction on the leases). 73. Compare BUREAU OF LAND MGMT., Q3 WYOMING GAS AND LEASE SALE RESULTS (2020) (reporting eight parcels sold), with BUREAU OF LAND MGMT., Q4 WYOMING GAS AND LEASE SALE RESULTS (2020) (increasing to over 150 parcels sold). After the National Wildlife Federation protested to the BLM third quarter lease sale environmental assessment challenging 165 parcels of land, BLM deferred sales of land one quarter. See Letter from Mary Greene, Public Lands Attorney, Nat’l. Wildlife Fed’n., Protest of the Third Quarter Competitive Oil and Natural Gas Lease Sale Environmental Assessment DOI-BLM-WY-0000-2020-0008-EA, (Aug. 18, 2020) (on file with the Bureau of Land Management). 74. 43 U.S.C. § 1732(b) (2021). 75. Sierra Club v. Hodel, 848 F. 2d 1068, 1074 (10th Cir. 1988). 76. Id. 2021] Reforming Oil and Gas Leasing on Public Lands 587 holding that the “UUD standard provided ‘law to apply,’ and ‘imposes a definite standard on the BLM.’”77 While the Tenth Circuit Court provided little clarity as to the meaning of undue degradation, the decision makes clear that the clause limits BLM’s discretion and opens the door for further claims to hold BLM to this standard. In Mineral Policy Center v. Norton, the District Court for the District of Columbia reviewed the Department of Interior’s revised interpretation of UUD.78 Pertinent to this paper, the court reviewed the Department of Interior’s 2001 amendment to the interpretation of the UUD standard.79 Prior to 2001, DOI asserted its authority to “prohibit mining activities found unduly degrading, although potentially lucrative.”80 DOI stated:
Congress did not define the term “unnecessary or undue degradation,” but it is clear from the use of the conjunction “or” that the Secretary has the authority to prevent “degradation” that is necessary to mining, but undue or excessive. This includes the authority to disapprove plans of operations that would cause undue or excessive harm to the public lands.81
This interpretation substantially changed in 2001 with the advent of the George W. Bush Administration. Then Department of Interior Solicitor William G. Myers wrote an opinion stating “that ‘unnecessary’ and ‘undue’ ‘may be reasonably viewed as similar terms (the second term defining the first) or as equivalents’” and as a result “as long as a proposed mining activity is ‘necessary to mining,’ the BLM has no authority to prevent it.”82 The court rejected this latter interpretation stating: “[T]he Solicitor misconstrued the clear mandate of FLPMA. FLPMA, by its plain terms, vests the Secretary of the Interior with the authority-and indeed the obligation-to disapprove of an otherwise permissible mining operation because the operation, though necessary for mining, would unduly harm or
77. Roger Flynn, Daybreak on the Land: The Coming of Age of the Federal Land Policy and Management Act of 1976, 29 VT. L. REV. 815, 833 (2005) (quoting Sierra Club v. Hodel, 848 F.2d 1075 (10th Cir. 1988), overruled on other grounds by Village of Los Ranchos of Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992)). 78. Min. Pol’y Ctr., 292 F.Supp. 2d at 41–42. 79. Id. at 41. 80. Id. 81. Mining Claims Under the General Mining Laws; Surface Management, 65 Fed. Reg. 69,998, 69,999 (Nov. 21, 2000) (to be codified at 43 C.F.R. pts. 2090, 2200, 2710, 2740, 3800 and 9260). 82. Min. Pol’y Ctr., 292 F. Supp. 2d at 41 (quoting Memorandum the Solicitor of the Department of the Interior to the Secretary of the Department of the Interior 9 (Oct. 23, 2001)). 588 Vermont Law Review [Vol. 45:573 degrade the public land.”83 Although the opinion pertains to the impact of mining on public lands, it must also be applied to oil and gas development: BLM must prevent oil and gas development from unduly harming or degrading the public land, even if doing so means not issuing leases that may be profitable. Ultimately, BLM has significant discretion when deciding whether to issue a lease, but this discretion is limited by FLPMA’s UUD standard. The Biden Administration should develop policies and practices that recognize both this discretion and this obligation. Instead of operating under a presumption in favor of oil and gas lease sales, BLM should develop policies that truly embody the spirit of multiple use. These policies should require decision-makers to assess the relative value of all resources provided by public lands and to consider the impacts of oil and gas development on these resources, including water quality, air quality, wildlife habitats, wilderness, and recreation. Decision-makers should utilize their discretion to reject lease nominations on lands that would be better managed for other resource values or if oil and gas development in the nominated area would lead to unnecessary or undue degradation.
CONCLUSION
The Biden Administration has an opportunity to fully embrace the concept of “multiple use and sustained yield” and to reject the notion that oil and gas development should be valued above all other uses of our public lands.
83. Id. at 42. DECONSTRUCTING ENVIRONMENTAL DEREGULATION UNDER THE TRUMP ADMINISTRATION
Hannah Perls*
INTRODUCTION ...... 589 I. STRATEGY 1: UNDERMINE AGENCIES’ SCIENTIFIC AND EXPERT CAPACITIES ...... 591 A. Step 1: Block the Collection of Information Needed to Justify Forward-Looking Regulation ...... 592 B. Step 2: Undermine the Integrity of Scientific Expert Review Committees ...... 594 C. Step 3: Preclude EPA from Relying on Critical Public Health Studies ...... 600 II. STRATEGY 2: RESTRICT THE PUBLIC’S SCRUTINY OF AND PARTICIPATION IN AGENCY DECISION-MAKING ...... 603 A. Step 1: Eliminate or Restrict Meaningful Consultation Mechanisms ...... 604 B. Step 2: Restrict Public Access to Agencies’ Internal Documents and Decision-Making Processes ...... 607 C. Step 3: Restrict Pathways for the Public to Challenge EPA Decisions ...... 609 III. STRATEGY 3: AVOID REGULATION-TRIGGERING EVENTS ...... 610 A. Step 1: Expand Exemptions for Projects and Impacts Otherwise Subject to Environmental Review and Regulation ...... 611 B. Step 2: Restructure Cost-Benefit Analyses to Minimize or Exclude Benefits to Human Health and the Environment ...... 616 IV. STRATEGY 4: ADOPT NOVEL STATUTORY INTERPRETATIONS THAT ABDICATE OR NARROW AGENCIES’ REGULATORY AUTHORITY ...... 629 CONCLUSION ...... 636
INTRODUCTION
Over the past four years, Harvard’s Environmental & Energy Law Program (EELP) tracked the Trump Administration’s environmental rollback efforts, analyzing both individual regulations and broader attacks on the United States Environmental Protection Agency’s (EPA) mission-
* Legal Fellow, Harvard Law School’s Environmental & Energy Law Program (EELP). Special thanks to EELP’s former Executive Director Joseph Goffman, who contributed to this Article. This Article draws heavily upon work by current and former EELP staff, including Laura Bloomer, Sara Burr Levy, Kyra Davies, Robin Just, Caitlin McCoy, Ari Peskoe, Hana Vizcarra, and the many students who contributed to the program’s research over the past four years. All errors are the author’s own. 590 Vermont Law Review [Vol. 45:589 critical capacities.1 The goal was to provide a real-time accounting of the Administration’s deregulatory efforts and the lawsuits brought by coalitions of states, nonprofits, and community organizations to stop or delay those efforts. In this Article, I present an overview of that work, summarizing the new baseline from which the Biden Administration must operate. Under President Trump, political appointees turned environmental agencies’ interpretations of key statutes upside down, transforming broad mandates into a series of constraints on agencies’ regulatory authorities. Officials paired that effort with rules and practices designed to blunt the force of EPA’s scientific expertise, while narrowing opportunities for public participation and scrutiny, both of which are instrumental to driving EPA’s congressionally prescribed regulatory agenda. What EPA Administrator Scott Pruitt began, Administrator Andrew Wheeler pursued, but far more strategically and successfully—not only deconstructing the administrative state, but also subverting agencies’ decision-making processes. As a result, environmental agencies lost access to the scientific, legal, and public accountability mechanisms that enable them to respond to environmental and public health concerns. The Trump Administration’s environmental legacy is more than the sum of individual attacks on public health protections and pollution restrictions. I summarize this legacy in four Parts, focusing on changes at EPA, and to a lesser extent, the Department of the Interior (DOI).2 First, I address the ways that the Administration undermined EPA’s expert capacities, forced an exodus of academic scientists from the agency’s expert bodies, and opened the door to representatives of regulated industries. Second, I assess the many ways the Trump Administration narrowed mechanisms designed to invite public comment and critique of agency decisions. In doing so, the Administration not only ignored information
1. For a comprehensive overview of regulatory rollbacks under the Trump Administration, please visit EELP’s Regulatory Rollback Tracker, which provides the history of each rule and its current status, including litigation and court decisions. Regulatory Rollback Tracker, HARV. ENV’T & ENERGY L. PROGRAM, https://eelp.law.harvard.edu/regulatory-rollback-tracker/ (last visited May 22, 2021). EELP’s Mission Tracker includes an online database reviewing how EPA administrators under President Trump undermined the Agency’s capacities to safeguard scientific expertise; public health; agency accountability; enforcement and compliance; and environmental justice. See EPA Mission Tracker, HARV. ENV’T & ENERGY L. PROGRAM, https://eelp.law.harvard.edu/EPA-mission-tracker/ (last visited May 22, 2021). 2. For a more comprehensive assessment of how the Trump Administration implemented its deregulatory agenda at DOI, see LAURA BLOOMER ET AL., HARV. ENV’T & ENERGY L. PROGRAM, MANAGING PUBLIC LANDS UNDER THE TRUMP ADMINISTRATION AND BEYOND 5–10 (2020) [hereinafter BLOOMER ET AL., MANAGING PUBLIC LANDS], http://eelp.law.harvard.edu/wp- content/uploads/Managing-Public-Lands-Under-the-Trump-Administration-and-Beyond.pdf. 2021] Deconstructing Environmental Deregulation 591 essential for reasoned decision-making, but also created explicit preferences for the interests of regulated entities over the communities most affected by those entities’ activities. Third, the Trump Administration minimized regulation-triggering events by expanding the projects and impacts exempt from environmental review. It also modified the assessments agencies use to determine when new projects or events merit analysis or oversight. The Administration then promoted a Frankenstein’s monster version of cost-benefit analysis in order to justify its deregulatory goals. President Trump established arbitrary limits on the costs agencies can impose on private industry, while EPA issued new protocols to consistently undervalue or ignore the benefits of regulating greenhouse gases and other pollutants. Fourth, and perhaps most consequential, EPA adopted novel interpretations of its own statutory mandates to severely narrow or, in some cases, abdicate its authority to regulate at all. If federal courts accept these interpretations, future administrations will be unable to exercise the broader regulatory authority necessary to address both longstanding and novel public health and environmental challenges. These four strategies collectively represent the Trump Administration’s environmental deregulatory toolbox. Reviewing EPA’s successes and failures in wielding these strategies over the last four years is necessary not only to understand the deeper, more structural impacts that the Trump Administration had on the environmental administrative state, but more importantly, the ambitious regulations and reforms necessary to repair it.
I. STRATEGY 1: UNDERMINE AGENCIES’ SCIENTIFIC AND EXPERT CAPACITIES
Scientific understanding and advancement is baked into nearly every mandate and function of EPA. The executive order that created EPA consolidated the host of research, monitoring, standard-setting, and enforcement activities required under core environmental statutes,3 including the Clean Air Act (CAA),4 the Clean Water Act (CWA),5 the Resource Conservation and Recovery Act (RCRA),6 the Toxic Substances Control Act (TSCA),7 and Superfund.8 The agency’s scientific bodies and
3. Joseph Goffman, Reconstruct an Administrative Agency, ENV’T. L. INST., Nov.– Dec. 2018, at 40, 41 [hereinafter Goffman, Reconstruct an Administrative Agency], http://eelp.law.harvard.edu/wp-content/uploads/Goffman_Forum_2018_Nov-Dec-ELI.pdf. 4. Clean Air Act of 1990, 42 U.S.C. §§ 7401–7671q (2006). 5. Clean Water Act of 1972, 33 U.S.C. §§ 1251–1388 (2012). 6. Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901–6992k (2012). 7. Toxic Substances Control Act of 1976, 15 U.S.C. §§ 2601–2697 (2012). 592 Vermont Law Review [Vol. 45:589 information-gathering processes are essential to satisfying the clear and consistent mandate established in these statutes “to enhance [environmental] quality for the sake of public health, welfare, and productivity; to promote research and development in service of pollution control; and to provide financial [and technical] assistance to states and localities in support of anti-pollution programs.”9 Under the Trump Administration, political appointees undermined these capacities and promoted skepticism in the need for science-informed environmental and public health regulations. President Trump terminated the collection and use of scientific data, as did political appointees at both EPA and DOI. At EPA, leadership also obstructed processes designed to ensure the agency rely on the best available science and make decisions in a transparent, democratic fashion. Leadership also excluded or dismissed qualified experts from EPA’s scientific advisory committees, replacing them with industry affiliates. The result was to willfully blind the agency to the best available science, contrary to its own statutory mandates, and politicize the determination of health-based standards.
A. Step 1: Block the Collection of Information Needed to Justify Forward- Looking Regulation
In Trump’s first year as President, environmental agencies terminated Obama-era investigations that would have supported stricter regulation of air pollutants, including greenhouse gases. For example, in March 2017, President Trump issued an executive order disbanding the Interagency Working Group on Social Cost of Greenhouse Gases (IWG).10 The IWG, established in 2009, was tasked with assessing the costs associated with greenhouse gas emissions, which federal agencies would then use to evaluate the benefits of relevant regulation, including fuel and energy efficiency standards and emissions reductions.11 Disbanding the IWG thus
8. Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601–9675 (2012). 9. Goffman, Reconstruct an Administrative Agency, supra note 3, at 41. 10. The order also withdrew various technical documents the IWG had produced as “no longer representative of governmental policy.” Exec. Order No. 13,783, 82 Fed. Reg. 16,093, 16,095–96 (Mar. 31, 2017); see also Hana Vizcarra, EPA’s Final Methane Emissions Rule Rolls Back Standards and Statutory Authority, HARV. ENV’T & ENERGY L. PROGRAM (Sep. 9, 2020), https://eelp.law.harvard.edu/2020/09/EPAs-final-methane-emissions-rule-rolls-back-standards-and- statutory-authority/. 11. U.S. GOV’T ACCOUNTABILITY OFF., GAO-20-254, SOCIAL COST OF CARBON, IDENTIFYING A FEDERAL ENTITY TO ADDRESS THE NATIONAL ACADEMIES’ RECOMMENDATIONS COULD STRENGTHEN REGULATORY ANALYSIS 2–3 (2020) (“In 2009, [the Office of Management and Budget] and the Council of Economic Advisors convened the Interagency Working Group on Social Cost of 2021] Deconstructing Environmental Deregulation 593 served the double purpose of rescinding critical work quantifying the devastating impacts of climate change, and undercutting the sole mechanism requiring federal agencies to account for the costs of greenhouse gas emissions in a uniform way. In addition to the executive order, agencies halted Obama-era investigations designed to review and update regulatory health and safety standards. For example, on December 7, 2017, DOI halted an independent study by the National Academies of Sciences, Engineering, and Medicine designed to review and update the Bureau of Safety and Environmental Enforcement’s (BSEE) offshore oil and gas operations inspection program.12 Three weeks later, on December 29, BSEE proposed to revise or rescind core provisions of the Obama-era Offshore Production Safety Systems Rule, which updated safety and pollution prevention equipment design, maintenance, and repair requirements, responding to the deficiencies that caused the horrific Deepwater Horizon explosion and oil spill in 2009.13 DOI’s final rule eliminated “unduly burdensome” requirements that independent third parties certify that offshore oil and gas production equipment will function in extreme conditions, a conclusion that the National Academies’ study would have likely contradicted.14 In addition to easing safety restrictions for offshore oil and gas programs, DOI similarly sought to undermine public health research on the effects of coal mining. In August 2017, DOI’s Office of Surface Mining Reclamation and Enforcement (OSMRE) halted another National Academies study on the potential health effects of surface coal-mining sites in Central Appalachia on neighboring communities.15 DOI stated that it was
Carbon (IWG) to develop government-wide estimates of the social cost of carbon for federal agencies to use in conducting regulatory impact analyses for rulemaking.”). 12. Statement on Stop-Work Order for National Academies Study on the Department of the Interior’s Offshore Oil and Gas Operations Inspection Program, NAT’L ACADS. OF SC., ENG’G. & MED. (Dec. 21, 2017), https://www.nationalacademies.org/news/2017/12/statement-on-stop-work-order-for- national-academies-study-on-the-department-of-the-interiors-offshore-oil-and-gas-operations- inspection-program. 13. See BSEE Offshore Production Safety Systems Rule Update, HARV. ENV’T & ENERGY L. PROGRAM (May 14, 2020), https://eelp.law.harvard.edu/2020/05/bsee-offshore-production-safety- systems-rule-update/ (tracking the history and progression of the Offshore Production Safety Systems Rule through administrations); Oil and Gas and Sulphur Operations on the Outer Continental Shelf—Oil and Gas Production Safety Systems—Revisions, 82 Fed. Reg. 61,703, 61,705–06 (proposed Dec. 29, 2017) (codified at 30 C.F.R. pt. 250). 14. Oil and Gas and Sulphur Operations on the Outer Continental Shelf—Oil and Gas Production Safety Systems, 83 Fed. Reg. 49,216, 49,217 (Sep. 28, 2018) (codified at 30 C.F.R. pt. 250). 15. Statement Regarding National Academies Study on Potential Health Risks of Living in Proximity to Surface Coal Mining Sites in Central Appalachia, NAT’L ACADS. OF SCI., ENG’G. & MED. (Aug. 21, 2017), https://www.nationalacademies.org/news/2017/08/statement-regarding-national- 594 Vermont Law Review [Vol. 45:589 only pausing the study as part of an agency-wide review of all grants and cooperative agreements exceeding $100,000, but the study never resumed.16 Earlier that year, then-Interior Secretary Zinke lifted an Obama-era moratorium on new coal leasing on public lands, which was designed to give the agency a chance to evaluate the environmental and social effects of such activities.17 Under Zinke, the Bureau of Land Management (BLM) published a final environmental assessment with a Finding of No Significant Impact for lifting the moratorium.18 Had DOI continued to fund the National Academies study, the findings would have likely provided fuel for the public to challenge DOI’s finding. Halting the study also prevented an incoming administration from relying on the study’s findings to promulgate regulations addressing the air and water pollution generated by surface coal mining, which is estimated to cause at least 1,000 deaths per year in neighboring communities.19
B. Step 2: Undermine the Integrity of Scientific Expert Review Committees
Expert and scientific review committees assist EPA in making decisions that consider the best available science and proactively protect public health. Historically, the federal government has insulated these committees from regulated industries, which often have other opportunities and capacity to participate in rulemaking and other decision-making processes. The Trump Administration reversed course in two key ways. First, the Trump EPA excluded or eliminated academic experts from scientific advisory committees in favor of industry-affiliated scientists. Second, the Trump EPA subverted committees’ transparent, democratic deliberations by concentrating decision-making power in the hands of political appointees.
academies-study-on-potential-health-risks-of-living-in-proximity-to-surface-coal-mining-sites-in- central-appalachia. 16. Kate Mishkin, Without Federal Funding, Study on Health Effects of Mountaintop Removal Ends, CHARLESTON GAZETTE MAIL (Mar. 21, 2018), https://www.wvgazettemail.com/news/health/without-federal-funding-study-on-health-effects-of- mountaintop-removal-ends/article_24a6d16a-faee-59c9-a44b-e1be9494c0ad.html. 17. DOI Coal Leasing Moratorium, HARV. ENV’T & ENERGY L. PROGRAM (Sep. 4, 2017), https://eelp.law.harvard.edu/2017/09/doi-coal-leasing-moratium/. 18. BLM prepared the environmental assessment only after the District Court for the District of Montana held that lifting the moratorium constituted a major Federal action, and thus was subject to NEPA review. Citizens for Clean Energy v. DOI, 384 F.Supp.3d 1264, 1279 (D. Mont. 2019). 19. Richard Schiffman, A Troubling Look at the Human Toll of Mountaintop Removal Mining, YALE ENV’T 360 (Nov. 21, 2017), https://e360.yale.edu/features/a-troubling-look-at-the-human-toll-of- mountaintop-removal-mining. 2021] Deconstructing Environmental Deregulation 595
The Trump EPA justified the politicization of scientific decision- making by invoking baseless transparency concerns. For example, in October 2017, Administrator Pruitt issued a directive prohibiting recipients of EPA grants from serving on the agency’s federal advisory committees in order to avoid a conflict of interest,20 despite the fact that at least one federal appeals court has previously found “[w]orking for or receiving a grant from [an agency], or co-authoring a paper with a person affiliated with the [agency], does not impair a scientist’s ability to provide technical, scientific peer review of a study sponsored by [the agency].”21 EPA is one of the primary sources of environmental-science funding in the country; thus, Pruitt’s directive effectively purged leading university researchers from EPA’s advisory boards. Notably, the directive did not impose parallel prohibitions on experts compensated by, or affiliated with, industries regulated by EPA—opening the door for industry-funded experts to dominate the agency’s scientific advisory committees. Ultimately, two federal courts struck down the directive in 2020.22 However, the directive successfully incapacitated EPA’s advisory councils for the majority of Trump’s four years in office. In addition to Pruitt’s directive, EPA changed its appointment processes for vetting members of the Science Advisory Board and the Clean Air Scientific Advisory Committee (CASAC), resulting in significant changes to the committees’ composition, regional affiliation, and turnover rate.23 In both cases, EPA did not include staff rationales for recommending candidates deemed to be the best qualified and most appropriate for achieving balanced committee membership, as recommended by EPA’s Federal Advisory Committee Handbook.24 Instead, agency leadership
20. See EPA, Directive on Strengthening and Improving Membership on EPA Federal Advisory Committees (Oct. 31, 2017), https://www.EPA.gov/sites/production/files/2017- 10/documents/final_draft_fac_directive-10.31.2017.pdf (directing that no members serving on EPA federal advisory committees “be currently in receipt of EPA grants, either as principal investigator or co-investigator, or in a position that otherwise would reap substantial benefit from an EPA grant.”). 21. Cargill, Inc. v. United States, 173 F.3d 323, 339 (5th Cir. 1999). 22. See NRDC v. EPA, No. 19cv5174 (DLC), 2020 WL 2769491, at *1 (S.D.N.Y. Apr. 15, 2020) (finding that EPA “failed to articulate any reason for changing [EPA’s] longstanding practice of permitting EPA grant recipients to serve on EPA advisory committees.”); Physicians for Soc. Responsibility v. Wheeler, 956 F.3d 634, 647–48 (D.C. Cir. 2020) (finding that EPA violated the Administrative Procedure Act by failing to address how the directive affected EPA’s capacity to satisfy its statutory mandates); see also Joseph Goffman & Laura Bloomer, DC Circuit Weighs in on EPA’s Science Mandates, HARV. ENV’T & ENERGY L. PROGRAM (May 7, 2020), https://eelp.law.harvard.edu/2020/05/dc-circuit-weighs-in-on-EPAs-science-mandates/#_ftnref8. 23. See generally U.S. GOV’T ACCOUNTABILITY OFF., GAO-19-280, EPA ADVISORY COMMITTEES: IMPROVEMENTS NEEDED FOR THE MEMBER APPOINTMENT PROCESS (2019) (reviewing issues related to EPA’s selection of advisory committee members). 24. Id. at 17. 596 Vermont Law Review [Vol. 45:589 claimed they held a series of briefings with EPA staff, and then appointed committee members from the entire list of nominees.25 EPA also failed to ensure that committee members appointed as special government employees (SGEs) met federal ethics requirements, and EPA did not conduct periodic ethics reviews, which would have evaluated the quality of SGEs’ financial disclosures.26 These changes facilitated a 25% drop in committee members affiliated with academic institutions, and a 60–70% turnover rate in the first two years of the Trump Administration.27 The Trump EPA further sought to undermine the CASAC, which plays a crucial role in reviewing the National Ambient Air Quality Standards (NAAQS). Under the CAA, EPA has a statutory duty to set these standards at levels that protect the public health and welfare with an adequate margin of safety.28 The CAA tasks an independent group of experts—the CASAC—with assisting EPA in reviewing and revising these standards every five years.29 With a focus on scientific assessment, the CASAC reviews all relevant documents, which are also made available for public comment.30 The CASAC then issues its recommendations on the NAAQS to the agency. If EPA declines to follow the CASAC’s advice, it must provide “substantial evidence” supporting an alternative determination.31 Thus, the CASAC not only informs how stringently EPA sets these bedrock air quality standards, but also the burden of persuasion federal courts place on the agency should it set or leave in place standards less stringent than those recommended by the CASAC. Given the power of the CASAC to influence the NAAQS, the Trump EPA prioritized replacing CASAC members with industry affiliates. Between 2017 and 2018, EPA made the unprecedented move of replacing the entire seven-member CASAC panel.32 Traditionally, EPA has also convened two auxiliary panels of experts to assist the CASAC in reviewing the NAAQS for particulate matter (PM) and ground-level ozone, two common but harmful air pollutants that can cause severe or even fatal
25. Id. 26. Id. at 15. 27. Id. at 27–28. 28. Clean Air Act, 42 U.S.C. § 7409(b)(1) (2012). 29. Id. § 7409(d)(2)(B). 30. Joe Goffman & Laura Bloomer, The Legal Consequences of EPA’s Disruption of the NAAQS Process, HARV. ENV’T & ENERGY L. PROGRAM (Sept. 30, 2019), https://eelp.law.harvard.edu/2019/09/the-legal-consequences-of-EPAs-disruption-of-the-naaqs-process/. 31. Murray Energy Corp. v. EPA, 936 F.3d 597, 614 (D.C. Cir. 2019) (quoting Mississippi v. EPA, 744 F.3d 1334, 1355 (D.C. Cir. 2013)). 32. Goffman & Bloomer, The Legal Consequences of EPA’s Disruption of the NAAQS Process, supra note 30. 2021] Deconstructing Environmental Deregulation 597 respiratory and cardiovascular problems.33 The Trump EPA, however, refused to convene an ozone review panel and disbanded the 26-member panel formed by the Obama EPA to review the PM NAAQS. Recognizing that they lacked the expertise necessary to assess PM, the CASAC asked that a PM panel be reassembled to advise and interact with the committee.34 In response, Administrator Wheeler unilaterally appointed a panel of 12 consultants to whom the CASAC had only limited access in developing the PM and ozone NAAQS.35 The appointed panelists included one self- described “amateur epidemiologist”; two people endorsed by the National Cattlemen’s Beef Association, which unsuccessfully challenged EPA’s reduction to the 2012 PM NAAQS; and two consultants nominated by the National Rural Electric Cooperative Association, which opposed EPA’s 2015 reduction to the ozone NAAQS.36 Eighteen former members of the CASAC Ozone Review Panel issued a letter condemning EPA’s changes to the NAAQS review process as “collectively harmful to the quality, credibility, and integrity of EPA’s scientific review process and to CASAC as an advisory body,” noting such changes were made “without advance notice to, or input from, the CASAC, cognizant EPA staff, or the public.”37 Finally, EPA corrupted the way these scientific advisory committees make decisions, replacing transparent, democratic processes with closed- door meetings that concentrated decision-making power with political appointees. In February 2020, Administrator Wheeler issued a memorandum fundamentally altering how EPA engages with its Science Advisory Board.38 The Board is an independent body of almost 50 experts
33. Criteria Air Pollutants, EPA, https://www.EPA.gov/criteria-air-pollutants (last updated Mar. 22, 2021). 34. Letter from Dr. Louis Anthony Cox Jr. to Andrew R. Wheeler, EPA Adm’r (Apr. 11, 2019), https://yosemite.epa.gov/sab/sabproduct.nsf/LookupWebReportsLastMonthCASAC/6CBCBBC3025E1 3B4852583D90047B352/$File/EPA-CASAC-19-002+.pdf (“The CASAC recommends that the EPA reappoint the previous CASAC PM panel (or appoint a panel with similar expertise)” as well as add expertise in several related scientific areas.). 35. Administrator Wheeler Announces New CASAC Member, Pool of NAAQS Subject Matter Experts, EPA (Sept. 13, 2019), https://www.EPA.gov/newsreleases/administrator-wheeler-announces- new-casac-member-pool-naaqs-subject-matter-experts. 36. Sean Reilly, Documents Expose Ties Among EPA Panel’s Experts, E&E NEWS (Feb. 7, 2020), https://www.eenews.net/stories/1062289617. 37. Letter from H. Christopher Frey, Ph.D., et al., former CASAC Ozone Review Panel members, to Andrew R. Wheeler, EPA Adm’r (Dec. 2, 2019), https://yosemite.EPA.gov/sab/sabproduct.nsf/B2AF0B23ABE6A60E852584C4007312E3/$File/EPA+C ASAC+O3+Review+ISA+PA+Letter+191202+Final.pdf. 38. Memorandum from Andrew R. Wheeler, EPA Adm’r, on Science Advisory Board Engagement Process for Review of Regulatory Action Memorandum to EPA staff (Feb. 25, 2020), https://yosemite.EPA.gov/sab/sabproduct.nsf/WebBOARD/RegReviewProcess/$File/SAB%20Engagem ent%20Process%20re%20Regulatory%20Actions.pdf. 598 Vermont Law Review [Vol. 45:589 that provides scientific and technical advice to EPA during the internal development of regulations.39 The Board’s founding statute requires the Board to “make every effort . . . to maximize public participation and transparency,” including making its meetings and reports public.40 Wheeler’s memo contravened this mandate, instead requiring that EPA staff meet privately with the Board chair and a limited number of Board members to first determine which agency proposals merit Board review.41 The memo also delayed the Board’s review of a rule until after the proposed rule was publicly released,42 limiting the Board’s influence on EPA rulemaking. As noted in a letter from Congresswoman Eddie Bernice Johnson, the chairwoman of the House Committee on Science, Space, and Technology, the memorandum also contravened the Board’s authorizing statute, which requires the Administrator to provide the entire Board with a proposed regulation when it provides those regulations to another agency.43 Congresswoman Johnson also noted that giving the Board chair the power to decide which EPA documents warrant scientific review “eliminate[s] participation of independent science organizations, individual scientists and other outside stakeholders in the [Board’s] prioritization process.”44 These changes to EPA’s advisory committees had direct, tangible effects on health-based air pollution standards. In August 2020, EPA proposed to not update the current NAAQS for PM and ground-level ozone, despite evidence that tightening standards was necessary to adequately protect public health.45 Forty legal scholars commented on the proposal:
[R]ecent changes to the science advisory committee’s role and composition render the [proposed ozone rule] legally deficient, and will result in standard-setting that contravenes Congress’s will . . . [T]he current CASAC lacks the depth and breadth of expertise necessary to review proposed [NAAQS] as Congress
39. Laura Bloomer, Cutting Science Advisors Out of the Decision Making Process, HARV. ENV’T & ENERGY L. PROGRAM (Apr. 29, 2020), https://eelp.law.harvard.edu/2020/04/cutting-science- advisors-out-of-the-decision-making-process/. 40. Clean Air Act, 42 U.S.C. § 4365(h) (2012). 41. Wheeler Memo, supra note 38. 42. Id. 43. Letter from Eddie Bernice Johnson, Chairwoman of the Comm. on Sci., Space & Tech, House of Representatives, to Andrew Wheeler, EPA Adm’r (Feb. 11, 2020), https://science.house.gov/imo/media/doc/2.11.2020%20Letter%20to%20Administrator%20Wheeler%20 regarding%20SAB%20Memo.pdf. 44. Id. 45. 40 Law Scholars Oppose EPA’s Changes to the Ozone Standards-Setting and Science- Advising Process, HARV. ENV’T & ENERGY L. PROGRAM (Oct. 13, 2020), https://eelp.law.harvard.edu/2020/10/40-law-scholars-oppose-epas-changes-to-the-ozone-standards- setting-and-science-advising-process/. 2021] Deconstructing Environmental Deregulation 599
