Trump Should Expect No Slack From Courts, Obama Officials Say

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By David Schultz

If incoming Trump administration officials think the courts will grant them a honeymoon period in the many environmental lawsuits they are now defending, they should think again.

That’s the opinion of the top environmental attorney who represents the federal government under the outgoing Obama administration.

John Cruden, an assistant attorney general at the Department of Justice, said courts typically don’t show much sympathy to agencies in the months following a change in power, when hundreds of senior positions may remain unfilled for months as nominees await Senate confirmation.

“It amazes me that all judges had to go through confirmation [themselves], but all of them forget that immediately and they give you no quarter,” Cruden said.

Cruden, along with two other outgoing federal attorneys who spoke at a Jan. 12 D.C. Bar event, also said that talk of sweeping change in environmental law under the Trump administration is likely overblown, given that statutory requirements, rules for developing regulations and career agency staffs will all remain unchanged.

No Rest for Attorneys

While the new administration gets up to speed, there will likely be no let up in environmental litigation against the federal government. The incoming administration could ask the courts to pause ongoing lawsuits or even return some federal regulations for review and correction. However, Cruden did not expect the flow of new lawsuits against environmental agencies to abate.

Cruden said there were almost 700 new lawsuits filed in 2016 against the environmental agencies he represents, a rate of nearly two every day. That’s according to unofficial statistics the Justice Department has yet to make public.

And it’s not just the sheer quantity of the litigation that will force the new administration to make immediate decisions.

Avi Garbow, the Environmental Protection Agency’s general counsel, said there are briefing deadlines coming up in the weeks ahead in several ongoing federal lawsuits. Additionally, he said there are oral arguments scheduled for later this year in lawsuits challenging EPA regulations on everything from ozone pollution to biofuels to power plant emissions to refrigerants.

Given this schedule, Cruden said, the Trump administration will have almost no time for delay in developing courtroom strategies for these cases.

“There’s nothing in the Constitution that says you get six months off [after inauguration],” he said. “I’ve had this discussion with countless secretaries: ‘Do you realize that, the day you come in, you become the named defendant in hundreds of cases?’”

Statutes, Procedures and Staff

Ultimately, Cruden said the actions any new administration can take are constrained by the statutory requirements laid out in laws passed by Congress.

Many of these environmental laws come with deadlines for agency action. And when outside parties sue agencies for missing these deadlines, “we really don’t have a defense,” Cruden said. “Usually we’re just negotiating how soon we’re going to do that.”

Additionally, he said, any attempts by a federal agency to nullify existing regulations can be challenged in court if they don’t abide by the same public engagement and administrative procedure rules that were used to develop the rules in the first place.

Another factor that often pulls an agency toward the status quo is its career staff. Garbow said he oversees a legal department at the EPA of 225 people as well as 10 regional offices, each with up to 100 additional staffers.

“Only five of us will be leaving next week,” he said. “Who’s staying is much more important for a federal agency than who’s leaving.”

Transition Delays

Early signs are pointing toward a relatively long and protracted period of settling in for the new Trump administration.

Both Garbow and his counterpart at the Department of Agriculture, Jeffrey Prieto, said they have had no contact with the Trump transition teams, even though just days remain until the new president officially takes office. Cruden said this situation is especially glaring at the USDA because the Trump team has yet to nominate a secretary to head up the department.

“I am extremely surprised we don’t have a USDA secretary yet,” he said. “It’s a very important job, very important to natural resources.”

However, he also said every new administration experiences some degree of lag time in getting its team in place. Of the roughly 1,200 positions in the federal government that require Senate confirmation, historically only 200 are typically confirmed by the summer after an inauguration, Cruden said.

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

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

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