Environmental Litigation Strategies and Defenses for Trump Era

Environmental litigation groups like the Sierra Club, Natural Resources Defense Council, and the Center for Biological Diversity will pursue three types of lawsuits over the next four years (at least).

Green Group Litigation Strategy #1: They will challenge all of President Trump’s discretionary rollbacks and revisions of Obama-era rules, including the Clean Power Plan, Carbon Pollution Standards, Waters of the U.S. Rule, interim update of tailpipe greenhouse gas standards, Regional Haze, startup/shutdown/malfunction policy, stream buffer zone rule, New Source Performance Standards for the oil & gas industry, and the National Ambient Air Quality Standards (NAAQS) implementation guidance. The greens will allege that revisions or rescissions of these rules are an unreasonable about-face. In so doing, they will portray the Obama-era rules as being indispensable to public health. 

Recommended defense: #1: Almost anything one administration can do unilaterally, a subsequent administration can alter or undo, and courts accept that changes in presidential policy priorities and legal interpretations are valid bases for such actions. The upshot is that green groups will face an uphill battle in litigating these challenges to Trump-era rollbacks of Obama-era excesses (some of which, by the way, were written by litigious greens). As long as the agency jumps through all the right procedural hoops and explains itself reasonably, courts are likely to uphold its actions in the face of suits brought by environmental groups.

Green Group Litigation Strategy #2: They will sue to force agencies to perform allegedly nondiscretionary duties. Below, I’ve listed three likely such suits, along with recommended defenses:

1. Existing Source Performance Standards: Assuming for the sake of argument that the endangerment finding remains in place, then there is arguably a non-date-certain duty for the agency to promulgate existing source performance standards for greenhouse gases for all categories of emitters subject to the New Source Performance Standards, as I explain here. As such, the greens are likely to petition the Environmental Protection Agency to start a rulemaking for greenhouse gases from existing sources within each of the 60 categories already subject to a New Source Performance Standard.

Recommended defense #2a: For starters, the agency can use administrative means to do nothing for many years. To this end, an agency could take notice and comment on the rulemaking petition. This could drag on for years. Then, assuming it decided there was indeed a non-discretionary duty to regulate, the agency could issue an advanced notice of rulemaking, and take comment on that. Then it would circulate its advanced notice for interagency review. Then it could issue a proposal, and take comment on that. Finally, the agency could issue a decision that determines that existing source controls pursuant to other regulatory regimes are sufficient to meet the existing source performance standard. That is, agency officials could go through a multi-year song and dance, only to promulgate a rule that does nothing.

Second, the agency could decline the rulemaking petition based on the argument that the Clean Air Act prohibits regulating a category under section 111 (which is the provision for an existing source performance standards) that is already subject to regulation under section 112. I explain this argument here; suffice it to say, if the prohibition applies, then EPA would be effectively forbidden from regulating greenhouse gases under the existing source performance standards. Currently, the question of whether or not the prohibition applies is before the D.C. Circuit en banc, in the litigation over the Clean Power Plan. However, it is uncertain whether the court will reach the question because it is likely that the incoming Trump administration would seek a voluntary remand.

Third, the agency could decline the rulemaking petition based on the argument that setting an existing source performance standard for greenhouse gases from stationary sources is a non-date-certain duty, so it must wait until the agency is up to speed with its date-certain duties. Concomitantly, the agency would propose a plan to meet its date-certain duties, as I’ve long recommended.

Finally, if the agency accepts the rulemaking petition and then promulgates a rule that does nothing, the deck would be stacked in the administration’s favor, for the reasons set forth above: i.e., it is very difficult to demonstrate that the administration acted unreasonably.

2. Nationwide Greenhouse Gas Regulation under Clean Air §115: Again assuming for the sake of argument that the endangerment finding remains in place, then arguably there is a duty for the EPA to set nationwide standards for greenhouse gases under Clean Air Act §115 as a result of the U.S.’s participation in the United Nations Framework Convention on Climate Change. Indeed, such a petition for rulemaking already has been filed. And it describes the legal basis for the request.

Recommended defense #2b: The agency could stall, as described above.

Second, the alleged nondiscretionary duty is non-date-certain, so the agency could refuse to regulate because it is giving priority to date-certain duties, as described above.

Third, the petition could become moot, were President Trump to withdraw the U.S. from the UNFCCC.

Finally, the agency could deny the petition for rulemaking based on the argument that it is inconceivable the Congress intended to empower EPA to regulate the entire economy based on a provision of the Clean Air Act no one has ever heard of before. I’m of course paraphrasing here, but that would be the gist of it. This is the same argument they’d take to court.

3. Greenhouse Gas NAAQS: The Center for Biological Diversity and 350.org already have filed a petition for rulemaking requesting EPA to regulate greenhouse gases under the National Ambient Air Quality program of the Clean Air Act. There is a caveat, however. Even green groups admit that regulating greenhouse gases under the National Ambient Air Quality program would preclude regulation under the existing source performance standards program, which I described above. The upshot is that environmentalists likely would pursue this option only if a court accepts that the Clean Air Act largely forbids existing source performance standards for greenhouse gases.

Recommended defense #2c: As I explain here, subjecting greenhouse gases to the NAAQS program would be a disaster. Such a regulation would require de-industrialization, and that’s no hyperbole, alas. For this reason, it can be inferred that Congress would never have intended for such a result. Supreme Court dicta in UARG v. EPA seemingly confirms this common-sense argument.

Green Group Litigation Strategy #3: The third legal line of attack that greens will pursue entail state torts. In practice, this means representing groups of children seeking injunctive relief and even damages from greenhouse gas emitters based on state common law claims.

Recommended defense #3: The obvious defense (for defendants and the Department of Justice in the role of intervenor) is to argue that the federal government preempts states on climate change policy. For reasons I explain here, such an argument is bolstered if the EPA retains a shell of greenhouse gas regulations.

Of course, there will be other suits. For example, greens will continue to sue over missed deadlines. Also, there are constitutional due process claims for climate action pending in federal courts. Finally, a great deal will depend on what the incoming administration does. To wit, note how many of the allegedly non-discretionary duties described above were based on a finding that greenhouse gases endanger public health and welfare. It is possible that the Trump EPA would try to overturn the endangerment finding. While I of course would prefer such an outcome ceteris paribus, I’m unconvinced by the wisdom of this course of action. For starters, I strongly doubt it would survive judicial review; also, I think it would make state climate torts much more likely. Nonetheless, were the administration to successfully pursue a rescission of the endangerment finding, it would remove the bases for virtually of all the lawsuits described above in “Green Litigation Strategy #2.”