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Trump Leaves Unfinished Business in Environmental Litigation

Nov. 7, 2020, 6:22 PM

Major environmental litigation is set for an abrupt shift after President-elect Joe Biden steps into the White House, as the Trump administration leaves behind a trail of unanswered legal questions.

In four years, President Donald Trump and his appointees in the Environmental Protection Agency, Interior Department, and other agencies made dramatic regulatory changes that sparked an ongoing series of legal battles. Biden’s team is expected to reverse course on big-ticket items, stopping many of those lawsuits in their tracks.

“We could see a repeat of what happened in 2016 to 2017, except the mirror opposite,” Crowell & Moring LLP attorney Thomas A. Lorenzen said, referring to the last presidential transition, when federal courts shelved several critical legal debates after former President Barack Obama left office.

With only one term, the Trump administration hasn’t been able to work through the full litigation process for its biggest environmental policies and rollbacks—including weakening Obama-era climate regulations and shrinking national monuments.

Judges will keep some of those cases on track after Biden takes office if they involve continuing legal debates. But as the Biden administration works to unwind underlying Trump-era decisions, much of the related litigation will come to a halt and go unresolved.

Climate Moves

EPA regulations focused on climate change have sparked the most contentious environmental law showdowns in recent years—and they’re not over yet.

When Obama left office in January 2017, the U.S. Court of Appeals for the District of Columbia Circuit was weighing whether the EPA had overstepped in issuing the Clean Power Plan, a sweeping program to reduce emissions across the power sector. The court froze the case when Trump took office, and never issued a decision.

The Trump administration’s industry-friendly replacement regulation, the Affordable Clean Energy rule (RIN:2060-AT67), may face the same fate. The D.C. Circuit heard more than eight hours of oral arguments over the new program last month, but isn’t likely to issue a decision before Trump leaves office.

If Biden announces swift plans to reconsider the Trump-era rule, the court could sideline the case, just as it did with the Clean Power Plan litigation. That would leave unanswered the recurring legal question: What types of climate change regulation can the EPA enact under the Clean Air Act?

Barring new climate legislation, the Biden administration’s plan of action will have to be especially mindful of legal challenges designed to appeal to the Supreme Court’s new 6-3 conservative majority.

The new administration is also expected to reinstate tougher vehicle emissions standards and direct limits on methane from the oil and gas industry, reversing Trump-era rollbacks.

That could derail pending cases in the D.C. Circuit, depending on how quickly Biden officials take action—sidelining legal questions brought under the Clean Air Act and the Energy Policy and Conservation Act.

Water Oversight

The extent of federal jurisdiction under the Clean Water Act is another open question for the Biden administration.

Clarity on which wetlands and waterways count as “waters of the U.S.” or WOTUS, subject to federal oversight, has been elusive for years. The Obama and Trump administrations offered clashing views on the subject, and federal courts managed a swell of litigation that created, at times, a checkerboard of regulations in different states.

Trump officials’ narrow definition (RIN:2040–AF75)—which scrapped broader interpretations from the Obama and even Reagan administrations—is facing lawsuits in a half-dozen federal courts. New litigation is guaranteed if Biden officials attempt to revert to the Obama-era rule or craft their own program.

“By the time you go through the rulemakings, one to two years go by, maybe more, and then you go back to court,” said David Buente, a Sidley Austin LLP lawyer who represents industry clients.

Buente and other lawyers say they don’t expect real certainty on the issue until the U.S. Supreme Court takes up the question again. Its last foray into WOTUS issues in 2006 resulted in the infamously fractured decision Rapanos v. United States, which fueled the legal debates happening now.

National Monuments

Trump made one of his biggest public lands decisions during his first year in office, but that wasn’t soon enough to get a federal court’s stamp of approval.

In 2017, the president slashed the size of two contentious swaths of federal lands, responding to complaints from ranchers and industry interests that the Bears Ears and Grand Staircase-Escalante national monuments were examples of federal overreach by the Obama and Clinton administrations. Lawsuits filed in federal district court that year are pending.

But Biden can move quickly to reverse Trump’s move, in which case “it’s quite possible that the cases are just sort of done because you have a new president reinstating Bears Ears and Grand Staircase,” said University of Arizona law professor Justin Pidot, who worked at Interior during the Obama administration.

The underlying legal question—whether the Antiquities Act gives presidents the power to shrink national monuments—would then remain unanswered until a future, presumably Republican, president again attempts to downsize a site.

Environmental Review

A Trump rule aimed at fast-tracking federal environmental studies is also expected to land on the chopping block under Biden, rendering multiple lawsuits moot.

The White House Council on Environmental Quality earlier this year finalized new National Environmental Policy Act regulations (RIN 2040-AF77) for the first time in decades in an effort to make federal reviews faster and narrower, and exempt some federal actions from review altogether.

Environmental groups and states responded with five separate lawsuits, saying the regulatory updates actually conflict with the NEPA statute. But courts likely won’t have time to weigh this argument before Biden takes office in January, and the president-elect is facing steep pressure from environmentalists to reconsider the new rule.

“He’s going to do a wholesale NEPA reform,” said King & Spalding LLP partner Marcella Burke, a former Interior and EPA official under Trump.

Whiplash

Some lawyers are fatigued by the legal and regulatory whiplash, with an even shorter turnaround time than usual thanks to Trump’s one-term presidency.

“Revolving door executive orders—with Obama issuing an order, Trump rescinding it, and Biden going back again—is not how our government should work,” Allen & Overy LLP attorney Ken Rivlin said. “This is not a stable approach to governing. But it may be the only way right now given the times we are in.”

The dynamic has forced additional caution among companies subject to environmental regulation. Some are forgoing available regulatory advantages from certain policies designed to save them money—for fear of reversals by courts or Biden officials.

Lorenzen said many regulated parties will take a pragmatic approach with the new administration, pushing for workable new regulations where they can, rather than suing to return to Trump-era policies.

“You could see some sectors of industry reaching out to a new administration to talk about the regulatory moves, policies, and laws that would fit with what business considerations are already,” he said. “If you can get a regulation you can live with, it makes more sense than essentially placing a bet on a court.”

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

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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