The Trump administration has not successfully defended any climate deregulatory effort in court during its first two years, a new report finds, even though EPA and other agencies have been able to delay implementation of some rules and are poised to complete several major rollbacks in the coming months that will spur additional lawsuits.
The June 7 report, by Dena Adler of the Sabin Center for Climate Change Law at Columbia Law School, seeks to document “a landscape-level view of how litigation is shaping climate change law and policy.”
It says, “More than two-and-a-half years into the Trump administration, no climate change related regulatory rollback brought before the courts has yet survived legal challenge. Nevertheless, climate change is one area where the Trump administration’s regulatory rollbacks have been both visible and real.”
EPA and other agencies have delayed and begun reversing greenhouse gas rules from stationary and mobile sources; sought to speed fossil fuel development, including at previously protected areas; delayed or reversed efficiency standards; undermined climate change consideration in decisionmaking; and hindered adaptation efforts, the paper says.
“However, the Trump administration’s efforts have met with constant resistance, with those committed to climate protections bringing legal challenges to many, if not most, of the rollbacks,” according to the paper.
It stresses that “the courts have not upheld any attempts by the Trump administration to delay or roll back regulatory climate protections. Those cases have been struck down, voluntarily dismissed or are still pending a final decision.”
In 2017 and 2018, 12 cases were filed raising climate change in rules that delayed or suspended requirements. In five of those cases, judges ruled against the administration, with one appeal pending of a decision overturning the administration’s effort to allow more offshore drilling. Five pressured the administration to end the delay at issue in the suit and then were dismissed or allowed to lapse before a merits decision was reached. Two are still pending.
“These cases are building a body of precedent that clarifies limitations on the executive branch’s ability to destabilize duly promulgated regulations, to act without regard to proper procedure, and to make decisions that lack an evidentiary basis,” the paper says.
The paper also cites court rulings halting policies to promote fossil fuel extraction on public lands and waters, and a ruling finding that the administration violated environmental review requirements of the National Environmental Policy Act in a bid to reverse a coal leasing moratorium.
These decisions “uphold precedent that the Trump administration cannot skirt statutory obligations to conduct environmental review, administrative law requirements to justify a change in policy, or promote fossil fuel extraction beyond the limits of its statutory authorities to act,” the paper says.
However, one case the paper cites as a victory for Trump critics -- where a district court halted construction on the Keystone XL pipeline -- was just dismissed on appeal after the Trump administration took executive action to issue a new permit, replacing the one at issue in the case.
Expected Litigation
Adler reviews 159 climate-related cases “to shed light on how litigation is counterbalancing -- and at times complementing -- the Trump administration’s efforts to undermine climate change protections.”
The cases are placed into five categories: defending Obama administration climate policies; demanding transparency and scientific integrity from the Trump administration; integrating consideration of climate change into environmental review and permitting; advancing or enforcing additional climate protections through the courts; and deregulating climate change.
The first four categories are “pro” climate protection, and if the litigants are successful, they would uphold or advance climate protections. The final category consists of “con” cases that, if the litigants win, climate protections would be undermined or deregulatory efforts would prevail.
Of the cases reviewed, 129 are “pro” and 30 are “con,” though the distribution of suits shifted between 2017 and 2018. Fewer suits were filed last year to defend Obama policies or undermine climate protections. The number of cases promoting transparency and advancing climate protections increased.
The paper stresses that despite the earlier rulings against the Trump administration, more litigation will be filed as agencies complete rules seeking to repeal or replace Obama climate policies.
For instance, the Trump EPA in the coming days is expected to finish its Affordable Clean Energy GHG rule for power plants, rolling back the Obama-era Clean Power Plan. Then, by July or August, it is expected to finalize an aggressive rollback of Obama-era vehicle GHG and mileage standards.
“As these and other cases develop, the courts will continue to be an important arena for enforcing administrative, statutory and other legal obligations and preventing the establishment of agency precedent that flouts these requirements,” the paper says.
The Sabin Center conducted a similar review of the Trump administration’s first year last February, seeing “early victories” in climate rollback suits with uncertain long-term results.
That paper found that the vast majority of pending climate cases sought to boost protections rather than roll them back. While courts had already halted some regulatory stays and delays, the paper said it was too soon to tell whether Trump critics will succeed in blocking substantive rollbacks via the courts. -- Dawn Reeves (dreeves@iwpnews.com)