intended, to ensure the application of the best and latest science to standard-setting.46
In 2020, the Trump EPA finalized its proposal declining to update the PM NAAQS due to “important uncertainties” in the evidence regarding adverse health effects of PM below current standards.47 The rule ignored a report published in January 2020 by EPA’s Office of Air Quality Planning and Standards, which found that the current primary PM standards could allow “a substantial number” of premature deaths in the U.S.48 Then, on December 31, 2020, the Trump EPA hastily finalized a rule maintaining the ozone NAAQS.49 In the rule, EPA argued it had “good cause” to make the rule effective immediately (and thus immune to a potential 60-day delay and reconsideration under the incoming Biden Administration50) in order to “provide regulatory certainty as soon as possible . . . .”51 Since the rule’s publication, various coalitions of states, public health, and environmental organizations have challenged both the PM and ozone NAAQS rules, pointing to EPA’s blatant disregard of the scientific consensus on the need for stronger standards with respect to both pollutants.52
46. Sean B. Hecht et al., Comment Letter on Proposed Action: Review of the Ozone National Ambient Air Quality Standards, 85 Fed. Reg. 49,830 (Oct. 1, 2020), https://beta.regulations.gov/comment/EPA-HQ-OAR-2018-0279-0465 (click “Download” under “Attachments”). 47. Review of the National Ambient Air Quality Standards for Particulate Matter, 85 Fed. Reg. 82,684, 82,710 (Dec. 18, 2020) (codified at 40 C.F.R. pt. 50). 48. National Ambient Air Quality Standards for PM and Ozone, HARV. ENV’T & ENERGY L. PROGRAM (July 15, 2020), https://eelp.law.harvard.edu/2020/07/national-ambient-air-quality-standards- for-pm-and-ozone/; Review of the National Ambient Air Quality Standards for Particulate Matter, 85 Fed. Reg. 82,684, 82,694, 82,705 (Dec. 18, 2020); OFF. OF AIR QUALITY PLAN. & STANDARDS, EPA- 452/R-20-002, POLICY ASSESSMENT FOR THE REVIEW OF THE NATIONAL AMBIENT AIR QUALITY STANDARDS FOR PARTICULATE MATTER 3-105 (2020), https://www.epa.gov/sites/production/files/2020- 01/documents/final_policy_assessment_for_the_review_of_the_pm_naaqs_01-2020.pdf. 49. Review of the Ozone National Ambient Air Quality Standards, 85 Fed. Reg. 87,256 (Dec. 31, 2020) (codified at 40 C.F.R. pt. 50). 50. If a rule has been finalized, but not yet taken effect, the responsible agency can delay the rule’s effective date for 60 days and reconsider the rule, provided the delay is reasonable and satisfies the relevant requirements under the APA. Cole Jermyn & Laura Bloomer, How to Undo the Trump-Era Regulatory Rollbacks to Redo Environmental Protection, HARV. ENV’T & ENERGY L. PROGRAM 4–5 (Apr. 23, 2020), https://eelp.law.harvard.edu/wp-content/uploads/How-to-Undo-the-Trump-Era- Regulatory-Rollbacks-to-Redo-Environmental-Protection-FINAL.pdf. 51. 85 Fed. Reg. at 87,256. 52. National Ambient Air Quality Standards for PM and Ozone, supra note 48 (chronicling the development of the PM and ozone NAAQS under former Presidents Obama and Trump, and the resulting litigation). 600 Vermont Law Review [Vol. 45:589
C. Step 3: Preclude EPA from Relying on Critical Public Health Studies
Under President Trump, EPA attempted to severely limit which scientific studies the agency could rely on when issuing regulations, preventing the agency from issuing stricter health-based pollution restrictions. The most infamous of these attempts was EPA’s so-called “secret science” rule, finalized only weeks before President Biden took office. The proposed rule, “Strengthening Transparency in Regulatory Science,” would have automatically blocked the agency from relying on studies if the underlying data were not made publicly available.53 The proposal thus sought to bar EPA from relying on epidemiological studies that link negative health outcomes to increased pollution exposure using anonymized or confidential health data, or data that are no longer available or accessible.54 Ninety-seven medical and public health experts submitted comments to EPA in response to the proposed rule, warning that it would not only frustrate EPA’s mandate to rely on the “best available science,” but also “contravene[] five decades of EPA practice” and the agency’s statutory mandates under the CAA, the Safe Drinking Water Act (SDWA), and the Toxic Substances Control Act (TSCA).55 Furthermore, none of the statutes EPA invoked as support for the proposed rule limit EPA from relying on studies in which the underlying data are not publicly available.56 The D.C. Circuit has also rejected the idea underlying this rule, stating in 2002 that
53. Strengthening Transparency in Regulatory Science, 83 Fed. Reg. 18,768, 18,768–69 (proposed Apr. 30, 2018) (codified at 40 C.F.R. pt. 30). 54. For example, a key study supporting EPA’s regulations limiting childhood lead exposure from air pollution, water systems, and paint analyzed lead concentrations in children’s teeth. That study was conducted more than forty years ago, many of the scientists are no longer alive, and it is unclear whether the underlying data are available. See EELP Clinic at Harvard L. Sch., Comment Letter on Proposed Rule, Strengthening Transparency in Regulatory Science, 83 Fed Reg. 18,768 (Aug. 7, 2018), http://eelp.law.harvard.edu/wp-content/uploads/Harvard-Comments-re-Docket-ID-No.-EPA-HQ-OA- 2018-0259.pdf. 55. Id. 56. For example, in the proposed rule, EPA points generally to section 103 of the Clean Air Act, which outlines EPA’s research and development program under the statute. 83 Fed. Reg. at 18,769. However, nothing in that section grants EPA the authority to exclude certain studies from its research program, let alone rulemaking unrelated to the research program, nor distinguishes studies where the underlying data are publicly available from those where the data are not. 42 U.S.C. § 7403; see also Dan Farber, The Questionable Legal Basis of the “Transparency” Proposal, LEGAL PLANET (Apr. 30, 2018), https://legal-planet.org/2018/04/30/the-questionable-legal-basis-of-the-transparency-proposal/ (explaining how the cited provisions provide “flimsy” support for the proposed rule). 2021] Deconstructing Environmental Deregulation 601
“requiring agencies to obtain and publicize the data underlying all studies on which they rely ‘would be impractical and unnecessary.’”57 EPA finalized the secret science rule on January 6, 2021, claiming it was “much narrower” in scope than the proposed rule.58 However, the final rule still broadly applied to the agency’s use of “dose-response data” in both “significant regulatory actions” and the general sharing of “influential scientific information,” such as information on EPA’s website.59 Unlike the proposed rule, the final rule allowed EPA to consider “pivotal science” for which the underlying data are not available, but those studies would still receive “lesser consideration.”60 Alternatively, the EPA administrator could issue an exemption on a case-by-case basis, provided the rationale for such an exemption was documented and made public. In either case, however, the rule would arbitrarily force the agency to assign less weight to these crucial epidemiological studies, or leap over several extralegal procedural hurdles that simultaneously concentrated decision-making power with political appointees. Public health experts were especially concerned with the rule’s effect on two studies—the Harvard Six Cities Study and the American Cancer Society’s Cancer Prevention Study II. These studies form the bedrock of particulate matter (PM) pollution regulations, finding that people exposed to more PM are more likely to die prematurely.61 In these studies, the researchers tracked personal medical, occupational, and home location data for tens of thousands of participants for nearly two decades—on the condition that the participants’ personal information would remain confidential.62 After the rule was finalized, Administrator Wheeler stated that “‘pivotal studies’ like the Six Cities Study ‘will [not] automatically be cut from review by the agency,’” provided the EPA administrator can justify the use of those studies and is willing to publish their reasoning
57. Am. Trucking Ass’ns, Inc. v. EPA, 283 F.3d 355, 372 (D.C. Cir. 2002) (citing National Ambient Air Quality Standards for Particulate Matter, 62 Fed. Reg. 38,652, 38,689 (July 18, 1997) (codified at 40 C.F.R. pt. 50)). 58. Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information, 86 Fed. Reg. 469, 470 (Jan. 6, 2021) (codified at 40 C.F.R. pt. 30). Like the ozone NAAQS rule, EPA asserted “good cause” to make the rule effective immediately. Id. at 472. 59. Hannah Perls, The Downfall of the “Secret Science” Rule, and What It Means for Biden’s Environmental Agenda, HARV. ENV’T & ENERGY L. PROGRAM (Mar. 5, 2021), https://eelp.law.harvard.edu/2021/03/final-secret-science-rule/ (quoting 86 Fed. Reg. at 469, 470). 60. 85 Fed. Reg. at 477. 61. EPA is Planning to Limit the Science It Considers, HARV. ENV’T & ENERGY L. PROGRAM, https://eelp.law.harvard.edu/2018/04/changing-what-science-the-EPA-will-consider-part-1/ (last updated Jan. 16, 2020). 62. Id. 602 Vermont Law Review [Vol. 45:589
(which could further subject the decision to legal challenges).63 Alternatively, EPA could rely on these studies, but it would have to give them “lesser weight,” based on the rule’s arbitrary and unfounded rationale that scientific studies are less reliable if the underlying data are not publicly available. Thus, by preventing EPA from relying on the best available epidemiological science, the secret science rule would have severely inhibited or even jeopardized the agency’s ability to issue air and other pollution standards protective of human health.64 The final secret science rule also invited the agency to conduct additional peer review of “pivotal” studies, even if those studies had already undergone independent peer review.65 In the proposed rule, EPA argued that such provisions were necessary to promote transparency and validate the science underlying EPA rulemaking.66 But peer-review within the scientific community already fulfills these goals without undermining EPA’s statutory duty to consider the “best available science.”67 Peer review ensures independent scientific organizations completely reanalyze these studies, and their results are confirmed by repeated similar studies from across the globe. The proposed rule also failed to explain why peer review and other existing practices are insufficient. EPA’s own Science Advisory Board issued a report in April 2020 finding “minimal justification provided in the Proposed Rule for why existing procedures and norms . . . are inadequate, and how the Proposed Rule will improve transparency and the scientific integrity of the regulatory outcomes in an effective and efficient manner.”68 The Board also cautioned that the rule might “decrease efficiency and reduce scientific integrity,” and that EPA failed to conduct the “robust analysis” necessary to avoid “serious and perverse outcomes.”69 In recognition of the secret science rule’s debilitating impact on rulemaking across EPA, President Biden issued an executive order on his
63. Perls, The Downfall of the “Secret Science” Rule, supra note 59; Juliet Eilperin & Brady Dennis, EPA Finalizes Rule to Limit Science Behind Public Health Safeguards, THE WASH. POST (Jan. 5, 2021), https://www.washingtonpost.com/climate-environment/2021/01/04/epa-scientific- transparency/. 64. Id. 65. Id. 66. EPA is Planning to Limit the Science it Considers, supra note 61. 67. Id. (“EPA’s Peer Review Policy . . . sets the expectation that EPA will use the best available science, relying on the professionally-developed peer-review process to ensure its credibility.”). 68. OFF. OF THE ADM’R SCI. ADVISORY BD., SCIENCE ADVISORY BOARD (SAB) CONSIDERATION OF THE SCIENTIFIC AND TECHNICAL BASIS OF EPA’S PROPOSED RULE TITLED STRENGTHENING TRANSPARENCY IN REGULATORY SCIENCE 18 (2020), https://yosemite.epa.gov/sab/sabproduct.nsf/0/2DB3986BB8390B308525855800630FCB/$File/EPA- SAB-20-005.pdf. 69. Id. 2021] Deconstructing Environmental Deregulation 603 first day in office instructing the agency to revise or rescind the rule “as soon as possible,” one of only two rules to be reviewed on such a short deadline.70 At the same time, Congressional Democrats were reportedly considering using the Congressional Review Act to undo the rule.71 On February 1, 2021, a federal court vacated the rule, based on a finding that EPA improperly relied on a federal statute governing procedural rules to issue the secret science rule, which was substantive in nature.72 However, the secret science rule remains an emblematic example of the Trump Administration’s deregulatory pursuits—especially the lengths to which EPA tried to limit its own ability to comply with its statutory mandates to issue regulations protective of public health.
II. STRATEGY 2: RESTRICT THE PUBLIC’S SCRUTINY OF AND PARTICIPATION IN AGENCY DECISION-MAKING
Where environmental regulations fall short, public participation and accountability mechanisms serve as a check to ensure that EPA’s decisions align with its mandate to safeguard public health and the environment. For these mechanisms to function properly, however, EPA must provide the public with accessible, timely information. And in turn, the public must have opportunities to comment on and participate in agency decision- making processes. That participation must therefore be inclusive and meaningful,73 and these processes must account for resource and power differentials between regulated industry and the communities most affected by industrial activity. These processes must also create corrective mechanisms to ensure that people and communities with fewer resources can participate in agency decision-making. Only through this transparent and equitable give-and-take of information and feedback can EPA be accountable to the public’s needs. EPA’s statutory mandates often include specific mechanisms promoting citizen oversight of agency decisions.74 These mechanisms are
70. Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, 86 Fed. Reg. 7037, 7038 (Jan. 20, 2021). 71. Juliet Eilperin & Dino Grandoni, In Trump’s Last Days, a Spree of Environmental Rollbacks, THE WASH. POST (Jan. 15, 2021), https://www.washingtonpost.com/climate- environment/2021/01/15/trump-environmental-rollbacks/. 72. Perls, The Downfall of the “Secret Science” Rule, supra note 59 (citing Env’t Def. Fund v. EPA, No. 4:21-CV-00003, 2021 WL 402824 (D. Mont. 2021)). 73. EPA’s commitment to foster environmental justice includes the “meaningful involvement” of communities disparately impacted by environmental harms. See Environmental Justice, EPA https://www.EPA.gov/environmentaljustice (last updated Feb. 1, 2021). 74. See, e.g., 33 U.S.C. § 1365 (authorizing citizen suits under the CWA against “any person” to address certain statutory violations, including suits against the EPA Administrator for an alleged 604 Vermont Law Review [Vol. 45:589 evidence of Congress’s recognition that public accountability plays an essential role in healthy, responsive governance. Such mechanisms are especially critical in the environmental realm, where the primary stakeholders (project proponents) often hold disproportionate economic and political leverage in decision-making process over affected people and communities, who may be dispersed, disconnected, and living at the intersection of other structural injustices, including racism and poverty. The Trump EPA intensified these disparities by blocking the transparent dissemination of information, dismantling public participation and accountability mechanisms, and imposing procedural burdens to discourage affected communities from rightfully challenging agency decisions. At the same time, the Administration created more opportunities for regulated states and industry to participate in agency decision-making, thus facilitating the development and approval of projects while simultaneously sidelining, or silencing, the very communities and stakeholders most vulnerable to those projects’ impacts.
A. Step 1: Eliminate or Restrict Meaningful Consultation Mechanisms
In his first 100 days, President Trump eliminated Obama-era programs that promoted meaningful consultation with communities disparately impacted by environmental harms or proposed agency action. One such program, the Bering Sea Intergovernmental Tribal Advisory Council, was created as part of a 2016 executive order addressing climate change-related impacts in the Northern Bering Sea.75 The order established a “policy of the United States to recognize and value the participation of Alaska Native tribal governments in decisions affecting the Northern Bering Sea Climate Resilience Area and for all agencies to consider traditional knowledge in decisions affecting the . . . Area.”76 In April 2017, President Trump revoked the order as part of “Implementing an America-First Offshore Energy Strategy”77 without consulting Alaska Native groups (despite the Administration’s claims to the contrary).78 In response, the Bering Sea failure to perform certain nondiscretionary duties); 42 U.S.C. § 7604 (authorizing citizen suits under the CAA to address certain statutory violations, including against the EPA Administrator for failure to perform certain nondiscretionary duties); 16 U.S.C. § 1540(g) (authorizing citizen suits under the Endangered Species Act (ESA) to address certain statutory violations, including against the Secretary of the Interior or the Secretary of Commerce for an alleged failure to perform certain nondiscretionary duties). 75. Exec. Order No. 13,754, 81 Fed. Reg. 90,669 (Dec. 14, 2016). 76. Id. 77. Exec. Order No. 13,795, 82 Fed. Reg. 20,815 (May 3, 2017). 78. Diana Haecker, Trump Issues Executive Order Revoking Northern Bering Sea Protection and Tribal Participation, THE NOME NUGGET (May 5, 2017), 2021] Deconstructing Environmental Deregulation 605
Elders Group, representing 39 coastal Tribes, issued a statement condemning Trump’s order, noting that the,
Northern Bering Sea Climate Resilience [initiative] “was the product of years of tireless work by local Alaskans, Tribes and nonprofits who – when faced with the devastating effect of climate change and the dramatic increase of large scale shipping right [on] our front doorstep – sought to create a way for us to have a say in what happens in and to our waters.”79
DOI also evaded public input on environmental reviews, complying with public participation laws “in form only,”80 while restricting public participation mechanisms through regulatory rollbacks. In 2017, Secretary Bernhardt issued Secretarial Order 3355, directing bureaus to pursue new categorical exclusions under the National Environmental Policy Act (NEPA).81 The order also directed bureaus to complete environmental impact statements (EISs) within one year and shorten most environmental reviews to 150 pages or less.82 Categorical exclusions preclude public input by excluding projects from NEPA review, while the timing and length restrictions limit meaningful public engagement.83 When my colleagues at EELP conducted interviews with DOI employees, those employees also highlighted changes to DOI’s public hearings, such as limiting the number of hearings per project and holding those hearings in inconvenient locations.84 DOI officials also routinely ignored oversight requests from Congress, leading the House Natural Resources Committee to threaten them with subpoenas.85 The Bureau of Land Management (BLM) also finalized a rollback in December 2020 that eliminated the 15-day protest period after a decision is made about forest management projects, including timber
http://www.nomenugget.com/news/trump-issues-executive-order-revoking-northern-bering-sea- protection-and-tribal-participation. 79. Id. 80. BLOOMER ET AL., MANAGING PUBLIC LANDS, supra note 2, at 7. 81. Dep’t of the Interior, Order. No. 3355, Streamlining National Environmental Policy Act Reviews and Implementation of Executive Order 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects” (Aug. 31, 2017), https://www.doi.gov/sites/doi.gov/files/elips/documents/3355_- _streamlining_national_environmental_policy_reviews_and_implementation_of_executive_order_1380 7_establishing_discipline_and_accountability_in_the_environmental_review_and_permitting_process_f or.pdf. 82. Id. 83. BLOOMER ET AL., MANAGING PUBLIC LANDS, supra note 2, at 7–8. 84. Id. at 8. 85. Id. 606 Vermont Law Review [Vol. 45:589 harvests and sales.86 BLM argued that this protest period was “duplicative” of public participation opportunities under NEPA, conveniently ignoring the agency’s own efforts to eliminate or curtail NEPA review.87 The Trump Administration also sought to curtail NEPA review government-wide, threatening one of the most crucial pathways through which communities affected by proposed agency actions can comment on and contribute to agency decision-making. In July 2020, the Council on Environmental Quality (CEQ) issued the first comprehensive revision of the NEPA rules since 1978.88 The final rule excludes several projects from NEPA review and reduces the number and type of impacts and alternatives considered as part of that review.89 The rule also raises the bar for public comments on NEPA documents, requiring more detailed analysis and information from commenters while limiting opportunities for public engagement in other stages of the environmental review process.90 For example, the final rule requires comments on draft EISs to be “timely received and at a level of specificity where they can be meaningfully taken into account,” or else the comments will be thrown out.91 The rule also discourages public comment by allowing agencies to require commenters to post a bond to cover the potential damages that may result from administrative delays.92 These changes will result in community groups being automatically excluded from commenting on exempted projects, including pipelines, large-scale logging operations, waste incinerators, and highways, and being blocked from commenting on other projects if they fail to satisfy the more stringent commenting requirements or are unable to afford a required bond payment. The Trump Administration thus succeeded in simultaneously fast-tracking the approval process for large-scale polluting infrastructure and silencing or minimizing the voices of those most impacted by those projects.
86. Forest Management Decision Protest Process and Timber Sale Administration, 85 F.R. 82,359, 82,371 (Dec. 18, 2020) (codified at 43 C.F.R. pts. 5000, 5400, 5420, 5440, 5450, 5460, 5470, 5500). 87. 85 Fed. Reg. at 82,360. 88. NEPA Environmental Review Requirements, HARV. ENV’T & ENERGY L. PROGRAM (Aug. 15, 2018), https://eelp.law.harvard.edu/2018/08/NEPA-environmental-review-requirements/. 89. See infra Part III.A (analyzing the Trump Administration’s undermining of NEPA); see also NEPA Environmental Review Requirements, supra note 88 (describing the revisions to NEPA issued in July 2020). 90. NEPA Environmental Review Requirements, supra note 88. 91. Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43,304, 43,314 (July 16, 2020) (codified at 40 CFR 1503). 92. 85 Fed. Reg. at 43,358. 2021] Deconstructing Environmental Deregulation 607
B. Step 2: Restrict Public Access to Agencies’ Internal Documents and Decision-Making Processes
In addition to limiting opportunities for the public to inform agencies’ decisions, the Trump Administration insulated those decisions from legitimate public scrutiny by weakening bedrock transparency mechanisms. In June 2019, EPA issued a final rule that changed EPA’s review process under the Freedom of Information Act (FOIA), a transparency law that allows the public to inquire into agency decision-making by submitting a formal request.93 The new rule, which was posted without prior notice and without a public comment period, requires all FOIA requests to be sent to EPA’s headquarters, where they must be approved by a political appointee or other agency official.94 That official decides which portions of the document are “responsive” to the request, and thus should be released to the public, and which portions should be withheld.95 This rule upends previous agency practice in which EPA’s regional offices would produce responsive documents in their entirety unless the document contained confidential or FOIA-exempt material.96 The new rule thus politicizes the FOIA process by empowering political appointees to redact or withhold documents that would otherwise be available for public examination. Critics also feared that the new rule will delay EPA’s response to FOIA requests by creating a bottleneck in which officials at EPA’s headquarters must review and approve the release of “responsive” documents. One month after EPA published its final FOIA rule, a bipartisan coalition of legislators sent a letter to Administrator Wheeler, warning that the rule “undermin[es] the American people’s right to access information from the EPA” and contradicts federal precedent.97 The coalition pointed to
93. Freedom of Information Act, 5 U.S.C § 552 (2018); DOI also updated its FOIA review processes to restrict public access to information, delay FOIA responses, and politicize FOIA decisions by instituting “political awareness” review, in which political appointees are made aware of upcoming FOIA productions that include their names. BLOOMER ET AL., MANAGING PUBLIC LANDS, supra note 2, at 8. 94. Freedom of Information Act Regulations Update, 84 Fed. Reg. 30,028, 30,029–30 (June 26, 2019) (codified at 40 C.F.R. pt. 2). 95. Id. at 30,032–33; James Pollack, Restricting Access to Public Records, HARV. ENV’T & ENERGY L. PROGRAM (July 19, 2019), https://eelp.law.harvard.edu/2019/07/EPA-restricts-access-to- public-records/. 96. Libby Dimenstein, Legal and Legislative Challenges to EPA’s FOIA Restrictions, HARV. ENV’T & ENERGY L. PROGRAM (Feb. 26, 2020), https://eelp.law.harvard.edu/2020/02/legal-and- legislative-challenges-to-EPAs-foia-restrictions/. 97. Letter from Senators Patrick Leahy, Diane Feinstein, Charles Grassley & John Cornyn, United States Senate, to Andrew Wheeler, EPA ADM’R (July 22, 2019), https://www.leahy.senate.gov/press/senators-leahy-grassley-feinstein-and-cornyn-raise-concerns-about- epas-foia-rule. 608 Vermont Law Review [Vol. 45:589 a 2016 decision from the D.C. Circuit, which found “no statutory basis for redacting ostensibly non-responsive information from a record deemed responsive” under FOIA.98 The court affirmed that “the sole basis on which [an agency] may withhold particular information within [a responsive] record is if the information falls within one of the statutory exemptions from FOIA’s disclosure mandate.”99 In the words of the coalition, EPA’s “rule appears to authorize exactly what the D.C. Circuit’s holding prohibits.”100 In addition to limiting access to EPA documents, the agency also eliminated a longstanding practice that facilitates the public’s ability to understand EPA’s otherwise technical, jargon-filled assessments. Since 1984, EPA has assigned a letter-number rating to draft EISs issued by other agencies.101 These ratings reflect both the quality of the analysis and the degree of environmental impact associated with the project.102 These ratings provide a quick and easy way for people concerned about proposed projects to assess the potential health risks associated with that project. The Trump EPA abruptly discontinued this rating system in October 2018, citing concerns with efficiency and consistency in the ratings.103 However, in reversing this nearly four-decades-old policy, EPA only consulted other federal agencies, not the general public. EPA thus made it more difficult for communities to assess the potential threat of proposed projects to their own health and wellbeing before these projects are finalized.
98. Am. Immigr. Lawyers Ass’n v. Exec. Off. for Immigr. Rev., 830 F.3d 667, 670 (D.C. Cir. 2016). 99. Id. 100. Letter from Senators to Andrew Wheeler, supra note 97. 101. Section 309 of the CAA allows EPA to review EISs prepared by other agencies and requires EPA to make those reviews available to the public. Clean Air Act, 42 U.S.C. § 7609 (2012). 102. Environmental Impact Statement Rating System Criteria, EPA, https://www.EPA.gov/NEPA/environmental-impact-statement-rating-system- criteria#:~:text=EPA%20discontinued%20the%20use%20of,system%20on%20October%2022%2C%20 (last updated on Oct. 22, 2018). 103. See Memorandum from Brittney Bolen, EPA Assoc. Adm’r, on Changes to EPA Environmental Rating Review System to EPA Regional Administrators (Oct. 22, 2018), https://www.epa.gov/sites/production/files/2018- 10/documents/memorandum_on_changes_to_epas_environmental_review_rating_process.pdf (“EPA believes that discontinuing use of the 1984 rating system will not lessen environmental protections, but will help to focus attention on resolving issues, eliminate perceptions that ratings are inconsistently applied across the Agency, and minimize any confusion on the part of our partner agencies and the public.”). 2021] Deconstructing Environmental Deregulation 609
C. Step 3: Restrict Pathways for the Public to Challenge EPA Decisions
Several environmental laws, including the CWA and the CAA, allow citizens to challenge EPA’s actions through private right-of-action provisions.104 For example, seven environmental laws empower citizens to bring “deadline suits” against EPA, compelling the agency to issue rules by specific deadlines set under the statute.105 These citizen suits, and the settlement agreements and consent decrees that often result, play a crucial role in ensuring that EPA complies with its mandates to set and enforce health-based standards.106 Recognizing the importance of citizen suits to the enforcement of environmental laws, Congress also provided for the payment of plaintiffs’ attorneys’ fees.107 Absent this promise to pay the complaining party’s legal fees, most parties would never bring citizen suits given the often prohibitive costs of litigation. Historically, EPA has embraced and facilitated these accountability mechanisms by working with litigants to reach settlement agreements that establish mutually agreed upon schedules and include the complaining party’s statutory right to collect attorney’s fees.108 However, in October 2017, Administrator Pruitt issued a new directive, “Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements.” Despite its name, the directive added several procedural hurdles for citizens and their attorneys seeking to compel EPA to meet its statutory obligations.109 The directive required EPA to first consult states and regulated industries affected by the suit before reaching a settlement agreement, but included no parallel requirement for affected communities or members of the general public.110 The directive also required EPA to “exclude the payment of attorney’s fees and costs to any plaintiff or
104. See supra note 74 (reviewing citizen suit provisions under the CWA, CAA, and ESA). 105. U.S. GOV’T ACCOUNTABILITY OFF., GAO-15-34, ENVIRONMENTAL LITIGATION – IMPACT OF DEADLINE SUITS ON EPA IS LIMITED 5 (2014) [hereinafter DEADLINE SUITS]. 106. See, e.g., Karl S. Coplan, Citizen Litigants Citizen Regulators: Four Cases Where Citizen Suits Drove Development of Clean Water Law, 25 COLO. NAT. RESOURCES, ENERGY & ENV’T L. REV. 61, 66–67 (2014) (assessing the impact of citizen enforcement on regulatory standards under the CWA, including increased enforcement and the development of environmental jurisprudence). 107. Goffman, Reconstruct an Administrative Agency, supra note 3, at 46. 108. Id. 109. See EPA Changes Its Settlement Practices, HARV. ENV’T & ENERGY L. PROGRAM (Feb. 26, 2018), https://eelp.law.harvard.edu/2018/02/the-settlement-memo/. 110. The directive states that EPA must “take any and all appropriate steps to achieve the participation of affected states and/or regulated entities.” EPA, Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements (Oct. 16, 2017), https://archive.epa.gov/epa/newsroom/directive-promoting-transparency-and-public-participation- consent-decrees-and-settlement.html. 610 Vermont Law Review [Vol. 45:589 petitioner in the litigation.”111 Taken together, these changes explicitly tilted the scales in favor of regulated industry while limiting the capacity of affected communities, and the nonprofit legal organizations that often represent them, to challenge EPA’s actions or inaction. In the directive, EPA argued that these changes to settlement protocols are necessary to remedy past “collusion with outside groups” and “backroom deals,”112 yet the directive included no evidence of such collusion, and a 2014 report from the Government Accountability Office found no basis for such claims.113 Furthermore, EPA’s press release erroneously claimed the directive provided “an unprecedented level of public participation and transparency in EPA consent decrees and settlement agreements.”114 More than fifty retired career EPA attorneys issued a public rebuttal “to correct the many mistakes of law and fact made in [the] October 16, 2017 Directive,” and to condemn the directive’s “patent[] bias[]” “giv[ing] regulated parties, but not other members of the public, a seat at the settlement table.”115 The directive, despite EPA’s claims to the contrary, thus “work[ed] against the agency and the public’s interest in fair and efficient EPA operations and reasonable timeframes for EPA action.”116 These changes to EPA’s settlement practices, combined with unprecedented attacks on public participation, accountability, and transparency mechanisms, paved the way for deregulatory action at each step of the rulemaking process.
