Greens gear up for long court fight against Trump

Environmentalists are planning a vigorous strategy in the federal courts to fight President-elect Donald Trump’s aggressive deregulatory proposals.

With the executive and legislative branches of the government controlled by Republicans and unlikely to adopt their priorities, green group leaders said they will increasingly lean on the judiciary to push their agenda, along with public campaigns and traditional lobbying.

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Groups are largely dusting off their playbooks from the administrations of Republican Presidents George W. Bush and Ronald Reagan, whose efforts to scrap environmental rules were met at every turn by litigation.

But green groups face a tougher task this time as they try and protect President Obama’s environmental legacy.

Obama’s efforts were built almost entire on executive actions and regulations, making them particularly vulnerable to dismantling by Trump.

And courts traditionally give federal agencies great leeway in how they regulate and interpret laws from Congress, so green lawsuits are likely to face uphill battles.

Trump made undoing major Obama rules a central piece of his energy agenda on the campaign trail. But greens are hopeful that by shifting the battlefield to the federal courts they can prevent a complete reversal.

“We will be full-blast in the courts to resist undermining any of our fundamental environmental laws where progress has been made through executive branch actions on the environment,” vowed Trip Van Noppen, president of Earthjustice, an environmental group that operates as a law firm on behalf of other organizations or citizens.

“Unwinding Obama’s regulations requires following those same procedures that it took to build them in the first place,” said David Doniger, climate and clean air program director at the Natural Resources Defense Council and an attorney with decades of litigation under his belt.

“So we would aggressively fight in the courts and the court of public opinion any effort to shortcut those procedures, any effort to do things by fiat that don’t meet the requirements of the laws.”

Trump pledged on the campaign trail to overturn the Environmental Protection Agency’s (EPA) Clean Power Plan, which seeks a 32 percent cut in the power sector’s carbon dioxide emissions by 2030, the most aggressive climate change regulation taken by the federal government.

He also specifically promised to roll back other big pieces of Obama’s climate agenda, the EPA’s Waters of the United States rule, the Interior Department’s stream protection rule for coal mining, its moratorium on coal leasing and its fracking rule, along with other general promises aimed at scrapping regulations.

Each regulatory rollback or change would require a new regulation, greens said, which can be challenged in court. And while groups did not share their specific plans, they said they’re ready for action.

Any new regulatory action has to fall within the bounds of longstanding laws like the Clean Air Act or the Clean Water Act, as well as the general case law.

Green groups argue the plans that Trump has outlined on the campaign trail are legally vulnerable.

“Either they’ll try to get around the laws, in which case we will nail them and hold them accountable,” said Pat Gallagher, director of the environmental law program at the Sierra Club.

“Or if they try to play games and promulgate ridiculously weak or ineffective rules as window-dressing for supposedly complying with the statutes, we’ll go in and demonstrate on the record, with robust scientific evidence and legal discourse that the Trump administration is breaking the law with the rules,” he added.

The groups have seen spikes in donations and interest since the Nov. 8 election and are now rethinking their priorities as they eye shifting toward litigation for the next four or eight years.

Experts said the concept of judicial deference means that Trump’s administration will have a major advantage.

For example, the landmark 1984 Supreme Court case Chevron v. NRDC set the precedent that federal agencies are free to interpret laws how they wish, as long as there is some ambiguity in the law and the interpretation is reasonable.

If Trump’s actions are within those bounds, it could be tough for greens to convince the courts to step in.

“The cards generally are stacked in favor of the agency in judicial review cases. The agencies are entitled to deference if they are within a range of discretion granted to the agency,” said Jon Cannon, a University of Virginia law professor who was the EPA’s general counsel from 1995 to 1998, under President Bill Clinton.

Cannon is confident that greens will try to get Trump’s actions overturned, but face tough odds.

“The agencies can’t fly in the face of clear congressional intent, and they can’t make decisions based on a record that does not reasonably support their outcome. But with those limitations, the agencies have considerable discretion about how they proceed,” he said.

Tom Lorenzen, a lawyer who represents energy companies in environmental cases at Crowell & Moring, largely agreed. Lorenzen was a civil service litigator at the Justice Department’s environmental division from 1997 to 2013, and argued on behalf of energy companies in September against the Clean Power Plan in the Court of Appeals for the District of Columbia.

“You have to show that the interpretation is unreasonable before a challenger can overcome it,” Lorenzen said. “As long as they stay within the reasonable bounds of the statute, I would expect that they would prevail. Some things would be heavier lifts than others.”

Under those rules, previous Republican administrations have had a mixed bag in their efforts to undo environmental rules.

For example, George W. Bush’s EPA successfully streamlined permitting standards for new pollution sources. But in the high-profile 2007 case Massachusetts v. EPA, the Supreme Court shot down the EPA’s arguments for not regulating carbon dioxide emissions.

Cases like that give greens significant hope for fighting back against Trump.

“We were able to insist that the Bush administration follow the law, and hold them to account when they did not,” said Doniger. “We will do the same if the Trump administration governs along the lines of the campaign.”

Correction Nov. 26: A previous version of this article misidentified the president of Earthjustice. It is Trip Van Noppen.