An unprecedented tangle of multi-state lawsuits aimed at blocking his predecessor’s effort to give industry more latitude to extract resources from public land, weaken pollution limits and constrain the U.S. government from addressing environmental problems faces President Joe Biden as he ramps up his administration. The blizzard of litigation launched by a flexible coalition of Democratic state attorneys general, while likely to slow the regulatory agenda of the Departments of Energy, Interior and Transportation and the Environmental Protection Agency, may also offer opportunities to expedite an abandonment of the Trump administration’s unprecedented deregulation spree.
An extraordinary period of multistate litigation
According to the New York Times, the Department of Energy, Department of Interior, Department of Transportation and EPA completed nearly 100 significant rollbacks of major regulations affecting environmental policy during Donald Trump’s presidency. To combat those liberalizing efforts, a group of states that most often included California and New York and sometimes included Colorado filed or participated in more than six dozen lawsuits relating to regulation under the nation’s environmental and natural resources laws between Jan. 20, 2017, and Jan. 19, 2021. The states won more than 80% of those lawsuits, according to an analysis conducted by Marquette University political science professor and attorney Paul Nolette.
Hundreds of other lawsuits were filed during that period against agency regulatory changes affecting air quality, energy conservation requirements, hazardous and toxic waste, pesticide and other toxic chemical use, public lands, water quality and wildlife by environmental advocacy organizations. According to Earthjustice, an organization that represents many of those organizations in court fights, environmentalist litigation against the Trump administration also succeeded in more than 80% of the cases.
New York’s Attorney General Letitia James has pointed to her exasperation with the environmental consequences of agency decisions as her motivation to lead more than 50 of the multistate environmental law challenges to the Trump team.
California’s Xavier Becerra, now Biden’s nominee to become Secretary of Health and Human Services, has defended his state’s activism and sustained effort to build partnerships with other Democratic-led states that object to federal actions that might harm the environment as necessary to defend the unique interests of the nation’s most populated state. “Every time this guy breaks the law, we take him to court,” Becerra told The Hill in February 2020.
Maura Healey of Massachusetts, another frequent participant in efforts to derail Trump deregulation, explained that Democratic AGs have also been concerned about the ahistorical behavior of Trump and his environmental policy leaders, many of whom were closely tied to industry. “I don’t think you can overstate how much energy and effort it took to hold the line against the Trump administration that was doing things so entirely unprecedented and in violation of so many norms and the rule of law,” said Healey, a Democrat, in a December 2020 Vanity Fair interview.
Republican attorneys general tended to take a different view of Trump’s zeal to eliminate restrictions on agency and industrial freedom to exploit public lands and waters, emit pollutants and reduce efforts to protect plants and animals. “We would see a significant number of these challenges under the unfortunate circumstance that President Trump is not elected,” said West Virginia Attorney General Patrick Morrisey in a January 2020 Politico interview, referring to multistate challenges to a Democratic-led EPA. More recently, Morrisey and several other GOP attorneys general warned Biden to be mindful of their perception of constitutional limits on the U.S. government’s power to regulate. “If you sign unconstitutional laws passed by Congress, it will be our responsibility and duty to challenge those laws in court,” Morrisey wrote in a Jan. 27 letter to Biden. “If cabinet officials, executive officers, and agencies go beyond the bounds of their statutory authority, fail to follow legally required procedures, or fall short of the bedrock Administrative Procedure Act obligation of reasoned decision making, it will likewise be our responsibility to take action.”
Irrespective of the partisan tint of anti-Trump administration multistate lawsuits, the tool appears to be here to stay. Before 2007, when the Supreme Court decided, in a case called Massachusetts v. EPA, that states have standing to sue the federal government to enforce federal law, such litigation was relatively rare. Between 1982 and that year, only 149 cases were filed. Since the early 2000s, the number has skyrocketed. President George W. Bush’s two-term administration faced 76 multistate lawsuits, while the eight-year Obama administration dealt with 78. By contrast, and including litigation that does not involve environmental policy matters, the four-year long Trump administration found itself enmeshed in at least 170 lawsuits filed by coalitions of more than one state.
Alice Madden, director of the Getches-Wilkinson Center for Natural Resources, Energy and the Environment at the University of Colorado Law School, said that, in the case of the Trump administration, the responsibility for the onslaught of state lawsuits mostly lies with the agencies themselves. “In many cases, the Trump administration was inept and they acted too fast or they didn’t get through the entire proper process,” Madden said. “I mean, they just made so many different mistakes.” That view finds support even from lawyers who represent clients supportive of deregulation. “There are plenty of instances where the administration stubbed its toes,” said Paul Seby, a Greenberg Traurig partner who specializes in environmental regulation, in a Jan. 11 interview with Bloomberg Law. “It’s easy to say this in hindsight, but many times they rushed thinking through things.”