III. STRATEGY 3: AVOID REGULATION-TRIGGERING EVENTS
There is a basic principle embedded in all our major environmental statutes that industries should not be allowed to externalize their costs and force a nonconsenting public to bear those costs. For example, under the Administrative Procedure Act (APA), agencies must provide notice to the public of a proposed rulemaking and provide a meaningful opportunity to comment on the rule.117 Under NEPA, agencies must take a holistic look at the potential individual and cumulative impacts of their proposed actions
111. Id. 112. Id. 113. DEADLINE SUITS, supra note 105, at 1–3. 114. Press Release, EPA, Administrator Pruitt Issues Directive to End EPA ‘‘Sue & Settle’’ (Oct. 16, 2017), https://archive.epa.gov/epa/newsreleases/administrator-pruitt-issues-directive-end-epa- sue-settle.html. 115. Letter from Cynthia Anderson, Former Atty. Off. of Gen. Couns., et al., to Scott Pruitt, EPA Adm’r. (Nov. 13, 2017), http://eelp.law.harvard.edu/wp-content/uploads/Response-to-Directive-re- Consent-Decrees-and-Settlements.pdf. 116. Id. 117. Administrative Procedure Act, 5 U.S.C. § 553(b)–(c) (2018). 2021] Deconstructing Environmental Deregulation 611 and assess whether it is fair for the public to bear those impacts. These analyses are buttressed by cost-benefit assessments, which are designed to compare the anticipated costs of regulation with the cumulative benefit to both present and future generations. In order to limit environmental regulation, the Trump Administration changed the methodologies agencies use to decide when regulation is necessary, frustrating this core principle. These changes allowed agencies to greenlight projects that would otherwise be closed, disapproved, or subject to enhanced regulation and review. The Administration began by expanding existing regulatory exemptions, especially under NEPA, and narrowing the scope of its environmental assessments to exclude climate change-related impacts. President Trump elevated the importance of cost- benefit analyses as a prerequisite or even determining factor in agency decision-making. Agencies then transformed how these analyses are conducted by minimizing the anticipated benefits of regulation to public health and the environment. By manipulating agencies’ decision-making processes, the Trump Administration preordained deregulatory outcomes while willfully ignoring or minimizing the very real and consequent harms to public health and the environment.
A. Step 1: Expand Exemptions for Projects and Impacts Otherwise Subject to Environmental Review and Regulation
When NEPA was signed into law in 1970, it embodied Congress’s guarantee that the federal government would first consider the potential environmental consequences and alternatives of major projects or significant decisions before approving them. NEPA imposes a series of procedural requirements that force agencies to “look before you leap,” that is, to perform an environmental review for each proposed “major Federal action,” including the adoption of agency policy or rules, formal planning, agency programs or projects, permitting decisions, and other actions.118 This review is designed to assess both the direct and cumulative environmental, social, economic, health, or cultural impacts of the project. Such reviews not only help inform the agencies’ decision-making processes, but also empower communities by providing them with essential information and the opportunity to comment on the proposed project. The agency must then address these comments and, where possible, make changes to mitigate the project’s anticipated impacts. NEPA does not require agencies to choose the least impactful option. Rather, it helps
118. NEPA Environmental Review Requirements, supra note 88; 40 C.F.R. § 1508.18(b) (2010). 612 Vermont Law Review [Vol. 45:589 provide transparency and opportunities for public education and participation, with the goal of ensuring federal agencies make informed decisions through a transparent, democratic process. Dismantling NEPA became a clarion call for President Trump and his supporters, with the false promise to simultaneously “modernize” NEPA regulations and “[s]afeguard our communities and maintain a healthy environment.”119 Prior to the Administration’s overhaul of NEPA regulations in 2020, many agencies, including EPA, systematically exempted high-priority projects and geographic areas from environmental review altogether. While some agencies included such exemptions within broader regulatory rollbacks,120 many expanded “categorical exclusions” under NEPA to exempt projects and areas from review under the statute.121 For example, the Forest Service issued proposed revisions to its NEPA regulations in June 2019, replacing the section on categorical exclusions to exempt certain projects in National Forests.122 The final rule, published in November 2020, exempted timber cuts up to 4,200 acres when coupled with nearby habitat restoration; agency roads of up to five miles in length; and mines up to one square mile in size.123 As a result, the Forest Service is no longer required to assess the environmental impacts of these projects, nor will the public have an opportunity to comment on these projects before they are approved. Many agencies replicated this strategy to fast-track the approval of high-priority projects that might otherwise be delayed by NEPA review. For example, the Department of Homeland Security issued a determination waiving NEPA, the Endangered Species Act (ESA), the CWA, and most other environmental laws as they related to the construction of the border wall near San Diego,124 Calexico,125 and the Santa Teresa Land Port of
119. Exec. Order 13,807, 82 Fed. Reg. 40,463, 40,463–67 (Aug. 15, 2017). 120. For example, in 2020, EPA issued two final rules rescinding Obama-era methane standards. In the second of these two rules, the “Reconsideration Rule,” EPA expanded technical feasibility exemptions, and changed the definition of “well sites” to exclude low production facilities and third-party equipment and disposal wells from fugitive emissions monitoring requirements. Vizcarra, EPA’s Final Methane Emissions Rules Roll Back Standards and Statutory Authority, supra note 10. 121. See NEPA Environmental Review Requirements, supra note 88. 122. National Environmental Policy Act (NEPA) Compliance, 84 Fed. Reg. 27,544, 27,546 (proposed June 13, 2019) (codified at 36 C.F.R. pt. 220); NEPA – USDA/Forest Service, HARV. ENV’T & ENERGY L. PROGRAM (Aug. 15, 2018), https://eelp.law.harvard.edu/2018/08/NEPA-usda-forest- service/. 123. National Environmental Policy Act (NEPA) Compliance, 85 Fed. Reg. 73,620, 73,628 (Nov. 19, 2020) (codified at 36 C.F.R. pt. 220). 124. Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended, 82 Fed. Reg. 35,984, 35,985 (Aug. 2, 2017). 2021] Deconstructing Environmental Deregulation 613
Entry in New Mexico.126 In March 2018, the Federal Communications Commission adopted an order determining that small wireless facilities do not constitute “major Federal action,” and thus are not subject to any kind of NEPA analysis.127 In June 2018, BLM issued a Permanent Instruction Memorandum limiting the agency’s NEPA review of applications regarding directional drilling into federal minerals from non-federal lands.128 The memo replaced an Obama-era policy,129 drawing heavily on recommendations from the industry-dominated Royalty Policy Committee.130 DOI also pushed through two notices in the final months of the Trump Administration, creating categorical exclusions for projects designed to remove pinyon pine and western juniper trees that threaten sagebrush habitat,131 and projects harvesting dead or dying trees, increasing the maximum acreage from 250 to 3,000 acres of BLM land.132 Another rule finalized in December 2020 by the Department of Energy (DOE) expanded categorical exclusions under NEPA to exempt the construction and operation of liquefied natural gas (LNG) export facilities from NEPA review, arguing that the agency lacks the authority to approve those activities.133 The Trump-appointed Republican-majority of the Federal Energy Regulatory Commission (FERC) went one step further, transforming the commission’s NEPA analysis to exclude certain impacts from all future reviews. In May 2018, FERC issued a 3-2 decision to not consider the
125. Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended, 82 Fed. Reg. 42,829, 42,830 (Sep. 12, 2017). 126. Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended, 83 Fed. Reg. 3,012 (Jan. 22, 2018). 127. Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Inv., WT Docket No. 17-79, Report and Order, 2018 WL 1559856, at *12 (Mar. 22, 2018); NEPA – Federal Communications Commission, HARV. ENV’T & ENERGY L. PROGRAM (Aug. 15, 2018), https://eelp.law.harvard.edu/2018/08/NEPA-federal-communications-commission/. 128. BUREAU OF LAND MGMT., U.S. DEP’T OF THE INTERIOR, PIM 2018-014, DIRECTIONAL DRILLING INTO FEDERAL MINERAL ESTATE FROM WELL PADS ON NON-FEDERAL LOCATIONS (2018), https://www.blm.gov/policy/pim-2018-014. 129. BUREAU OF LAND MGMT., U.S. DEP’T OF THE INTERIOR, IM 2009-078, PROCESSING OIL AND GAS APPLICATIONS FOR PERMIT TO DRILL FOR DIRECTIONAL DRILLING INTO FEDERAL MINERAL ESTATE FROM MULTIPLE-WELL PADS ON NON-FEDERAL SURFACE AND MINERAL ESTATE LOCATIONS (2009), https://www.blm.gov/policy/im-2009-078. 130. Pamela King, BLM Memo Checks Box on Industry Wish List, E&E NEWS (June 14, 2018), https://www.eenews.net/stories/1060084455. 131. National Environmental Policy Act Implementing Procedures for the Bureau of Land Management (516 DM 11), 85 Fed. Reg. 79,504, 79,505 (Dec. 10, 2020). 132. National Environmental Policy Act Implementing Procedures for the Bureau of Land Management (516 DM 11), 85 Fed. Reg. 79,517, 79,518 (Dec. 10, 2020). 133. NEPA Implementing Procedures, 85 Fed. Reg. 78,197, 78,198 (Dec. 4, 2020) (codified at 10 C.F.R. pt. 1021). 614 Vermont Law Review [Vol. 45:589 climate change impacts of natural gas production (“upstream” emissions) and consumption (“downstream” emissions) during NEPA review for proposed natural gas pipelines.134 Instead, FERC limited its analysis to “direct greenhouse gas emissions from the construction and operation” of the proposed project and recommended mitigation measures, stating it would only consider upstream and downstream effects when those effects are “sufficiently causally connected to and are reasonably foreseeable effects” of the proposed action.135 This interpretation not only blinded the Commission to the very real climate change-related impacts of the development of natural gas pipelines, but also contravened NEPA regulations at that time, which required agencies to consider the cumulative and indirect impacts of a new project.136 Nevertheless, FERC’s decision to ignore upstream and downstream emissions enabled the Commission to determine that an EIS is not necessary for proposed natural gas pipelines, thereby fast-tracking projects that would otherwise be subject to enhanced review under NEPA. In July 2020, the Council on Environmental Quality (CEQ) published a final rule that changed how federal agencies implement NEPA, marking the first time since 1978 that the NEPA regulations have been significantly revised. The rule represents the culmination of a decades-long assault on NEPA’s protections for both communities and the environment. The new rule reduces the number of “major Federal actions” triggering NEPA review by redefining which projects and impacts should be considered, and which analyses should be reduced or omitted, under NEPA.137 One way the rule achieves this is by redefining key terms—including “major Federal action,” “effects,” and “reasonable alternatives”138—in order to severely narrow the types of actions, impacts, and alternatives that agencies must consider when conducting their NEPA reviews. These new definitions
134. NEPA – Federal Energy Regulatory Commission, HARV. ENV’T & ENERGY L. PROGRAM (Aug. 15, 2018), https://eelp.law.harvard.edu/2018/08/NEPA-federal-energy-regulatory-commission/. 135. See Dominion Transmission Inc., 163 FERC ¶ 61,128 at PP 20–21 (May 18, 2018), https://www.lawandenvironment.com/wp-content/uploads/sites/5/2018/05/20180518- 301732898057.pdf. In 2017, the D.C. Circuit remanded a certificate order to FERC because “the EIS for the Southeast Market Pipelines Project should have either given a quantitative estimate of the downstream greenhouse emissions that will result from burning the natural gas that the pipelines will transport or explained more specifically why it could not have done so.” Sierra Club v. FERC, 867 F.3d 1357, 1374 (2017). The Republican majority at FERC attempted to limit this decision to its facts, requiring consideration of downstream emissions only where all of the gas’s end use is disclosed by the applicant. 136. National Environmental Policy Act, 43 Fed. Reg. 55,990, 56,004 (Nov. 29, 1978) (codified at 40 C.F.R. pts. 1500–08). 137. Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43,304, 43,342 (July 16, 2020). 138. Id. at 43,343, 43,345, 43,351. 2021] Deconstructing Environmental Deregulation 615 eliminate crucial elements of the NEPA analysis, stripping safeguards for affected communities while undermining the essential purpose of NEPA, which is to force agencies to take a “hard look” at the impacts of proposed projects on human health and the environment.139 For those actions still subject to NEPA review, the new rule eviscerates the quality and meaningfulness of that review. The rule eliminates the requirement that agencies analyze the cumulative effects of a project;140 limits the geographic scope of review;141 makes it easier for agencies to ignore evidence relevant to foreseeable significant adverse impacts;142 and allows applicants (i.e., project proponents) to prepare their own environmental analyses, deleting previous conflict-of-interest protections.143 Finally, the rule undermines the very purpose of NEPA—to force agencies to “look before you leap”144—by allowing applicants to take actions, including acquiring land, before the NEPA review process is complete.145 The rule also curtails agencies’ consideration of alternatives.146 The result is to willfully blind both agencies and the public to the foreseeable impacts of a proposed project and the available alternatives; discourage the public from questioning the quality of that substandard review; and allow project applicants to frontload significant project investments prior to NEPA review, depriving agencies of the power to halt projects before they’ve commenced. Thus, the final rule all but reduces NEPA review to a streamlined checkbox on the way to project approval, and deprives the public of essential information on the potential cultural, public health, and environmental impacts of major agency actions.
139. Id. at 43,326, 43,343. 140. Id. at 43,375. 141. Id. at 43,364. 142. Under the previous rule, agencies were required to obtain incomplete but available information relevant to assessing the foreseeable significant adverse impacts of the proposed action, and include that information in the EIS, provided the overall costs of obtaining that information were “not exorbitant.” National Environmental Policy Act, 43 Fed. Reg. 55,990, 55,984 (Nov. 28, 1978) (codified at 40 C.F.R. pts. 1500–08). The new rule significantly lowers this standard from “not exorbitant” to “not unreasonable.” 85 Fed. Reg. at 43,332, 43,366. 143. 85 Fed. Reg. at 43,371. 144. NEPA Environmental Review Requirements, supra note 88. 145. 85 Fed. Reg. at 43,370 (allowing an agency considering a proposed action to authorize “such activities, including, but not limited to, acquisition of interests in land . . . purchase of long lead- time equipment, and purchase options made by applicants.”). 146. The previous rule required agencies to “rigorously explore and objectively evaluate all reasonable alternatives” to the proposed action. 43 Fed. Reg. at 55,996. The new rule merely requires agencies to “evaluate reasonable alternatives to the proposed action.” 85 Fed. Reg. at 43,365. These changes are largely consistent with the proposed rule. See Sharon Buccino, Proposed NEPA Rule Changes, NRDC (Mar. 9, 2020), https://www.nrdc.org/experts/sharon-buccino/proposed-NEPA-rule- changes. 616 Vermont Law Review [Vol. 45:589
B. Step 2: Restructure Cost-Benefit Analyses to Minimize or Exclude Benefits to Human Health and the Environment
In addition to gutting NEPA, the Trump Administration also sought to strip EPA of its ability to justify forward-looking regulation by changing how the benefits of pollution reduction are defined and quantified. Both President Trump and agency leadership engaged in a coordinated assault on the integrity of cost-benefit analysis, first by making that analysis a prerequisite to justify environmental regulation, and then weaponizing that analysis to produce the desired outcome. Often without justification, EPA undervalued both the direct and indirect benefits of reducing the emission of harmful pollutants, including greenhouse gases, while offering statutory interpretations to permanently exclude such variables from the agency’s analysis. In implementing these changes to cost-benefit analysis, the Trump EPA willfully limited its view of the full range of benefits of reducing harmful pollutants. The result was a false analysis that justified the Administration’s deregulatory agenda by ignoring the very real and debilitating impacts of that pollution on public health and the environment.147
1. Make Cost-Benefit Analyses a Prerequisite to Justifying Regulation
In his first year in office, President Trump issued a series of executive orders designed to prevent agencies from issuing all but the most insipid public health regulations.148 The first order, “Reducing Regulation and Controlling Regulatory Costs”—also known as the “2 for 1” order149—
147. Goffman, Reconstruct an Administrative Agency, supra note 3, at 46. 148. Most of these orders have since been revoked by President Biden. See Executive Orders Revoked by President Biden’s Climate Executive Orders, HARV. ENV’T & ENERGY L. PROGRAM, http://eelp.law.harvard.edu/wp-content/uploads/Trump-EOs-Rescinded-Table_March-3-2021_EELP.pdf (last visited Mar. 31, 2021) (assessing all Trump-era executive orders revoked by President Biden’s environment and climate orders in table format). 149. The order required that any agency issuing a new rule must also revoke two existing rules. Exec. Order. No. 13771, 82 Fed. Reg. 9339 (Feb. 3, 2017). A subsequent memorandum from OMB clarified that the order would cover “significant” regulatory actions and guidance documents. Significant regulatory actions are final rules that impose total costs greater than zero; significant guidance documents are finalized guidance that cost or benefit the US economy $100 million or more in any given year, or adversely and materially affect the economy. Guidance Implementing Executive Order 13771, OFF. OF MGMT. & BUDGET 3 (Apr. 5, 2017), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf; Lisa Heinzerling, Speech, Cost-Nothing Analysis: Environmental Economics in the Age of Trump, 30 COLO. NAT. RES. ENERGY & ENV’T. L. REV. 287, 301 (2019). President Biden revoked this order on January 20, 2021. Revocation of Certain Executive Orders Concerning Federal Regulation, 86 Fed. Reg. 7049, 7049 (Jan. 20, 2021). 2021] Deconstructing Environmental Deregulation 617 instructed the Office of Management and Budget (OMB) to set “regulatory budgets” for each agency.150 These budgets did not limit the public funds agencies have available to them, but rather the private expenditures agencies could impose on industry and other regulated bodies. These budgets only considered the costs that regulations impose on regulated entities, not the benefits to public health and the environment resulting from increased regulation of pollution sources.151 In FY 2019, OMB set many of these regulatory budgets at zero or even negative, meaning that in order for EPA to issue new rules imposing regulatory costs on private entities, the agency would have to offset those new costs by undoing existing rules.152 The second related executive order, “Enforcing the Regulatory Reform Agenda,” directed agencies to identify regulations that “impose costs that exceed benefits” as part of implementing the “2 for 1” Executive Order; that is, to help agencies determine which two existing rules to eliminate when issuing a new rule.153 The order represented the absurd proposition that the value of regulation is exclusively determined by its quantitative benefit-to-cost ratio, regardless of its purpose, exigency, or cumulative benefit, including non-monetizable benefits to present and future generations. The order also created the perfect deregulatory tool. If agencies can selectively determine which costs and benefits are assessed as part of the analysis, they can preordain a deregulatory outcome by undervaluing the benefits of regulation to public health and the environment. Then, as prescribed under the “2 for 1” order, agencies could kill two birds with one stone by issuing a new, more permissive environmental rule, and then, as prescribed by the order, simultaneously eliminate two “costlier” rules that would have imposed stricter limits on pollution.
2. Undervalue Future Costs Associated with Climate Change
The Trump Administration consistently undervalued the benefits to both present and future generations associated with reducing greenhouse gas emissions. This tactic played a crucial role in EPA’s repeal of the Obama-era Clean Power Plan.154 The Clean Power Plan, published in
150. Heinzerling, Cost-Nothing Analysis, supra note 149, at 301. 151. Id. 152. Id. 153. Exec. Order No. 13,777, 82 Fed. Reg. 12,285, 12,286 (Mar. 1, 2017). President Biden revoked this order on January 20, 2021. Revocation of Certain Executive Orders Concerning Federal Regulation, 86 Fed. Reg. 7049, 7049 (Jan. 20, 2021). 154. Changing How EPA Calculates Regulatory Benefits, HARV. ENV’T & ENERGY L. PROGRAM, https://eelp.law.harvard.edu/2018/06/denying-the-health-benefits-pollution-reduction/ (last updated Jan. 15, 2020). 618 Vermont Law Review [Vol. 45:589
October 2015, set carbon pollution limits on existing power generators,155 and was projected to reduce emissions from the power sector 32% from 2005 levels by 2030.156 In repealing the Clean Power Plan, the Trump EPA systematically excluded the very real and significant benefits associated with the Plan’s reductions in greenhouse gases and other pollutants.157 First, EPA only included the benefits of reducing carbon dioxide emissions in its assessment of the Clean Power Plan, excluding the co-benefits of simultaneous reductions in other harmful pollutants.158 Second, EPA deflated the monetary value of carbon dioxide reductions that the Plan would have achieved, counting only direct domestic benefits rather than the potential benefits of reductions worldwide.159 Third, EPA ignored the value of pollution-reduction benefits if those benefits would occur in areas already satisfying ambient air quality standards.160 This strategy embodied another assumption refuted by peer-reviewed research: that reducing pollution beyond the present standard in no way benefits the public, and thus, has no monetary value.161 Fourth, the rule re-classified energy- efficiency gains as benefits instead of avoided costs, increasing the total cost associated with the Plan.162 Fifth and finally, EPA used a high discount rate (7%) for its social cost of carbon analysis.163 The discount rate is a representation of the value
155. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,663 (Oct. 23, 2015) (codified at 40 C.F.R. pt. 60). 156. Clean Power Plan/Carbon Pollution Emission Guidelines, HARV. ENV’T & ENERGY L. PROGRAM (Sep. 26, 2017), https://eelp.law.harvard.edu/2017/09/clean-power-plan-carbon-pollution- emission-guidelines/. 157. See Changing How EPA Calculates Regulatory Benefits, supra note 154. 158. Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations, 84 Fed. Reg. 32,520, 32,562 (July 8, 2019) (codified at 40 C.F.R. pt. 60). 159. Id. at 32,563. 160. Id. 161. This assumption is especially galling in 2021 given recent science showing a correlation between exposure to air pollution and increased COVID-19 mortality in the United States. See CleanLaw: Joe Goffman with Francesca Dominici on the Intersection of Air Pollution, Coronavirus, and Black Communities, HARV. ENV’T & ENERGY L. PROGRAM (Aug. 25, 2020), https://eelp.law.harvard.edu/2020/08/cleanlaw-joe-goffman-with-francesca-dominici-on-the- intersection-of-air-pollution-coronavirus-and-black-communities/. 162. See Changing How EPA Calculates Regulatory Benefits, supra note 154. 163. The Trump Administration also relied on the 7% discount rate to revise the Corporate Average Fuel Economy (CAFE) and greenhouse gas emissions standards for cars and light duty trucks.
The agencies involved admitted that the revised CAFE and CO2 program standards overall (i.e., fleetwide) impose a net cost to society when a 3% discount rate is used, and only provide net benefits at a 7% discount rate. See Final Rollback of Corporate Average Fuel Economy Standards & Greenhouse Gas Standards for Passenger Cars and Light Duty Trucks, HARV. ENV’T & ENERGY L. PROGRAM, http://eelp.law.harvard.edu/wp-content/uploads/EELP-Car-Rules-Backgrounder-Final-Updated.pdf (last visited May 16, 2021). 2021] Deconstructing Environmental Deregulation 619 agencies place on avoiding future harm associated with climate change. For example, using a discount rate of 7% means that the agency believes it is not economically reasonable to spend a dollar today on mitigating climate change impacts unless the annual return on that dollar is 7% or higher (the rate used in standard economic practice is 3%). Increasing the discount rate thus reflects the Trump Administration’s unfounded belief that the future financial and human costs associated with climate change are not great enough to warrant implementing commonsense mitigation measures today—except in the most exceptional circumstances. The use of a high discount rate crystallizes, along with the other four tactics, the Administration’s steadfast commitment to deregulation at the expense of present and future generations’ wellbeing.
3. Reinterpret Statutes to Exclude Co-Benefits from Cost-Benefit Analyses
Another crucial tool in the Trump Administration’s deregulatory toolbox was to diminish or ignore the value of co-benefits of environmental regulation. For example, the Trump EPA used this tool to determine that the Obama-era Mercury and Air Toxics Standards (MATS) rule, which imposes limits on hazardous air pollutants (HAPs) emitted by power plants, is not “appropriate and necessary.”164 Under the CAA, EPA may set pollution-control standards for power plant HAPs emissions if the agency finds it “appropriate and necessary” to do so based on an assessment of the associated hazards to public health.165 In reversing the finding, the Trump EPA narrowly compared the direct cost to industry of complying with the rule with the monetized benefits of reducing HAPs emissions, minimizing or ignoring all other real, public health co-benefits, including parallel reductions in PM and sulfur dioxide.166 In addition to minimizing or
164. National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units-Reconsideration of Supplemental Finding and Residual Risk and Technology Review, 85 Fed. Reg. 31,286 (May 22, 2020) (codified at 40 C.F.R. pt. 63). 165. Clean Air Act § 112(n)(1)(A) (2012). Joseph Goffman & Laura Bloomer, Disempowering the EPA: How Statutory Interpretation of the Clean Air Act Serves the Trump Administration’s Deregulatory Agenda, 70 CASE W. RESRV. L. REV. 929, 958 (2020) [hereinafter Goffman & Bloomer, Disempowering the EPA]. 166. 85 Fed. Reg. at 31,286; Goffman & Bloomer, Disempowering the EPA, supra note 165, at 960. The Trump EPA recognized that excluding or minimizing co-benefits in its cost-benefit analysis is contrary to OMB and EPA guidance, and thus argued that the CAA explicitly directs EPA to focus only on the benefits of reducing HAPs, superseding OMB’s guidance. Goffman & Bloomer, Disempowering the EPA, supra note 165, at 961; see also 85 Fed. Reg. at 31,301 (“How costs are to be considered in making the congressionally-directed CAA section 112(n)(1)(A) [‘appropriate and necessary’] 620 Vermont Law Review [Vol. 45:589 excluding co-benefits, EPA also underestimated the benefits value for mercury emissions reductions, using the same value it used in 2011 despite significant scientific advancements showing the related benefits are likely magnitudes larger than EPA estimated nine years ago.167 These choices not only facilitated EPA’s dangerous deregulation of toxic air pollutants, but also contradicted EPA’s mandate to account for advances in science.168 During a press release following the rescission of the MATS “appropriate and necessary” finding, Administrator Wheeler warned that “[the rescission] foreshadows our approach for cost-benefit regulation, where we focus on the targeted pollutants . . . . Co-benefits should never be the driver of a regulation.”169 EPA affirmed this shift in finalizing a rule altering the procedures that EPA must follow before issuing air pollution rules under the CAA. The rule—“Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process”—added several extra-legal and burdensome requirements that EPA must satisfy in order to issue “significant” air pollution regulations, including changing which benefits EPA may consider, and how those benefits must be presented.170 While the Biden EPA rescinded the rule on May 14, 2021, it serves as an emblematic example of the Trump Administration’s efforts to preordain deregulatory outcomes by changing the way EPA makes regulatory decisions.171 The final rule required EPA to conduct a cost-benefit analysis for all “significant” regulations issued under the CAA. In that analysis, EPA had to disaggregate economic benefits “targeted by the relevant statutory provision” from other collateral or co-benefits.172 However, as stated by a coalition of nonprofits and scientific associations in response to the
determination, however, is not governed independent from statutory requirements, by preexisting OMB or EPA guidelines, nor could it be.”). 167. Goffman & Bloomer, Disempowering the EPA, supra note 165, at 963. 168. Id. at 962. 169. Amena H. Saiyid & Jennifer H. Dlouhy, Mercury Rule ‘Foreshadows’ Future Air Policy Approach: Wheeler, BLOOMBERG L. (Apr. 17, 2020), https://news.bloomberglaw.com/environment-and- energy/mercury-rule-foreshadows-future-air-policy-approach-wheeler. 170. See Hannah Perls, New Cost-Benefit Rule Hampers EPA’s Ability to Regulate Harmful Air Pollutants, Harv. Env’T & ENERGY L. PROGRAM (Jan. 12, 2021), https://eelp.law.harvard.edu/2021/01/ new-cost-benefit-rule-hampers-epas-ability-to-regulate-harmful-air-pollutants/; Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process, 85 Fed. Reg. 84,130, 84,130 (Dec. 23, 2020) (codified at 40 C.F.R. pt. 83). 171. Rescinding the Rule on Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process, 86 Fed. Reg. 26,406, 26,406 (May 14, 2021) (codified at 40 C.F.R. pt. 83) (rescinding the Trump-era CAA cost-benefit rule because “the changes advanced by the rule were inadvisable, untethered to the CAA, and not necessary to effectuate the purposes of the Act.”). 172. 85 Fed. Reg. at 84,156. 2021] Deconstructing Environmental Deregulation 621 proposed rule, “distinguishing between benefits ‘targeted by the statutory provision’ versus ‘other welfare effects’ can be a complex, controversial, and ultimately fruitless endeavor.”173 Even if it were possible to cleanly separate regulatory impacts between those that fall under the “statutory objective,” and those that do not, doing so minimizes key public health benefits of regulation. For example, under the final rule, EPA would have to separate out the benefits of reducing particulate matter or greenhouse gas emissions that occur when regulating mercury and other toxic pollutants, simply because the pollutants are regulated under different statutory provisions.174 The final rule further limited EPA’s assessment of a regulation’s benefits to human health by requiring “a clear causal or likely causal relationship between pollutant exposure and effect” “[b]ased upon human data when available.”175 The rule also imposed new restrictions on how health endpoints are selected and quantified,176 which will likely result in the exclusion or underestimation of both direct and co-benefits.177 Furthermore, the rule stated that EPA’s future compliance with these new
173. Jason Schwartz et al., Inst. for Pol’y Integrity, Comment Letter on Proposed Rulemaking for Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process (Aug. 3, 2020) (internal quotations omitted), https://policyintegrity.org/documents/ EPA_CBA_under_CAA_Joint_Comments_2020.08.03.pdf. 174. Even when a pollutant is “targeted” under a statutory provision, however, the Trump EPA failed to regulate consistent with its statutory mandate. For example, EPA’s argument for excluding the benefits of reducing PM in reversing the MATS “appropriate and necessary” finding was that the statutory scheme situated the regulation of PM under a different authority, i.e., the NAAQS. Yet only a few months after EPA’s reversal of the appropriate and necessary finding, EPA left the PM NAAQS unchanged notwithstanding the agency’s own report that failure to increase the primary PM NAAQS would result in “a substantial number” of premature deaths each year. National Ambient Air Quality Standards for PM and Ozone, supra note 48; Joe Goffman & Laura Bloomer, EPA’s Benefit-Cost Proposal in the Context of PM Pollution Regulation, HARV. ENV’T & ENERGY L. PROGRAM (July 14, 2020), https://eelp.law.harvard.edu/2020/07/epas-benefit-cost-proposal-in-the-context-of-pm-pollution- regulation/. 175. 85 Fed. Reg. at 84,136, 84,155. 176. Id. at 84,148. Human health endpoints are events or outcomes used to determine whether an intervention (e.g., a regulation) is beneficial. In the case of air pollution regulation, such endpoints could include premature deaths, hospitalizations, or asthma-related school absences. EPA Cost-Benefit Analysis: Tell EPA to Fully Consider Health Benefits, AM. LUNG ASS’N, https://www.lung.org/getmedia/3b300666-ff1a-49f4-9e02-6a5a53ebe9ef/epa-cost-benefit-analysis-in- clean-air-rulemakings-factsheet.pdf (last updated Aug. 6, 2020). 177. These provisions would have been especially limiting had the so-called “secret science” rule not been struck down by a federal court in February 2021. The rule would have required EPA to give less weight to crucial epidemiological studies if the studies’ underlying data were not publicly available, despite the fact that data from human subjects are often protected by confidentiality agreements. See supra Part I.C (analyzing the development and likely impact of the secret science rule on future EPA rulemaking); accord Hannah Perls, The Downfall of the “Secret Science” Rule, supra note 59. 622 Vermont Law Review [Vol. 45:589 procedural requirements in CAA rulemaking is subject to judicial review,178 creating yet another rulemaking hurdle and new source of legal vulnerability, as prior executive orders addressing cost-benefit analysis explicitly precluded judicial review of that analysis.179 Attenuating or minimizing the co-benefits of regulation in cost-benefit analyses also breaks from decades of best practices mandated by executive order and the Office of Management and Budget (OMB). Executive Order 12,866, signed in 1993 by President Clinton, makes no distinction between the direct and indirect effects of regulation.180 Rather, the order instructs agencies to “assess all costs and benefits of available regulatory alternatives” and specifically to assess the rule’s anticipated benefits to “health and safety, [and] the protection of the natural environment” and “any adverse effects on . . . health, safety, and the natural environment . . . .”181 The order also expressly directs agencies to “select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity) . . . .”182 OMB’s Circular A-4, which provides additional guidance to agencies on how to conduct cost-benefit analyses mandated by the executive order, tells agencies to analyze direct benefits and costs and ancillary benefits or side-effects together, defining ancillary benefits as “a favorable impact of the rule that is typically unrelated or secondary to the statutory purpose of the rulemaking . . . .”183 EPA provides a paltry justification for circumventing these requirements, arguing without evidence that “[d]isaggregating benefits into those targeted and ancillary to the statutory objective of the regulation may cause EPA to explore whether there may be more efficient, lawful and defensible, or otherwise appropriate ways of obtaining ancillary benefits . . . .”184 However, this argument conflicts not only with current OMB and EPA guidance (discussed below),
178. 85 Fed. Reg. at 84,138. 179. See, e.g., Regulatory Planning and Review, 58 Fed. Reg. 51,735 (Sep. 30, 1993) (precluding judicial review of agency action prompted by the order, including cost benefit analyses); Further Amendment to Executive Order 12866 on Regulatory Planning and Review, 72 Fed. Reg. 2,763, 2,765 (Jan. 23, 2007) (amending President Clinton’s executive order on agencies’ cost-benefit analyses, and precluding judicial review of agency actions taken pursuant thereof); Improving Regulation and Regulatory Review, 76 Fed. Reg. 3,821, 3,823 (Jan. 18, 2011) (precluding judicial review of the order’s mandates, including new procedures and policies regarding the qualitative and quantitative assessment of regulatory costs and benefits). 180. See Exec. Order. No. 12,866, 58 Fed. Reg. 51,735, 51,736 (Oct. 4, 1993). 181. Id. at 51,735, 51,741. 182. Id. at 51,735 (emphasis added). 183. See OFF. OF MGMT. & BUDGET, EXEC. OFF. OF THE PRESIDENT, CIRCULAR A-4 (2003). 184. Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process, 85 Fed. Reg. 35,612, 35,622 (June 11, 2020) (codified at 40 C.F.R. pt. 83). 2021] Deconstructing Environmental Deregulation 623 but also with two decades of consistent agency practice relying on co- benefits to justify air pollution regulation.185 This approach also directly conflicts with the plain text and purpose of the CAA, which consistently requires the agency to act in furtherance of safeguarding public health and welfare, regardless of whether such benefits are a direct or indirect result of regulation.186 The rule was also inconsistent with EPA’s own Guidelines for Preparing Economic Analyses. The current guidelines require EPA, when assessing the economic impact of regulatory or policy options, to present “all identifiable costs and benefits” together, including “directly intended effects and associated costs, as well as ancillary (or co-) benefits and costs.”187 The rule thus far exceeds EPA’s stated purpose of merely “codify[ing] procedural best practices for the preparation, development, presentation, and consideration of [cost-benefit analyses]” in developing CAA regulations.188 Rather, the rule both circumvents and distorts longstanding practices mandated by the CAA, executive order, and OMB to include co-benefits in agencies’ assessments of a proposed rule or policy’s net benefits to the general public. Finally, the rule also required EPA to provide a “clear description of the problem being addressed” and justify the rule by explaining “the compelling need for federal government intervention in the market to correct the problem.”189 This requirement rests on the false default assumption that economic markets voluntarily internalize externalities like air pollution, forcing regulators to face an adverse presumption they can overcome only by showing “compelling need,” notwithstanding statutory
185. Joseph E. Aldy et al., Co-Benefits and Regulatory Impact Analysis: Theory and Evidence from Federal Air Quality Regulations 30 (Res. for the Future, Working Paper No. 20-12, 2020), https://media.rff.org/documents/RFF_WP_20-12_Aldy_et_al19599.pdf (finding that from 1997 to 2019, “co-benefits make up a significant share of the monetized benefits in EPA regulatory impact analyses” under the Clean Air Act, and the inclusion of co-benefits “has been critical in the majority of [those analyses] for making the determination . . . that the monetized benefits of the rule exceed the costs.”). 186. See, e.g., Goffman & Bloomer, The Legal Consequences of EPA’s Disruption of the NAAQS Process, supra note 30 (discussing how the CAA requires EPA to set the NAAQS “at levels that protect the public health and welfare with an adequate margin of safety.”); Vizcarra, EPA’s Final Methane Emissions Rules Roll Back Standards and Statutory Authority, supra note 10 (reviewing how the CAA requires EPA to set new source performance standards (NSPS) for a source category if it finds that the category significantly contributes to pollution that endangers the public health or welfare). 187. NAT’L CTR. FOR ENV’T. ECON., GUIDELINES FOR PREPARING ECONOMIC ANALYSES 11-2 (2014), https://www.EPA.gov/sites/production/files/2017-08/documents/ee-0568-50.pdf. 188. Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process, 85 Fed. Reg. 84,130, 84,130–31 (Dec. 23, 2020) (codified at 40 C.F.R. pt. 83). 189. Id. at 84,142. 624 Vermont Law Review [Vol. 45:589 mandates to the contrary.190 The requirement also flies in the face of basic economics. Market failures are most likely to exist in the environmental sector where there are consolidated or monopolized economic actors, such as utilities, power companies, and large-scale agriculture. These industries produce essential goods and services, as well as negative externalities (air and water pollution). Because current pricing mechanisms do not capture these externalities, these industries have no incentive to self-regulate absent additional regulation. In the case of air pollution regulation under the CAA, the rule forced communities to serve as human pollutant detectors, that is, to bear the brunt of pollution until there are sufficient data to demonstrate those pollutants are harmful to human health. Only then could agencies show a “compelling need” that merits governmental intervention.
