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Biden Environment Agenda Spurs Early Pivots, Attacks in Court

April 20, 2021, 8:48 AM

The Biden administration has begun recasting environmental litigation as it reviews the government’s position in existing cases and adopts new policies already under attack by Republicans.

Lawyers in the Justice Department and other agencies have assessed hundreds of pending cases and pressed pause on as many as possible—focusing on strategic delays rather than dramatic changes in position.

“So, what we’re seeing is the government come in saying, ‘We want to take back this rule’ or ‘We need more time because we’re going to rethink it,’” University of Denver law professor Wyatt Sassman said. “And all they’re doing is moving back to the center line.”

The legal maneuvering as President Joe Biden approaches his first 100 days in office allows his appointees to implement their own policies for pollution reduction, climate change, environmental justice, public lands management, and other priorities. Advocates hoping for a total repudiation of Trump-era positions have already faced disappointment in some cases.

More sweeping legal and policy changes are expected as agencies implement the Biden agenda, and early lawsuits preview the broad conflict to come.

Pivoting in Court

The Biden administration has mostly been successful in its requests for courts to pause cases while new officials revisit underlying policies, said Beveridge & Diamond PC attorney John Cruden, head of the Justice Department’s environment division in the Obama administration. Courts have paused litigation over Trump-era water regulations and clean car standards, among others.

A few exceptions exist: A court in Virginia declined to pause litigation over changes to National Environmental Policy Act regulations, and a court in Colorado rejected an abeyance request and issued a decision in a case involving the Trump-era Navigable Waters Protection Rule.

The Biden administration has harnessed the legal system to eliminate a few Trump-era rules, saving agencies the trouble of a drawn-out administrative process. Courts have granted requests to vacate contested standards for methane emissions from landfills, a regulation that constrained federal authority over greenhouse gas emissions, and a rule that limited the type of science the EPA could use to craft regulations.

Still, the new administration will maintain Trump-era approaches in some cases. In one high-profile example criticized by Indigenous and environmental advocates, the Biden administration announced in court April 9 that it wouldn’t shut down the Dakota Access oil pipeline or withdraw the government’s Trump-era defense of the project. It’s also backing the PennEast natural gas pipeline in an upcoming U.S. Supreme Court fight.

‘Sign of What’s to Come’

Industry groups and Republican-led states have launched early challenges in what’s expected to be an aggressive legal campaign against the Biden agenda on climate, environmental justice, and other issues.

The oil and gas industry sued Biden a week after he took office for pausing leasing on public lands. State attorneys general soon followed, lobbing additional lawsuits over the leasing moratorium, the cancellation of a permit for the Keystone XL oil pipeline, and the White House’s new approach for calculating greenhouse gas impacts.

In one unique suit, Biden’s critics are trying use federal environmental law against him. Arizona says the government didn’t assess impacts under the National Environmental Policy Act before sidelining the Trump administration’s U.S.-Mexico border wall plans and other immigration policies.

“There’s going to be a lot of high-profile cases under the Biden administration,” Hanson Bridgett attorney Niran S. Somasundaram said. “We’re not seeing the full brunt of that within 100 days, but I think we are seeing the tenor of what those challenges are going to be.”

Many of the biggest legal questions that plagued the Obama administration largely went unresolved during the Trump years, setting up another round of conflict for Biden. Among those: What’s the proper scope of the Clean Water Act, what are the limits of presidential authority to create national monuments, and how can the EPA wield its regulatory tools against climate change?

Many of those ultimately may land before the more than 200 judges Trump appointed to the federal bench, including three members of the Supreme Court.

Staffing Up

The White House has only just begun appointing the top environmental lawyers charged with bulletproofing the president’s agenda and defending it in court.

Biden selected former Washington, D.C., Solicitor General Todd Kim as assistant attorney general atop the Justice Department’s Environment and Natural Resources Division, and he faced little resistance at his April 14 confirmation hearing. If confirmed, he’ll oversee the defense of the administration’s policies in court and the enforcement of environmental statutes.

American Indian law scholar Robert Anderson is Biden’s pick to be the Interior Department’s top lawyer, where he’ll help craft the agency’s legal justification for policies affecting oil and gas development, Indigenous rights, public lands, and other issues. Biden hasn’t announced nominees for two other key roles: EPA general counsel and EPA enforcement chief.

Political appointees at the Department of Agriculture, which includes the Forest Service, and the Department of Commerce, which includes the National Oceanic and Atmospheric Administration, also will play important roles in upcoming environmental law fights, as will career lawyers across the government.

Together, Biden’s environmental lawyers will be tasked with ensuring solid administrative records that are “critical to the defense” of the new administration’s regulatory moves, said Holland & Hart LLP attorney Kelly Johnson, a DOJ official during the George W. Bush administration. Many of the president’s nominees have “first hand experience in knowing how an administrative record can make, or break, the defense of a rule,” she said.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editor responsible for this story: Seth Stern at sstern@bloomberglaw.com

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