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The Trump administration is placing a greater reliance on courts to block environmental regulations than any of its predecessors, according to lawyers interviewed by Bloomberg BNA.
The Environmental Protection Agency and the Justice Department have turned to the courts to endorse their actions to prevent the regulations from taking effect and freeze legal challenges. The Trump administration has used the strategy to halt several Obama-era regulations, including limits on toxic pollution from power plants, methane emissions standards for oil and gas wells, and requirements that chemical companies update their risk management programs.
These moves allow the Trump administration to quickly do away with regulatory requirements without having to engage in a full administrative rulemaking process, which buys the new administration time to revisit regulations and rewrite them as they see fit.
Specifically, the EPA has delayed compliance with the rules administratively. The Justice Department has then followed these administrative moves by asking the courts to stay the underlying legal challenges to these rules on the basis of its decision to reconsider the rules. That strategy extends to lawsuits filed by environmental advocates over the administration’s move to freeze compliance obligations, which the Justice Department has asked courts to hold off on considering until the reconsideration process is complete.
“The Trump Administration is relying to an unusual degree on seeking courts to stay proceedings while they reengage the regulatory process,” Justin Pidot, environmental law professor with University of Denver’s Strum School of Law, told Bloomberg BNA. Pidot formerly worked as an attorney in the Justice Department’s Environment and Natural Resources division.
It is not unusual for a newly elected administration to take steps to undo existing regulations that don’t fit with its agenda. Since his election, President Donald Trump has taken steps to undo several major Obama-era environmental regulations, including carbon dioxide standards for power plants and a rule governing which waters are subject to federal jurisdiction under the Clean Water Act.
“Of course, it’s not unusual for a new administration to review pending rules initiated by a prior administration,” Andrew Stewart, an environmental attorney with Vinson & Elkins LLP in Washington, D.C. “This is particularly true when the new administration is from a different political party, and we saw this at the beginning of the Obama administration.”
What most lawyers interviewed by Bloomberg BNA find “unique” about the Trump administration is the number of environmental regulations that it is seeking to undo, the speed with which they are being undone and the way it is going about it.
Hope Babock, an environmental law professor with the Georgetown Law School, described the strategy of reliance on the courts as “clever” because it avoids the prolonged process of withdrawing a rule under the Administrative Procedure Act that requires public notice and comment.
The administrative stay causes the rule in question to enter a “regulatory black hole” until the agencies decide how they will rewrite portions they find objectionable.
For instance, compliance dates for the 2015 power plant effluent limits rule (RIN: 2040-AF76) were to take effect in 2018, but the EPA issued an administrative stay on April 12, postponing compliance indefinitely. That rule required more than 1,000 power plants to use the best available technology that is economically achievable to regulate waste streams that are generated by the use of air pollution controls and coal gasification techniques.
A coalition of environmental groups represented by Earthjustice challenged the delay in effluent limits, saying the EPA didn’t follow the Administrative Procedure Act in giving the public an opportunity to comment on the delay on its proposed rewrite.
The Justice Department in turn asked the U.S. District Court for the District of Columbia to either dismiss the environmental groups’ challenge or transfer the case to the U.S. Court of Appeals for the Fifth Circuit, which already froze litigation against the effluent regulation pending EPA’s review of the rule.
Stewart, who served in the Justice Department until late 2015, noted that the EPA did publish June 6 a public notice (82 Fed. Reg. 26,017) seeking comment on the postponed compliance deadlines.
Thomas Cmar, an Earthjustice attorney representing the environmental advocates, told Bloomberg BNA that the challenge, as outlined in their legal response, is over the administrative stay that EPA issued in April. At that time, the EPA failed to give prior notice or accept public comment on the stay before issuing it, a “move that is illegal” under the Administrative Procedure Act, according to Cmar.
The EPA’s subsequent move to seek comment on the delayed compliance deadlines is equally flawed, Cmar said, because the notice was issued under the Clean Water Act, not the Administrative Procedure Act. The Clean Water Act doesn’t make any provision to reconsider or postpone compliance deadlines for effluent limits once they are established, Cmar said.
The EPA followed the same strategy when it came to undoing air pollution regulations (RIN:2060-AT59) on oil and gas wells that aim to limit emissions of methane, a potent greenhouse gas.
In that instance, the agency delayed implementation of the methane standards by 90 days, but again didn’t seek public comment. At that time, the DOJ followed the administrative freeze by successfully seeking a stay from the court on underlying legal challenges to the rule.
The EPA’s initial move to halt the methane regulation came days ahead of a deadline for oil and gas drillers to comply with emissions control and gas leak monitoring requirements.
The EPA published another notice June 15, where it is seeking comment to further delay compliance by an additional two years.
Earlier in June, the EPA again gave chemical companies more time to comply with the rule that requires them to update their risk management programs (RIN: 2040-AG91). It issued a temporary stay in mid-March without seeking notice, before launching a rulemaking to delay compliance until February 2019.
The Justice Department to date has been successful in getting courts to hold cases until the underlying rules are reconsidered, but John Cruden, former assistant attorney general for the Environment and Natural Resources Division under Obama, cautioned that changing any portion of the rule, including the effective dates, “inspires litigation.”
“My own experience has been that very short time extensions often works,” Cruden told Bloomberg BNA. “However, I believe DOJ will have an uphill battle trying to defend longer extensions unless the agency fully meets the requirements of the Administrative Procedure Act.”
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