4. Change How and When EPA Decides if Regulation is Needed
In addition to undervaluing the net benefits associated with reductions in greenhouse gases and other air pollutants, the Trump EPA made subtle but significant changes to when agencies consider certain variables in order to avoid regulation-triggering events. For example, EPA revised its regulations implementing the New Source Review (NSR) program under the CAA.191 The NSR program helps protect communities from increases in pollution when a new facility is built or an existing facility is modified.192 Previously, when determining whether building a new facility or changing an existing source requires a permit, EPA would conduct a two-step analysis.193 At Step 1, EPA would ask whether the modification alone would result in a significant emissions increase, regardless of other contemporaneous decreases.194 If yes, EPA would proceed to Step 2 and ask whether the modification will result in a significant net emissions increase, given other contemporaneous increases and decreases at the facility.195 In October 2020, EPA issued a final rule changing this two-step process,196
190. Id. at 84,142–43. 191. See New Source Review, HARV. ENV’T & ENERGY L. PROGRAM (Dec. 11, 2018), https://eelp.law.harvard.edu/2018/12/new-source-review/ (detailing NSR’s background, history, and permitting regime that covers a wide variety of facilities, including paper mills, power plants, plastics production, and automobile manufacturing). 192. Id. 193. The change can be either a physical change to the facility or a change in the method of operation. Id. 194. Id. 195. Id. 196. Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR): Project Emissions Accounting, 85 Fed. Reg. 74,890 (Nov. 24, 2020). The rule codified a 2018 guidance memorandum from Administrator Pruitt. See Memorandum from Scott Pruitt, EPA Adm’r, on 2021] Deconstructing Environmental Deregulation 625 allowing the agency to consider both emissions increases and decreases at Step 1 in order to determine whether NSR will apply to facility modifications. Yet the two-step analysis was designed precisely to delay netting emissions until Step 2 in order to identify modifications that could trigger unacceptable increases in pollution without additional mitigation. Including decreases at Step 1 would reduce the number of major modifications subject to NSR review, and thus reduce the number of facilities required to install and operate emissions control technology to reduce the emission of harmful pollutants around those facilities.197 EPA used a similar strategy to undercut the processes the agency uses to set health-based air quality standards. In May 2018, Administrator Pruitt issued the Back-to-Basics memorandum for reviewing the NAAQS.198 Similar to EPA’s changes to the NSR program, this memo injected variables earlier in the regulatory analysis in order to reduce regulation- triggering events. Previously, to set the NAAQS, EPA would engage in a two-step inquiry: first, EPA determined the level of air quality necessary to safeguard public health, and second, designated the rules necessary to achieve that level. The first step prioritized setting health-based standards, and the second addressed technical feasibility. The Supreme Court affirmed the importance of excluding costs in the first step in Whitman v. American Trucking Associations, Inc., in which the Court barred EPA from considering the costs of implementation when setting the NAAQS.199 The Pruitt memo collapsed this two-step process into one so that the CASAC and EPA would be compelled to review science, cost, technology, and implementation all at the same time.200 While Administrator Pruitt asserted
Project Emission Accounting Under the NSR Preconstruction Permitting Process to Reg’l EPA Adm’rs (Mar. 13, 2018), https://www.EPA.gov/sites/production/files/2018-03/documents/nsr_memo_03-13- 2018.pdf (stating that Congress intended to apply NSR regulations pertaining to major modifications only to changes that increase “actual,” i.e., net, emissions). 197. In December 2017, Administrator Pruitt adopted a new policy allowing firms to provide their own estimates of whether new projects will require enforcement under the NSR program. The policy also stated that EPA will not scrutinize the accuracy of emissions projections, or the performance of new projects. This choice abdicated EPA’s authority to double-check emissions estimates, a power the Sixth Circuit recently affirmed. The policy also eliminated any assurance that EPA would use the NSR program to deliver the pollution control and cleaner air it is intended to provide. See New Source Review Enforcement Memo, HARV. ENV’T & ENERGY L. PROGRAM (Feb. 27, 2018), https://eelp.law.harvard.edu/2018/02/new-source-review-enforcement-memo/; United States v. DTE Energy Co., 845 F.3d 735, 741 (6th Cir. 2017). 198. Memorandum from Scott Pruitt, EPA Adm’r, on Back-to-Basics Process for Reviewing National Ambient Air Quality Standards to Assistant EPA Adm’rs 1, 2 (May 9, 2018). 199. 531 U.S. 457, 465 (2001). Similarly, the D.C. Circuit has held that “[a]ttainability and technological feasibility are not relevant considerations in the promulgation of national ambient air quality standards.” Am. Petroleum Inst. v. Costle, 665 F.2d 1176, 1185 (D.C. Cir. 1981). 200. Goffman, Reconstruct an Administrative Agency, supra note 3, at 44. 626 Vermont Law Review [Vol. 45:589 this was necessary to speed up the process, the reality is that this change would likely inject cost considerations into the NAAQS setting process— precisely what the Supreme Court forbid in Whitman. After releasing the Back-to-Basics memo, EPA issued two NAAQS rules, declining to increase air quality standards for both PM and ground level-ozone.201 In the final PM NAAQS rule, EPA asserted that it had not crossed the Whitman line, yet offered in a footnote a novel interpretation of the Court’s decision suggesting that the straightforward holding in Whitman is in fact much more nuanced.202
5. Disaggregate Pollution Sources
The Trump EPA also altered how the agency assesses both air pollutants and pollution sources to make it easier for the agency to find that further evaluation or regulation is unwarranted.203 For example, EPA issued novel, unfounded interpretations of the CAA to make it more difficult for the agency to regulate methane emissions from stationary sources. Under section 111 of the CAA, EPA must establish New Source Performance Standards (NSPS) for listed categories of new or modified stationary pollution sources.204 In order to list a source category, the Administrator must determine that a “category of sources . . . causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare,”205 called a significant contribution finding. The plain text of the CAA thus frames EPA’s regulatory authority to set NSPS for existing sources around the category of sources, permitting EPA to regulate air pollution from those categories if the agency finds that
201. Review of the National Ambient Air Quality Standards for Particulate Matter, 85 Fed. Reg. 82,684, 82,693 (Dec. 18, 2020) (codified at 40 C.F.R. pt. 50); Review of the Ozone National Ambient Air Quality Standards, 85 Fed. Reg. 87,256, 87,257 (Dec. 31, 2020) (codified at 40 C.F.R. pt. 50). 202. 85 Fed. Reg. at 82,687 n.4 (“[W]ere the EPA to consider costs of implementation when reviewing and revising the standards ‘it would be grounds for vacating the NAAQS.’ At the same time, the CAA directs the CASAC to provide advice on ‘any adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and maintenance’ of the NAAQS to the Administrator . . . . In Whitman, the Court clarified that most of that advice would be relevant to implementation but not standard setting . . . . However, the Court also noted that the CASAC’s ‘advice concerning certain aspects of `adverse public health . . . effects’ from various attainment strategies is unquestionably pertinent’ to the NAAQS rulemaking record and relevant to the standard setting process.”) (citations omitted). EPA repeated this argument verbatim in the final ozone NAAQS rule. 85 Fed. Reg. at 87,259 n. 5. 203. EPA also used this process to extend or delay the regulatory process itself. See also Goffman & Bloomer, Disempowering the EPA, supra note 165, at 950 (examining the Trump EPA’s narrow, “static interpretation” of the CAA that ignored the latest science and technological capabilities). 204. Clean Air Act, 42 U.S.C. § 7411(b)(1)(B) (2012). 205. Id. § 7411(b)(1)(A). 2021] Deconstructing Environmental Deregulation 627 the total or cumulative emissions from that category significantly contribute to pollution endangering public health or welfare. In rolling back Obama- era methane standards under section 111, the Trump EPA pulled this framework apart along two axes, disaggregating the source category into segments, and disaggregating a source category’s total emissions into individual pollutants, making it doubly hard for EPA to make a significant contribution finding. In 2016, the Obama EPA set NSPS for methane and volatile organic carbon (VOC) emissions “from the production, processing, transmission, and storage segments within the already-listed ‘crude oil and natural gas production’ source category.”206 The Trump EPA used two rationales to repeal the NSPS for the transmission and storage segment and rescind methane regulations for the remaining sources within the oil and gas sector. First, EPA disaggregated the “crude oil and natural gas production” source category into individual segments, arguing that the transmission and storage segments are “sufficiently distinct” from the production and processing segments “because the natural gas that enters the transmission and storage segment has different composition and characteristics than the natural gas that enters the production and processing segments.”207 This “piecemeal approach” ignored reality and the statute’s plain text. The transmission, storage, production, and processing segments together constitute a single- sector enterprise, encompassing the full array of equipment that brings the product from underground to the point of commercial transaction.208 The differences in product composition have no bearing on the statutory question of whether “the ensemble of equipment the source category comprises contributes significantly to air pollution.”209 This stark departure from the statute’s plain text, combined with an arbitrary justification, revealed EPA’s determination to hamstring the agency’s own regulatory capacities under section 111 of the CAA. In addition to disaggregating the source category, EPA interpreted section 111 of the CAA to permanently limit the agency’s authority to regulate pollution. In the new rule, EPA argued that section 111 requires the agency to make a separate significant contribution finding for individually regulated pollutants, notwithstanding well-established findings that the source category contributes significant levels of pollution overall.210 The
206. Goffman & Bloomer, Disempowering the EPA, supra note 165, at 964. 207. Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review, 85 Fed. Reg. 57,018, 57,028 (Sep. 14, 2020). 208. Goffman & Bloomer, Disempowering the EPA, supra note 165, at 965–66. 209. Id. at 966. 210. 85 Fed. Reg. at 57,019. 628 Vermont Law Review [Vol. 45:589 rule could thus lead to the perverse outcome in which EPA could determine that a source category contributes significantly to air pollution, but nevertheless lack the authority to regulate that pollution because it cannot show that the source category’s emission of a particular pollutant on its own “significantly” endangers public health and welfare.211 This arbitrary disaggregation of pollutants contradicts the plain text of the statute, and breaks from more than four decades of agency practice. Perhaps recognizing the weak justification undergirding this novel interpretation, EPA provided an alternative justification for rescinding the methane NSPS, arguing that facilities’ compliance with the NSPS for VOCs will lead to parallel reductions in methane, making the methane NSPS redundant.212 This rationale not only belied EPA’s otherwise steadfast commitment to ignoring the co-benefits of air pollution regulation,213 but also would preclude future administrations from regulating methane emitted at much higher levels from existing sources.214 All these reforms to limit regulation-triggering events target an underlying philosophy behind environmental regulations, and more importantly, the statutes that those regulations interpret and implement. Where federal actions have the potential to perpetrate irreversible harm, particularly with regards to the environment or public health, agencies should adopt the precautionary principle and err on the side of caution. NEPA at its core is a precautionary statute, forcing agencies to “look before you leap,” and only approve a major project after a comprehensive assessment of the project’s potential impacts. The 1990 CAA Amendments also integrate this principle in regulating 189 toxic air pollutants by requiring major sources to use the maximum achievable control technology (MACT) to restrict emissions of those pollutants.215 Notably, these statutes do not require federal agencies to always impose the strictest standards possible, but rather to make cautious, well-informed decisions based on the best available science in order to avoid irreversible harms to public health and the environment.
211. Vizcarra, EPA’s Final Methane Emissions Rules Roll Back Standards and Statutory Authority, supra note 10. This is especially true for new pollutants, for which there are less public health data available. 212. 85 Fed. Reg. at 57,030. 213. See supra Part III.B.3 (detailing the Trump EPA’s strategy to undermine the Obama-era Mercury and Air Toxics Standards (MATS) rule, which imposes limits on hazardous air pollutants emitted by power plants). 214. EPA can only set comprehensive guidelines for existing sources of methane under section 111(d). Thus, by stripping EPA of the authority to issue methane NSPS under this section, the rule effectively precludes the agency from issuing any comprehensive methane guidelines for existing sources. Goffman & Bloomer, Disempowering the EPA, supra note 165, at 967. 215. Clean Air Act, 42 U.S.C. § 7412(g)(2) (2012). 2021] Deconstructing Environmental Deregulation 629
The Trump Administration’s efforts to minimize regulation-triggering events undermined this principle by allowing agencies to “leap” without ever considering the true costs of those actions. Expanding existing exemptions for projects and areas from NEPA review allowed the Administration to pave the way for agencies to greenlight potentially harmful projects without first assessing the potential harm resulting from those projects. Elevating the importance of cost-benefit analyses, and then restricting which benefits can be included in those analyses, gave agencies an artificially narrow view of the true benefits of regulation. Conversely, agencies had a narrower view of the costs of inaction should the agency decide not to impose stricter limits on pollution, including greenhouse gases. The result was a warped, destructive interpretation of these bedrock statutes, where federal agencies willfully blinded themselves to the true impacts of their actions, and only choose to regulate after irreversible harm had been done.
IV. STRATEGY 4: ADOPT NOVEL STATUTORY INTERPRETATIONS THAT ABDICATE OR NARROW AGENCIES’ REGULATORY AUTHORITY
Under the Trump Administration, EPA issued new interpretations of its governing statutes to severely curtail, or in some cases, abdicate the agency’s present and future authority to regulate environmental harms. These interpretations contradicted decades of prior agency practice and constituted a concerted and consistent effort by the Trump EPA to “dismantl[e] its own capacity to develop, implement, and enforce effective pollution reduction rules and programs . . . .”216 If federal courts uphold these interpretations, they have the potential to limit—or even preclude— future administrations from broadly interpreting their statutory mandates to regulate both current and novel environmental threats. The Trump Administration leaned heavily into this strategy to justify its repeal of the Clean Power Plan (CPP) and promulgate its replacement, the Affordable Clean Energy (ACE) rule. In repealing the CPP, EPA offered a static interpretation of the CAA that would preclude a future administration from adopting the most efficient method of regulating emissions from power plants. The rule purported to interpret the “best system of emissions reduction”—the standard of performance that applies throughout section 111(d) of the CAA—as applying only to site-specific
216. Joe Goffman, How Congress Can Curb the Dismantling of the Environmental Protection Agency: An Oversight Agenda, HARV. ENV’T & ENERGY L. PROGRAM (Jan. 10, 2019), https://eelp.law.harvard.edu/2019/01/how-congress-can-curb-the-dismantling-of-the-environmental- protection-agency-an-oversight-agenda/. 630 Vermont Law Review [Vol. 45:589 pollution controls for power plant emissions.217 This interpretation precluded EPA from encouraging facilities to shift power generation from higher- to lower-emitting pollution sources as proposed in the CPP, despite the fact that power plants commonly use “generation shifting” to comply with many pollution-control programs.218 EPA’s repeal of the CPP rested on its argument that “CAA section 111 unambiguously limits the [best system of emission reduction] to those systems that can be put into operation at a building, structure, facility, or installation.”219 This interpretation embodied a risky legal strategy the Administration often relied on in an attempt to permanently curtail EPA’s regulatory authority. Typically, agencies seek deference from courts for reasonable interpretations of ambiguous statutory provisions. To assess the validity of the agency’s statutory interpretation, a court will apply the two- part Chevron test.220 First, the court will determine whether the relevant statutory language is unambiguous, i.e., having only one clear meaning.221 If the court finds the language is unambiguous, then the agency must act according to that clear meaning.222 If the court finds the language is ambiguous, the court proceeds to the second step to determine whether the agency’s interpretation of the statute is reasonable, in which case the court should defer to the agency.223 The court’s standard at step two is more favorable to agencies; thus, by asserting that the language of the CAA is unambiguous, the Trump EPA took an unnecessary litigation risk in order to secure a binding judicial decision permanently restricting the agency’s legal authority.224 In the case of the ACE rule, this risky strategy proved fatal. On the last day of the Trump Administration, the D.C. Circuit vacated the ACE rule, holding that EPA’s static interpretation was “a fundamental misconstruction of Section [111(d)].”225 The fact that the Administration was willing to take this risk revealed that EPA’s goal in issuing the ACE
217. See Goffman & Bloomer, Disempowering the EPA, supra note 165, at 951–52 (providing examples of pollution controls that fall under the broader interpretation of the “best system of emissions reduction”); Repeal of the Clean Power Plan: Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations, 84 Fed. Reg. 32,520, 35,523 (July 8, 2019) (codified at 40 C.F.R. pt. 60). 218. Goffman & Bloomer, Disempowering the EPA, supra note 165, at 951. 219. 84 Fed. Reg. at 32,524 (emphasis in original). 220. See Cole Jermyn & Laura Bloomer, How to Undo Trump-Era Regulatory Rollbacks to Redo Environmental Protection, HARV. ENV’T & ENERGY L. PROGRAM (Apr. 23, 2020), https://eelp.law.harvard.edu/2020/04/how-to-undo-the-environmental-regulatory-rollbacks/; Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842–43 (1984). 221. Chevron, 467 U.S. at 842–43. 222. Id. 223. Id. at 843–44. 224. See Goffman & Bloomer, Disempowering the EPA, supra note 165, at 953. 225. Am. Lung Ass’n v. EPA, 985 F.3d 914, 930 (D.C. Cir. 2021). 2021] Deconstructing Environmental Deregulation 631 rule was not only to repeal the CPP, but also to block a future administration from interpreting the statute more broadly, imposing a lasting restriction on EPA’s capacity to regulate emissions from existing power plants.226 The Trump EPA consistently pursued this risky legal strategy, even when the agency could have simply declined to regulate in order to achieve its desired goals. For example, in April 2019, EPA issued a Clean Water Act (CWA) interpretive statement abdicating its authority to regulate groundwater.227 The statement addressed section 301 of the CWA, which prohibits the unpermitted discharge of any pollutant into EPA’s jurisdictional waters.228 In the statement, the agency concluded that “the best, if not the only, reading of the [CWA]” is that section 301 “exclude[s] all releases of pollutants to groundwater from [the National Pollutant Discharge Elimination System] program coverage, regardless of a hydrologic connection or conveyance to jurisdictional surface water.”229 In other words, EPA categorically excluded any discharge of a pollutant into groundwater from regulation under section 301 of the CWA, even if that pollutant then flows into surface waters within EPA’s jurisdiction.230 This interpretation unnecessarily constrained EPA’s authority over pollution that flows through groundwater, restricting the intended scope of the CWA in a manner that contradicts prior agency practice and Supreme Court precedent.231 Despite EPA’s suggestion that its interpretation represented “the only[] reading of the statute,” the agency’s “longstanding position is that a discharge from a point source to jurisdictional surface waters that moves through groundwater with a direct hydrological connection comes under the purview of the CWA’s permitting requirements.”232 The new interpretation also contradicted basic science. In fact, EPA presented no scientific
226. Id. at 953–54. 227. See CAITLIN MCCOY, HARV. ENV’T & ENERGY L. PROGRAM, CLOSING THE DOOR ON EPA JURISDICTION OVER GROUNDWATER 1–2 (Aug. 5, 2019), http://eelp.law.harvard.edu/wp- content/uploads/Groundwater-Statement-Final.pdf. 228. Clean Water Act, 33 U.S.C. § 1311(a) (2012). 229. Interpretive Statement on Application of the Clean Water Act National Pollutant Discharge Elimination System Program to Releases of Pollutants from a Point Source to Groundwater, 84 Fed. Reg. 16,810, 16,814 (Apr. 23, 2019) (codified at 40 C.F.R. pt. 122). 230. MCCOY, CLOSING THE DOOR ON EPA JURISDICTION OVER GROUNDWATER, supra note 227, at 2. 231. See e.g., Rapanos v. United States, 547 U.S. 715, 743 (2006) (“The [CWA] does not forbid the ‘addition of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition of any pollutant to navigable waters.”) (emphasis added in original). 232. 84 Fed. Reg. at 16,814; Brief for the United States as Amicus Curiae Supporting Plaintiffs- Appellees at 5, Haw. Wildlife Fund v. Cnty. of Maui, 886 F.3d 737 (9th Cir. 2018) (No. 15-17447). 632 Vermont Law Review [Vol. 45:589 rationale supporting the interpretive statement. The agency instead purported to defer to Congressional intent, arguing that its new interpretation reflected “the Agency’s most comprehensive analysis of the CWA’s text, structure, legislative history, and judicial decisions,”233 while simultaneously recognizing this position contradicted legal precedent from several federal courts of appeal.234 EPA and the Environment and Natural Resources Division (ENRD) of the Department of Justice (DOJ) took a similar approach to curtail the agencies’ authority to require facilities in violation of environmental laws to mitigate the harm done to nearby communities. In a March 2020 memorandum, Assistant Attorney General for ENRD, Jeffrey Bossert Clark, put a stop to the longstanding but discretionary practice of including supplemental environmental projects (SEPs) in consent decrees and settlements.235 SEPs have been included in these agreements for decades and are one of the only enforcement tools available to ENRD to directly address the harm done to local communities when facilities violate environmental laws.236 Despite having relied on SEPs for decades, in the 2020 memorandum, ENRD asserted a novel interpretation of the Miscellaneous Receipts Act
233. 84 Fed. Reg. at 16,811. 234. See, e.g., id. at 16,823 (explaining that EPA adopted a legal interpretation that conflicts with the relevant tests adopted by the Fourth, Sixth, and Ninth Circuits because “the Agency has concluded [these tests] lack support in the text, structure, and legislative history of the Act.”). The Supreme Court ultimately rejected EPA’s interpretation, holding that the Clean Water Act applies to groundwater pollution when the discharge to groundwater is the “functional equivalent” of a direct discharge to navigable waters. Cnty. of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462, 1477 (2020). 235. EPA defines an SEP as “an environmentally beneficial project or activity that is not required by law, but that a defendant agrees to undertake as part of the settlement of an enforcement action.” Memorandum from Cynthia Giles, Assistant EPA Adm’r, on the Issuance of the 2015 Update to the 1998 U.S. Environmental Protect Agency Supplemental Environmental Projects Policy to Reg’l EPA Adm’rs (Mar. 10, 2015), https://www.EPA.gov/sites/production/files/2015- 04/documents/sepupdatedpolicy15.pdf. The 2020 memo cemented a four-year phase out initiated by the Attorney General and ENRD through a series of policy memoranda curtailing DOJ’s and agencies’ authority to reach settlements that include payments to third-party organizations. Hana Vizcarra & Laura Bloomer, DOJ Phases Out Supplemental Environmental Projects in Environmental Enforcement, HARV. ENV’T & ENERGY L. PROGRAM (Aug. 6, 2020), https://eelp.law.harvard.edu/2020/08/doj-phases- out-supplemental-environmental-projects-in-environmental-enforcement/. 236. For example, in 2019, DOJ and EPA reached a settlement agreement with a chemical company that included $1.6 million for SEPs, including lead abatement projects; the donation of air monitoring equipment to local responders; more frequent monitoring; and the repair and replacement of equipment containing hazardous air pollutants. This funding was in addition to a penalty of $4.55 million. Vizcarra & Bloomer, DOJ Phases Out Supplemental Environmental Projects, supra note 235; see also Press Release, DOJ, The United States Reaches Agreement with Dow Silicones Corporation to Resolve Environmental Violations at Midland Michigan Chemical Manufacturing Facility (June 25, 2019), https://www.justice.gov/opa/pr/united-states-reaches-agreement-dow-silicones-corporation- resolve-environmental-violations. 2021] Deconstructing Environmental Deregulation 633
(MRA), arguing that SEPs violate the Act and also are “in serious tension with important aspects of our constitutional tradition.”237 The MRA requires any federal official “receiving money for the Government” to deposit those funds in the Treasury “without deduction for any charge or claim.”238 AAG Clark argued that SEPs “divert” money from the Treasury to third parties in violation of the MRA.239 AAG Clark also argued that SEPs unconstitutionally intrude on Congress’s “power of the purse” under the Taxing and Spending Clause.240 However, EPA’s 2015 Update to EPA SEPs policy expressly prohibits cash donations and requires each discrete project to have a “nexus” to the underlying violation in order to assure compliance with the plain text of the MRA and the Taxing and Spending Clause.241 AAG Clark’s retort rests not on the text of the MRA nor the Constitution, but rather his own personal opinion: “If direct monetary payments are unallowable, then so too should in-kind payments. In appearance and effect, in-kind payments are no different than direct monetary payments.”242 Yet this analysis ignores the plain text of the MRA; penalties are not owed to the government until a settlement is finalized, and thus, SEPs do not constitute money received by the government subject to MRA restrictions. This understanding has been further cemented in the DOJ’s Office of Legal Counsel’s determination that SEPs and similar mechanisms do not violate the MRA when: (1) SEPs are not funded with money that was otherwise obligated to the Treasury, and (2) the executive branch retains no post-settlement control of the funds.243 If the Trump ENRD believed it lacked the authority to include SEPs in consent decrees and settlement agreements, it could simply decline to do so. Similarly, if the Trump EPA truly believed it lacked the authority to regulate discharges to groundwater, it could have simply chosen to not exercise that authority. Issuing a formal statement on these matters exposes the Administration to public critique and, in the case of the SEPs policy, litigation.244 If these agencies sought to provide consistency and
237. Memorandum from Jeffrey Bossert Clark, Assistant Att’y Gen., on Supplemental Environmental Projects (“SEPs”) in Civil Settlements with Private Defendants to U.S. DOJ ENRD Deputy Assistant Att’y Gens. & Section Chiefs 8 (Mar. 12, 2020) [hereinafter SEPs Memo], https://media.velaw.com/wp-content/uploads/2020/04/03130749/seps_public_final_signed_3.13.20.pdf. 238. Miscellaneous Receipts Act, 31 U.S.C. § 3302(b) (2012). 239. SEPs Memo, supra note 237, at 1. 240. Id. at 3. 241. Giles Memo, supra note 235, at 34. 242. SEPs Memo, supra note 237, at 14. 243. Id. at 4 n.6. 244. In October 2020, the Conservation Law Foundation (CLF) filed suit in the District Court for the District of Massachusetts to vacate the ENRD memorandum and enjoin EPA and ENRD from 634 Vermont Law Review [Vol. 45:589 predictability, they could offer their interpretations of the statute without asserting that these interpretations represent the only reasonable interpretation. In making such arguments, the agencies revealed a broader strategic goal: to diminish the capacity of future administrations to broadly interpret their statutory mandates to regulate sources of pollution and hold accountable those who violate environmental laws. EPA also used this strategy as part of a joint rulemaking with the National Highway Traffic Safety Administration (NHTSA) to withdraw California’s waiver to issue its own motor vehicle greenhouse gas (GHG) standards under the CAA.245 Recognizing the unique pollution challenges created by California’s population density and geography, the CAA permits the state to request a preemption waiver from the statute’s nationwide motor vehicle emission standards, and set more stringent standards.246 Other states may then adopt California’s standards approved under the waiver provision.247 In revoking California’s existing waiver, the Trump EPA and NHTSA not only revoked California’s previously authorized waiver for its GHG emission and zero-emission-vehicle (ZEV) standards, but also proffered a new interpretation of the CAA precluding EPA from granting such waivers in the first place. EPA and NHTSA offered two novel interpretations justifying the waiver retraction, both circumventing the plain text and intent of the CAA. First, EPA deferred to NHTSA’s finding that California’s GHG emission and ZEV standards were preempted by the Energy Policy and Conservation Act (EPCA).248 NHTSA argued that because EPCA preempts state and local laws “related to fuel economy standards,” this preemption necessarily includes California’s GHG emission standards, despite the explicit prerogative Congress afforded the state under the CAA.249 In adopting this interpretation, EPA improperly relied on an executive interpretation as an implementing the policy, alleging it violated the APA. Complaint for Declaratory and Injunctive Relief at 28–29, Conservation L. Found. v. Barr, No. 1:20-cv-11827 (D. Mass. Oct. 8, 2020). 245. LIA CATTANEO, HARV. ENV’T & ENERGY L. PROGRAM, RETHINKING THE “ONE NATIONAL PROGRAM” FOR CLEAN CARS: WHERE DOES THE BIDEN ADMINISTRATION GO FROM HERE? 1 (2021), http://eelp.law.harvard.edu/wp-content/uploads/Lia-Cattaneo-SAFE-Rule-Part- 1_final_singlespaced.pdf; Goffman & Bloomer, Disempowering the EPA, supra note 165, at 954. 246. Clean Air Act, 42 U.S.C. § 7543(b) (2012); see also Goffman & Bloomer, Disempowering the EPA, supra note 165 (emphasizing that the statute creates an explicit presumption in favor of granting the waiver). 247. Clean Air Act, 42 U.S.C.§ 7507 (2012) (“The Administrator shall . . . waive application . . . to any State which has adopted standards . . . for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966 . . . .”). 248. The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program, 84 Fed. Reg. 51,310, 51,338 (Sep. 27, 2019) (codified at 40 C.F.R. pts. 85, 86, and 43 C.F.R. pts. 531, 533). 249. Goffman & Bloomer, Disempowering the EPA, supra note 165, at 955. 2021] Deconstructing Environmental Deregulation 635 independent basis upon which to ignore Congress’s clear presumption in favor of granting California’s waiver request, and failed to make the requisite findings required under the law to justify denying a waiver.250 Second, EPA offered an alternative justification for the withdrawal in which the agency narrowly interpreted section 209(b)(1)(B) of the CAA as only applying to criteria pollutants,251 not greenhouse gases. This interpretation positioned the agency to defend its conclusion that the CAA does not authorize California to regulate GHG emissions from light duty vehicles.252 EPA also imposed a heightened standard inconsistent with the CAA’s presumption in favor of granting California’s waiver, finding: “In order for a waiver request to pass muster under CAA section 209(b)(1)(B) . . . a particularized, state-specific nexus must exist between pollutant sources, resulting pollution, and impacts of that pollution.”253 EPA roughly imposed this nexus requirement on top of the CAA’s far broader language of “compelling and extraordinary conditions” in order to preclude California from adopting its own GHG emission and ZEV standards, regardless of the present and future impacts of climate change unique to the state. These examples represent only some of the many instances in which the Trump Administration adopted novel, unfounded statutory interpretations in order to permanently diminish agencies’ regulatory authority.254 In adopting these static interpretations of statutory text, EPA not only abdicated its duty to protect public health and the environment, but also sought to relegate future administrations to the same fate. Using this strategy, EPA also sought to sabotage the very design of the administrative state, in which executive agencies assist Congress in addressing new threats by leveraging deep institutionalized expertise while creating a forum in which to interface and troubleshoot with both the public at large and particular community partners. Recognizing this potential, Congress often gives agencies broad mandates, framed with the flexibility needed to address as yet unforeseen opportunities, discoveries, and challenges. By permanently limiting the flexibility with which agencies may interpret these
250. See 42 U.S.C. § 7543(b)(1) (providing that the EPA “shall . . . waive application of this section” unless it makes one of three findings to deny a waiver, including that California “does not need such State standards to meet compelling and extraordinary conditions.”). 251. Criteria pollutants are the six common air pollutants regulated under the National Ambient
Air Quality Standards (NAAQS) program: carbon monoxide (CO), ground-level ozone (O3), nitrogen dioxide (NO2), lead (Pb), particulate matter (PM), and sulfur dioxide (SO2). Criteria Air Pollutants, supra note 33. 252. Goffman & Bloomer, Disempowering the EPA, supra note 165, at 956. 253. Id. at 956–57; 84 Fed. Reg. at 51,349 n. 280. 254. See generally Goffman & Bloomer, Disempowering the EPA, supra note 165. 636 Vermont Law Review [Vol. 45:589 statutes, the Trump Administration tried to permanently weaken these agencies’ capacities to implement their Congressional mandates, and thus, the power of the statutes themselves.
