Blue States Bite Back: Democratic State Environmental Lawsuits in the Trump Era

By Henry Zurn*

In the later years of the Obama administration, with Republicans in Congress reticent to reach across the aisle to help the President deliver on one of his key campaign promises, the administration chose to take on environmental policy through the administrative agency regulatory processes.[1]  The centerpiece of these Obama regulations was the Clean Power Plan, an ambitious proposal to reduce greenhouse gas emission from power plants across the country.[2] As a core, strategic avenue for national Republicans to fight back, state attorneys general from Oklahoma to West Virginia took to the courts. There, they were arguably quite successful; the Supreme Court ultimately disassembled some key Obama environmental actions, including the Clean Power Plan.[3]

Now, just over 11 months into the Trump administration, with national Democrats out of power in the executive branch and both chambers of Congress, Democratic state attorneys general are employing some of the same state-level tactics that their Republican peers modeled during the prior administration.[4] For instance, New York Attorney General Eric Schneiderman, joined by nine other states, filed suit in March seeking to compel Secretary Rick Perry and the Department of Energy to issue final rulings on energy efficiency standards for, of all things, ceiling fans.[5] Though the stakes could be higher in the pending suit, it could have strategic implications going forward for national Democrats and environmental interests. If Democrats prevail with these lawsuits, it would likely become a core strategy in opposition to the administration’s regulatory drawback. However, because of recent Supreme Court precedents and the typical disposition of Republican and Democratic stances on environmental regulation, state lawsuits brought against the federal government are unlikely to have as much success this time around.

As the Trump administration shifts the U.S.’s focus away from climate change and environmental regulation, some states have picked up the mantle for the rest of the country.[6] In mid-November, international climate talks in Bonn, Germany hosted a “shadow delegation” of U.S. leaders concerned about climate issues but not affiliated with the Trump administration.[7] Among the delegation was California Governor Jerry Brown, who has emerged as a leading voice among many Democratic state government officials speaking out on such issues.[8] Though political leadership at the state level may prove important for the overall mission of environmental protection, it is unlikely to redirect the efforts of the federal government under a Republican administration. Alternatively, lawsuits from states, seeking to compel federal action could have such an effect.

Republicans around the country mounted a sustained attack on Obama administration environmental regulations over the course of his two terms.[9] In his former role as Attorney General for Oklahoma, current EPA Administrator Scott Pruitt himself sued the EPA 14 separate times.[10] In 2015, the Supreme Court decided that the EPA had construed the Clean Air Act unreasonably when it failed to account for the financial costs of the decision to restrict the use of fossil fuels at power plants around the country.[11] Many states, however, had already altered their policy in order to comply with the CPP and this is not likely to be undone by the Court’s ruling.[12] The Michigan case illustrates an important aspect of most Republican environmental litigation – in the fight to roll back regulations, it is more effective to block the rules before they are implemented.

It seems the Supreme Court learned its lesson. In early 2016, when West Virginia petitioned for a stay over the entire Clean Power Plan pending litigation in the D.C. Circuit, the 5-justice conservative majority granted it.[13] In its application for the stay, West Virginia pointed out how the EPA “boasted in an official blog post that the Court’s decision was effectively a nullity,” having already achieved widespread compliance.[14] The Supreme Court didn’t issue reasoning for the stay, so it is unclear if the court found West Virginia’s argument persuasive.  Regardless, in October 2017 the Trump administration repealed the Clean Power Plan and the West Virginia case won’t be decided on the merits.[15] The Supreme Court’s recent decisions, however, favor deregulation.[16]

Another feature unique to the Republican lawsuits is that they fundamentally question the power of the executive branch. As one journalist observed of the West Virginia CPP litigation, “the question at issue is not merely whether the EPA observed the relevant procedural niceties or properly exercised its authority on the margin. Rather, the question is whether the EPA has the authority to do this at all.”[17] Conversely, the Democratic lawsuits to this point take for granted the powers of the executive branch and seek to compel the Trump administration to take even further action. Where the Republican suits were fundamentally negative, seeking to block government regulation, Democratic suits are fundamentally positive, seeking to compel government action.[18] Given the general preference for the maintenance of the status quo when considering petitions for injunctive relief, and especially for mandamus, this presents a much steeper hill to climb for Democrats.

Two emblematic cases demonstrate the problems that Democrats will have compelling federal action from the Trump administration through lawsuits. In August, a coalition of states led by New York filed suit over EPA Administrator Pruitt’s announced one-year delay in implementing a standard for harmful levels of smog, allegedly in violation of the Clean Air Act.[19] The Agency was originally supposed to release a list of areas with harmful smog levels in October 2017.[20] Separately, Maryland filed suit in September to have the EPA find a number of coal-burning states in violation of the Clean Air Act’s “good-neighbor” provision (14).

