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California Eyeing Biden Resolution to Dozens of Trump Lawsuits

Nov. 18, 2020, 11:01 AM

It’s no secret California and the Trump administration are often at odds—which many times has led to the courtroom. The Golden State has sued the president and his agencies 106 times over the past four years, more than any other state.

With President-elect Joe Biden (D) set to take over the White House in January, California is looking over its lingering cases.

“This is an exciting and interesting time for California, and we’re going to do everything we can to maximize it,” Gov. Gavin Newsom (D) said during a news conference last week after Biden was named the projected winner.

Over the years, state Attorney General Xavier Becerra (D) has sued over immigration, border wall financing, transgender rights, health care, education, and consumer privacy. But the bulk of the cases—57—have focused on air, water, wildlife, energy, or environmental policy.

In many cases, the state has prevailed, such as when the Department of Energy allowed delayed energy efficiency standards for ceiling fans to take effect, or the Environmental Protection Agency said it would enact safeguards to protect agriculture workers from pesticides. Other times, the wins weren’t on substance or argument but because of procedural errors and mistakes by agencies or the White House, Becerra said.

“They’ve been sloppy and impatient in trying to change the law,” Becerra said in a phone interview. “It’s never been normal for any state to sue the federal government more than 100 times in less than four years.”

‘Back to Normal’?

Newsom said the attorney general’s office was poring over the lawsuits to see what could be rectified through executive order, by agencies changing course, or by accepting well-established case law.

“With a new administration coming in, we might be able to dial it back to normal, which will mean we don’t have to sue all the time,” Becerra said during the interview.

Of the environment and energy cases filed, about three dozen remain active. In some of the cases, California was part of a coalition of states and didn’t serve as lead plaintiff.

More than 25 have to do with agency actions like opening federal land to fracking, or regulations like rolling back the Clean Power Plan. The state has also intervened in eight cases, including to defend mercury limits, energy standards, an oil and gas royalty rule, clean car standards, and carbon pollution regulations, according to case information from Becerra’s office.

“There will be a very strong effort to roll back the disassembling of the regulations under the Trump administration,” said Jeffrey Mount, a senior fellow at Public Policy Institute of California’s Water Policy Center.

Becerra said his agency will be ready to brief the White House about the cases still pending and how they can be resolved. Cases in which California led or was part of a coalition of states suing could take longer to get agreement among all parties.

Road Map for White House

Fights over the Clean Power Plan to reduce carbon pollution and methane emission rules will likely take some time. So, too, will the revocation of California’s Clean Air Act waivers to set greenhouse gas emissions standards and require sales of zero-emission vehicles, he said.

“We will have something for them that will give them a road map on some of the things that we think can easily, or briefly, be addressed,” Becerra said, adding it will also detail how to “take care of the rest that are a little bit more complicated.”

It will be hardest to reverse course on formal decisions such as a rule, said Tom Lorenzen, vice chair of the environment and natural resources practice at Crowell & Moring LLP in Washington.

“They can’t just say to the court: ‘Forget about it,’” said Lorenzen, who also worked for the Justice Department. “They have to go through rulemaking. You can’t change a statute without a new statute.”

Executive orders can be replaced with new executive orders, and agency policies or guidance can be updated with new directions. The administration could also decide not to defend cases in court, as the Obama administration did with the Defense of Marriage Act—though “the courts don’t generally like that,” Lorenzen said.

California Air Resources Board Chairwoman Mary Nichols said the fight over California’s Clean Air Act waivers to regulate emissions and mandate zero-emissions vehicle sales wouldn’t likely advance under the new administration.

“President-elect Biden has indicated that he’s not going to support the position that the Trump administration took on that so it may never get to the Supreme Court,” she said Tuesday during a Zoom appearance hosted by Commonwealth Club of California.

“We’ll go back to what we have enjoyed in the past, which is a relationship of collaboration with the federal government,” she said.

Transition Slowdown

Much of the progress could hinge on staffing and how fast the Biden administration can start the official transition process, which has been delayed by the General Services Administration as Trump protests the election results, said Judith Enck, president of Beyond Plastics and the Region 2 EPA regional administrator out of New York under Obama.

Assistant administrators in enforcement and other positions need to be in place that first week, she said.

“This is where Trump interfering with the transition can be quite serious,” she said.

Once the key people are in place, Department of Justice attorneys will work with agencies and the parties that have sued to craft settlements. Enck said she hoped EPA and others don’t just replace old rules—but strengthen them, given new information and climate concerns that have evolved over the past four years.

“I think you’re going to have a pro-environment EPA, so almost all of the California cases will be settled,” she said. “They’re going to save a lot of money and time. It’s kind of going to be a friendly disarmament.”

As for the cases that may go to court: “We’ve got some really strong allies in those cases—the facts, the science, and the law,” Becerra said.

To contact the reporter on this story: Emily C. Dooley at edooley@bloombergindustry.com

To contact the editors responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com; Anna Yukhananov at ayukhananov@bloombergindustry.com

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