CONCLUSION
President Biden has promised to tackle climate change and other imposing environmental threats, and to do so with every policy and programmatic tool at his disposal. EPA’s toolbox, populated with a variety of authorities under the CAA and continually evolving expertise, will play an outsized role in the Biden-Harris Administration’s climate change policy. As if to preempt that role deliberately, over the past four years, the Trump Administration strategically, and often successfully, sought to gut longstanding environmental regulations while imposing novel statutory interpretations that, if accepted by federal courts, would permanently restrict agencies’ regulatory authority and flexibility. At the same time, political appointees alienated scientific experts and career staff; insulated agencies from public scrutiny; openly discouraged public participation and accountability in order to benefit corporate interests; and mandated rulemaking processes that will inevitably result in weaker pollution standards that fail to address the pressing public health and environmental crises that we currently face. Agencies like EPA developed capacities, expertise, and high- functioning cultures over long periods of time. Though the Trump Administration significantly weakened these features, they are likely not beyond repair. The more daunting challenge is that of time lost, in the form of permanent alterations to ecosystems that are more stressed by development and climate change than ever before; increased greenhouse gas emissions driving up atmospheric concentrations and radiative forcing; protected lands that have been mined and drilled; and logged acres of National Forests opened to development for the first time. Cumulative increases in pollution have fallen, and continue to fall, most heavily on already overburdened communities, even if the Trump Administration refused to account for those impacts. Compounded with the COVID-19 pandemic,255 large swaths of the population have been pushed to a degree of vulnerability that may or may not be reversible.
255. Small increases in long-term exposure to particulate matter, specifically PM2.5, have been shown to lead to large increases in COVID-19 mortality rates, even after accounting for other area-level variables. X. Wu et al., Air Pollution and COVID-19 Mortality in the United States: Strengths and Limitations of an Ecological Regression Analysis, 6 SCI. ADVANCES, no. 45, 2020, at 1–2. 2021] Deconstructing Environmental Deregulation 637
I draw hope from the fact that, as candidates, President Biden and Vice President Harris centered climate change and environmental justice in their appeal to voters. Their victory, bolstered by public demand for bold action on these issues, signals we may have the level of White House leadership needed to confront these challenges and succeed.
638 Vermont Law Review [Vol. 45:589
TRUMP AT WAR
John Yoo*
INTRODUCTION ...... 639 I. THE TRUMP STRATEGY FOR WAR ...... 644 II. WAR POWERS IN PRACTICE ...... 651 III. CONSTITUTIONAL TEXT AND HISTORY...... 660 CONCLUSION ...... 682
INTRODUCTION
Donald Trump campaigned on ending foreign wars. In his view, conflicts wasted American lives and treasure for nothing. While President Barack Obama had struggled over whether to intervene in the Syrian civil war, Trump tweeted: “We should stay the hell out of Syria . . . .” He asked: “WHAT WILL WE GET FOR OUR LIVES AND $ BILLIONS?ZERO.”1 Much to the dismay of the Washington, D.C. policy community, Trump followed through. In December 2018, the White House announced that U.S. troops would withdraw from Syria.2 After Jim Mattis resigned as Secretary of Defense in protest and Congress reacted in an uproar, Trump paused.3 But with John Bolton installed as national security advisor and Mike Pompeo as Secretary of State, Trump returned to his original plan.4 In October 2019, Trump agreed with Turkey President Recep Tayyip Erdogan to redeploy 1,000 U.S. special forces away from the Turkey-Syria border.5 The Turkish
* Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law; Visiting Scholar, American Enterprise Institute; Visiting Fellow, Hoover Institution; J.D., 1992 Yale Law School; A.B. 1989 Harvard College. The author thanks Francis Adams, Min Soo Kim, and David Song for their excellent research assistance. 1. TRUMP TWITTER ARCHIVE, https://www.thetrumparchive.com/?searchbox=%22We+ should+stay+the+hell+out+of+Syria%2C+the+%5C%22rebels%5C%22+are+just+as+bad+as+the+curr ent+regime.+WHAT+WILL+WE+GET+FOR+OUR+LIVES+AND+%24+BILLIONS%3FZERO%22 (quoting Donald Trump (@realDonaldTrump), TWITTER (June 15, 2013, 8:33 PM), https://twitter.com/realdonaldtrump/status/346063000056254464). 2. Dion Nissenbaum et al., In Shift, Trump Orders U.S. Troops Out of Syria, WALL ST. J. (Dec. 19, 2018), https://www.wsj.com/articles/u-s-military-preparing-for-a-full-withdrawal-of-its- forces-from-northeastern-syria-11545225641. 3. Helene Cooper, Jim Mattis, Defense Secretary, Resigns in Rebuke of Trump’s Worldview, N. Y. TIMES (Dec. 20, 2018), https://www.nytimes.com/2018/12/20/us/politics/jim-mattis- defense-secretary-trump.html?searchResultPosition=1. 4. Declan Walsh & David E. Sanger, Pompeo Speech Lays Out Vision for Mideast, Taking Shots at Obama, N. Y. TIMES (Jan. 10, 2019), https://www.nytimes.com/2019/01/10/world/middleeast/ mike-pompeo-speech-middle-east-obama.html. 5. Eric Schmitt, President Endorses Turkish Military Operation in Syria, Shifting U.S. Policy, N. Y. TIMES (Oct. 7, 2019), https://www.nytimes.com/2019/10/07/us/politics/trump-turkey-syria.html. 640 Vermont Law Review [Vol. 45:639 military quickly invaded Syria and set up a buffer zone at the expense of the U.S.’s Kurdish allies.6 Trump triumphantly tweeted: “COMING HOME! We were supposed to be there for 30 days - That was 10 years ago.” 7 He continued: “When these pundit fools who have called the Middle East wrong for 20 years ask what we are getting out of the deal, I simply say, THE OIL, AND WE ARE BRINGING OUR SOLDIERS BACK HOME, ISIS SECURED!”8 Syria symbolized Trump’s broader campaign promise to re-balance American military strategy. He believed that the U.S. spent too much protecting the free world while our allies enjoyed the free ride. Afghanistan and Iraq symbolized for Trump the extreme costs of foreign entanglements. “We’re rebuilding other countries while weakening our own,” Trump said in his first major foreign-policy speech.9 “I am the only person running for the presidency who understands this and this is a serious problem.”10 Once in office, Trump set an end to U.S. involvement in Syria and began to wind down deployments in Afghanistan and Iraq. 11 He raised doubts about whether the U.S. would honor Article 5 of the North Atlantic Treaty, which requires NATO members to treat any attack on one as an attack on all.12 He demanded that Japan and Korea pay more for the large U.S. military presences in their territory.13 On the other hand, Trump followed a more activist course than at first appears. He continued the interventions of his predecessors in the Middle East. He launched strikes on Syrian military facilities to retaliate for the
6. Ben Hubbard et al., Abandoned by U.S. in Syria, Kurds Find New Ally in American Foe, N.Y. TIMES, (Oct. 23, 2019), https://www.nytimes.com/2019/10/13/world/middleeast/syria-turkey- invasion-isis.html. 7. TRUMP TWITTER ARCHIVE, https://www.thetrumparchive.com/?results=1&searchbox=%22coming+home%22 (quoting Donald Trump (@realDonaldTrump), TWITTER (Oct. 25, 2019, 8:32 AM), https://twitter.com/realDonaldTrump/status/1187708412685107200). 8. Id. 9. Transcript: Donald Trump’s Foreign Policy Speech, N.Y. TIMES, (Apr. 27, 2016), https://www.nytimes.com/2016/04/28/us/politics/transcript-trump-foreign-policy.html. 10. Id. 11. Jim Garamone, U.S. Completes Troop-Level Drawdown in Afghanistan, Iraq, DOD NEWS (Jan. 15, 2021), https://www.defense.gov/Explore/News/Article/Article/2473884/us-completes-troop- level-drawdown-in-afghanistan-iraq/. 12. Rosie Gray, Trump Declines to Affirm NATO's Article 5, ATLANTIC (May 25, 2017), https://www.theatlantic.com/international/archive/2017/05/trump-declines-to-affirm-natos-article- 5/528129/. 13. Choe Sang-Hun, U.S. and South Korea Sign Deal on Shared Defense Costs, N. Y. TIMES (Feb. 10, 2019), https://www.nytimes.com/2019/02/10/world/asia/us-south-korea-military-costs.html. 2021] Trump at War 641
Assad regime’s use of chemical weapons.14 U.S. troops remained in Syria to fight ISIS and protect the Kurds.15 He kept the military in Afghanistan and authorized the spectacular use of heavy munitions.16 President Trump also kept war as a regular tool of foreign policy. In his 2017 speech to the United Nations, he promised to “totally destroy” North Korea if it continued to develop nuclear weapons.17 “Rocket Man is on a suicide mission for himself and for his regime,” Trump said of Kim Jong- un.18 “[I]f [the U.S.] is forced to defend itself or its allies, we will have no choice but to totally destroy North Korea.”19 Earlier that year, he had reacted to North Korean threats by declaring: “They will be met with fire and fury like the world has never seen.”20 Trump allowed the U.S. Navy to continue its challenges to China’s fortified artificial islands in the South China Sea.21 Despite the Ukraine impeachment controversy, the U.S. sold lethal weapons to Kyiv to fight a Russian-backed separatist movement.22 For an alleged isolationist, Trump has kept the U.S. on the beat as the world’s only policeman. Critics accused Trump of risking war. Trump used the United Nations “as a stage to threaten war,” Senator Dianne Feinstein said, which “further isolates the United States.”23 Trump, however, followed in a long line of
14. Helene Cooper et al., U.S., Britain and France Strike Syria Over Suspected Chemical Weapons Attack, N.Y. TIMES (Apr. 13, 2018), https://www.nytimes.com/2018/04/13/world/middleeast/trump-strikes-syria-attack.html. 15. Lara Jakes & Eric Schmitt, U.S. Struggles to Keep Allies in Fight Against ISIS in Syria, N.Y. TIMES (Nov. 13, 2019), https://www.nytimes.com/2019/11/13/world/middleeast/turkey-syria- kurds-trump.html. 16. Robin Wright, Trump Drops the Mother of All Bombs on Afghanistan, NEW YORKER (Apr. 14, 2017), https://www.newyorker.com/news/news-desk/trump-drops-the-mother-of-all-bombs-on- afghanistan. 17. Julian Borger, Donald Trump threatens to 'totally destroy' North Korea in UN speech, GUARDIAN (Sept. 19, 2017), https://www.theguardian.com/us-news/2017/sep/19/donald-trump- threatens-totally-destroy-north-korea-un-speech. 18. Id. 19. Remarks by President Trump to the 72nd Session of the United Nations General Assembly, U.S. EMBASSY VENEZUELA (Sept. 19, 2017), https://ve.usembassy.gov/remarks-president-trump-72nd- session-united-nations-general-assembly-september-19-2017/. 20. Peter Baker & Choe Sang-Hun, Trump Threatens ‘Fire and Fury’ Against North Korea if It Endangers U.S., N.Y. TIMES (Aug. 8, 2017), https://www.nytimes.com/2017/08/08/world/asia/north- korea-un-sanctions-nuclear-missile-united-nations.html. 21. Hannah Beech, China’s Sea Control Is a Done Deal, ‘Short of War with the U.S.’, N.Y. TIMES (Sept. 20, 2018), https://www.nytimes.com/2018/09/20/world/asia/south-china-sea-navy.html. 22. Tracy Wilkinson, U.S. Decision to Provide Anti-Tank Missiles to Ukraine Angers Russian Leaders, L.A. TIMES (Dec. 26, 2017), https://www.latimes.com/nation/la-fg-us-ukraine-20171226- story.html. 23. Press Release, Dianne Feinstein, Feinstein Statement on Trump UN Speech (Sep. 19, 2017), https://www.feinstein.senate.gov/public/index.cfm/press-releases?id=F02C3D61-E841-478C- 90C9-E3A155A9E18B. 642 Vermont Law Review [Vol. 45:639
Presidents who have used such threats to deter enemies, communicate resolve, and negotiate disputes.24 Critics did not just attack the wisdom of these engagements; they accused the White House of waging unconstitutional wars without congressional approval. American airstrikes on Syria or support for Saudi fighting in Yemen broke the law, apparently, because Congress had not declared war. “Make no mistake: President Trump’s airstrikes against Syria were unconstitutional,” claimed Professor Michael Paulsen. 25 National Review columnist David French chimed in about U.S. support for Saudi Arabia: “It’s now official: The president who ran for office pledging to reduce military entanglements abroad is involving American forces in a foreign war in direct defiance of the plain language of the Constitution.”26 Some conservatives, such as Mike Lee of Utah and Rand Paul of Kentucky, took to the floor of the Senate to propose bills to declare Trump’s decisions as Commander-in-Chief unconstitutional. 27 But these efforts failed in the face of a presidential veto.28 Liberals and conservatives both have taken inconsistent attitudes toward war powers. Many sharply criticized President George W. Bush (and Presidents George H.W. Bush, Reagan, and Nixon) for conducting wars without congressional approval but then remained silent when President Obama attacked Libya to overthrow Muammar al-Ghaddafi.29 Former Yale Law School Dean, and noted critic of presidential war powers, Harold Koh defended the Libya attacks while serving as Legal Advisor to the State Department and later refused to criticize the constitutionality of the Syria attacks.30 Koh argued that Obama had not violated the Declare War Clause because these wars were not really wars at all. “[T]he situation in Libya does
24. See Matthew C. Waxman, The Power to Threaten War, 123 YALE L.J. 1626, 1626 (2014) (“The swelling scope of the President's practice in wielding threatened force largely tracks the standard historical narrative of war powers shifting from Congress to the President.”). 25. Michael Stokes Paulsen, Trump’s First Unconstitutional War, NAT’L REV. (Apr. 11, 2017); https://www.nationalreview.com/2017/04/donald-trump-syria-strike-unconstitutional-declaration-war/. 26. David French, America’s War in Yemen Is Plainly Unconstitutional, NAT’L REV. (Apr. 27, 2019), https://www.nationalreview.com/2019/04/americas-war-in-yemen-is-plainly-unconstitutional/. 27. Catie Edmondson, In Bipartisan Bid to Restrain Trump, Senate Passes Iran War Powers Resolution, N.Y. TIMES, (Feb. 13, 2020), https://www.nytimes.com/2020/02/13/us/politics/iran-war- powers-trump.html. 28. Lindsay Wise, Senate Fails to Override Trump Veto of Resolution on Force Against Iran, WALL ST. J. (May 7, 2020), https://www.wsj.com/articles/senate-fails-to-override-trump-veto-of- resolution-on-force-against-iran-11588876119. 29. Stuart Taylor, Jr., An Invasion of Iraq Requires the Approval of Congress, ATLANTIC (Aug. 31, 2002), https://www.theatlantic.com/politics/archive/2002/09/an-invasion-of-iraq-requires-the- approval-of-congress/378094/. 30. Harold Koh, Not Illegal: But Now the Hard Part Begins, JUST SECURITY (Apr. 7, 2017), [hereinafter, Koh, Not Illegal], https://www.justsecurity.org/39695/illegal-hard-part-begins/. 2021] Trump at War 643 not constitute a war requiring specific congressional approval under the Declaration of War Clause of the Constitution.”31 But these critics gave full vent to their frustrations once Trump occupied the Oval Office. Senator Bernie Sanders asserted that Trump had “no legal authority” to attack Syria, even though he had not criticized Obama’s 2011 Libya intervention.32 Hina Shamsi, director of the National Security Project at the ACLU, declared that the strike “violates the constitution and US treaty obligations under the UN charter.” 33 Trump’s Syria attack “probably violate[s] the U.N. Charter and (therefore) the U.S. Constitution,” in the words of Georgetown law professor Martin Lederman.34 Yale Law Professor Harold Koh, who served as the legal advisor in the Obama administration and approved the Libyan intervention, at best could only declare Trump’s strikes “Not Illegal.”35 This Article will explain why these conservative and liberal critics were mistaken in their views of Trump and war. The Constitution vests the President with executive power and the role of Commander-in-Chief, 36 which, in the words of Federalist 70, gives him the primary constitutional duty of, “protection of the community against foreign attacks.” 37 The Founders vested these powers in the president precisely because only an individual could act with sufficient “energy in the executive” to respond to the challenges of foreign policy and national security.38 Congress has an arsenal of authorities to block presidential war-making, such as control over the size and shape of the military. 39 Despite these war powers, the Constitution does not grant Congress the sole right to decide whether to go
31. Libya and War Powers: Hearing Before the S. Comm. on Foreign Rel., 112th Cong. 8 (2011) (statement of Hon. Harold Koh, Legal Advisor, U.S. Department of State), https://www.foreign.senate.gov/imo/media/doc/062811_Transcript_Libya%20and%20War%20Powers.p df. 32. Press Release, Bernie Sanders, Sanders Statement on Trump’s Authority to Go to War in Syria (Apr. 11, 2018), https://www.sanders.senate.gov/press-releases/sanders-statement-on-trumps- authority-to-go-to-war-in-syria/; Michael Crowley, Bernie’s Foreign Policy Deficit, POLITICO (Jan. 30, 2016), https://www.politico.com/story/2016/01/bernie-sanders-foreign-policy-deficit-218431. 33. Sabrina Siddiqui & Lauren Gambino, Are Donald Trump’s Missile Strikes in Syria Legal?, GUARDIAN (Apr. 7, 2017), https://www.theguardian.com/us-news/2017/apr/07/donald-trump-us-missile- strikes-syria-legal. 34. Marty Lederman, Why the Strikes Against Syria Probably Violate the U.N. Charter and (therefore) the U.S. Constitution, JUST SECURITY (April 6, 2017), https://www.justsecurity.org/39674/syrian-strikes-violate-u-n-charter-constitution/. 35. Harold Koh, Not Illegal: But Now the Hard Part Begins, JUST SECURITY (April 7, 2017), https://www.justsecurity.org/39695/illegal-hard-part-begins/. 36. U.S. CONST. art. II, § 2, cl. 1. 37. THE FEDERALIST NO. 70, at 423 (Alexander Hamilton) (Clinton Rossiter ed., 1961). 38. Id. 39. U.S. CONST. art. I, § 8, cls. 11, 15. 644 Vermont Law Review [Vol. 45:639 to war. Instead, the Constitution divides the war power between the executive and legislative branches and encourages them to struggle for control over foreign policy and war. By refusing to concede an unprecedented veto to Congress over military operations, Trump preserved the constitutional right of future Presidents to take the measures necessary to protect the Nation’s security.
I. THE TRUMP STRATEGY FOR WAR
President Trump took office in the midst of several wars. Almost two decades after the 9/11 attacks, the U.S. continues to fight the Taliban in Afghanistan.40 Although the U.S. had withdrawn from Iraq in 2011, the Obama administration had intervened in Syria to fight ISIS. 41 President Trump won his greatest military victory by finishing off ISIS as a caliphate in control of territory, culminating in an October 27, 2019 operation that killed ISIS founder Abu Bakr al-Baghdadi.42 Neither war raised a significant constitutional issue. In both cases, Congress had enacted an Authorization to Use Military Force (AUMF) in the wake of the September 11 attacks.43 In the broadest grant of war power by Congress since World War II, the AUMF recognized that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.”44 It authorized him “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks . . . .”45 It did not limit its approval for war by time or geography. The AUMF clearly authorized the wars that Trump inherited. The Taliban had provided al-Qaeda with a safe haven before the attacks and harbored it afterwards.46 After the U.S.’s lightning-quick victory over the Taliban in the
40. Julian E. Barnes &Thomas Gibbons-Neff, U.S. Should Slow Withdrawal from Afghanistan, Bipartisan Panel Urges, N. Y. TIMES, (Feb. 3, 2021), https://www.nytimes.com/2021/02/03/us/politics/ afghanistan-biden-trump-troops-withdrawal.html. 41. Peter Baker & Michael D. Shear, U.S. Weighs Direct Military Action Against ISIS in Syria, N. Y. TIMES, (Aug. 22, 2014), https://www.nytimes.com/2014/08/23/world/middleeast/obama-adviser- says-military-action-possible-against-isis.html; Reuters Staff, Timeline: Invasion, Surge, Withdrawal; U.S. Forces in Iraq, REUTERS (Dec. 18 2011), https://www.reuters.com/article/us-iraq-usa-pullout- idUSTRE7BH08E20111218. 42. Missy Ryan & Dan Lamothe, Trump Says Islamic State leader Abu Bakr al-Baghdadi Blew Himself up as U.S. Troops Closed in, WASH. POST, (Oct 27, 2019). 43. Authorization for Use of Military Force, Pub. L. No. 107-40, § 2, 115 Stat. 224, 224 (2001). 44. Id. 45. Id. 46. Mujib Mashal, How the Taliban Outlasted a Superpower: Tenacity and Carnage, N. Y. TIMES (Jan. 15, 2021), https://www.nytimes.com/2020/05/26/world/asia/taliban-afghanistan-war.html. 2021] Trump at War 645 weeks after 9/11, the Taliban fled to western Pakistan, regrouped, and returned. 47 During the Bush years, troop deployments rose to 25,000. 48 Obama ordered a temporary deployment surge of 30,000 additional troops in 2009, but then drew down forces to about 8,000 by 2016.49 Although President Trump had campaigned on withdrawing from Afghanistan, he changed his mind. In 2017, at the request of Defense Secretary Mattis, President Trump agreed to boost the force level to about 14,000.50 But after firing Mattis in late 2018, the President announced that he would halve the deployment.51 Despite the investment in men and treasure, the war in Afghanistan had reached a stalemate. By the end of the fighting season in 2019, the Taliban controlled about 12% of the country’s districts, the U.S.-backed government controlled approximately 53%, and 34% of the country remained contested.52 Trump’s frustration with the ongoing conflict revealed itself in the fall of 2019, with the leaked news that the President had planned to invite Taliban leaders to Camp David, on September 11, to sign an agreement for an end to the fighting.53 Trump cancelled the visit after public outcry, the resignation of John Bolton,54 and a Taliban car bomb attack in Kabul. 55 Nevertheless, the Constitution gives the President as Commander-in-Chief the ability to order the U.S. armed forces to cease fighting.56
47. America’s Longest War: A Visual History of 18 Years in Afghanistan, WALL ST. J. (Feb. 29, 2020), https://www.wsj.com/articles/americas-longest-war-a-visual-history-of-18-years-in- afghanistan-11583010024. 48. Craig Whitlock et al, The War in Afghanistan: A Visual Timeline of the 18-Year Conflict, WASH. POST (Dec. 9, 2019), https://www.washingtonpost.com/graphics/2019/investigations/amp- stories/visual-timeline-of-the-war-in-afghanistan/. 49. Id. 50. Michael R. Gordon, Trump Gives Mattis Authority to Send More Troops to Afghanistan, N.Y. TIMES (June 13, 2017), https://www.nytimes.com/2017/06/13/world/asia/mattis-afghanistan- military.html. 51. Helene Cooper & Katie Rogers, Trump, Angry Over Mattis’s Rebuke, Removes Him 2 Months Early, N.Y. TIMES (Dec. 23, 2018), https://www.nytimes.com/2018/12/23/us/politics/trump- mattis.html. 52. CLAYTON THOMAS, CONG. RESEARCH SERV., R45122, AFGHANISTAN: BACKGROUND AND U.S. POLICY IN BRIEF 1, 5 (2019), https://www.hsdl.org/?view&did=824841. 53. Peter Baker et al., How Trump’s Plan to Secretly Meet with the Taliban Came Together, and Fell Apart, N.Y. TIMES (Sep. 8, 2019), https://www.nytimes.com/2019/09/08/world/asia/afghanistan-trump-camp-david-taliban.html. 54. Peter Baker, Trump Ousts John Bolton as National Security Adviser, N.Y. TIMES (Sept. 10, 2019), https://www.nytimes.com/2019/09/10/us/politics/john-bolton-national-security-adviser- trump.html. 55. US Service Member Among Dead in Taliban Suicide Attack in Kabul, GUARDIAN (Sept. 5, 2019), https://www.theguardian.com/world/2019/sep/05/taliban-claims-bombing-us-embassy-peace- talks-kabul. 56. See U.S. CONST. art. II, § 2, cls. 1–2 (giving the President the power to command the military and make treaties). 646 Vermont Law Review [Vol. 45:639
Trump could also rely on the AUMF for what became the other war of his first term: Syria. Even before Trump entered office, the U.S. had already intervened in the civil war. In 2011, President Obama called for regime change as a civil war erupted against the rule of Bashar al-Assad in Syria.57 As reports circulated that the Assad regime may have used mustard and/or sarin gas against civilians, Obama declared that Syria had crossed “a red line,” though he left the consequences unstated.58 Obama went to Congress for authorization to intervene in Syria, but Congress refused. 59 Russian President Putin came to a humiliating rescue, in which the U.S. refrained from war in exchange for Russian supervision of the Syrian removal of chemical weapons.60 By 2014, Washington had shifted its attentions from chemical weapons to ISIS. An offshoot of al-Qaeda, ISIS seized vast swaths of territory in both Syria and Iraq during the chaos of civil war.61 Its forces controlled major cities and significant population and resources in both nations; ISIS had even threatened Baghdad before Iraqi forces had turned the tide.62 That fall, the Obama administration launched airstrikes against ISIS and soon deployed troops in Syria.63 Not only did President Trump continue the war, but he also loosened the rules of engagement so that U.S. forces could fight more
57. Scott Wilson & Joby Warrick, Assad Must Go, Obama Says, WASH. POST (Aug. 18, 2011), https://www.washingtonpost.com/politics/assad-must-go-obama-says/2011/08/18/gIQAelheOJ_ story.html. 58. David E. Sanger & Eric Schmitt, U.S. Shifting Its Warning on Syria’s Chemical Arms, N.Y. TIMES (Dec. 6, 2012), https://www.nytimes.com/2012/12/07/world/middleeast/syrias-chemical- weapons-moves-lead-us-to-be-flexible.html. 59. Russel Berman, The War Against ISIS Will Go Undeclared, ATLANTIC (Apr. 15, 2015), https://www.theatlantic.com/politics/archive/2015/04/the-war-against-isis-will-go-undeclared/390618/. 60. Hisham Melhem, How Obama’s Syrian Chemical Weapons Deal Fell Apart, ATLANTIC (Apr. 10, 2017), https://www.theatlantic.com/international/archive/2017/04/how-obamas-chemical- weapons-deal-fell-apart/522549/. 61. Megan Specia, The Evolution of ISIS: From Rogue State to Stateless Ideology, N. Y. TIMES (Mar. 20, 2019), https://www.nytimes.com/2019/03/20/world/middleeast/isis-history-facts-islamic- state.html. 62. Loveday Morris, Iraqi Forces Face Resistance in Trying to Push Last of Al-Qaeda Affiliates out of Ramadi, WASH. POST (Jan. 19, 2014), https://www.washingtonpost.com/world/iraqi- government-forces-launch-major-effort-to-push-last-of-al-qaeda-affiliates-out-of- ramadi/2014/01/19/a196ac8c-8137-11e3-a273-6ffd9cf9f4ba_story.html. 63. Helene Cooper & Eric Schmitt, Airstrikes by U.S. and Allies Hit ISIS Targets in Syria, N.Y. TIMES (Sep. 22, 2014), https://www.nytimes.com/2014/09/23/world/middleeast/us-and-allies-hit- isis-targets-in-syria.html. 2021] Trump at War 647 aggressively.64 ISIS’s last city, its capital of Raqqa, fell in 2017, and strikes killed al-Baghdadi and his number two aide in October 2019.65 Like Obama before him, Trump could invoke Bush’s AUMF. The September 11 law authorized the President to use forces against all “organizations” that “committed[] or aided” the 2001 attacks.66 Although ISIS and al-Qaeda later became rivals, ISIS originally began as a franchise of the original terrorist group.67 Trump could also have relied upon the 2002 AUMF that approved the Iraq invasion, which authorized the President to use the Armed Forces “as he determines to be necessary and appropriate” to “defend the national security of the United States against the continuing threat posed by Iraq” and “enforce all relevant United Nations Security Council resolutions regarding Iraq.” 68 One of those Security Council resolutions authorized the U.S. to restore international peace and stability in the region.69 Ejecting ISIS from Iraqi territory and preventing ISIS from using Iraqi territory to attack Americans would qualify. But Trump’s use of force against the Syrian government had to rely solely on the President’s sole constitutional authority. Ending the Syrian civil war, stopping Assad’s use of Weapons of Mass Destruction (WMDs), or protecting Syrian civilians cannot fall within either the 2001 or 2002 AUMFs. Nevertheless, Trump used force where Obama would not. In April 2017, Trump ordered a retaliatory strike against Syria for using chemical weapons against a rebel village.70 The Navy launched 59 Tomahawk cruise missiles against the Syrian Air Force base that had carried out the attack, damaged Syrian military facilities, and put 20% of the Syrian Air Force out of action.71 In a letter to Congress Trump stated that, because of “the vital
64. Helene Cooper, Trump Gives Military New Freedom. But with That Comes Danger. N.Y. TIMES (Apr. 5, 2017), https://www.nytimes.com/2017/04/05/us/politics/rules-of-engagement-military- force-mattis.html. 65. Peter Baker et al., ISIS Leader al-Baghdadi Is Dead, Trump Says, N.Y. TIMES (Oct. 27, 2019), https://www.nytimes.com/2019/10/27/us/politics/isis-leader-al-baghdadi-dead.html. 66. Authorization for Use of Military Force, Pub. L. No. 107-40, § 2, 115 Stat. 224, 224 (2001). 67. ROBIN WRIGHT ET AL., THE JIHADI THREAT ISIS, AL-QAEDA, AND BEYOND 10–11 (2017). 68. Authorization for Use of Military Force against Iraq Resolution of 2002, Pub. L. No. 107- 243, § 3(a), 116 Stat. 1498, 1501. 69. Id. at 1499. 70. Michael R. Gordon et al., Dozens of U.S. Missiles Hit Air Base in Syria, N.Y. TIMES (Apr. 6, 2017), https://www.nytimes.com/2017/04/06/world/middleeast/us-said-to-weigh-military- responses-to-syrian-chemical-attack.html. 71. Id.; Press Release, Statement by Secretary of Defense Jim Mattis on the U.S. Military Response to the Syrian Government’s Use of Chemical Weapons (Apr. 10, 2017), https://www.defense.gov/Newsroom/Releases/Release/Article/1146758/statement-by-secretary-of- defense-jim-mattis-on-the-us-military-response-to-the/source/GovDelivery/ (announcing that the U.S.