The problems in these cases for the plaintiffs and for Democratic state attorneys general can be summarized in two parts. First, the Supreme Court has already articulated a skeptical view of broad environmental regulations, as demonstrated by the Michigan and West Virginia cases above. Though the New York and Maryland suits may have meritorious legal arguments, the recent trend of the Court’s opinions are against them.  Second, the courts are much more reluctant to grant orders compelling government action, than they are staying government action.

At first glance, Democratic attorneys general adopting Republican strategies for battling a hostile executive may seem a productive endeavor. However, Democratic cases for environmental regulation present an entirely different question before the courts. For this reason, especially, Democrats are unlikely to meet the same kind of environmental successes that Republican attorneys general enjoyed against the Obama administration

*Henry Zurn is a Junior Editor on MJEAL. He can be reached via email at hzurn@umich.edu.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[1] See Charlie Savage. Shift on Executive Power Lets Obama Bypass Rivals, N.Y. Times (Apr. 22, 2012), http://www.nytimes.com/2012/04/23/us/politics/shift-on-executive-powers-let-obama-bypass-congress.html.

[2] See Fact Sheet: President Obama to Announce Historic Carbon Pollution Standards for Power Plants, Obama White House Archives (Aug. 3, 2015), https://obamawhitehouse.archives.gov/the-press-office/2015/08/03/fact-sheet-president-obama-announce-historic-carbon-pollution-standards.

[3] Lawrence Hurley & Valerie Volcovici, U.S. Supreme Court Blocks Obama’s Clean Power Plan, Scientific American (Feb 9, 2016) https://www.scientificamerican.com/article/u-s-supreme-court-blocks-obama-s-clean-power-plan/.

[4] See, e.g. Petition for Review at 7, New York v. U.S. Dept. of Energy, No. 17-918 (2nd Cir. March 31, 2017).

[5] Id.

[6] Lisa Friedman, A Shadow Delegation Stalks the Official U.S. Team at Climate Talks, N.Y. Times (Nov. 11, 2017), https://www.nytimes.com/2017/11/11/climate/un-climate-talks-bonn.html.

[7] Id.

[8] See, e.g. Coral Davenport & Adam Nagourney, Fighting Trump on Climate, California Becomes a Global Force, N.Y. Times (May 23, 2017), https://www.nytimes.com/2017/05/23/us/california-engages-world-and-fights-washington-on-climate-change.html?_r=0.

[9] See, e.g. Hurley & Volcovici, supra note 3.

[10] Pruitt v. EPA: 14 Challenges of EPA Rules by the Oklahoma Attorney General, N.Y. Times (Jan. 14, 2017), https://www.nytimes.com/interactive/2017/01/14/us/politics/document-Pruitt-v-EPA-a-Compilation-of-Oklahoma-14.html.

[11] Michigan v. EPA, 135 S. Ct. 2699, 2706 (2015).

[12] Janet McCabe, In Perspective: The Supreme Court’s Mercury and Air Toxics Rule Decision, The EPA Blog (June 30, 2015), https://blog.epa.gov/blog/2015/06/in-perspective-the-supreme-courts-mercury-and-air-toxics-rule-decision/.

[13] Application for Stay, West Virginia v. EPA, No. 15A773 (U.S., Jan. 21, 2016).

[14] Id.

[15] Lisa Friedman & Brad Plumer. E.P.A. Announces Repeal of Major Obama-Era Emissions Rule, N.Y. Times (Oct. 9, 2017), https://www.nytimes.com/2017/10/09/climate/clean-power-plan.html.

[16] See, e.g. Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586 (2013); See also L.A. County Flood Control Dist. v. NRDC, Inc., 568 U.S. 78 (2013); See also West Virginia v. EPA, 136 S. Ct. 1000 (2016).

[17] Jonathan H. Adler, Supreme Court puts the brakes on the EPA’s Clean Power Plan, The Washington Post: Volokh Conspiracy (Feb. 9, 2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/09/supreme-court-puts-the-brakes-on-the-epas-clean-power-plan/?utm_term=.2639fea30327.

[18] See, e.g. Petition for Review at 7, New York v. U.S. Dept. of Energy, No. 17-918 (2nd Cir. March 31, 2017).

[19] A.G. Schneiderman Files Lawsuit Against Trump EPA For Stalling Action On Clean Air, New York State Office of the Attorney General (Aug. 1, 2017), https://ag.ny.gov/press-release/ag-schneiderman-files-lawsuit-against-trump-epa-stalling-action-clean-air/.

[20] David Henry, States Sue EPA over ozone rule delay, The Hill (Aug. 1, 2017), http://thehill.com/policy/energy-environment/344816-states-sue-epa-over-ozone-rule-delay.

 

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