U.S. courts are set to take up critical environmental law issues in 2020, with pipeline approvals, wildlife protections, and climate change all on the docket for the new year.
Judges will weigh the Trump administration’s deregulatory efforts, the impacts of the president’s promised border wall, and just how far states can go to address climate change.
Leading the legal battles are lawyers from private practice, environmental organizations, local governments, and the Justice Department. Here are some of the players in environmental law in 2020.
Siobhan Cole, Shaking Up Energy Law
White and Williams LLP attorney Siobhan Cole, a newcomer to energy law, is handling one of the biggest energy issues on the docket for 2020.
The U.S. Court of Appeals for the District of Columbia Circuit is taking up an issue that has long vexed opponents of natural gas pipelines: procedural tools called “tolling orders” that can leave affected landowners and environmentalists in regulatory limbo at the Federal Energy Regulatory Commission while construction on a project goes forward.
Cole represents Pennsylvania landowners who live along the route of the Atlantic Sunrise pipeline, run by Transcontinental Gas Pipe Line Co. LLC. The D.C. Circuit will review the landowners’ case and their arguments against tolling orders in March in a rare rehearing before the full slate of active judges.
Energy lawyers across the country say the case could shake up how FERC does business. Cole, a Philadelphia-based commercial litigator, hadn’t worked on energy law before filing the lawsuit in 2017.
Cole said it was nerve-wracking going up against experienced government and industry lawyers during the case’s first go-around at the D.C. Circuit.
“This is what they’ve spent their whole practice doing,” she said.
“Now, at this point,” she continued, “I really do feel like the issues are clear in terms of what should happen, what is happening, what we think should be changed, and how it should work in the future. I feel a lot more comfortable now.”
Scott A. Keller, Speaking for Industry
Former Texas Solicitor General Scott A. Keller spent years opposing President Barack Obama’s regulations in court. Now he’s in private practice, defending the Trump administration’s efforts to dismantle Obama’s environmental legacy.
Keller left his gig as the Lone Star State’s top litigator in 2018 to lead the Supreme Court and constitutional practice at Baker Botts LLP and already has a few high-profile environmental cases on his plate.
He represents the Chamber of Commerce in litigation over the Affordable Clean Energy rule, the Trump administration’s industry-friendly answer to the 2015 Clean Power Plan. That’s a familiar topic for Keller, who litigated against the Obama-era regulation for years on Texas’ behalf.
“In some aspects it’s getting reacquainted with the legal arguments from the first time around, but knowing that that’s not the end of the case, or all that the case is about,” he said.
He’s also helping a cadre of business groups defend recent updates to Endangered Species Act regulations.
“From the industry perspective, this is about needed clarity,” Keller said. “It’s about transparency and predictability that would serve not only industry but all regulated parties very well.”
Raul Garcia, Helping ‘Big Green’ Branch Out
Earthjustice attorney Raul Garcia has ambitious plans for 2020: helping the environmental community break out of silos to focus on “the needs and the realities that people are feeling on the ground.”
That means more diverse coalitions and clients for the powerhouse environmental law firm.
Garcia serves as Earthjustice’s legislative director for healthy communities, a role he took on in June with plans to prioritize broader outreach. The focus, he said, is “that we’re integrating voices that for a long time have been ignored in Washington, D.C.”
Earthjustice’s border work is one example. The group went to court to challenge President Donald Trump’s funding for the wall, representing Texas landowners, the Carrizo/Comecrudo Tribe of Texas, environmental researchers, Latino advocacy groups, and others.
Garcia and his team are also working on an initiative to fight the expansion of petrochemical facilities across the country—an issue expected to dominate his work portfolio in 2020. The work requires significant investment in working with affected communities, something “big green” organizations have sometimes taken for granted, said Garcia, a former immigration lawyer who joined Earthjustice in 2014.
“The results speak for themselves,” he said. “They have seen that this all-encompassing method with diverse tools and diverse clients and diverse partners works, and it works better than business as usual.”
Suzanne Sangree, Fighting for Baltimore’s Future
As director of affirmative litigation for the city of Baltimore, Suzanne Sangree is working on issues with implications that stretch far beyond the Maryland metropolis.
Sangree is helping Baltimore navigate a closely watched climate liability case that seeks to hold the fossil fuel industry accountable for its contribution to climate change. It’s one of many similar cases municipalities have filed in the past couple years.
‘What’s at stake, really, is how Baltimore survives into the new climate, the disintegrating climate,” she said, noting increased flooding and other damages in the city.
The U.S. Court of Appeals for the Fourth Circuit is currently weighing whether the issue belongs in state or federal court. At the same time, the underlying lawsuit is starting to move forward in the Circuit Court of Maryland, where discovery could begin in 2020.
The case is stressful work, Sangree added, “but right at the moment, I’m feeling very energized by it.”
Paul E. Salamanca, Representing the Administration
Justice Department attorney Paul E. Salamanca left academia behind in 2019 to join the Trump administration’s top environmental litigation team.
The former University of Kentucky constitutional law professor is now senior counsel in the Justice Department’s Environment and Natural Resources Division, flexing his scholarly acumen and learning new skills along the way.
“I know a lot of people who teach never want to see the inside of a courtroom again,” Salamanca said, “but I’m not like that.”
Salamanca is representing the U.S. in high-profile litigation that challenges the constitutionality of California’s climate pact with Quebec, and he’s involved in regulatory reform projects and the legal defense of various Trump administration actions.
Unlike many academics, Salamanca frequently worked on litigation alongside his classroom work. But he’s new to environmental law issues, and said he’s learning on the job at the Justice Department.
“I’m working with a lot of very smart people, and it’s gratifying to do that,” he said.
Kit Kennedy, Playing Watchdog on Energy Efficiency
Natural Resources Defense Council attorney Kit Kennedy is spending 2020 pushing back on the Trump administration’s efforts to unwind requirements for lights and appliances to work more efficiently.
Kennedy is senior director of NRDC’s climate and clean energy program, leading the group’s litigation against the Energy Department for its September rollback of lightbulb efficiency standards, among other initiatives.
“That will be a major battle next year,” she said.
NRDC has filed more than 100 cases against the Trump administration, with more on the horizon. On Dec. 20, the Energy Department took further action to loosen lighting efficiency standards, eliminating a planned phaseout of traditional incandescent bulbs. Plus, it’s working on an update to procedures that affect how the agency sets efficiency rules.
Kennedy says the move will “undercut and undermine” energy efficiency improvements and could spark more litigation.
“NRDC with many other partners is fighting every rollback tooth and nail using all the tools that we have available to us,” she said.