648 Vermont Law Review [Vol. 45:639 national security and foreign policy interests of the United States,” he had acted “pursuant to [his] constitutional authority to conduct foreign relations and as Commander in Chief and Chief Executive,” which is “consistent with the War Powers Resolution.”72 Congressional Democrats criticized Trump for violating the Constitution, and public interest groups sued to stop the attacks.73 Trump returned to military strikes when Damascus continued its WMD use. According to U.S. intelligence, Assad ordered the use of sarin gas in November 2017 on the outskirts of Damascus and, between June 2017 and April 2018, used chemical weapons at least 15 times. 74 In April 2018, President Trump joined British and French leaders in ordering airstrikes on three Syrian chemical weapons facilities.75 However, thanks to Obama’s deal with Putin, Russia had returned to the Middle East, and its air force and anti- aircraft defenses provided air cover for Assad’s forces.76 Destruction was minimal.77 Trump issued a constitutional defense of his attacks. While the Trump Justice Department claimed that the President had the authority to use force without congressional permission, it adopted a cramped theory of executive power developed by the Obama administration. A May 2018 opinion by DOJ’s Office of Legal Counsel (OLC) began well enough. It argued that the Commander-in-Chief and Executive Power Clauses gave him “the authority to direct U.S. military forces in engagements necessary to advance American national interests abroad.”78 OLC repeated William Rehnquist’s justification of Nixon’s expansion of the Vietnam War to Cambodia: history plainly
Airstike on Shayrat airfield on April 6th damaged 20% of Syria’s operational aircrafts); see also Syria War: US Missiles ‘Took Out 20% of Aircraft’, BBC NEWS (Apr. 10, 2017), https://www.bbc.com/news/world-middle-east-39561102. 72. Letter from President Donald J. Trump to Congressional Leaders on United States Military Operations (Apr. 15, 2018), https://www.govinfo.gov/content/pkg/DCPD-201800243/html/DCPD- 201800243.htm. 73. Charlie Savage, Watchdog Group Sues Trump Administration, Seeking Legal Rationale Behind Syria Strike, N.Y. TIMES (May 8, 2017), https://www.nytimes.com/2017/05/08/world/middleeast /syria-united-protect-democracy-trump-lawsuit.html; Charlie Savage, Was Trump’s Syria Strike Illegal? Explaining Presidential War Powers, N.Y. TIMES (Apr. 7, 2017), https://www.nytimes.com/2017/04/07 /us/politics/military-force-presidential-power.html. 74. April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities, 42 Op. O. L. C. 1, 2 (2018), [hereinafter Memorandum on April 2018 Airstrikes], https://www.justice.gov/olc/opinion/file/ 1067551/download. 75. Helene Cooper et al., U.S., Britain and France Strike Syria Over Suspected Chemical Weapons Attack, N.Y. TIMES (Apr. 13, 2018), https://www.nytimes.com/2018/04/13/world/middleeast /trump-strikes-syria-attack.html. 76. Id. 77. Id. 78. Memorandum on April 2018 Airstrikes, supra note 74, at 5. 2021] Trump at War 649 showed that “the Executive, under his power as Commander in Chief, is authorized to commit American forces in such a way as to seriously risk hostilities, and also to actually commit them to such hostilities, without prior congressional approval.”79 But then OLC imposed constraints on Trump. First, it maintained that the Syrian strikes had to advance the “national interests.”80 According to OLC, the national interests usually focused on the protection of American citizens and property abroad.81 It asserted that U.S. interests in the world meant that the President should have “wide latitude” to use force not just “to protect American interests” but to respond to “regional conflagrations and humanitarian catastrophes . . . .”82 In Syria, the national interest included regional stability, preventing humanitarian catastrophes, and deterring WMD use. Despite its broad definition of “national interest,” OLC proceeded to incorrectly cabin presidential power. It adopted the Clinton-Obama view that Congress’s power to declare war gave it the sole authority to begin hostilities abroad.83 But to justify Trump’s attack on Syria, like Obama’s 2010 Libya attacks, OLC claimed that neither war was really a “war.”84 Attacking Syria, OLC argued, did not rise to the level of a war because of the “anticipated nature, scope, and duration” of the conflict.85 Military operations would cross the line into a constitutional war “when characterized by ‘prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.’”86 Trump’s Syria strikes did not amount to war because the U.S. only used aircraft and missiles for a limited time and mission. OLC’s conclusion cannot be taken seriously. Its distinction between small, short wars that the President may begin unilaterally and large, long wars that require prior congressional approval has no foundation in the Constitution’s text. The Declare War Clause grants Congress the power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”87 There is no mention of “small”
79. Id. at 7 (citing The President and the War Power: South Vietnam and the Cambodian Sanctuaries, 1 Op. O.L.C. Supp. 321, 331 (May 22, 1970)). 80. Id. at 5. 81. Id. 82. Id. at 10. 83. Id. at 15. 84. Id. 85. Id. at 22. 86. Id. at 18 (quoting Memorandum Opinion for the Attorney General: Authority to Use Military Force in Libya, 35, Op. O. L. C. 1, 8 (April 1, 2011)). 87. U.S. CONST. art. I, § 8, cl. 11. 650 Vermont Law Review [Vol. 45:639 versus “large” wars. OLC mistakenly defines a war based on the potential harm to U.S. troops regardless of the magnitude of the conflict. Suppose the U.S. launches a nuclear weapon against an enemy capital. No U.S. troops are at risk in a one-time attack that destroys the enemy political and military leadership. Under OLC’s test, a nuclear attack would not qualify as war. The magnitude of the destruction and the U.S.’s object to change a foreign regime should meet the test for a war in the constitutional sense. Or suppose the U.S. used its overwhelming naval and air power to attack a weaker country that could not retaliate, as in Libya or Serbia. According to OLC, the President can easily escape the constitutional limits on war by selecting some branches of the armed force, but not others, to do the fighting. The Trump administration’s adoption of this approach to war powers may have made sense as a matter of political expediency, but it does not as a matter of constitutional law. It also creates undesirable incentives. OLC’s test would encourage the executive branch to choose air or naval forces, even when ground troops would more effectively protect American interests. The Balkan Wars, for example, ended not because of the air campaign against Serbia but because NATO threatened to send troops.88 OLC’s rule could encourage Presidents to launch superficial attacks that may only defer challenges to our national security, rather than solve them. The next Part describes a more principled approach that makes sense of the decades of executive initiative in war-making. It shows that the Constitution does not prescribe a step-by-step method for beginning wars, in contrast to its careful process for passing a law. It argues that the President can initiate hostilities abroad under his executive power and his role as Commander-in-Chief. The President’s power is not unilateral, but the check on it does not arise from the Declare War Clause, which in this Article, I argue does not refer to a power to begin wars. Instead, the legislature’s main restraint on presidential power comes from the power of the purse. The Framers understood that Congress could prevent presidential adventurism by refusing to build, or continuing to supply, the armies and navies necessary. Rather than unconstitutional warfare, President Trump’s use of force falls within the range of acceptable constitutional conduct because Congress has refrained from its readily available powers to stop him.
88. Craig R. Whitney, NATO Threatens Military Action to Stem the Violence in Kosovo, N. Y. TIMES (Jan. 29, 1999), https://www.nytimes.com/1999/01/29/world/nato-threatens-military-action-to- stem-the-violence-in-kosovo.html. 2021] Trump at War 651
II. WAR POWERS IN PRACTICE
Attacking President Trump for violating the Constitution’s war powers flies in the face of practice and ignores the best reading of the constitutional text. Presidents have long initiated military conflict without specific congressional authorization. This practice extends at least as far as the Korean War, if not further, for large, lengthy ground wars. And in a time of small U.S. armed forces, the very first administrations engaged in several low-intensity conflicts. But during the Vietnam War, academic critics claimed that this form of war violated the original intent of the Constitution’s Framers.89 As this view reached the status of academic consensus in the 1970s and 1980s, leading Democratic politicians picked it up in their attacks on the Reagan and Bush presidencies.90 Then, of course, Democrats furiously attacked George W. Bush for the wars in Afghanistan and Iraq, even though they had voted to authorize them, on the ground that he had somehow violated the Constitution.91 Despite their wars in Libya and Syria, members of the Obama administration once agreed with their Democratic congressional brethren. In a 2007 interview, candidate Barack Obama declared: “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”92 Candidate Hilary Clinton answered the same question: “the Constitution requires Congress to authorize war. I do not believe that the President can take military action – including any kind of strategic bombing – against Iran without congressional authorization.”93 President Joe Biden sang from the same hymn book. In 2007, Biden declared in a TV interview:
89. JOHN C. YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11, at 154 (2005). 90. Crockett v. Reagan, 720 F.2d 1355, 1356 (D.C. Cir. 1983), cert. denied 467 U.S. 1251 (1984) (dismissing a suit brought by 29 Members of Congress against the Reagan administration for supporting the war in El Salvador); Lowry v. Reagan, 676 F. Supp. 333, 334 (D.D.C. 1987) (dismissing lawsuit against Reagan administration for ordering Navy escort of tankers in Persian Gulf); Dellums v. Bush, 752 F. Supp. 1141, 1143–44 (D.D.C. 1990) (dismissing lawsuit against U.S. intervention in Kuwait). 91. See, e.g., Mario M. Cuomo, What the Constitution Says About Iraq, L.A. TIMES (Sept. 3, 2007), https://www.latimes.com/opinion/la-oe-cuomo3sep03-story.html. Then-Senator Barack Obama made a point in his campaign for President in 2007–2008 that he did not vote for the Iraq War, unlike his primary opponent, Hillary Clinton, and maintained that the President could not wage war without congressional consent. Jeff Zeleny, As Candidate, Obama Carves Antiwar Stance, N.Y. TIMES (Feb. 26, 2007), https://www.nytimes.com/2007/02/26/us/politics/26obama.html. 92. Charlie Savage, Barack Obama’s Q&A, BOSTON GLOBE (Dec. 20, 2007), https://archive.bo ston.com/news/politics/2008/specials/CandidateQA/ObamaQA/. 93. Charlie Savage, Hilary Clinton Q&A, BOSTON GLOBE (Dec. 20, 2007), http://archive.bosto n.com/news/politics/2008/specials/CandidateQA/ClintonQA/. 652 Vermont Law Review [Vol. 45:639
I was chairman of the Judiciary Committee for 17 years . . . .I teach separation of powers in constitutional law. This is something I know. So I got together and brought a group of constitutional scholars together to write a piece that I’m going deliver to the whole United States Senate, pointing out the president has no constitutional authority to take this nation to war against a country of 70 million people unless we’re attacked or unless there is proof that we are about to be attacked. And if he does, I would move to impeach him. . . . I would lead an effort to impeach him.94
Obama and his cabinet found it easier to claim constitutional principle when they were out of office than when they assumed responsibility for American national security in office. But such inconsistency did not disturb many scholars. They turned to the original understanding to claim that Congress’s power to “declare war” gives it the exclusive right to decide whether to initiate military hostilities abroad. They usually permit only a small exception for self-defense.95 But their positions often did not remain consistent when a Democrat was in office. Throughout the Reagan/Bush wars in places like Grenada, Libya, Lebanon, and Panama, for example, the leading lights of international legal scholarship accused Republican Presidents of acting unconstitutionally because they had received no congressional authorization.96 Law professors even went to court
94. Biden: ‘I Would Move to Impeach Him’, NBC NEWS (Dec. 5, 2007), https://www.nbcnews.com/id/wbna22104596 (providing a transcript of Biden’s interview on the December 4, 2007 broadcast of “Hardball with Chris Matthews”). 95. See, e.g., HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR 158–61 (1990) [hereinafter KOH, NATIONAL SECURITY] (referencing two major British engagements in which the King “did not declare war until more than a year after offensive operations had begun”); Bruce Ackerman, Opinion, Trump Can’t Make War Whenever He Likes, N.Y. TIMES (Apr. 16, 2018), https://www.nytimes.com/2018/04/16/opinion/trump- syria-congress-war-resolution.html (discussing the War Powers Resolution’s timing limitations and required justifications by the president to Congress). 96. See, e.g., LOUIS FISHER, PRESIDENTIAL WAR POWER 200–03 (1995) [hereinafter FISCHER, PRESIDENTIAL WAR POWER] (criticizing Republican presidents’ use of armed forces absent congressional authorization); JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH 49 (1993) [hereinafter ELY, WAR & RESPONSIBILITY] (noting that in eight military actions throughout the 1980s, the president failed to file the applicable statements or reports with Congress); MICHAEL J. GLENNON, CONSTITUTIONAL DIPLOMACY 86, 102–03 (1990) [hereinafter GLENNON, CONSTITUTIONAL DIPLOMACY] (stating that the expectation in the War Powers Resolution that Congress and the President “would actually lead to collective . . . judgement . . . was mistaken.”); LOUIS HENKIN, CONSTITUTIONALISM, DEMOCRACY, AND FOREIGN AFFAIRS 84 (1990)
2021] Trump at War 653 to support challenges to the military aid program for El Salvador, covert assistance for the Nicaraguan Contras, American naval escort operations in the Persian Gulf, and ultimately the 1991 Persian Gulf War.97 In an effort to stop unilateral presidential war-making, professors took to the popular press and the airwaves, testified before Congress, and even considered representing soldiers who might resist a call-up unless Congress declared war.98 But Democratic presidents showed an equal tendency for using military force no different than their Republican predecessors. Bill Clinton threatened or used force in Haiti, Iraq, Bosnia, Afghanistan, Sudan, and Kosovo.99 But when Clinton launched the two most significant military interventions in his presidency, the dispatch of 20,000 troops to Bosnia in 1995 and the air war against Serbia in 1999, scholarly critics of the administration’s constitutional authority were few and far between.100 Although he portrayed himself as deferential to Congress on war powers during the elections, once in the Oval Office, Obama just as readily laid claim to inherent executive power. In
[hereinafter HENKIN, CONSTITUTIONALISM] (discussing Representative Conyers’ challenge to President Regan’s use of armed forces in Grenada as “usurp[ing] congressional war power”); KOH, NATIONAL SECURITY, supra note 95, at 156, 158–161 (arguing that the executive power to remake constitutional law in this field creates a constitutional grant of “legitimacy for arbitrary, unsupervised, and even unauthorized exercises of executive discretion”). 97. See Crockett v. Reagan, 558 F. Supp. 893, 895 (D.D.C. 1982), aff’d, 720 F.2d 1355, 1357 (D.C. Cir. 1983), cert denied, 467 U.S. 1251 (1984) (alleging that President Reagan’s support and aid of El Salvador violated the War Powers Resolution); Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1508–09 (D.C. Cir. 1984) (alleging that creating a military base on the plaintiff’s property in Honduras was not authorized by any statute or constitutional provision); Sanchez-Espinoza v. Reagan, 568 F. Supp. 596, 598 (D.D.C. 1983) (claiming that Nicaraguan paramilitary forces, backed by the U.S. government, violated international law and the U.S. Constitution); Lowry v. Reagan, 676 F. Supp. 333, 336 (D.D.C. 1987) (discussing the use of the War Powers Resolution related to the U.S. military’s activities in the Persian Gulf). 98. See, e.g., John Hart Ely, ‘War by Default’ Isn't the Law, L.A. TIMES (Dec. 23, 1990) (arguing that wars cannot be started without congressional approval); Harold Honju Koh, Bush Honors the Law the Constitution's Framer's Did Not Intend the Power to Conduct American Foreign Policy to be Exclusively Presidential, NEWSDAY, Jan. 19, 1991, at 2, Proquest, Doc. No. 278307002 (noting Reagan’s and Bush’s assertions of presidential authority regarding foreign affairs, even when acting without congressional oversight); The Constitutional Roles of Congress and the President in Declaring and Waging War. Before the S. Comm. on the Judiciary, 102d Cong., 1 (1991) (recording the statements of Louis Henkin, Harold Koh, and William Van Alstyne); Harold Hongju Koh, Presidential War and Congressional Consent: The Law Professors’ Memorandum in Dellums v. Bush, 27 STAN. J. INT’L. L. 247, 252 (1991) (describing activities of eleven law professors who signed amicus curiae memorandum). 99. John M. Broder, Conflict in the Balkans: The American Leader; The Evolution of a President: From a Protesting Dove to a Hesitant Hawk, N.Y. TIMES (Mar. 28, 1999), https://www.nytimes.com/1999/03/28/world/conflict-balkans-american-leader-evolution-president- protesting-dove-hesitant.html. 100. John C. Yoo, The Dogs that Didn't Bark: Why Were International Legal Scholars MIA on Kosovo?, 1 CHI. J. INT’L. L. 149, 152–57 (2000). 654 Vermont Law Review [Vol. 45:639
Libya, he ordered an air war to help depose Ghaddafi and install a pro- western regime, all without the approval of Congress or the United Nations (which some scholars used to think legally necessary, too). 101 No great debates followed in Congress; Democrats who had readily attacked Reagan and the Bushes for their allegedly illegal wars did nothing to stop Obama. Both Presidents Trump and Obama, like their predecessors, properly rejected the pro-Congress view of war powers. Critics of President Trump accept that modern history runs contrary to their elaborate step-by-step method for making war.102 Presidents from at least Harry Truman, if not before, have used force abroad without congressional authorization.103 So, liberal and conservative critics instead make a plea to the original understanding of the Constitution—an ideologically uncomfortable position for many who would never consult the Framers’ views on abortion, gay marriage, or the right to bear arms. John Hart Ely, however, spoke in absolutist words in claiming support from the Founders. Ely declared that there is a “clarity of the Constitution on this question . . . .”104 While often it is true that “the ‘original understanding’ of the document’s framers and ratifiers can be obscure to the point of inscrutability . . . . [i]n this case,” Ely says bluntly, “it isn’t.”105 According to Ely and those who have followed in his footsteps, the inescapable conclusion is that “all wars, big or small, ‘declared’ in so many words or not . . . , had to be legislatively authorized.”106 Only when Congress has authorized a war do the President’s commander-in- chief powers over the armed forces kick in.107 Critics following Ely find that any use of presidential power to start war without Congress’s approval beforehand violates the original understanding of the Constitution. Michael Ramsey makes the argument concisely. He argues that the Framers understood the power to “declare war” as giving Congress the sole power to decide on whether to commence military hostilities against other nations.108 Under international and domestic law at the time of the ratification, therefore, “declare war” must have been
101. Conor Friedersdorf, How Obama Ignored Congress, and Misled America, on War in Libya, ATLANTIC (Sept. 13, 2012), https://www.theatlantic.com/politics/archive/2012/09/how-obama-ignored- congress-and-misled-america-on-war-in-libya/262299/. 102. Robert J. Delahunty & John Yoo, Making War, 93 CORNELL L. REV. 123, 123 (2007). 103. BEVIN ALEXANDER, KOREA: THE FIRST WAR WE LOST 33–34 (1986). 104. ELY, WAR & RESPONSIBILITY, supra note 96, at 5. 105. Id. at 3. 106. Id. 107. Id. at 5. 108. John Yoo, War and the Constitutional Text, 69 U. CHI. L. REV. 1639, 1660 (2002) [hereinafter Yoo, War & Constitutional Text]. 2021] Trump at War 655 shorthand for “begin war” or “commence war” or “authorize war.”109 His co- author, and one of the great conservative scholars of the presidency, Saikrishna Prakash, further supports this argument by claiming that the diplomatic, political, and legal elites of the eighteenth century used “declare war” colloquially to mean start war. 110 Therefore, the President cannot activate his commander-in-chief authority and fight a war until Congress gives its blessing first—though they, and virtually all scholars, concede that the President has an inherent authority to use force when the U.S. has suffered an attack.111 Thus, the Declare War Clause both expands Congress’s war powers and restricts those of the President. As Michael Glennon of the Fletcher School writes, the clause not only “empowers Congress to declare war,” but “also serves as a limitation on executive war-making power, placing certain acts off limits for the President.”112 These critics of presidential war-making make an initial argument based on the text, but they fail to carefully read the constitutional text and structure before rushing off to consult eighteenth-century records of the Framing. First, the Constitution does not treat “declare war” as synonymous with the power to begin military hostilities. Instead of turning immediately to eighteenth- century legal commentary, an interpreter of the Constitution must first explain other provisions of the text, such as Article III’s vesting of all executive power in the President and Commander-in-Chief Clause, Article I, § 10’s prohibition on state war-making, Article III’s definition of treason, and Congress’s powers over the raising and supporting of armies. Placing the Declare War Clause in its textual context shows that the Constitution does not define a legalistic procedure for war-making but instead creates a flexible system for conducting hostilities through the interaction of the political branches. While Congress has the power to declare war, the President also possesses significant war powers. Article II, § 2 of the Constitution states that the “President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the
109. See Michael D. Ramsey, Textualism and War Powers, 69 U. CHI. L. REV. 1543, 1590–609 (2002) (discussing the usage of “wage war” as interchangeable with “declare war”). 110. Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by “Declare War”, 93 CORNELL L. REV. 45, 93–94 (2007). 111. Ramsey, Textualism and War Powers, supra note 109, at 1622–31; Michael D. Ramsey, The President’s Power to Respond to Attacks, 93 CORNELL L. REV. 169, 170 (2007) [hereinafter Ramsey, The President’s Power to Respond] (“Professor Prakash and I part company, though, on the President's power to respond to other nations' attacks on the United States. Unleashing argues that the Constitution only empowered the President to respond defensively, not offensively.”). 112. GLENNON, CONSTITUTIONAL DIPLOMACY, supra note 96, at 17. 656 Vermont Law Review [Vol. 45:639 actual Service of the United States . . . ”113 He is further vested with all of “the executive Power” and the duty to execute the laws.114 These provisions have long been recognized to give the President absolute command over the armed forces of the U.S., to the point of ordering their use in hostilities abroad.115 Nowhere does the constitutional text provide that the commander- in-chief power cannot be used by the President to wage military hostilities unless Congress first issues a declaration of war. Most scholars never examine the original meaning of the Commander-in-Chief Clause. Rather, they assume that the Declare War Clause must somehow trump the Commander-in-Chief Clause, which they generally treat as limiting, rather than empowering, the President, by not vesting him with the full power of making war. It makes little sense to read the Commander-in-Chief Clause as limiting the President when it appears in Article II rather than Article I. Rather, the Constitution places the Commander-in-Chief Clause in Article II because it divides the war power, which was once unitary under the British Constitution, between the legislature and executive.116 That alone, however, does not produce a narrow reading of the commander-in-chief power. Even where Article I assigns Congress power with respect to a particular military matter, it does not necessarily vest it with exclusive authority. Rather, the President as Commander-in-Chief may be able to exercise authority over the same matter concurrently with Congress. For example, although Article I, § 8, Clause 14 vests Congress with the power to “make Rules for the Government and Regulation of the land and naval Forces,” the President as Commander-in-Chief may unilaterally prescribe military punishments, at least in default of congressional action.117 Reading the commander-in-chief power narrowly reverses the traditional rule of interpretation of Article II. Although they became bitter
113. U.S. CONST. art. II, § 2, cl. 1. 114. U.S. CONST. art. II, § 1, cl. 1; U.S. CONST. art II, § 3. 115. See Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (asserting that the President has authority to deploy United States armed forces “abroad or to any particular region”); Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850) (“As commander-in-chief, [the President] is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual . . . .”); Loving v. United States, 517 U.S. 748, 776 (1996) (Scalia, J., concurring in part and concurring in judgment) (asserting that the “inherent powers” of the Commander in Chief “are clearly extensive”); Maul v. United States, 274 U.S. 501, 515–16 (1927) (Brandeis & Holmes, JJ., concurring) (explaining that the President “may direct any revenue cutter to cruise in any waters in order to perform any duty of the service”); Massachusetts v. Laird, 451 F.2d 26, 32 (1st Cir. 1971) (stating that the President has “power as Commander-in-Chief to station forces abroad”); Memorandum Opinion for the Attorney General: Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. 6, 6–7, 13 (Dec. 4, 1992). 116. Delahunty & Yoo, Making War, supra note 102, at 128. 117. U.S. CONST. art. I, § 8, cl. 14; U.S. CONST. art. II, § 2, cl. 1. 2021] Trump at War 657 political enemies, Hamilton and Madison agreed that Article II vests the federal executive power in the President alone—Hamilton with foreign affairs and Madison with the removal of inferior officers.118 Exceptions in favor of the legislature are to be read narrowly. If the power to make war was traditionally part of the executive power, which no one seriously disputes, then it is the Declare War Clause, rather than the commander-in-chief power, that is to be read as a narrow exception. Neglect of the President’s textual powers under Article II ignores the historical record of practice as well. Congress has declared war only five times,119 the most recent instance more than fifty years ago in World War II. 120 Meanwhile, presidents have committed military forces to combat without a declaration of war more than 130 times since the Constitution’s ratification.121 Since World War II, moreover, presidents have engaged in several significant military engagements without a declaration of war or other congressional authorization. When President Truman introduced American troops into Korea in 1950, he did not seek congressional authorization, relying instead on his inherent executive and commander-in-chief powers. In the Vietnam conflict, President Johnson never obtained a declaration of war nor an unambiguous congressional authorization, although the Gulf of Tonkin Resolution expressed some level of congressional support for military intervention.122 Congress, however, never authorized the expansion of the Vietnam War into Laos and Cambodia by President Nixon.