Litigation Across the Spectrum
EPA was the most frequent target of all multistate litigation aimed at the Trump administration. The agency, which was led by two controversial administrators committed to lowering its capacity to address air and water pollution problems and downplaying climate change, was sued in at least 36.5% of all cases. The Department of Interior was a defendant in about 10% of multistate cases of all types. Those two arms of the federal government are responsible for administering nearly all environmental and natural resources laws.
“The scope of some of these major environmental rollbacks is huge,” said Jesse Prentice-Dunn, policy director at the Center for the American West in Lakewood. In their effort to reverse them, state AGs suing the Trump administration took frequent aim at actions under the Clean Air Act, but some of the most important lawsuits are the few that implicated the Clean Water Act, Endangered Species Act, and National Environmental Policy Act. A lesser number address the application of statutes requiring measures to improve energy conservation, the Migratory Bird Treaty Act, the nation’s primary pesticide law and the Toxic Substances Control Act. Most also involve the Administrative Procedure Act.
The intersection of dangerous air pollution, climate change and the Clean Air Act was at the heart of several interstate lawsuits. The most notable of those cases may be an effort to block Trump’s replacement for the Obama-era Clean Power Plan, which aimed to regulate power plant emissions of greenhouse gases. The U.S. Court of Appeals in Washington, D.C., vacated that replacement, called the Affordable Clean Energy rule, on Jan. 19. States also challenged, on several occasions, EPA moves to delay enforcement of methane emission requirements for new oil and gas facilities or to weaken those standards. The D.C. Circuit said “no” to the stay of enforcement; whether EPA could roll back the Obama-era methane emission rules on new fossil fuel infrastructure has not been decided.
An EPA feint to weaken a rule imposed during the Obama administration that would have capped mercury and other toxic air pollutant releases from power plants is also pending in the D.C. Circuit, as is a challenge to EPA’s withdrawal of California’s waiver that allows the state to impose tougher motor vehicle emission rules than does EPA and a signature Trump rule that reduced motor vehicle greenhouse gas emission and mileage vehicle requirements. Several lawsuits were filed during the last week of the Trump administration, aimed at securing the vacatur of rules that were intended to prevent regulation of greenhouse gas emissions from stationary sources and allow “major” sources of hazardous air pollutants to escape tightening emission limits by becoming reclassified in a category treated more leniently.
States also challenged Trump administration refusals to modify the national ambient air quality standards for particulates, despite scientific evidence indicating that the current emission limits for those substances endangers the health of a “substantial number” of Americans, according to the EPA’s Office of Air Quality Planning and Standards, and ozone. Democratic attorneys general also convinced the DC Circuit to order EPA to enforce hydrofluorocarbon limits.
Climate change figured in several other multistate lawsuits, too. One of them led to an April 2019 decision by a federal district court that Secretary of the Interior Ryan Zinke could not immediately withdraw a moratorium on public land coal leasing until the agency examined potential environmental impacts of doing so. Another lawsuit, still pending, challenges the administration’s overhaul of regulations that implement the National Environmental Policy Act.
The changes, according to Daniel Estrin, general counsel and advocacy director at Waterkeeper Alliance, “fly in the face of statutory requirements and what courts have said NEPA requires, going back 50 years.” “They’re incredible,” he said. “They purport to define what kinds of impacts agencies have to consider and what kinds they don’t have to consider. They have CEQ saying that federal agencies do not have to consider cumulative impacts of the actions they’re being asked to authorize.” The new NEPA regulations excuse agencies even from taking into account greenhouse gas emission or other consequences for the planet’s warming atmosphere and oceans. “They were clearly trying to get at climate impacts when they did that,” Estrin said.
Yet a third multistate case sought to prevent Interior from issuing oil and gas leases at Alaska’s Arctic National Wildlife Refuge. State AGs have also used the federal courts to attack changes to Endangered Species Act rules that give the Fish and Wildlife Service and the National Oceanic and Atmospheric Administration authority to disregard climate change impacts on the habitat of listed species and in listing decisions.
