President-elect Trump Will Face Substantial Obstacles in Attempting to Roll Back Environmental Regulation and Enforcement
Here is a close look at some key environmental programs and the incoming Administration’s likely options and obstacles.
Clean Power Plan
The Clean Power Plan (“CPP”), a final EPA regulation that requires states to reduce existing power plant greenhouse gas air emissions, has been challenged in the federal Court of Appeals for the DC Circuit and stayed by the Supreme Court. It is likely the incoming Administration will look at some of the following options to rescind CPP:
1. It cannot unilaterally rescind or modify CPP since the regulation is final, thus requiring EPA to go through a formal notice and comment process. Such proposal would be vigorously opposed by a significant number of governmental and private parties and the procedural process could take years.
2. It could request the DC Circuit to stay the litigation. However, the state, municipal and other intervenors on EPA’s side would certainly oppose such a move and it is difficult to predict how the DC Circuit would rule.
3. If the DC Circuit issues a decision prior to the inauguration, the losing side would certainly seek review in the Supreme Court and it is not clear if the EPA and DOJ could prevent the Court from taking and hearing the case if other parties in the case sought to pursue the appeal.
4. Defunding the program might succeed, but doesn’t blunt the efforts numerous states are already making to develop their CPP plans.
Clean Water Act Final Rule and Clarifying “Waters of the United States”
Like the Clean Power Plan, this Obama Administration final regulation defining “waters of the United States” that are subject to federal regulation has been challenged and stayed. If the new Administration attempts to repeal this final regulation, it will face the same hurdles discussed above.
Paris Climate Change Agreement
The means by which and the timing of the United States’ possible withdrawal from this Agreement are beyond the scope of this Op Ed, but putting aside major domestic and foreign opposition, one clear response to the United States’ withdrawal could be other countries also seeking to withdraw, which would be a significant blow to achieving necessary progress on slowing climate change. Alternatively, Russia, China and India would remain the biggest players in the realm of climate change, leaving the U.S. out in the cold.
Theoretically the Department of Justice could try to delay enforcing federal environmental laws and regulations, particularly if its enforcement budget were cut, but this would be a clear violation of the President’s mandate to uphold the laws. Moreover, this was not the case under President Reagan where the Department ramped up to enforce the newly enacted Superfund Act, as well as continuing to prosecute pollution cases under other statutes. Priorities with a new Administration may be different, but line lawyers in the DOJ still have a job to do.
Even if the federal government retreats in various areas, a large number of states will continue to enforce or pass their own environmental laws and regulations and will continue to develop carbon emission reduction plans under the now-stayed CPP or state mandates. In general, the federal government cannot legally prevent states from passing and enforcing environmental protection laws that are stricter than federal law-a new manifestation of “states’ rights”.
Most of the significant federal environmental statutes have citizens suit provisions that allow private citizens to sue entities alleged to have violated the law when the federal government or state fail to take timely action and to collect attorneys fees. Look for an abundance of these suits.
Americans have consistently expressed strong support for clean air and water and many power suppliers and alternative energy companies have invested heavily in clean energy. Attempts to roll back environmental laws and retreat from climate change programs could well face substantial legal and political obstacles.
Kenneth A. Reich, Esq.
Kenneth A. Reich, principal of the law firm, Kenneth Reich Law, LLC, is an experienced environmental and energy lawyer with a national practice. He was a trial lawyer, then Assistant Chief of the Environmental Enforcement Section of the U.S. Department of Justice from 1979-86. He speaks and writes frequently on environmental and energy law issues. He is an adjunct faculty at the Boston University School of Law where he teaches environmental law and other courses. He is a trained mediator. He also has a separate strategic consulting services company.