118. Delahunty & Yoo, Making War, supra note 102, at 128; THE FEDERALIST NO. 70, at 424– 25 (Alexander Hamilton) (Clinton Rossiter ed., 1961). 119. JENNIFER K. ELSEA & MATTHEW C. WEED, DECLARATIONS OF WAR AND AUTHORIZATIONS FOR THE USE OF MILITARY FORCE: HISTORICAL BACKGROUND AND LEGAL IMPLICATIONS, 1–2, 4 (Cong. Rsch. Serv., No. RL31133 Version 17, 2014), https://crsreports.congress.gov/product/pdf/RL/RL31133/17. 120. Id. 121. BARBARA S. TORREON & SOFIA PLAGAKIS, INSTANCES OF USE OF UNITED STATES ARMED FORCES ABROAD, 1798-2018, at 1–41 (Cong. Rsch. Serv. No. R42738 Version 23, 2018), https://crsreports.congress.gov/product/pdf/R/R42738/23. 122. While presidential critics such as Ely and Henkin generally attack unilateral executive war making in the postwar period, they find the Gulf of Tonkin Resolution to amount to acceptable congressional authorization for war, even though it was not a declaration of war. See ELY, WAR & RESPONSIBILITY, supra note 96, at 16 (claiming that the Resolution “certainly was broad enough to authorize the subsequent actions President Johnson took in Vietnam”); HENKIN, CONSTITUTIONALISM, supra note 96, at 84 (“In my view, Congress had in fact authorized [the Vietnam War] in the Tonkin Gulf Resolution and the war was therefore within the President’s authority delegated to him by Congress.”). Other critics, however, believe the Vietnam War was unconstitutional as well. See, e.g., J. Gregory Sidak, To Declare War, 41 DUKE L. J. 27, 70–71 (1991) (arguing that Congress shirked its responsibilities by failing to obey constitutional formalities with regard to the Vietnam conflict); ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY 180 (Houghton Mifflin 1989) (stating that a resolution, such as the Tonkin Gulf Resolution, “giving the President authority to use force as he saw fit
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To be sure, in the wake of Vietnam, Congress enacted the War Powers Resolution, which limits foreign military interventions to 60 days without congressional authorization.123 Critics of presidential activism in national security often invoke the War Powers Resolution, and some have even brought lawsuits under it to no avail.124 Presidents have refused to accept its legality, and neither Congress nor the courts have shown any interest in enforcing it. Presidents Ford, Carter, and Reagan, for example, engaged in several military actions without congressional assent, although they did submit reports that were consistent (while disclaiming compliance) with the requirements of the Resolution. 125 Publicly declaring that he had the constitutional authority to initiate war unilaterally, President Bush committed a half-million soldiers to warfare in Operation Desert Storm for a period of time that violated the War Powers Resolution. President Clinton followed these precedents with interventions in Somalia, Haiti, Bosnia, the Middle East, and most significantly Kosovo, none of which were authorized by Congress. While President George W. Bush sought and received approval of the wars in Afghanistan and Iraq, President Obama’s wars in Libya and Syria went forward in violation of the War Powers Resolution’s time limits. Practice plays an important interpretive role for the question of the proper allocation of war powers. Both the Supreme Court and the political branches have often recognized that governmental practice represents a significant factor in establishing the contours of the separation of powers.126 Even Justice Jackson’s Youngstown opinion, much beloved by critics of presidential power, recognized that fact. “[C]ongressional inertia,
in vague future contingencies was precisely the sort of resolution rejected as unacceptable in the early republic”); Francis D. Wormuth, The Nixon Theory of the War Power: A Critique, 60 CAL. L. REV. 623, 690–94 (1972) (“[S]ince the Tonkin Gulf Resolution did not elect either general or limited war and did not authorize the President to define our legal status, we were in a position that had no legal characterization, except, of course, illegality.”). 123. War Powers Resolution, Pub. L. No. 93-148, §5(b), 87 Stat. 555, 556 (1973) (codified at 50 USC §§ 1541–48 (1994)). 124. See Crockett v. Reagan, 558 F. Supp. 893, 898 (D.D.C. 1982), aff’d per curiam, 720 F.2d 1355 (D.C. Cir. 1983), cert. denied, 467 U.S. 1251 (1984); Sanchez-Espinoza v. Regan, 568 F. Supp. 596, 599 (D.D.C. 1983). 125. John Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167, 181–82 (1996) [hereinafter Yoo, The Continuation of Politics by Other Means]. 126. See, e.g., Mistretta v. United States, 488 U.S. 361, 393 (1989) (recognizing the significance of understanding practical consequences when determining the placement of commissions within the federal government); Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring) (“congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility”); United States v. Midwest Oil Co., 236 U.S. 459, 474 (1915) (noting that a “long-continued practice, known to and acquiesced in by Congress” creates a presumption that the practice is legitimate). 2021] Trump at War 659 indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility[,]” he wrote.127 The role of practice in understanding the constitutional text is heightened in the foreign affairs and national security areas, where an absence of judicial precedent gives a long history of interbranch interpretation and interaction more weight. Finally, practice shows that many government leaders throughout American history have read the constitutional text as providing presidents with the power to commence military hostilities without congressional authorization.128 Practice demonstrates that the political branches have read the constitutional text to establish a stable, working system of war powers. The Constitution constructs a loose framework within which the President, as Commander-in-Chief, enjoys substantial discretion and initiative in conducting military hostilities. At the same time, Congress plays a significant role by controlling both the resources for war (through funding) and the legal status of hostilities (through declaring war). Unlike the legislative process, the constitutional text does not establish a specific procedure for going to war. Rather, it allocates different, potentially conflicting, war powers to the two branches. Presidential critics wish that the constitutional text compelled the sort of smooth, legalistic process upon the exercise of the commander-in- chief and executive powers that it requires for the passage of laws or the appointment of judges.129 But a practical reading of the text better follows the original understanding of the commander-in-chief and executive powers held during the period leading up to the Constitution’s ratification. Throughout American history, courts have agreed that these powers give the
127. Youngstown Sheet & Tube, 343 U.S. at 637 (1952) (Jackson, J., concurring); see also Mistretta, 488 U.S. at 393; United States v. Midwest Oil Co., 236 U.S. at 474 (1915). 128. Waxman, supra note 24, at 1637. “Whatever constitutional constraints on presidential use of force existed prior to World War II, however, most scholars also note that the President asserted much more extensive unilateral powers to use force during and after the Cold War, and many trace the turning point to the Korean War. Congress did not declare war in that instance, nor did it expressly authorize U.S. participation. From that period forward, Presidents have asserted broad unilateral authority to use force to address threats to U.S. interests, including threats to U.S. allies, and neither Congress nor the courts have managed to roll back this expanding power.” Id. 129. See, e.g., Michael D. Ramsey, Textualism and War Powers, 69 U. CHI L. REV. 1543, 1549– 51 (2002) (outlining “congressionalist” arguments as: (1) during and after ratifying debates, Framers and others involved with drafting made statements implying that Congress had singular control of hostility initiation; (2) records from the Philadelphia convention, and the debate that evolved Congress’ enumerated power from “make[ing] war” to “declar[ing] war,” indicating delegates saw no substantive difference in war power allocation; and (3) the fact that, in the years immediately after ratification, the President did not operationalize unilateral control committing the nation to hostilities, instead deferring to Congress for an authorization to take offensive action). 660 Vermont Law Review [Vol. 45:639
President broad constitutional authority to use military force in response to threats to the national security and foreign policy of the U.S.130
III. CONSTITUTIONAL TEXT AND HISTORY
Critics of President Trump and his predecessors reject the current system of war powers because they so quickly assume that “declare war” must have the colloquial meaning it holds today. But nowhere does the Constitution define or use the phrase “declare” in this manner. If this pro-Congress view was correct, we should expect the Constitution to consistently repeat the phrase when addressing war-making. It does not. When discussing war in other provisions, the Constitution employs phrases that indicate that declaring war referred to something less than the sole power to send the nation into hostilities. Take Article I, § 10, the Constitution’s most extensive discussion of war-making:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.131
If we take seriously the idea of a written Constitution, then the same words in the Constitution must have the same meaning, and different words different meanings. If the pro-Congress view were correct, the Framers should have written a provision stating that “the President may not, without the Consent of Congress, engage in War, unless the United States are actually invaded, or in such imminent Danger as will not admit of delay.” Or, Article I, § 10 should have said “No state shall, without the consent of Congress, declare war.” Instead, Article I, § 10 carefully divides the war powers between Congress and the states in exactly the way that critics of executive power believe should apply between the President and Congress. Pro- Congress scholars cannot explain why the Constitution uses vastly different
130. See Loving v. United States, 517 U.S. 748, 776 (1996) (Scalia, J., concurring in part and concurring in judgment) (recognizing the President’s commander-in-chief powers as extensive); Johnson v. Eisentrager, 339 US 763, 789 (1950) (calling judicial intervention improper when the armed forces’ deployment rationale is challenged); The Prize Cases, 67 U.S. (2 Black) 635, 670 (1862) (declaring the President’s unilateral authority when deciding the degree of military force to use); Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850) (affirming the President’s military powers). 131. U.S. CONST. art I, § 10, cl. 3. 2021] Trump at War 661 language to convey the same meaning. The contrast demonstrates that the Constitution does not establish any specific procedure for going to war. Two additional provisions support an understanding of “declare war” as a means of recognizing the legal status of hostile acts, rather than as an authorization for hostilities. Article III defines the crime of treason, in part, as consisting of “levying War” against the U.S.132 Again, “levying” must be broader in meaning than merely declaring. If the Framers had used “levy War” in Article I, § 8, they certainly would have made far clearer their alleged intention to grant Congress the sole power to decide whether to send the U.S. to war against another country. Congress’s power to declare war also does not stand alone, but instead is part of a clause that includes the power to “grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”133 Placement of the power to declare war alongside these other two is significant, because they clearly involved the power of Congress to recognize or declare the legal status and consequences of certain wartime actions, rather than the power to authorize those actions. Letters of marque and reprisal allowed a sovereign nation to extend the protections of the laws of war to private forces acting in coordination with its armed forces.134 Rules concerning captures determine the law that applies to prizes seized by American forces.135 In both cases, these powers did not act to authorize hostilities as much as they determined the legal status and consequences of those hostilities. Understood in this way, adding the power to declare war to these other two parts in Article I, § 8, makes perfect sense. Other foundational documents of the period demonstrate that the Framers thought of the power to begin hostilities as different than the power to declare war. Under the Articles of Confederation—the Nation’s framework of government until the ratification—Congress operated as the executive branch of the U.S. Article IX vested Congress with “the sole and exclusive right and power of determining on peace and war . . . .”136 Here, the Framers (many of whom had served in the Continental Congress) had on hand a text that clearly and explicitly allocated to Congress the “sole and exclusive” authority to decide (“determining on”) whether to fight a war. If the Framers had intended to grant Congress the power to commence military hostilities, they could easily have imported the phrase from the Articles of
132. Id. art. III, § 3, cl. 1. 133. Id. art. I, § 8, cl. 11. 134. See Yoo, The Continuation of Politics by Other Means, supra note 125, at 250–52 (discussing Congress’s limitation of power regarding foreign entities). 135. See The Siren, 80 U.S. (13 Wall.) 389, 392–93 (1871) (“The United States have succeeded to the rights of the crown. No one can have any right or interest in any prize except by their grant or permission. All captures made without their express authority ensure ipso facto to their benefit.”). 136. ARTICLES OF CONFEDERATION OF 1781, art. IX, para. 1. 662 Vermont Law Review [Vol. 45:639
Confederation into the Constitution, as they did with many of the other foreign-affairs powers.137 It makes no sense to ignore a document as historically and legally significant as the Articles of Confederation—our Nation’s Constitution version 1.0. But critics also fail to consider the next most important documents of the time: State constitutions. Most of the State constitutions did not explicitly transfer to their assemblies the power to initiate hostilities, but rather sought to control executive power by disrupting the structural unity of the governors. One State, however, chose to create exactly the type of arrangement contemplated by presidential critics. In its first 1776 constitution, South Carolina vested in its chief executive the power of commander-in-chief, but then declared that “the president and commander- in-chief shall have no power to make war or peace . . . without the consent of the general assembly and legislative council.”138 In its 1778 constitution, South Carolina reaffirmed its decision that the legislature first must authorize war by stating that “the governor and commander-in-chief shall have no power to commence war, or conclude peace” without legislative approval.139 South Carolina’s 1776 and 1778 constitutions show that the Framers did not understand the phrase “declare war” to amount to the power to “make war” or “commence war.” Both constitutions provided an example of constitutional language that clearly and explicitly created the very legislature dominated war-making system for which presidential critics wish. But the Framers rejected the use of such clear language, just as they did not impose the process of Article I, § 10, on the President and Congress. Even if we were to agree that “declare war” were the central phrase, it does not bear the meaning that critics believe. As an initial matter, it is useful to examine the way that the people of that time used those words. Samuel Johnson, the premier lexicographer of his age, defined “declare” as: “[t]o clear; to free from obscurity”; “[t]o make known; to tell evidently and openly”; “[t]o publish; to proclaim”; “[t]o shew in open view”; or “[t]o make a declaration; to proclaim some resolution or opinion, some favour or opposition.” 140 This definition supports the argument that declaring war
137. See id. (providing that Congress shall have the power to establish rules for captures, to grant letters of marquee and reprisal, to appoint courts for the trial of piracies and felonies committed on the high seas, etc.). 138. S.C. CONST. art. XXVI (1776), reprinted in 6 THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS 3247 (Francis N. Thorpe ed., 1909). 139. S.C. CONST. of 1778, art. XXXIII. 140. 1 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE, IN WHICH THE WORDS ARE DEDUCED FROM THEIR ORIGINALS, AND ILLUSTRATED IN THEIR DIFFERENT SIGNIFICATIONS BY EXAMPLES FROM THE BEST WRITERS. TO WHICH ARE PREFIXED, A HISTORY OF THE LANGUAGE, AND AN
2021] Trump at War 663 recognized a legal state of affairs between the U.S. and another country, rather than authorizing the steps to create hostilities in the first place. Johnson defines the words used elsewhere in the Constitution for fighting a war much more broadly than “declare.” Johnson defined “engage” as “[t]o embark in an affair; to enter in an undertaking,” or “[t]o conflict; to fight.”141 He defined “levy” as “to raise money” or “to make war.”142 He defined “commence,” the word used in South Carolina’s constitution, as “[t]o begin.” 143 The Constitution’s use of the words “levy” or “engage in” war clearly refer to a more active role in war-making, one that Congress does not share simply through the power to “declare.” Even today, we commonly think of the statutes that establish public programs and mandates as “authorization” statutes (to be followed by funding), not “declaring” statutes. A declaration does not authorize or make, it recognizes. Properly understanding the meaning of “declare” also requires an examination of the founding generation’s use of the word in other contexts. When the Framers employed “declare” in a constitutional context, they usually used it in a juridical manner, in the sense that courts “declare” the state of the law or the legal status of a certain event or situation. When considering the meaning of declaring war, the Framers’ thoughts would have turned to their most significant national legal act. The Declaration of Independence did not “authorize” military resistance to Great Britain. At the time that the Continental Congress met at Philadelphia in 1776, hostilities had existed for more than a year. 144 Congress had exercised sovereign powers—negotiating with Great Britain, sending representatives abroad, seeking aid—for at least two years.145 The Declaration’s importance was not in authorizing combat, but in transforming the legal status of the hostilities between Great Britain and her colonies from an insurrection to a war between equals. As David Armitage observes, “[i]n order to turn a civil war into a war between states, and thus to create legitimate corporate combatants out of individual rebels and traitors, it was essential to declare war and to obtain recognition of the legitimacy of such a declaration.”146 As a nation-state, the
ENGLISH GRAMMAR 555 (W. Strahan ed., 1755) [hereinafter A DICTIONARY OF THE ENGLISH LANGUAGE]. 141. Id. at 708–09. 142. 2 A DICTIONARY OF THE ENGLISH LANGUAGE, supra note 140 at 44. 143. A DICTIONARY OF THE ENGLISH LANGUAGE, supra note 140 at 422. 144. LIBRARY OF CONGRESS, DOCUMENTS FROM THE CONTINENTAL CONGRESS AND THE CONSTITUTIONAL CONVENTION, 1774-1789, Digital Collections, https://www.loc.gov/collections/continental-congress-and-constitutional-convention-from-1774-to- 1789/articles-and-essays/timeline/1775/. 145. David Armitage, The Declaration of Independence and International Law, 59 WILLIAM & MARY Q. 39, 46 (2002). 146. Id. at 47. 664 Vermont Law Review [Vol. 45:639
U.S. could make alliances and conduct commerce with other nations, which were critical steps in winning independence. The Declaration of Independence was the U.S.’s first declaration of war. Presidential critics try to carry out a textual ju-jitsu to avoid the narrow meaning of a declaration of war. They concede, as they must, that by the time of the Constitution’s framing, nations did not declare war often, and if they did, they usually did so after hostilities had begun.147 But since the Framers inserted the Declare War Clause into the Constitution, it must grant some broader, more significant power than just declaring war—therefore, it must convey the sole right to decide on all hostilities.148 Ramsey and Prakash agree that the eighteenth-century definition of “‘declare war’ meant to initiate war through hostilities as well as by formal proclamation.”149 This argument, however, errs in ignoring declarations of war. To use the eighteenth-century understanding, declarations make public, show openly, and make known the state of international legal relations between the U.S. and another nation. This is a different concept than whether the laws of war apply to the hostilities; two nations could technically not be at war, even though their forces might be engaged in limited combat. In the period immediately before the Constitution, nations used declarations of war as a legal complaint that explained the reasons for war, the rules of the conflict, and the remedy that would bring the war to an end. 150 Declarations are also important for domestic constitutional purposes. Textually, a declaration of war places the Nation in a state of war, which triggers enhanced powers on the part of the federal government. Congress has recognized the distinction between declared total wars and non-declared hostilities by providing the executive branch with expanded domestic powers such as seizing foreign property, conducting warrantless surveillance, arresting enemy aliens, and taking control of transportation systems, to name a few—only when war is declared.151
147. See Yoo, War & Constitutional Text, supra note 108, at 1643 (noting eighteenth-century Great Britain as an example of nation that initiated few declarations of war); Yoo, The Continuation of Politics by Other Means, supra note 125, at 214–15 (referencing two major British engagements in which the King “did not declare war until more than a year after offensive operations had begun”). 148. Yoo, War & Constitutional Text, supra note 108, at 1643. 149. See Ramsey, The President’s Power to Respond, supra note 109, at 169 (responding to Professor Saikrishna Prakash’s Unleashing the Dogs of War: What the Constitution Means by “Declare War,” 93 CORNELL L. REV. 45 (2007)). 150. Yoo, War & Constitutional Text, supra note 108, at 1672. 151. See, e.g., 50 U.S.C. app. § 5(b)(1) (1994 & Supp. 1999) (concerning seizure of foreign property); 50 U.S.C. § 1811 (1994) (concerning electronic surveillance); 50 U.S.C. §1829 (1994) (describing presidential authority of physical searches for foreign intelligence information); 50 U.S.C. § 1844 (Supp. 1998) (concerning trap and trace devices); 50 U.S.C. § 21 (1994) (concerning seizure of
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The Constitution’s structure reinforces this reading of the text. Presidential critics read the Declare War Clause to mean more than a power to issue a declaration of war because otherwise the Constitution would impose no substantive limit on the President. Implicit in their argument is that war must follow the same rules as domestic affairs, where Congress authorizes, and then the President executes. Yet, the Constitution itself nowhere describes such a process, nor does it explain how the Declare War Clause and the commander-in-chief power must interact. What happens if a President disagrees with Congress’s war goals or its methods? Suppose Congress had ordered President Franklin Roosevelt to ignore the Pacific theater entirely or to avoid a direct invasion of France. Under the pro- Congress approach, the President could not disobey Congress’s decision, just as he cannot refuse to enforce the laws passed by Congress for policy reasons. But it seems obvious that the Constitution allows the President as Commander-in-Chief to block congressional wartime decisions (including its decision to declare war), just as Congress can block the President through the funding power. Constitutional structure resolves ambiguities in the allocation of an executive power in favor of the Presidency. Article II, § 1 provides that the “executive Power shall be vested in a President of the United States . . . .”152 By contrast, Article I’s Vesting Clause gives Congress only the powers “herein granted.” 153 This difference in language indicates that the Constitution limits Congress’s legislative powers to the enumeration in Article I, § 8, while the President’s powers include inherent executive powers that the Constitution does not explicitly list. As Alexander Hamilton famously argued in defending Washington’s April 22, 1793 Neutrality Proclamation: “The general doctrine then of our constitution is, that the EXECUTIVE POWER of the Nation is vested in the President; subject only to the exceptions and qu[a]lifications which are expressed in the instrument.”154 To be sure, Article II specifically enumerates powers in addition to the Vesting Clause. Critics of presidential power argue that this subsequent enumeration limits the “executive power” granted in the Vesting Clause.155 But Article II does not define and cabin the grant in the Vesting Clause. aliens); 10 U.S.C. § 2644 (1996) (authorizing the President to seize transportations systems as necessary during a time of war). 152. U.S. CONST. art. II, § 1, cl. 1. 153. Id. art. I, § 1. 154. Alexander Hamilton, Pacificus No. 1, in THE PACIFICUS-HELVIDIUS DEBATES OF 1793–94, at 13 (Morton J. Frisch ed., 2007) [hereinafter Hamilton, Pacificus No. 1]. 155. See, e.g., A. Michael Froomkin, The Imperial Presidency’s New Vestments, 88 NW. U. L. REV. 1346, 1362–66 (1994) (rejecting the argument that Congress lacks constitutional authority to restrict the President’s power over executive branch officials). 666 Vermont Law Review [Vol. 45:639
Rather, it redirects some elements of executive power to Congress in Article I or divides the executive function between the President and the Senate. For example, the Framers gave the King’s traditional power to declare war to Congress in Article I but reserved the commander-in-chief authority to the President in Article II. They altered the process for exercising other plenary Crown powers, such as treaties and appointments, by including the Senate.156 The enumeration in Article II marks the places where several traditional executive powers were diluted or reallocated. The Vesting Clause, however, conveyed all other executive powers to the President. There can be little doubt that the decision to deploy military force is executive in nature. It calls for action and energy in execution, rather than the enactment of legal rules to govern private conduct. “The direction of war implies the direction of the common strength,” wrote Hamilton, “and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.”157 To the extent that the constitutional text does not explicitly allocate the power to initiate military hostilities, Article II’s Vesting Clause provides that it remains among the President’s unenumerated powers. Indeed, two of the most prominent conservative critics of the President’s war powers, Professors Prakash and Ramsey, make exactly this argument to claim that the President exercises virtually all the Nation’s diplomatic powers. 158 But then they suddenly reverse their reading of the executive power when it comes to war. 159 A consistent approach should root presidential authority both to initiate military hostilities and to conduct foreign policy in the Vesting Clause. Depriving the President of the power to decide when to use military force would disrupt the basic constitutional framework for foreign relations. From the beginning of the Republic, the vesting of the executive, commander-in-chief, and treaty powers in the executive branch granted the President control over international affairs. As Secretary of State Thomas Jefferson observed during the first Washington administration: “The
156. Thus, Article II’s enumeration of the Treaty and Appointment Clauses only dilutes the unitary nature of the executive branch in regard to the exercise of those powers, rather than transforming them into quasi-legislative functions. See John C. Yoo, Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution, 99 COLUM. L. REV. 2218, 2233–34 (1999) (arguing that the inclusion of Senate participation in making treaties dilutes the executive power to do so, as the Framers intended). 157. THE FEDERALIST NO. 74 at 497 (Alexander Hamilton) (Easton Press 1979). 158. See Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power Over Foreign Affairs, 111 YALE L.J. 231, 252–53 (2001) (explaining that Article II of the Constitution clearly articulates a vested power in the President regarding foreign affairs). 159. Yoo, War & Constitutional Text, supra note 108, at 1678. 2021] Trump at War 667 constitution has divided the powers of government into three branches . . . [and] has declared that ‘the [e]xecutive powers shall be vested in the [p]resident,’ submitting only special articles of it to a negative by the [s]enate.”160 Due to this structure, Jefferson continued, the “transaction of business with foreign nations is [e]xecutive altogether. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the [s]enate. Exceptions are to be construed strictly.”161 In defending President Washington’s Neutrality Proclamation, Hamilton came to the same view. According to Hamilton, Article II “ought . . . to be considered as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power . . . .”162 Future Chief Justice John Marshall famously declared a few years later, “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. . . . The [executive] department . . . is entrusted with the whole foreign intercourse of the nation . . . .”163 Given this agreement, the President has exercised the primary authority over foreign affairs ever since. Presidential critics will often claim that granting Congress the leading role in war will lead to greater “responsibility” in Ely’s words.164 But it is not clear that placing the decision for war in Congress’s hands, rather than the President’s, would advance those goals, nor is it at all clear that those values should trump other important goals, such as effectiveness and efficiency. The Framers believed that giving authority to the President increased government accountability and responsibility due to his nationwide election and the need
160. Thomas Jefferson, Jefferson’s Opinion on the Powers of the Senate Respecting Diplomatic Appointments, 24 April 1790, NATIONAL ARCHIVES, https://founders.archives.gov/documents/Jefferson /01-16-02-0215 (last visited May 20, 2021). 161. Id. (emphasis omitted). 162. PACIFICUS NO 1, 4 THE WORKS OF ALEXANDER HAMILTON, 432, 439 (Henry Cabot Lodge, ed., 1904). 163. 10 ANNALS OF CONG. 613–14 (1800). 164. See, e.g., William M. Treanor, Fame, the Founding, and the Power to Declare War, 82 CORNELL L. REV. 695, 700 (1997) (“The Founders intended that the [Declare War] Clause would vest in Congress principal responsibility for initiating conflict.”); FISHER, PRESIDENTIAL WAR POWER, supra note 96, at 203 (1995) (stating that “Congress needs to rediscover its institutional and constitutional duties” and that “[l]egislators must be prepared, and willing, to use the ample powers at their disposal.”); ELY, WAR & RESPONSIBILITY, supra note 96, at 3 (“The power to declare war was constitutionally vested in Congress” in order to “reduce the number of occasions on which [the United States] would become . . . involved.”); GLENNON, CONSTITUTIONAL DIPLOMACY, supra note 96, at 81 (“There is no evidence that the Framers intended to confer upon the President any independent authority to commit the armed forces to combat, except in order to repel ‘sudden attacks.”’); HENKIN, CONSTITUTIONALISM, supra note 96, at 109 (arguing that Congress is the “rudder” that steers the Constitution in foreign affairs matters); KOH, NATIONAL SECURITY, supra note 95, at 159–60 (noting that the trend has been toward increasing executive control but arguing for more balanced power sharing). 668 Vermont Law Review [Vol. 45:639 to balance legislative excess. As Alexander Hamilton wrote in Federalist 76, “[t]he sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation.”165 Correcting one of the chief defects of the Articles of Confederation, the Framers included a sole executive in their designs to make the federal government more effective at war. “Good government” required “energy in the executive,” Hamilton wrote in Federalist 70.166 A vigorous President, he said, was “essential to the protection of the community against foreign attacks.”167 In Federalist 74, Hamilton was even more explicit about the functional superiority of the executive branch in war. “Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.” 168 Hamilton believed that “the power of directing and employing the common strength” of society in war “forms an usual and essential part in the definition of the executive authority.”169 This has been the judgment of others since the Framing. With little variation, constitutional practice over two centuries has seen the President taking the lead in deciding whether to initiate armed conflict. We have a war powers system in which the initiative lies with the President, with Congress exercising an ex-post check. Developments in technology and warfare favor the Constitution’s location of the initiative in the Executive now more than in the eighteenth century. The industrial revolution made possible the mass armies, navies, and air forces that eventually brought the continental U.S. within the reach of long-distance bombers and nuclear-tipped missiles. As Jeremy Rabkin and I have argued elsewhere, the information revolution has made speed and secrecy even more important with the introduction of cyber, robotic, and space weapons.170 The branch of government most functionally suited to act in this security environment is the President, a fact that even the Framers foresaw. As Hamilton observed, “[d]ecision, activity, secrecy, and dispatch will generally characterise the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number . . . .”171 These
165. THE FEDERALIST NO. 76, at 510–11 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). 166. THE FEDERALIST NO. 70, at 471 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). 167. Id. 168. THE FEDERALIST NO. 74, at 500 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). 169. Id. 170. Jeremy Rabkin & John Yoo, STRIKING POWER: HOW CYBER, ROBOTS, AND SPACE WEAPONS CHANGE THE RULES FOR WAR 1–32 (2017). 171. THE FEDERALIST NO. 70, supra note 166, at 472 (Alexander Hamilton). 2021] Trump at War 669 functional considerations have led the Supreme Court to bless centralized presidential control over foreign policy and diplomacy.172 Critics worry about vesting unchecked power in the hands of the President.173 But that worry ignores the constitutional structure supporting the bare text. Even if the Declare War Clause were struck from the Constitution, Congress would already have ample ability to check the President through its power to raise and fund the military. Congress can refuse to create units necessary to carry out the President’s plans, terminate funding for units engaged in combat, and limit the overall size and shape of the military.174 Congress can foreclose options and open up others. As one important eighteenth-century student of the British Constitution put it, the king’s power to declare and wage war “is like a ship completely equipped, but from which the parliament can at pleasure draw off the water, and leave it aground,—and also set it afloat again, by granting subsidies.” 175 In Federalist 58, Madison states that Parliament’s use of “the engine of a money bill” had secured for centuries its “continual triumph . . . over the other branches of the government . . . .”176 Lacking the Crown’s powers both to raise a military and to declare war, the President is even more at the mercy of Congress’s power of the purse. In enacting funding bills for the military, Congress has a full and fair opportunity to consider the merits of a military conflict. This was especially true at the time of the founding. In 1789, the U.S. had no Navy and an Army of less than 1,000 troops, which were barely suitable for border defense.177 Although the militia might have provided an alternative fighting force, Article I reserves to Congress whether to place it at the President’s disposal.178 To fight the Wars of 1812 and 1848, and the Civil War, Congress had to expand the armed forces to fight the specific conflict.179 In approving
172. See also United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936) (noting the limitation of Congress and authority towards a U.S. President’s foreign diplomacy). 173. See Yoo, War & Constitutional Text, supra note 108, at 1680–81 (citing one argument that the Declare War Clause must give Congress the power to check the president). 174. Id. 175. J. L. DE LOLME, THE CONSTITUTION OF ENGLAND; OR, AN ACCOUNT OF THE ENGLISH GOVERNMENT 53 (N.Y., Hodge & Campbell 1821). 176. THE FEDERALIST NO. 58, at 395 (James Madison) (Jacob E. Cooke ed. 1961). 177. Morris J. MacGregor, The Formative Years, 1783–1812, in AMERICAN MILITARY HISTORY 107 (Maurice Matloff ed., 1969). 178. U.S. CONST. art. I, § 8, cl. 12–13. 179. See GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789- 1815, at 659, 671–72 (2009) [hereinafter WOOD, EMPIRE OF LIBERTY] (noting an addition of tens of thousands of troops to an initially meager seven thousand in 1812); PAUL H. BERGERON, THE PRESIDENCY OF JAMES K. POLK 80 (1987) (noting the recruitment of some 20,000 volunteers for the war against Mexico); JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA 312–14
670 Vermont Law Review [Vol. 45:639 these measures, Congress fully discussed the merits of the wars and could easily have foreclosed hostilities simply by refusing to appropriate anything. Kate Stith has observed that Congress’s power of the purse “constitute[s] a low-cost vehicle for effective legislative control over executive activity.”180 Critics of executive initiative in war could argue that the power of the purse no longer imposes a serious constraint due to the U.S.’s large standing military—the largest in the world.181 There are two reasons to doubt this argument. First, the high cost of modern warfare still requires Presidents to seek congressional funding. Even during the Kosovo war, which involved no ground troops and only a limited portion of the Air Force, President Clinton had to seek special appropriations from Congress to allow the American military intervention to continue.182 Second, Congress has built the large standing military that allows Presidents to act quickly. If it wanted to limit the President to defensive uses-of-force, Congress could leave aside the large carrier groups, strike bombers, and armored divisions that are primarily designed for offensive warfare. Congress acquiesces to quick wars because it would rather have the President take the risk with wars that are both unpredictable and dangerous. That Congress has not used its funding power more often to prevent or halt military hostilities reveals no flaw in the constitutional structure. It only reflects cooperation between the Executive and the Legislature. Some critics will concede that recent practice, and even the Constitution’s structure, support presidential initiative in war. Instead, they point to the eighteenth century’s colloquial usage of “declare war” to mean commence war.183 They rely heavily on the comment of James Wilson, one of the leading delegates to the Philadelphia Convention, who declared in the Pennsylvania ratifying convention that “[i]t will not be in the power of a single man” to involve the Nation in war, “for the important power of
(1988) (noting how military preparations for the Civil War, like other wars only occurred after the United States was in the middle of the conflict). 180. Kate Stith, Congress’ Power of the Purse, 97 YALE L. J. 1343, 1360 (1988). 181. Delahunty & Yoo, Making War, supra note 102, at 132–33. 182. See JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11 157–59 (2005). The United States’ intervention in Lebanon in the early 1980s provides another relatively recent instance to underscore the President’s critical dependence on congressional funding when taking and sustaining military operations. See Multinational Force in Lebanon Resolution, Pub. L. No. 98-119, § 2(a)(5), 97 Stat. 805, 805 (1983); see also DAVID K. NICHOLS, THE MYTH OF THE MODERN PRESIDENCY 122 (1994) (“It has been . . . this fear of funding restrictions that forces the President to take the views of Congress into account.”). 183. See, e.g., Michael D. Ramsey, Textualism and War Powers, 69 U. CHI. L. REV. 1543, 1590–609 (2002). 2021] Trump at War 671 declaring war is vested in the legislature at large . . . .”184 Another critical piece of evidence for the pro-Congress side comes from Hamilton. In Federalist 69, he sought to downplay the Presidency by contrasting it with the broader powers of the British king. Hamilton argued that the commander- in-chief power “would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the confederacy . . . .”185 Meanwhile, he observed, “that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies; all which by the Constitution under consideration would appertain to the Legislature.”186 Other than these two key statements, presidential critics generally draw on passages from 17th and 18th century sources, including several leading founders, which use “declare war” as synonymous with commence hostilities. Writing as Pacificus, for example, Hamilton noted in 1793 that “the Legislature can alone declare war, can alone actually transfer the nation from a state of Peace to a state of War . . . .”187 Responding as Helvidius, Madison agreed that “[t]hose who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded.”188 These arguments fail on two grounds. First, they do not adequately account for the history of the Constitution’s ratification. In fact, their arguments run counter to what we know about the development of American constitutional thinking during this period. Second, their analysis ignores the language that Americans actually used in the constitutional texts of the time. They show that Americans and others in the eighteenth century (as now) could use the phrase “declare war” to refer to beginning military hostilities. But there are more important examples where the Framing generation used “declare war” in the narrower sense of setting international legal relations and employed other, more precise phrases to refer to the beginning of hostilities. American constitutional development during the period between the Declaration of Independence and the Constitution’s ratification favored the
184. 2 JONATHAN ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 528 (2d ed. 1836) [hereinafter 2 ELLIOT], https://memory.loc.gov/cgi- bin/ampage. 185. THE FEDERALIST NO. 69, at 465 (Alexander Hamilton) (Jacob E. Cooke ed. 1961). 186. Id. 187. Hamilton, Pacificus No. 1, supra note 154, at 16. 188. James Madison, Helvidius No. 1, in THE PACIFICUS-HELVIDIUS DEBATES OF 1793–94, at 62 (Morton J. Frisch ed., 2007). 672 Vermont Law Review [Vol. 45:639 expansion of executive power.189 In the burst of constitution-making after Independence, the Framers adopted one national charter, the Articles of Confederation. This charter was crippled by a lack of executive organization and leadership, and state constitutions distinctive in their efforts to undermine executive unity and energy.190 The result was legislative abuse, special interest laws, and weak governments.191 Dissatisfaction with this state of affairs, even during a time of relative peace and prosperity, led American leaders to seek a new Constitution that would create a stronger, more independent executive branch wrapped within a more powerful national government.192 Presidential critics do not explain why those who generally favored broader executive power would act in this one instance to limit it. The Articles of Confederation provide a striking counterexample. Congress inherited the Crown’s imperial powers in the colonies, while the states retained their legislative powers. It kept “the sole and exclusive right and power of determining on peace and war,” to enter into treaties, and to conduct foreign relations.193 Article IX required the approval of nine states before the nation could “engage in a war.”194 Article VI made clear that “[n]o state shall engage in any war without the consent of” Congress, unless under threat of invasion or imminent danger.195 Critics do not explain why the Framing generation used these phrases, especially the word “engage,” to clearly refer to the beginning of military hostilities, rather than their favored “declare.” Indeed, the phrase “declare war” does not appear in the Articles of Confederation. The only interpretation that makes sense is that “engage” in war or “determine on war” were the broadest possible grants of power to
189. FORREST MCDONALD, THE AMERICAN PRESIDENCY: AN INTELLECTUAL HISTORY 98–153 (1994); see also GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776–1787, at 138, 393–429, 434 (1967) (discussing how historically the three branches of law were being consumed by the legislative, a result warned of by Jefferson, leading to a crisis that led to the favoritism of expansion of executive powers). 190. See ALEXANDER HAMILTON, 1 THE WORKS OF ALEXANDER HAMILTON 111 (Henry Cabot Lodge ed., 2d ed. 1904), https://oll.libertyfund.org/title/lodge-the-works-of-alexander-hamilton-federal- edition-vol-1 (“Another defect in our system is want of method and energy in the administration. This has partly resulted from the other defect; but in a great degree from prejudice, and the want of a proper executive.”). 191. See THE FEDERALIST NO. 22, at 134–39 (Alexander Hamilton) (Easton Press ed., 1979) (discussing various weakness of the federal government under the Articles of Confederation—the leeway given for foreign corruption to occur, the ability of minority states to negate the voting power of the majority, the federal government’s inability to regulate commerce, to raise armies, etc.). 192. See generally THE FEDERALIST NOS. 15, 21–22 (Alexander Hamilton) (Easton Press ed., 1979) (discussing the various defects with the Articles of Confederation and their purported remedies in the U.S. Constitution). 193. Articles of Confederation art. IX (1777). 194. Id. at para. 6. 195. Id. at art. VI, para. 6. 2021] Trump at War 673
Congress to begin hostilities, as they reflect the intention to vest all of the war power in the national government. “Declare” refers to a narrower subset of the war power that does not even make an appearance in our Nation’s first constitution. Under the Articles, Congress’s problem was not a lack of formal executive power, but its organization and support. Governing by committee proved disastrous during the War of Independence. In 1781, Congress replaced committees with executive departments that individual secretaries headed—an improvement, but a small one.196 With Congress micromanaging policy, the Executive lacked “method and energy,” in the words of a young Alexander Hamilton.197 The states refused to supply revenue to the national government or comply with its requests.198 Once peace arrived, Congress proved utterly unable to handle its executive duties. It could not establish even a small military to protect the northern forts, which the British refused to hand over in violation of the 1783 peace treaty.199 Britain and France imposed harmful trading rules against American ships, while Spain closed the critical port of New Orleans to American commerce. 200 American ambassadors could do nothing to reverse British and French policies because Congress had no authority over commerce with which to threaten retaliatory sanctions.201 Experimentation with the executive power, with poor results, went further in the states. In all but one state, the assembly elected the governor, making clear who served whom. 202 Some states tried multimember executives or required the governor to receive the blessing of a council of state, also appointed by the legislature.203 As Gordon Wood has observed, the councils often made the governors “little more than chairmen of their executive boards.”204 States limited the Governor’s term and eligibility. Most states provided for the annual election of the Governor, restricted the number
196. See, e.g., RICHARD B. MORRIS, THE FORGING OF THE UNION, 1781–89, at 95–96 (1987). 197. ALEXANDER HAMILTON, 1 THE WORKS OF ALEXANDER HAMILTON 219 (Henry Cabot Lodge ed., 2d ed. 1904). 198. See, e.g., JACK N. RAKOVE, THE BEGINNINGS OF NATIONAL POLITICS: AN INTERPRETIVE HISTORY OF THE CONTINENTAL CONGRESS 275–96 (1979). 199. RICHARD H. KOHN, EAGLE & SWORD: THE FEDERALISTS AND THE CREATION OF THE MILITARY ESTABLISHMENT IN AMERICA, 1783–1802, at 54–72 (1975). 200. See John Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 COLUM. L. REV. 1955, 2011–12, 2081 (1999) (articulating Congress’s role in treaties, domestic, and legislative affairs and its check on the executive from the framers’ view). 201. See MARKS III, supra note 196, at 52–95 (explaining the political upheaval regarding Congress’s and the states’ authorities in trade); MCDONALD, supra note 189, at 143–53. 202. See MCDONALD, supra note 189, at 98, 133. 203. See WOOD, supra note 189, at 138–39 (discussing how these councils appointed by legislatures become more controllers than servants of the governs). 204. Id. at 138. 674 Vermont Law Review [Vol. 45:639 of terms a Governor could serve, or both.205 Pennsylvania reached the most radical extreme by creating a twelve-man executive council elected annually by the legislature.206 Federalists rejected the progressive weakening of the Executive. They modeled the federal Constitution on that of New York, which had freed the governor of legislative dependence, given him significant constitutional authority, and vested him with the sole power of leading the state’s military. 207 During the Philadelphia Convention, initial proposals for the Presidency would have rendered the Executive into the servant of Congress, and little else. 208 But by the end, the Executive became institutionally independent and possessed “the Executive rights vested in Congress by the Confederation,” which were presumably those in foreign affairs.209 Even the well-known but confused debate in the Philadelphia Convention on August 17, 1787 supports the reading of declare war as narrower than conducting war. Delegates rejected the original grant to Congress of the power “to make war” because the legislature’s “proceedings were too slow” and members of the House would know too little about foreign affairs.210 They responded by proposing an expansion of the executive role in war-making. Pierce Butler argued for “vesting the power [to make war] in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it.”211 The Constitutional Convention delegates clearly amended the draft to reduce Congress’s role in war and to increase the President’s. Immediately after Butler’s comment, Madison and Elbridge Gerry moved “to insert ‘declare,’ striking out ‘make’ war; leaving to the Executive the power to repel sudden attacks.”212 Madison’s amendment expanded the Executive’s power to respond unilaterally to an attack, and it recognized that making war—the entire war power—was a broader power than the power to declare war.
