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Biden Era Brings Legal Disappointments for Environmental Groups

June 1, 2021, 9:30 AM

Environmental advocates hoping for a complete reversal of Trump-era legal positions have faced a series of disappointments in the first months of the Biden administration—generating some early tension between the president and green groups.

Government lawyers have opposed efforts to shut down the Dakota Access pipeline, supported a massive oil project in the Arctic, and preserved an environmental review rule despised by activists.

It’s common for a new administration to defend many of its predecessor’s actions in court—either for institutional reasons inside the executive branch or simply because a previous policy isn’t controversial enough to merit a change in position.

But several recent defenses of Trump-era decisions stand out as President Joe Biden launches ambitious environmental plans and erases other parts of the last administration’s legacy. The contrast has left many environmentalists confused and angry.

“It’s worse when your friends disappoint you,” Vermont Law School professor Patrick Parenteau said.

‘Really Baffled’

That dynamic was on display last month when the Justice Department and conservation groups squared off over a Trump-era policy that allowed oil and gas leasing in sage grouse territory in the West.

The Interior Department under Biden has paused new leasing across public lands but nevertheless appeared in the U.S. Court of Appeals for the Ninth Circuit to fight to restore tracts in the rare grouse’s habitat.

“We were really baffled by DOJ’s position defending these illegally issued Trump-era leases,” Earthjustice lawyer Mike Freeman, who argued against the government that day, said in an interview. “The arguments went directly against the environmental goals that President Biden ran on.”

Southern Environmental Law Center lawyer Kym Hunter had a similar experience in April when government lawyers pushed a court to leave intact a Trump-era rule designed to streamline reviews under the National Environmental Policy Act—and argued that the NEPA rule didn’t harm environmental groups anyway.

“That argument is just really at odds with what this administration has been saying about environmental justice and community engagement,” Hunter said.

The latest affront to the environmental community came in a recent brief defending federal approval of a ConocoPhillips Alaska Inc. drilling project in the National Petroleum Reserve-Alaska.

The Biden administration has also disappointed environmentalists by maintaining Trump-era legal positions in favor of the Dakota Access oil pipeline, which just survived a shutdown battle in federal district court, and the PennEast natural gas pipeline, which is the subject of a pending Supreme Court case.

In this video we look at the series of high profile legal setbacks that has some in the industry asking—is it still possible to build pipelines in America?

Norm or Exception?

The government’s choice to maintain the status quo in many environmental cases might anger advocates, but it shouldn’t necessarily surprise them, outside lawyers say.

“It’s fair to be disappointed by all this,” University of Denver law professor Wyatt Sassman said of environmentalists. “It’s a fair, accurate reaction. But it’s not all that unexpected to see the government take this position.”

New administrations actually defend their predecessors’ decisions more often than not, said Matthew Z. Leopold, who was general counsel for the Environmental Protection Agency under Trump.

“We all talk about the cases that are the exceptions,” he said.

The Trump administration, for example, fended off a legal attack on a marine monument President Barack Obama designated, maintained Obama-era arguments related to jurisdiction for Clean Water Act litigation, and defended ozone limits set during the previous administration.

Outside advocates always pressure new administrations to quickly reverse litigation positions, said Baker Botts LLP lawyer Jeffrey Wood, acting head of DOJ’s environment division for the first half of the Trump administration. “But for a variety of policy and legal reasons, those kinds of changes tend to be few and far between in the near term,” he said.

Confessing Error

DOJ’s steady course in litigation sometimes is just a matter of timing: Officials in charge of reviewing their predecessors’ decisions at the EPA, Interior, and other agencies either aren’t in place yet or haven’t reached a particular issue.

“There’s virtually no way for the political appointees to get up to speed on every case,” said Leopold, now at Hunton Andrews Kurth LLP. “Discussions around a change in position tend to come down only in the biggest policy issues.”

The Justice Department also weighs broader federal interests at play in litigation—sometimes leading the government to argue in favor of a prior administration’s policy in order to protect executive authority more broadly.

DOJ can confess legal error to change course in a case, but it does so sparingly—reluctant to make moves that could undermine its credibility in the courtroom, former agency lawyers say.

“When the United States takes a position in court and the Department of Justice puts its name behind it, they very much care about representing to the court that is a lawful and defensible position that one of the agencies has taken,” said Leopold, a DOJ lawyer earlier in his career. “They cannot lightly say that the law didn’t support the position that they had taken previously.”

Courts sometimes reject the maneuver, anyway. When DOJ lawyers in 2009 tried to back away from an industry-favored Bush-era rule for pollution from coal mines by confessing error, a federal judge in Washington slammed the government for attempting to “bypass established statutory procedures for repealing an agency rule.”

Still, some advocates are pushing the Biden administration for a bolder approach. Courts are likely to be more accepting of flip-flopped arguments after the Trump administration staked out many positions that were considered extreme, Vermont Law School’s Parenteau said.

“It’s totally unprecedented territory with what Trump did,” Parenteau said. “There could have been earlier changes in administration where there wasn’t maybe the urgency of a need to quickly reverse what the prior administration had done, but this is really unusual.”

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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