Magazine October 15, 2018, Issue

Hostile Environment

U.S. Post Office & Courthouse, 7th & Mission Sts, SF (legalnewsline.com)
Trump’s EPA is having a hard time in federal court

August was the cruelest month for the Environmental Pro­tection Agency (EPA). In a ten-day span, three separate courts rejected Trump-administration deregulatory initiatives, in four separate cases. Though significant, these decisions were hardly unusual. Since early 2017, the Trump EPA has been compiling an unenviable record in federal court, and there is little reason to expect the pattern will change anytime soon. This poor record casts a long shadow on Trump’s efforts to undo the Obama administration’s environmental legacy.

On August 9, the U.S. Court of Appeals for the Ninth Circuit rejected a March 2017 decision to allow the continued use of the pesticide chlorpyrifos on food products. The Obama administration had proposed banning chlorpyrifos (also known as Lorsban and Dursban) in 2015, but the Trump EPA sought to reverse course. Yet as the Ninth Circuit noted, the EPA had not even attempted to argue that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue,” as required by the Federal Food, Drug, and Cosmetic Act, arguing instead that its decision should be immune from judicial review.

Eight days later, the U.S. Court of Appeals for the D.C. Circuit rejected the EPA’s attempt to delay the effective date of the Chemical Disaster Rule, which increased the stringency of various disaster-preparedness and disclosure requirements for chemical facilities. In­dustry groups sought the reconsideration of this rule, which had been promulgated in the closing days of the Obama administration. The Trump EPA sought to oblige and announced it would postpone the rule’s effective date until 2019. The only problem was that the EPA had no statutory authority to take this step and failed to provide, in the administrative record, a sufficient explanation for the change in policy.

Four days later the EPA lost in the D.C. Circuit again, as the court threw out EPA regulations governing coal-ash disposal. The underlying rule had been promulgated under the Obama administration, but in finding it to be insufficiently protective, the court rejected the Trump administration’s plea to hold off resolution of the case until the EPA could consider even less stringent rules.

Perhaps August’s most significant legal setback for the EPA came from a district court in South Carolina, where a federal judge barred the EPA and U.S. Army Corps of Engineers from suspending implementation of the so-called WOTUS rule. This regulation had adopted an expansive definition of “waters of the United States” — a term that appears in the Clean Water Act — thereby expanding the scope of federal regulatory jurisdiction, much to the chagrin of farmers, ranchers, and landowners who could find their land subject to federal regulation as part of the nation’s “waters.” Trump inveighed against this “unconstitutional” power grab during the campaign and called the rule “one of the worst examples of federal regulation” before signing an executive order in February 2017 instructing the EPA and Army Corps to rescind and replace it with a rule that would largely limit federal regulation to those wetlands and streams that are directly connected to navigable waters.

Like the Chemical Disaster Rule, WOTUS was scheduled to take effect before the EPA’s new leadership would have time to develop and propose an alternative. To buy time, the EPA and Army Corps issued a rule modifying the effective date for WOTUS, while leaving the substance of the rule intact. The problem is that the administration adopted this extension on the fly, without taking care of the relevant legal and procedural niceties, and got burned in court.

These cases were not the first legal setbacks for the Trump deregulatory push. Over the past 18 months, environmentalist groups and blue-state attorneys general have successfully challenged the EPA’s attempts to delay actions governing methane emissions, mercury, and urban smog. In some cases, the mere threat of litigation has prompted the EPA to take actions it was resisting.

The EPA’s legal difficulties are somewhat self-created, for even if the Obama administration had not been successful in stacking the U.S. Court of Appeals for the D.C. Circuit with liberal judges, quick-and-dirty deregulatory efforts would likely be struck down in court. Trump’s first EPA administrator, former Oklahoma attorney general Scott Pruitt, came in with ample experience suing the federal government but little interest in managing a vast regulatory bureaucracy, let alone knowledge of how to reform it from the inside. Pruitt devoted substantial effort to cultivating his image and building conservative support while neglecting to ensure that his agency would be able to deliver on his deregulatory promises. His brief tenure was long on base-pleasing rhetoric but short on substantive engagement with the legal rules governing the EPA’s agenda.

Absent legislation, reforming or repealing federal regulations is hard and time-consuming. As a general rule, whatever steps were taken to impose a prior regulatory initiative, at least as much work will be required to reverse course. If an Obama regulation was promulgated after an extensive administrative process — such as a notice-and-comment rulemaking, in which a proposed rule is published and comment from the public is solicited before a final decision is made — an equivalent process will be required to undo that rule and replace it with something else. By the same token, if a measure was simply adopted through an agency guidance memo or executive order, it can be reversed in much the same way.

As the George W. Bush administration learned the hard way, reorienting regulatory priorities is difficult. When Congress refused to enact Bush’s proposed revisions to the Clean Air Act, the EPA sought to go it alone, issuing a series of rules intended to remake federal air-pollution regulation. There was policy merit in much of what the Bush team wanted to do. The legal basis for these reforms was more tenuous, however, leading to a string of defeats in federal courts as environmentalist groups successfully challenged one reform after another. Although the Trump EPA team includes some Bush-administration veterans, it is not clear that they fully learned their lesson.

Given the aggressive regulatory posture of his predecessors, Pruitt needed to assemble a team of professionals who understood environmental law and the inner workings of the EPA. He did not. The EPA transition team contained far more people who could write punchy op-eds on the perils of overregulation than it did experienced policy hands with the knowledge and expertise to navigate the administrative process. Pruitt’s team was also operating short-handed, as the White House was slow to nominate supporting players to key agency positions and invested too little in ensuring that those nominated were confirmed. Indeed, as of this writing, key positions remain vacant, including that of the nation’s top environmental lawyer, tasked with defending EPA initiatives in court: President Trump nominated Bush-administration veteran Jeffrey Clark to be assistant attorney general for the environment and natural resources in June 2017, but he has yet to be confirmed.

The Trump EPA’s recent legal defeats may be an augur of more to come. Acting EPA administrator Andrew Wheeler has the practical environmental-policy experience Pruitt lacked and appears to understand that it takes more than a press release or vague proposal to change policy. But the Trump EPA is pushing ahead with deregulatory measures that appear legally vulnerable, either because they have not been developed with sufficient care or because they are at odds with the relevant statutory requirements.

In August, for example, the Department of Transportation and the Environmental Protection Agency announced plans to set aside Obama rules on automotive fuel economy and greenhouse-gas emissions for new cars and trucks. At the same time, the administration is proposing to limit the ability of California (and, as a consequence, other states) to adopt more stringent rules of its own. Whatever the policy merits of this proposal, the EPA may have overreached in targeting California’s rules forcing automakers to sell “zero-emission vehicles” (i.e., electric cars), as California has done this for decades to help control urban air pollution under a waiver process spelled out in federal law.

The surest and most effective way to transform environmental policy is for Congress to act. Enacting environmental-policy changes into legislation creates few opportunities for environmentalist groups or liberal attorneys general to file Resistance lawsuits. Unlike administrative rulemakings, congressional action is not subject to “hard-look review,” meaning it cannot be thrown out just because a judge concludes a measure is “arbitrary and capricious.” Yet here, as in so many other areas, the Trump ad­ministration lacks the knack for, and the interest in, pushing for legislative action. As a consequence, the EPA is forced to gamble that it can get its measures through the courts.

This means Acting Administrator Wheeler has his work cut out for him if he is to satisfy the president’s demand for meaningful deregulation that is sustainable and legally defensible. If the Trump administration’s environmental-policy agenda is to bloom, the EPA’s attorneys will have to up their game.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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