Environmental Assault Met with Immediate Legal Challenges
by Natasha Geiling –
After failing to pass the Republican alternative to the Affordable Care Act last week, the Trump administration looked to get its agenda back on track on Tuesday, releasing a long-awaited executive order that directs federal agencies to begin dismantling the domestic and international climate policies of the Obama administration.
While the order itself represents a dramatic reversal in U.S. climate policy, the fight to implement its directives has just begun. Environmental groups responded almost immediately, filing a number of legal challenges aimed at slowing — or stopping altogether — Trump’s attempts to roll back climate action.
The first, filed the day after Trump released his executive order, was in response to the Interior Department’s decision to restart the federal coal leasing process without concluding a review of the program begun by the Obama administration. In the lawsuit, a coalition of environmental groups, along with the Northern Cheyenne Tribe, challenged that decision, arguing that it will expose communities to pollution and lock in outdated coal subsidies without studying the program fully. The Northern Cheyenne Tribe also argued that they had not been properly consulted before the agency made its decision.
“Trump has upended a public process intended to stop taxpayer losses on coal mined from our public lands,” Bill Corcoran, western regional campaign director for Sierra Club’s Beyond Coal campaign, said in a statement. “Trump is embracing a broken system that sells America’s public lands for pennies on the dollar to coal companies that have reaped fat profits ruining our land and water.”
The second lawsuit, filed on Thursday, was in response to the State Department’s decision to grant a presidential permit to TransCanada, allowing it to build the Keystone XL pipeline across the U.S.-Canada border.
The pipeline, long opposed by environmentalists and landowners, was resurrected by Trump in late January when he issued a presidential memorandum directing the State Department to issue a permit within a 60-day time frame. Placing such a tight time constraint on the decision, however, forced the agency to rely on an environmental study from 2014. And a coalition of environmental groups are challenging that decision in court, arguing that relying on an old environmental study is a violation of the National Environmental Policy Act.
“This administration, in its first few months, has shown a willingness to cut corners at every step of the way and ignore the legal requirements,” Doug Hayes, an attorney with the Sierra Club, told ThinkProgress. “In its haste to comply with the 60-day deadline, of course the State Department didn’t have time to meet all of its environmental review obligations. I think that’s a theme we have seen, and not just in the environmental process.”
More legal challenges await the Trump administration as early as next week. On Tuesday, the Department of Justice asked the D.C. circuit court to suspend judgement in the pending lawsuit against the Clean Power Plan, the Obama administration’s signature domestic climate regulation aimed at reducing greenhouse gas emissions from the electricity sector. Twenty-six states had sued to stop the plan, while eighteen states plus the District of Columbia and a handful of cities had intervened to counter the lawsuit. Already, those interveners have stated that they plan to challenge the Department of Justice’s request, arguing that the case is all but decided and that the court’s ruling could provide useful information to the Trump administration in rewriting the rule.
The advocacy group EarthJustice told ThinkProgress that they would likely challenge the EPA’s recent decision not to ban the use of chlorpyrifos, a widely used insecticide that has been linked to human health problems. That decision goes against the EPA’s own scientific recommendations, and goes against previous steps taken by the Obama administration. The chemical industry, including Dow Chemical, had written to the EPA to oppose banning the insecticide.
“The EPA is not allowed to keep this pesticide on the market if it is unable to find that it is safe, so we will ask the court to require the EPA to make a final safety determination and ban the pesticide if it cannot make that safety finding,” Goldman said.
NRDC also announced on Thursday that it would challenge the EPA’s decision on chlorpyrifos in court.
“While agencies always have the right to review and potentially change their previous decisions, they have to follow both the procedural law and the substantive law,” David Doniger, senior attorney for Natural Resources Defense Council’s climate and clean air program, told ThinkProgress. “You’ve got to tear the building down the same way the building was built up.”
That process applies to all finalized regulations, including the Clean Power Plan, which was finalized in 2015 but has been under a stay issued by the Supreme Court while pending litigation made its way through the courts. In order to rework the rule, the EPA will have to go through a protracted rule-making process that will include a public comment period and require the administration to defend any changes to the rule as neither politically-motivated nor capricious.
A senior Trump administration official conceded on a press call Monday night, before the executive order was issued, that the process to rescind and rework the rule would likely take years and would almost certainly face legal challenges from environmental groups.
“None of this is going to be fun or easy, but I’m confident that they have a harder job justifying what they are trying to do, and we will hold them to account,” Doniger said.
Amid legal challenges from environmental groups, a key member of Trump’s administration is also facing an investigation into whether or not he mislead Senators during his confirmation hearing. On Thursday, the Oklahoma Bar Association announced that it had opened an inquiry into EPA Administrator Scott Pruitt’s use of a personal email account during his time as Oklahoma attorney general. In his confirmation hearing, Pruitt testified that he had only used his work email for official business— but emails released under open records litigation revealed that he had used his personal email for work purposes.
“I’m very pleased the Oklahoma Bar Association has agreed to investigate this matter,” Amy Atwood, a senior attorney at the Center for Biological Diversity, which filed a formal ethics complaint with the Oklahoma Bar Association earlier this month, said in a statement. “Lying to Congress is a serious ethical breach, and it doesn’t help that Pruitt’s use of private emails reflect potential collusion with the very oil and gas industry he’s now supposed to be regulating.”
The flurry of legal activity may die down as various federal agencies begin the rule-making process in earnest, unless they attempt to circumvent the Administrative Procedure Act, which stipulates that rewritten regulations have to go through the same formal rule-making process as normal regulations. If they stay within the bounds of ordinary rule-making, however, environmental groups will not have an opportunity to challenge the rules until they are finalized.
Still, NRDC’s Doniger expressed some shock that Trump would choose to follow up the failure of the Republican health care bill in Congress by acting to quickly undo environmental protections — protections that polls show an overwhelming majority of Americans support.
“These policies he is pursuing are deeply unpopular,” Doniger said. “Is it such a great idea to address your sagging popularity by attacking clean air and the environment?”