Insider -- May 29, 2020

May 29, 2020

Administration Suffers Court Losses Over Water, Energy, Climate Policies

The Trump administration has suffered a series of recent court losses regarding water, energy and climate change policy, including a pair of key environmental decisions from an influential appellate court that set new precedents for many Western states.

The litigation addresses permitting for major oil and gas pipelines, potential industry liability for climate-related damages and the fallout from a recent Supreme Court decision that some discharges to groundwater could be covered by the Clean Water Act (CWA).

The adverse decisions for the administration have given Democratic state attorneys general (AGs) cause to tout their record in lawsuits against EPA’s environmental rollbacks, as a coalition of nearly two dozen states just launched suit over the agency’s rule scaling back vehicle greenhouse gas limits.

Most recently, the U.S. Court of Appeals for the 9th Circuit rejected the Justice Department’s (DOJ) request to lift a nationwide injunction on the use of a key CWA permit for pipelines:

9th Circuit Denies Stay Of NWP Ruling Barring New Pipeline Construction
In a major setback for the energy sector and Trump administration, an appellate court has denied an emergency request from the Justice Department (DOJ) and industry to stay a landmark district court ruling that vacated the federal Clean Water Act (CWA) general permit for constructing new oil and gas pipelines.

DOJ and the industry parties “have not demonstrated a sufficient likelihood of success on the merits and probability of irreparable harm to warrant a stay pending appeal,” the court said in a brief May 28 order.

The case, Northern Plains Resource Council, et al. v. Army Corps of Engineers, has drawn national attention due to the broad effects of the lower court’s vacatur of CWA nationwide permit 12 (NWP 12) and the potential for Supreme Court review of whether district courts can issue nationwide injunctions.

The vacatur means pipeline developers can no longer use the streamlined general permit and will instead have to seek CWA coverage under more-cumbersome individual permits.

Speaking of the water law, environmental groups are trying to persuade other courts to apply the high court’s April 23 ruling that some groundwater discharges might need a permit:

Environmentalists Seek To Broadly Apply High Court’s Groundwater Ruling
Several federal courts are poised to become test beds for applying the Supreme Court’s recent ruling on when pollutants that travel through groundwater to navigable waters require a Clean Water Act (CWA) discharge permit, with environmentalists seeking to reverse recent rulings contrary to the high court’s precedent or apply it to new situations.

The ruling in County of Maui v. Hawaii Wildlife Fund, et al. created a new “functional equivalent” test for determining, on a case-by-case basis, when CWA permits are necessary for pollutants that travel through groundwater.

The Supreme Court remanded Maui to the 9th Circuit and, in a separate decision, remanded another case regarding releases from a pipeline, Kinder Morgan Energy Partners, L.P., et al.v. Upstate Forever, et al., to the 4th Circuit.

While the two appeals courts have yet to apply the test to either of their two suits, environmentalists are making the case to other appellate and district courts that the ruling supports their arguments in cases involving wastewater discharges, coal ash ponds and an EPA enforcement agreement involving a steel plant.

For example, in Conservation Law Foundation (CLF) v. Longwood Venues & Destinations, Inc., et al., the parties are now seeking to settle a suit over sewage discharges via groundwater after a district court initially ruled in the defendants’ favor.

CLF initially charged that the seasonal resort complex on Cape Cod needed a permit because it is operating a sewage treatment and disposal system that discharges several chemicals -- primarily nitrogen -- into groundwater via leach pits, and from there into Wychmere Harbor.

Back West, the 9th Circuit gave local governments another victory in a series of climate nuisance lawsuits seeking to force the oil sector to pay for damages due to its role in causing climate change:

In Another Win For Cities, 9th Circuit Routes Climate Suits To State Court
The U.S. Court of Appeals for the 9th Circuit is handing city and county governments another victory in their series of climate nuisance lawsuits against oil majors, finding that two cases seeking damages from the companies belong in California state court where the local governments first filed them.

The twin May 26 rulings continue a string of defeats for the oil sector’s push to remove the lawsuits to federal court, which it sees as a more favorable venue. One of the 9th Circuit’s rulings vacated industry’s win in a district court, leaving it with just one favorable district court decision, though that has been appealed by New York City.

“Wow. Looks like a clean sweep for the good guys,” says attorney David Bookbinder of the Niskanen Center, who is representing Boulder, CO, in similar litigation. “The court of appeals can only review the question of whether there was ‘federal officer’ jurisdiction, and as to that, there isn’t.”

The two decisions track a March 6 holding by the 4th Circuit that a climate nuisance case brought by Baltimore belongs in state court. Depending on what happens in the other pending appellate cases over similar venue disputes, the new rulings also may complicate industry’s effort to bring the issue to the Supreme Court, since there is no circuit split to resolve. Even so, industry is seeking to appeal the Baltimore case on another issue: the scope of issues that appeals court can consider in removal cases.

DOJ had participated in February oral argument on behalf of the industry, with attorney Jonathan Brightbill saying there is a “significant federal interest in having the federal government . . . set and continue to set national policy in this country relating to the complex questions related to greenhouse gas emissions and climate change.”

The recent court decisions come as Democratic AGs are more broadly touting their litigation record in challenging the Trump administration’s climate and environmental rollbacks:

Democratic AGs Tout Court Wins Against EPA Rollbacks
Democratic state attorneys general (AGs) are touting their record in challenging Trump EPA rule rollbacks in court, arguing they are blocking some of the administration’s most aggressive attempts to scale back climate and environmental protections.

“We're winning, and we are winning at a much better clip than Republican AGs ever did under President Obama,” argues California AG Xavier Becerra (D), recently told E&E News.

The outlet cited data compiled by Marquette University political science professor Paul Nolette showing that Democrats’ multi-state lawsuits against the Trump administration have an 80 percent win rate. That compares to Republican AGs who won about 60 percent of their cases against the Obama administration.

Most recently, California and 22 other states -- along with several municipalities -- on May 27 launched a suit in the D.C. Circuit over EPA and the Transportation Department’s joint rollback of Obama-era vehicle GHG and fuel economy standards:

States, Allies Launch Legal Fight Against Trump’s Vehicle GHG Rollback
Almost two dozen states and a coalition of environmental groups are filing separate litigation against the Trump administration’s final rollback of vehicle greenhouse gas standards, charging it violates statutory responsibilities and is riddled with analytical flaws undercutting the administration’s justifications for its plan.

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