Will Trump Attorneys Defend Obama Climate Regulation?

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By David Schultz

The new president famously called climate change a hoax. But next week, his attorneys are poised to enter a federal appeals court and argue in defense of one of his predecessor’s climate regulations.

Oral arguments are scheduled for Feb. 17 in a lawsuit over the EPA’s regulation of refrigerant chemicals that are potent greenhouse gases. It’s likely the first climate-related lawsuit against a federal agency to come up for oral argument since President Donald Trump took office ( Mexichem Fluor v. EPA, D.C. Cir., No. 15-1328, 12/13/16 ).

Though the Trump administration has asked courts to postpone deadlines in several other environmental suits, it hasn’t done so here. That means it’s likely that, despite the president’s views, his administration will continue to defend these climate regulations, according to environmental attorneys who spoke to Bloomberg BNA.

“I don’t expect that there will be a surprise at the bar,” Thomas Lorenzen, a former Department of Justice attorney who defended federal agencies in environmental cases, said. “They can’t put absolutely everything in abeyance and say, ‘We’re reconsidering all of it.’”

The Department of Justice declined to comment for this story.

The plaintiffs in this case are two chemical makers that manufacture refrigerants called hydrofluorocarbons, or HFCs, which are commonly used in air conditioners. These companies, Arkema Inc. and Mexichem Fluor Inc., believe the Environmental Protection Agency overstepped its authority by banning the use of certain HFCs through a section of the Clean Air Act that is meant to address ozone-depleting substances (RIN:2060–AS18).

Institutional Change

Lorenzen is now an attorney with the firm Crowell & Moring LLP. He’s representing a company that’s intervening in the case on behalf of the EPA.

Lorenzen said it’s common for lawsuits challenging federal regulations to overlap from one administration to another. And, in fact, several ongoing suits over EPA regulations on climate change and other issues have crucial courtroom deadlines coming up in the weeks and months ahead.

Most of the time in cases like these, Lorenzen said the Justice Department attorneys defending the government don’t reverse course after Inauguration Day—even when the party controlling the White House flips.

Jim Rubin, Lorenzen’s former colleague in the Department of Justice’s environmental division, agreed. Reversing course early on in litigation is one thing, Rubin said, but to do so days before an oral argument would be beyond unusual.

Institutional Damage?

“I don’t think [the Department of Justice] would want to do that,” Rubin, now a partner at the firm Dorsey & Whitney LLP, said. “Institutionally, it’s not good to do that stuff.”

That’s because the judges scheduled to preside over next week’s arguments have already spent time reading the briefs over the HFC ban, he said. Informing the judges at this late stage that those briefs are now inoperative would unnecessarily antagonize the court.

“The fact that the EPA hasn’t made any statements about changing the rule suggests that this will probably proceed normally,” Rubin told Bloomberg BNA. “If the administration wanted to change its position, it would probably have filed something by now.”

Trump Defends Obama

But, if the arguments do go as Rubin and Lorenzen anticipate, it will mean the Trump administration will be in the position of defending an expansion of EPA authority under the Clean Air Act to address climate change. Many of Trump’s key environmental advisers, including his pick to lead the EPA, Oklahoma Attorney General Scott Pruitt (R), have vehemently opposed the Obama administration’s broad reading of its Clean Air Act authority to regulate greenhouse gases.

Additionally, the phaseout of some HFCs was specifically mentioned as a goal in the Obama administration’s 2013 Climate Action Plan, which many Republicans also opposed.

Though emissions of these chemicals are tiny when compared to those of other greenhouse gasses, such as methane or carbon dioxide, HFCs have far greater potency. One ton of the specific HFC targeted by the EPA traps more than 1,000 times more heat in the atmosphere than the same amount of carbon dioxide, according to EPA data.

‘Disrupt the Industry’

The HFC ban, which the EPA finalized in 2015 (80 Fed. Reg. 42,870), was one of the less contentious goals listed on Obama’s Climate Action Plan. Compared to his administration’s rules on power plant emissions, the ban affects a much smaller sector of the economy—and one that has received no special attention from the current president.

“This is an area where the decision to regulate or not to regulate doesn’t have same effect on coal interests or the power sector,” Lorenzen said. “That’s a very important distinction. This administration is all about trying to save and restore the coal industry. This isn’t that.”

Additionally, companies such as Honeywell International and Chemours have already developed replacements for HFCs that have less of an impact on the climate. These companies have intervened in the case to defend the EPA’s ban.

Josh Byerly, a Honeywell spokesman, said Arkema and Mexichem are suing because they failed to develop replacements for the HFC chemicals targeted by the EPA.

“Unlike Honeywell, the challengers have not made those investments and are now actively seeking to disrupt the industry through litigation,” Byerly said in an e-mail to Bloomberg BNA.

Arkema, Mexichem and their attorneys declined to comment on the record for this story.

To contact the reporter on this story: David Schultz in Washington at dSchultz@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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