The US president is confident of winning a new round of legal battles. Leslie Hook of the Financial Times reports.
The Trump administration has been hit with an environmental lawsuit, on average, once every five days since taking power in January 2017. Almost every time President Donald Trump has tried to implement his environmental agenda — centred on boosting fossil fuels and cutting regulations — lawsuits have followed. In recent months, efforts to open offshore drilling, launch the Keystone XL pipeline or support coal mining have all been thwarted by legal challenges.
"We sued the Obama administration, we sued the Clinton administration, we sued Bush Two, Bush One . . . But not once every 11 days," says Mitchell Bernard, chief counsel at the Natural Resources Defense Council, a non-profit group whose lawyers have filed more than 80 legal actions against the administration. He adds that environmental litigation in the Trump era is "different both in degree and kind" from anything he has ever seen.
These legal battles are about to intensify. The government's new clean car standards, expected to be issued in coming weeks, are poised to trigger a long legal fight between the federal government and at least 18 US states, led by California. Lawyers and state attorneys-general are already drafting complaints, and the car industry is bracing for years of uncertainty.
The pattern was set early in Trump's presidential campaign when he took aim at the Environmental Protection Agency, vowing to "get rid of it in almost every form" and promising to cut many Obama-era rules. The EPA is now run by Andrew Wheeler, a former coal industry lobbyist, and both staff levels and enforcement actions against polluters have declined. Trump also plans to withdraw the US from the Paris climate accord, and US carbon dioxide emissions have started rising — reversing a three-year decline.
Yet in court the administration has lost most of the environmental cases it has faced. It has been defeated in more than 90 per cent of the 41 legal actions related to regulatory rollbacks, in which a final outcome was reached, according to a database at the Institute for Policy Integrity at the NYU School of Law. Since Trump took office more than 150 lawsuits relating to climate and environmental protections have been filed against the federal government, according to a database maintained by the Columbia Law School.
"Trump's deregulatory climate agenda has made a lot of noise . . . but it hasn't actually accomplished much," says Ted Halstead, head of the Climate Leadership Council, a Washington-based non-profit organisation. "Most of these actions are either tied up in courts, or in public comment periods."
The effects of this battle extend beyond the arcane world of environmental regulation. US industries, from carmakers to chemical companies and oil and gas groups, will have their futures shaped by the cases playing out across the country. Although Trump's justification for many of the environmental changes is a pro-business agenda, many companies find themselves caught in the crossfire.
One of the biggest setbacks for the administration came in March when a judge in Alaska struck down its plan to open up offshore drilling in the Arctic and the Atlantic. Last month, the Department of the Interior said it was going back to the drawing board to craft a new plan as a result of the Judgment. Another setback came when courts rejected the administration's efforts to reverse an Obama-era rule that increased the royalties paid by fossil fuel companies on public lands.
The US has a long history of environmental lawsuits. A key part of the enforcement mechanism built into laws, such as the Clean Air Act, is the right of citizens to sue the government if it is not following the law. That right forms the basis for many of the cases filed over the past 28 months.
But lawyers say the current situation is different. "It is actually much worse than we could have imagined" before Trump took office, says Bernard. "[There is an] utter disregard for fact, for science and for the rule of law . . . that is one of the reasons we've been so successful in court, because they've been reckless and sloppy."
Some politicians argue that litigation is now a critical part of environmental protection. "It's really important that the lawyers are blowing these things up one after another," says Sheldon Whitehouse, a Democratic senator and former attorney-general of Rhode Island.
The federal government does not see it that way. Wheeler, who was confirmed as head of the EPA earlier this year, brushes off its legal losses. He says addressing climate change is no longer a top priority for the agency — which has an annual budget of $8bn — compared with issues such as clean drinking water.
"We haven't really had a major litigation defeat under our administration as far as our big regulations [are concerned]," he says, adding that many of the early defeats were related to delays in implementing environmental rules. "I try to make sure that all of our regulations will be upheld by the courts. We are supposed to put forward regulations that follow the law, and that is what we are doing under my leadership."
Some campaigners see Wheeler as a tougher opponent than his predecessor, Scott Pruitt, a flamboyant Oklahoman who was entangled in a series of ethics scandals. Under Pruitt, the EPA made a lot of procedural errors — providing some easy, early wins for the environmental groups in court.
"Things are getting more difficult as we get deeper into the Trump administration," says Kieran Suckling, executive director of the Centre for Biological Diversity. He points to the new leadership at the EPA as well as at the interior department, where David Bernhardt, a former oil lobbyist, has replaced Ryan Zinke.