Water pollution, too, has been a focus of the state’s litigation efforts. One persistent battle arising under the Clean Water Act is the ongoing effort, extending over the past three presidential administrations, to define a statutory term that delineates EPA’s regulatory authority. The back-and-forth over the reach of the Clean Water Act is “really complicated,” Estrin said. George W. Bush’s administration defended, in a 2006 case before the Supreme Court, a definition that had been implemented during the 1980s. The Obama administration later released a rule called the Clean Water Rule that would have extended the reach of federal regulatory jurisdiction to wetlands and upstream tributaries of navigable waterways.
Trump, through a regulation called the Navigable Waters Protection Rule, cut back EPA regulatory authority to its most restrictive constraints since the nation’s water pollution law was enacted in 1972, Estrin said. “It definitively excludes from Clean Water Act jurisdiction many different types of waters that historically have been considered waters of the United States,” Estrin said, leaving many wetlands, streams, and ephemeral watercourses in the west vulnerable to increased contamination. The Trump administration’s goal, he explained, “was supposedly realigning the cooperative federalism balance between federal and state authority and shifting authority back to states where it purportedly belonged.” That goal, according to Estrin, is “dead wrong.” “The Trump administration made up this rationale out of whole cloth,” he said.
States have challenged the Navigable Waters Protection Rule, while other cases challenge the repeal of the Clean Water Rule. A federal court in San Francisco declined to enjoin the nationwide implementation of NWPR, despite arguments that it is inconsistent with Congress’ intent. At least eight other lawsuits against NWPR, including by Native American tribes, environmental advocacy organizations, and ranching interests, have been filed. Trump’s Waters of the United States definition was blocked in in Colorado as a result of Colorado attorney general Phil Weiser’s successful June 2020 argument to a Denver-based federal judge that it should be blocked in the Centennial State. That case was appealed to the 10th U.S. Circuit Court of Appeals, where a decision remains pending.
Another contentious issue in water pollution law is the role of states in protecting water quality. “The Clean Water Act basically says you have to keep water quality to these minimum standards,” Estrin said. “But if states want to, they can certainly have more stringent requirements. They can require even cleaner water.” The import of that part of the Clean Water Act is that states have an effective veto power over activities that require federal government approval. “There was this concern that, if the feds are taking over water quality regulation across the United States, [then] states will eventually lose their authority to protect their own water quality,” Estrin said.
States have used this authority to force changes in operations of federal dams in the Pacific Northwest and to block construction of natural gas pipelines. Trump, Estrin explained, turned this design around. EPA, under the leadership of former coal company lawyer Andrew Wheeler, “target[ed] this one section in the Act that very explicitly gives authority to the states, not to the federal government” when it slashed state powers to deny water quality certification in June 2020. The effort by multiple states to restore section 401 authority, which was filed in a federal district court in San Francisco last July, has not yet been decided.
Pesticides and toxic chemical use have drawn the attention of states in several cases. In August 2019 several states challenged EPA’s refusal to ban chlorpyrifos, which has been shown to cause neurological disabilities in children, and methylene chloride, a compound used in paint removal products that can cause cancer, heart attacks, and sudden asphyxiation. So, too, have Democratic AGs litigated questions of energy efficiency standards, with multiple cases involving weaker requirements for light bulbs, incandescent lamps, and various appliances.
Impacts on Biden’s Agenda
At least 40 multistate lawsuits involving Trump deregulatory actions remain pending, with 17 of them filed after the 2020 election, including nine on the day before Biden’s inauguration. These cases offer the Biden administration a variety of avenues to speed up an agenda to replace Trump’s hollowing out of the environmental regulatory system.
One way is to simply stop defending the challenged rules in court. While that choice might lead to a court decision that invalidates the rule, that is not a certain outcome because intervenors on the side of the government might take up the defense. Another is to settle the cases with a promise to reconsider the regulation with which the states disagree. That, too, is not a certain strategy because agencies cannot promise to issue a new regulation that would necessarily meet with the states’ approval. “They still have to go through the Administrative Procedure Act process for a new rule,” Madden said. Yet a third may be to continue the litigation on grounds that the plaintiffs might prevail, which would result in a remand of a rule or its vacatur. “Maybe some of them will be dismissed,” Madden continued. “But there’s no harm in continuing, especially where [the states] think they’re going to get a good judgment.”
Whatever method Biden and his environmental policy team choose, complete replacement of the Trump rules will not happen immediately. “I think he has a big task ahead of him,” said Nate Bellinger, senior staff attorney at Our Children’s Trust in Eugene, Oregon. “What’s really important is having a coordinated plan. It’s really important to have some kind of central coordination to make sure that the agencies are acting in ways that support each other.”
— Hank Lacey