205. See MCDONALD, supra note 189, at 131–33. 206. PA. CONST. § XIX (1776), reprinted in 5 FRANCIS NEWTON THORPE, THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE STATES, TERRITORIES, AND COLONIES NOW OR HERETOFORE FORMING THE UNITED STATES OF AMERICA, 3081, 3086–87 (William S. Hein & Co., Inc. 1993) (1909). 207 See CHARLES C. THATCH JR., THE CREATION OF THE PRESIDENCY, 1775-1789: A STUDY IN CONSTITUTIONAL HISTORY 34–37 (The Johns Hopkins Press 1922) (1969). 208. Initial proposals would have made Congress elect the President. See 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 18–21 (Max Farrand ed., rev. ed. 1966) (outlining the Virginia Plan provisions for a National Executive). 209. Id. at 21. 210. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 318–19 (Max Farrand ed., rev. ed. 1966) [hereinafter Farrand ed., 2 RECORDS OF 1787 FEDERAL CONVENTION]. 211. Id. at 318. 212. Id. 2021] Trump at War 675
Madison’s notes, however, do not elaborate on what type of attack would trigger the executive’s war-making authority. While an invasion on American soil would qualify, it is unclear if assaults on American forces, citizens, or property overseas would as well. Subsequent confusion over the amendment suggests that the Convention did not share a consensus about the war power. Roger Sherman, for example, believed Madison’s amendment was unnecessary. The original draft, he thought, “stood very well. The Executive [should] be able to repel and not to commence war.”213 Sherman thought that reducing Congress’s power to that of declaring war would permit the Executive to commence wars unilaterally. He favored leaving “make” war as it was, because it was “better than ‘declare’ the latter narrowing the power too much.”214 Sherman’s comments, however, confused other delegates. Gerry seems to have interpreted Sherman’s argument as expanding executive power. He rose to proclaim that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.”215 Gerry may have feared any interpretation that gave the President an authority to declare war, because a declaration would represent a legal widening of a conflict at home and abroad. Oliver Ellsworth argued that declarations of war and the making of peace treaties should lie in different hands: “[T]here is a material difference between the cases of making war, and making peace. It [should] be more easy to get out of war, than into it. War also is a simple and overt declaration.”216 In contrast to war’s simplicity, said Ellsworth, “peace [is] attended with intricate & secret negotiations.” 217 He shared the understanding that declaring war differed from commencing war, neither of which a Framer would have described as “simple and overt.” Declarations of war are “simple” because they alter legal relationships and recognize an existing state of hostilities in one shot. Rising to support Ellsworth, George Mason differentiated between war and peace: he “was for clogging rather than facilitating war; but for facilitating peace.”218 He “was [against] giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate because not so constructed as to be entitled to it,” but then curiously backed the change from “make” to “declare.”219 Mason’s actions comport with his words only if we view him as concurring in the idea that
213. Id. 214. Id. 215. Id. 216. Id. at 319. 217. Id. 218. Id. 219. Id. 676 Vermont Law Review [Vol. 45:639 the “make” war language did not preclude the Executive from waging a defensive war, or from declaring war. Ellsworth and Mason may have supported the change to “declare” war because it limited the Executive’s ability to plunge the Nation into a total war. The Convention then approved the change by eight states to one.220 Although the closing events of August 17 are somewhat unclear, we still can venture some tentative conclusions. Changing the phrase from “make” to “declare” reflected an intention to prohibit Congress from encroaching on the executive power to conduct war. Although the amendment only changed Article I, the substitutions recognized the President’s powers in one dimension and restricted it in another. The Framers understood that a reduction in congressional war authority would produce a corresponding expansion in executive authority. The change not only increased the minimum level of executive power (repelling sudden attacks), but it also set a limit on its apex as well (declaring war). Adopting the amendment made clear that the President could not unilaterally take the Nation into a total war, but also suggested that he might be able to engage the Nation in hostilities short of that. The August 17 debate also raises two other points. First, some of the delegates did not envision the Executive as a magistrate charged only with executing the laws. Some Framers believed that the president enjoyed a “protective power,” as Henry Monaghan has described it, which permitted him to guard the Nation from attack, even in the absence of congressional consent.221 Another group thought that the president could lay a claim, equal to that of Congress, to representing the people, for he would “not make war but when the Nation will support it.”222 Throughout the Convention, delegates approved significant transfers of authority to the President. Critics do not explain why the Framers would have acted against these broader constitutional trends and weakened presidential authority in war. Critics also fail to show that the Framers believed the Constitution, once in practice, would require Congress to approve before the President could conduct hostilities. The Federalists, who had every incentive to downplay presidential power, never claimed that Congress’s Declare War power would serve as a check on executive decisions in favor of war. No Federalist or Anti-Federalist bestowed upon the Declare War Clause the broad sweep that pro-Congress scholars give it today. The closest they come is Federalist 69, in which Hamilton portrays the President’s powers in war as incomparable to the British King’s because Article II does not vest in the
220. Id. at 314. 221. Cf. Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1, 67 (1993). 222. Farrand ed., 2 RECORDS OF 1787 FEDERAL CONVENTION, supra note 210, at 318. 2021] Trump at War 677 former the powers to declare war or raise armies.223 Hamilton, however, never defines the power to declare war, nor does he ever discuss it as a legislative check on the Executive. Further, Hamilton does not contest the assumption that the President, like the King, could deploy troops and ships once the Legislature had provided them. When the Federalists debated the Anti-Federalists over the Constitution, they never argued that the Declare War Clause would prevent the President from conducting hostilities. Instead, they predicted that Congress’s power over funding would serve as the primary check. The most direct and revealing confrontation occurred in the Virginia ratifying convention, probably the most politically significant state in the ratification struggle. Patrick Henry, one of the Anti-Federalist leaders, argued that the President would use his command over the military to centralize his power.224 Federalists responded by invoking the British Parliament’s power of the purse to control war- making. “[N]o appropriation of money, to the use of raising or supporting an army, shall be for a longer term than two years,” Federalist George Nicholas said.225 “The President is to command. But the regulation of the army and navy is given to Congress. Our Representatives will be a powerful check here. The influence of the Commons in England in this case is very predominant.”226 Madison followed not with the Declare War Clause but with the maxim “that the sword and purse are not to be given to the same member.” 227 Under the British constitution, which Henry had praised, Madison observed, “[t]he sword is in the hands of the British King; the purse in the hands of the Parliament. It is so in America, as far as any analogy can exist.” 228 Although Madison would attack the constitutionality of the Neutrality Proclamation seven years later,229 here he made no claims that Congress could constrain presidential war-making because of the Declare War Clause. Federalists explicitly relied on the Legislature’s power to fund and raise the military instead.
223. See THE FEDERALIST NO. 69, at 467–68 (Alexander Hamilton) (Easton Press ed., 1979) (discussing the delegation of federal and state powers according to the U.S. Constitution). 224. 9 RATIFICATION OF THE CONSTITUTION BY THE STATES: VIRGINIA, NO. 2, at 964 (John P. Kaminski & Gaspare J. Saladino eds., 1990). 225. JONATHAN ELLIOT, 3 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 391 (2d ed. 1891) [hereinafter 3 ELLIOT], https://memory.loc.gov/ll/lled/003/0400/04030391.tif. 226. 10 RATIFICATION OF THE CONSTITUTION BY THE STATES: VIRGINIA, NO. 3, at 1281 (John P. Kaminski & Gaspare J. Saladino eds., 1993) [hereinafter Kaminski & Saladino, VIRGINIA, NO. 3]. 227. Id. at 1282. 228. 3 ELLIOT, supra note 225, at 393. 229. The Pacificus-Helvidius Debates of 1793-1794: Toward the Completion of the American Founding, Online Library of Liberty, at 7, https://oll-resources.s3.us-east- 2.amazonaws.com/oll3/store/titles/1910/Hamilton_3953_EBk_v6.0.pdf. 678 Vermont Law Review [Vol. 45:639
Critics may argue that this dialogue has limited relevance because it centers on concerns of a domestic military tyranny rather than foreign military adventures. But the Federalists would have had every incentive to turn to the Declare War Clause in the crucial state of Virginia. That they did not is consistent with the evidence from the rest of the ratifying process. No Federalists discussed the Declare War Clause to respond to fears of an aggrandizing Executive in war. Instead, Federalists carefully explained that the checks on war-making under the new American Constitution would resemble practice under the British. 230 While the Executive would have command of the army and navy, only the legislature could bring them into existence.231 While the President could conduct military operations, they would continue only while Congress chose to fund them.232 A few offhand comments in which the term “declare” war is used to refer to beginning war have much less relevance to the question at hand than Federalist explanations of how the separation of powers would work in practice. And what to make of the Declare War Clause? The Declare War Clause, like the adjacent grants of powers to define and punish “Offences against the Law of Nations,” to issue “Letters of Marque and Reprisal,” and to regulate “Captures on Land and Water,” is exceptional in vesting Congress, ordinarily a body with jurisdiction only over domestic matters, with the authority to speak to and to intervene in international affairs. By granting Congress the power to declare war, the Framers enabled it to serve notice on American citizens, neutral nations, and intended or actual foreign enemies of the existence of a state of war between the U.S. and another power or powers. Further, Congress would have had the authority to set forth the grievances that impelled the U.S. to war and to define the U.S.’s peace terms and strategic objectives. All of these functions—giving notice, providing justification, stating war aims—are superbly exemplified in the U.S.’s first declaration of war—the Declaration of Independence.233 The Declaration of Independence served notice of a change in the legal relations between the U.S. and Great Britain, but it did not authorize the beginning of the war— fighting had already broken out at Lexington and Concord more than a year before July 4, 1776. The Declaration of Independence transformed the ongoing American Revolution from a mere civil war or rebellion into a public war between two states and, by so doing, made the American soldiery
230. 3 ELLIOT, supra note 225, at 393. 231. Id. 232. Id. 233. See Armitage, supra note 145 (noting that the Declaration of Independence was a speech- act that communicated independence and performed independence simultaneously). 2021] Trump at War 679 legitimate combatants in a regular war rather than leaving them to be treated as mere traitors or rebels. Critics of presidential power also place great store in the practice of the executive branch after the Framing. In arguing Trump’s actions in Syria were unconstitutional, Andrew Napolitano argued “Madison himself argued that if the president could both declare and wage wars, he’d not be a president but a prince.”234 The weight that practice deserves is unclear, as subsequent practice could not inform the understanding of those who had earlier ratified the Constitution. Other scholars place great store in presidential statements after 1789 to claim that “declare war” meant the sole authority to authorize hostilities.235 Examples from America’s early wars, however, do not support the claim that Congress had authorized every early conflict. In all the wars fought during the first 50 years of the Constitution, 236 Congress voted declarations of war only once. Washington’s war against the Indians of the Ohio Valley and Jefferson’s war against the Barbary states illustrate this point. In both cases, congressional action created and funded the military necessary for offensive action, but it did not provide the equivalent of permission to start fighting.237 During Washington’s presidency, the U.S. waged war against only one enemy, the Indian tribes on the western frontier in present-day Ohio. The Washington administration developed a political and military strategy toward the Indians without consulting Congress. The administration sought Congress’s cooperation when it needed increases in the size of the Army, military spending, or approval of diplomatic missions and agreements.238 It would have been impossible for the executive branch to conduct military operations against the Indians without Congress, but not because of the latter’s “declare war” power. There simply was no military for the President to order against the Indians. In 1789, the Army numbered only 672 troops, scattered over the frontier, while the Indian tribes threatening Georgia could
234. Andrew P. Napolitano, The Presidency, War Powers, and the Constitution, WASH. TIMES (Oct. 9, 2019), https://www.washingtontimes.com/news/2019/oct/9/the-presidency-war-powers-and-the- constitution/. 235. Delahunty & Yoo, Making War, supra note 102, at 158. 236. Id.; see HENRY ADAMS, HISTORY OF THE UNITED STATES OF AMERICA DURING THE ADMINISTRATIONS OF JAMES MADISON 300 (Ernest Samuels ed., Midway Reprint 1979) (1967) (describing the Cabinet’s decision to create a new military district in Potomac in May of 1813); PAUL H. BERGERON, THE PRESIDENCY OF JAMES K. POLK 80 (1987); STANLEY ELKINS & ERIK MCKITRICK, THE AGE OF FEDERALISM 438 (1993) (referencing the training of the army for the Battle at Fallen Timbers). 237. Delahunty & Yoo, Making War, supra note 102, at 158–65. 238. See RICHARD H. KOHN, EAGLE AND SWORD: THE FEDERALISTS AND THE CREATION OF THE MILITARY ESTABLISHMENT IN AMERICA, 1783-1802, at 93 (1975) (noting that militia laws often prevented offensives unless state executives authorized them). 680 Vermont Law Review [Vol. 45:639 field 5,000 warriors.239 In 1790, after Congress expanded the army to 2,000 regular troops, Washington ordered offensive, punitive expeditions into Indian territory.240 After the Army suffered a disastrous defeat in winter 1791, Washington returned to Congress to seek a five-fold increase in the size of the army, at triple the cost.241 Under the command of General Anthony Wayne, the 3,500-man Army would win the Battle of Fallen Timbers.242 Historians have recognized that this victory ended the threat of Indian resistance to the opening up of the Northwest Territory and led to the successful resolution of the frontier issues with the British. 243 Yet, throughout, Washington never sought, nor did Congress provide, a declaration of war. If Congress had disagreed with the President’s military policy, it could have easily refused to establish or expand the Army, but it instead signaled its agreement by granting every one of Washington’s requests.244 Soon after assuming the Presidency, Thomas Jefferson decided to stop paying tribute to the Barbary pirates. Although history remembers them as brigands, the Barbary pirates were in fact from the autonomous regions of Algiers, Tripoli, and Tunis within the Ottoman empire and Morocco.245 In a meeting on May 15, 1801, the cabinet unanimously agreed that Jefferson should send a naval squadron to the Mediterranean as a show of force.246 No one in the cabinet, including Madison or Gallatin, believed that the President had to seek congressional permission to order the mission.247 Instead, they thought that a law creating the squadron supported a “training mission” in the Mediterranean. 248 The cabinet also agreed that the President had constitutional authority to order offensive military operations should a state
239. Delahunty & Yoo, Making War, supra note 102, at 159. 240. See KOHN, supra note 238, at 103–04. 241. See Statement of Henry Knox (Dec. 26, 1791), in 4 AMERICAN STATE PAPERS: INDIAN AFFAIRS 197, 197–99 (Walter Lowrie & Matthew St. Clair Clarke eds., 1832) (reasoning that lack of troops hindered the expedition and requesting 5,000 troops to solve issue). 242. See KOHN, supra note 238, at 156–57 (recounting the army’s movements and Wayne’s response to their victory). 243. See WOOD, EMPIRE OF LIBERTY, supra note 179, at 130–31 (explaining the victory at Fallen Timbers and how it broke Britain’s influence over the Indians and Indian resistance in the Northwest). 244. See id. at 111, 130 (noting that Washington believed in creating a powerful army and describing the defeat that prompted the government to increase the military budget and create a standing army of 5,000 regulars). 245. See ABRAHAM D. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER: THE ORIGINS 208 (1976) (acknowledging Tripoli, Algiers, Tunis and Morocco gaining much of their revenue from piracy and extortion as the underlying commercial reason for the conflict). 246. Id. at 209. 247. Id. 248. Id. at 209–10. 2021] Trump at War 681 of war already be in existence because of the hostile acts of the Barbary powers. 249 As Abraham Sofaer has observed, Jefferson and his advisors assumed they had the authority for the expedition simply by virtue of Congress’s creation of the naval forces that made it possible—a position no different from the one President Washington had taken in the Indian wars.250 The Secretary of the Navy ordered Commodore Richard Dale—five days later—to proceed to the Mediterranean and, if he found that any of the Barbary states had declared war on the U.S., to “chastise their insolence[] by sinking, burning or destroying their ships & Vessels wherever you shall find them.”251 Upon arriving in Tripoli, the U.S.S. Enterprise imposed a blockade and destroyed an enemy vessel. 252 Jefferson later told Congress that the Enterprise had acted in self-defense, and Congress authorized whatever measures might be necessary.253 Jefferson’s decisions to send the Navy to a hostile area for offensive operations went unchallenged.254 These examples reinforce both the lessons of the Framing and modern practice. Critics portray presidential uses-of-force, from Washington to Trump, as violations of the Constitution. Only a declaration of war from Congress, according to this account, can cure the problem. But the Declare War Clause cannot bear this heavy responsibility. Even if English speakers in 2020, or in 1789, used “declare war” colloquially to refer to starting hostilities, the Clause did not concentrate the authority to begin a conflict in Congress. Careful scrutiny of the Constitution’s text, including the provisions adjacent to the Declare War Clause and other provisions relating to war, and of its structure establishes that the Clause must have had a narrower and more precise meaning. The most plausible interpretation of the Clause reads it as conferring on Congress the power to create a variety of legal regimes under international and domestic law suitable to the various kinds of conflicts subsumed under the name “public wars.” Rather than
249. Id. 250. Id. 251. Letter from Samuel Smith to Captain Richard Dale (May 20, 1801), in I CLAUDE A. SWANSON, NAVAL OPERATIONS INCLUDING DIPLOMATIC BACKGROUND FROM 1785 THROUGH 1801, at 465, 467 (1939) [hereinafter NAVAL DOCUMENTS], https://babel.hathitrust.org/cgi/pt?id=msu.31293010906265&view=1up&seq=13. 252. See Letter from Captain Richard Dale to Captain Samuel Barron (July 4, 1801), in NAVAL DOCUMENTS, supra note 251, at 500 (detailing methods to prevent ship’s escape); Letter from Captain Richard Dale to Lieutenant Andrew Sterett (July 5, 1801), in NAVAL DOCUMENTS, supra note 251, at 503 (directing Lieutenant Sterett to go to Algires and take other American vessels with him); Letter from Captain Richard Dale to Captain Samuel Barron (July 9, 1801), in NAVAL DOCUMENTS, supra note 251, at 505 (instructing Captain Barron to head to go to Tripoli and how to proceed if he captures the Tripoli Admiral). 253. Thomas Jefferson, President, First Annual Message to Congress (Dec. 8, 1801), https://millercenter.org/the-presidency/presidential-speeches/december-8-1801-first-annual-message. 254. Delahunty & Yoo, Making War, supra note 102, at 165. 682 Vermont Law Review [Vol. 45:639 regulating the relations between the President and Congress, the Declare War Clause enables Congress to regulate the relations between the U.S. and other states. The Framers countered the risk of executive aggrandizement in war- making in other ways—most notably by vesting in Congress the power to raise armies and navies and to control their funding. The long and successful history of Parliament’s struggle in England, against the claim of the Crown to wage war as it pleased, demonstrated to the Framers that the funding power was the most certain and effective check against executive abuses.
CONCLUSION
An obvious attraction of the Congress-first, President-second approach is that it is familiar. It is identical to the process that governs the enactment of legislation. We expect Congress to carry the initiative in passing laws, and that its collective representation of the American electorate will achieve deliberation, consensus, and clarity of legislative purpose. Furthermore, the “Declare War” approach to war seeks to “clog” the rush toward war by requiring both the Congress and President to agree before risking American lives and treasure abroad. Reducing the amount of war draws upon deeply ingrained American notions that, as the exceptional Nation, the U.S. can either withdraw from the conflict-torn affairs of the Old World or change the world as to render war itself obsolete. But these assumptions do not rest on any tested truths. A Congress-first approach does not always generate a deliberation that produces fewer wars. The Mexican-American War of 1848, for example, did not result from extensive deliberation and consensus in Congress or the Nation, but rather a rush to war after an alleged attack on Sam Houston’s forces along the Rio Grande River. Congress did not declare war against Spain in 1898 after long discussion and consultation, but rather after the destruction of the U.S.S. Maine in Havana harbor. Both wars resulted in quick victory and large territorial conquests for the U.S., but it is not clear whether the defenders of congressional prerogatives today would have considered them “good” wars. Nor does congressional deliberation ensure consensus. Even though Congress approved the Vietnam War in the Tonkin Gulf Resolution, the conflict still provoked some of the most divisive politics in American history. Congress authorized the war in Afghanistan in 2001 and the invasion of Iraq in 2002, but both wars lost their consensus in the U.S. political system as well. Conversely, a process without congressional declarations of war does not necessarily result in less deliberation or consensus. Nor does it seem to inexorably lead to poor or unnecessary war goals. Perhaps the most important example, although many might not consider it a “war,” is the conflict 2021] Trump at War 683 between the U.S. and the Soviet Union from 1946 through 1992. War was fought throughout the world by the superpowers and their proxies during this period. Yet the only war arguably authorized by Congress—and even this is a debated point—was Vietnam. The U.S. waged war against Soviet proxies in Korea and Vietnam, the Soviet Union fought in Afghanistan, and the two almost came into direct conflict during the Cuban Missile Crisis. Despite the division over Vietnam, there appeared to be a significant bipartisan consensus on the overall strategy (containment) and goal (defeat of the Soviet Union, protection of Europe and Japan), and Congress consistently devoted significant resources to the creation of a standing military to achieve them. While the branches cooperated, Congress chose to provide funding and left to the President the heavy responsibility and potential blame for deploying the military abroad. Presidential initiative and responsibility, followed by lackluster congressional support, remains the basic operating procedure for war today. Congress does not want the accountability for decisions on war. Instead, it provides the executive branch with a military designed to conduct offensive wars abroad, without any conditions. If the war goes well, Congress can take credit for providing the troops; if the war goes badly, it blames the President. The duty to protect the Nation’s security and advance its foreign interests falls upon the President, whether it be Bush, Obama, or Trump. Congress can criticize Trump for withdrawing from Syria too early, or staying in Afghanistan too long, but the last thing it wants to do is take political responsibility for war. Presidents will take up the sword paid for by Congress, whether they want to or not, because the electorate will hold them responsible. President Trump’s interventions in Syria and Afghanistan should underscore one last truth about the constitutional way of war. Critics of executive power hold in their minds an image of war as one sparked by presidential adventurism, accompanied by congressional fecklessness. But they cannot understand the quandary posed by Trump: a Congress is more warlike than the President. President Trump withdrew U.S. troops from the Syrian-Turkish border and abandoned America’s Kurdish allies. While his decision triggered howls of complaint from the military, members of Congress, and the national-security establishment, the Legislature cannot force the President to fight a war he does not want to fight. Congress can pay for the military, and even declare war, but it cannot decide tactics, strategy, or the deployment of the armed forces. Only the President, under the Constitution, has the authority as Commander-in-Chief to make those fundamental decisions. While Trump’s critics may want U.S. troops to remain in Syria or Afghanistan, they cannot prevent a President from 684 Vermont Law Review [Vol. 45:639 withdrawing from a fight abroad. And, in keeping true to his campaign promise to end these wars—regardless of their strategic benefits or costs— Trump is defending the power of all future Presidents to command the military in war.