"As ideologues like Pruitt and Zinke have been pushed out, they have been replaced with industry insiders like Wheeler and Bernhardt, who understand the minutiae of how to move the levers of power in government," he adds.
The legal battles are about to get tougher. And it is not just because of the new leadership. They revolve around the two centrepieces of Trump's energy and climate policy: his replacement for the Clean Power Plan, which governs emissions from the power sector, and a redrawing of vehicle emission standards. Neither has entered litigation primetime yet, because final versions of the policies have yet to be published.
"These are far more complex legal cases," says Vickie Patton, general counsel at the Environmental Defense Fund, a non-profit organisation. "We anticipate that the Trump administration will really try to intensify its unravelling of climate and health protections, between now and the end of the president's term," adds Patton, who was previously a lawyer at the EPA.
"It [the replacement for the Clean Power Plan] is going to be a complete mockery of the EPA's responsibilities," she says. "There will be massive litigation, to protect human health and to carry out the law."
Although completed in 2015 the Clean Power Plan was never implemented because of legal challenges. Wheeler says its replacement, the Affordable Clean Energy rule, would boost investment in the technologies needed to make coal fired power plants run with lower emissions.
"I'm accused of rolling back environment protections — I completely disagree with that characterisation," Wheeler says. "We did not roll back the Clean Power Plan," he adds, pointing out that it was already stuck in court when Trump ordered the agency to review it.
The other crucial legal battle will be over vehicle emissions, which will shape the US car industry for years to come. The most recent draft of the new rule shows it would weaken fuel economy requirements and CO2 standards for cars built between 2021 and 2026, which would allow more polluting vehicles to be sold than under existing regulations.
At least 18 US states are preparing joint legal action over the anticipated weakening of the rules. California, which has historically had the right to set its own vehicle emissions standards, is leading the way. Xavier Becerra, the California attorney-general, called the new rules "a brazen and unlawful attack" on clean car standards, and vowed that California will use "every legal tool at its disposal" to defend the existing standards.
For decades, the federal government has followed the California standards, so that there is one set of rules for the whole country. But now, carmakers are worried that the US market could be split in half, with some states following the federal standards, and at least a dozen others — a third of the US auto market — sticking with the tougher Californian model.
Last year, the attorneys-general from 21 states urged the Trump administration not to weaken the car emission rules. Environmental lawyers have already drafted their complaints, so that they can file the lawsuits as soon as the final rules are published by the EPA and the Department of Transportation. The carmakers, however, are desperate to avoid the prospect of a divided market.
"When a state attorney-general files a suit . . . against a federal agency, the weight that carries is stunning," says David Hayes, a former deputy secretary in the Obama-era interior department. "Everyone expects the environmental groups to sue." States have special legal standing, because they can sue the federal government for actions that harm the health of their citizens.
Hayes, who heads the State Energy and Environmental Impact Center at the NYU School of Law, says the states will play a crucial role in future legal battles. "It is not something the attorneys-general asked for, it is very much a reaction to an extraordinary agenda that is seeking to undo protections across the environment and clean energy spectrum," he says.
The effects of all this deregulation, and litigation, have been decidedly mixed for US business, whose interests Trump says he wants to support. The clean car lawsuits are expected to last for years and manufacturers — with long production lead times — will have to grapple with the uncertainty over what the final standards will look like.
When the draft of Trump's new clean car rules was opened for comment last year, not a single carmaker made a statement of unqualified support. Indeed Honda wrote that the draft plan "invites litigation and regulatory uncertainty, stalls long-term strategic industry planning, [and] puts at risk American global competitiveness".
A patchwork approach does not serve businesses well, says Halstead of the Climate Leadership Council. He points to the Clean Power Plan, which has not yet been replaced. "This is actually the worst of all worlds for businesses, because they don't have any regulatory certainty at the federal level, and the lack of climate progress at the federal level is causing a huge amount of state-level activity."
One unintended byproduct of Trump's deregulation zeal is that it has provided a huge boost for environmental non-profit organisations. They have hired more staff, raised their profile and increased fundraising. "In a way, for me, the last two years have been fantastic," says the NRDC's Bernard. "We don't have as much economic and political power, and so the courts are our refuge, our protection."
The number of lawyers employed by the NRDC and other non-profit groups has soared. "We've had to expand," Bernard explains. "Trump is a great fundraiser [for us], because he is a very defined and vivid enemy, and people respond to that."
"Business is booming," he adds.
- Additional reporting by Kiran Stacey in Washington
Written by: Leslie Hook
© Financial Times