Thursday, February 23, 2017

An EPA Adversary Now Helms the Agency

By Ed Jewell, Energy Fellow

Photo Credit:
Last week, Scott Pruitt was confirmed as the Administrator of the Environmental Protection Agency, largely along party lines and despite the impending release of emails ordered by an Oklahoma court regarding Mr. Pruitt’s contacts with the oil and gas industry (because who cares about a few emails?). Unsurprisingly, given President Trump’s overtures to the fossil fuel industry during his campaign and early days in office, his selection of Mr. Pruitt represents a bigly gift for the oil and gas industry.

Scott Pruitt Is More Concerned With Protecting the Oil and Gas Industry Than Protecting the Environment

Unlike some of President Trump’s other nominees for cabinet positions, Mr. Pruitt is familiar with the work of the agency that he has been nominated to lead. In his previous job as the Attorney General (AG) of Oklahoma, Mr. Pruitt sued the EPA over a dozen times in efforts to block implementation of rules to protect clean air and water.

Mr. Pruitt was also instrumental in building a network of Republican AG offices dedicated to fighting EPA efforts under the Obama administration. As chairman of the Rule of Law Defense Fund, Mr. Pruitt and his cohorts sought to slow or thwart implementation of major environmental and public health programs such as the Cross State Air Pollution Rule, Clean Air Mercury Rule, EPA’s update to its national ambient air quality standards for ground-level ozone (smog), the Clean Power Plan, and others. Co-litigants with Mr. Pruitt in these suits against the EPA included the American Fuel & Petrochemical Manufacturers, National Mining Association, Murray Energy, Peabody Energy, Southern Company, American Petroleum Institute, and other representatives of some of the most polluting industries on Earth.

Mr. Pruitt’s actions show greater concern for the interests of the oil and gas industry than for public health and the environment. The New York Times has described Mr. Pruitt’s relationship with oil and gas industry executives as an “unprecedented, secretive alliance.” In 13 out of the 14 challenges to federal environmental regulations that Mr. Pruitt was part of, energy companies that had contributed money to Mr. Pruitt or to Pruitt-affiliated political campaign committees were co-parties. Additionally, Mr. Pruitt copy-and-pasted a letter (with minor, unsubstantial alterations) from an oil and gas company onto Oklahoma AG letterhead, and sent the letter to the EPA representing it as the work of the AG’s office, thereby using the seal of his public office to lend an imprimatur of public interest to the arguments of the oil and gas industry.

One of the core tenets of Mr. Pruitt’s regulatory philosophy is that environmental regulation should be left to the states. However, under his direction, the Oklahoma AG's office cut its environmental enforcement division and redirected resources into a newly created federalism division. Thus, Mr. Pruitt’s actions demonstrate his beliefs that not only should environmental regulation be left to the states (calling into question why he is in charge of the EPA) but that states should then abdicate responsibility for environmental protection as well (calling into question why he is in public service).

Pruitt’s EPA Will Face Legal Roadblocks to Rolling Back Most Obama Era Regulations

While Mr. Pruitt was effective at organizing opposition to the Obama administration’s regulatory efforts, his challenges often failed in court. Courts upheld numerous EPA rules challenged by Mr. Pruitt and his coalition, making them more impervious to challenge from within the agency.

Furthermore, judicial review of administrative actions constrains the ability of the EPA Administrator to make or reverse policies adopted by previous administrations, particularly policies that have already gone into effect. Familiar doctrines such as Chevron deference and arbitrary and capricious review provide outer limits on the Administrator’s discretion. Agencies may be entitled to substantial deference from the courts, but agency actions are far from unfettered.

It is quite common for incoming EPA administrators to take different positions on matters within the agency’s jurisdiction than outgoing administrators. While the agency is allowed considerable latitude in its policy positions, it still must be able to adequately explain why it is changing course and must point to substantial evidence in the record to support its decision. It is not simply enough for the agency to say that there is a new administration in town and so now the agency is going to rescind previous rules. Perhaps most illustrative of this principle is the G.W. Bush administration’s failed efforts to undo the Clinton administration’s Roadless Rule for certain areas of the nation’s national forests.

Therefore, most of the Obama administration’s environmental regulations—which were amply supported by scientific evidence and in many cases have already been upheld against legal challenges (many of them from Mr. Pruitt)—will be tough for Pruitt to undo. Particularly given that numerous federal environmental statutes, existing regulations, and the best available science all contradict his lasseiz faire dressed up as federalism viewpoint.

The early days of the Trump administration are not indicative of an administration that is predisposed to the thoughtful, deliberative process required to compile the necessary administrative record to withstand judicial scrutiny. Additionally, the administration’s actions to undermine the EPA’s work, including efforts to slash the agency’s funding and impugn the role of science in policy making, will likely work against the administration’s anti-regulatory rulemaking efforts by opening the actions to judicial challenges.

Given the current legal structure, Mr. Pruitt's office faces impediments to fulfilling its agenda. Which goes a long way in explaining Steve Bannon's recent statements that efforts are underway to dismantle the regulatory state. So long as Americans continue to push back on the unconstitutional overreach of the Trump administration, and prevent wholesale change of our system of government, the environmental regulations that have protected U.S. water quality, air quality, and public health will likely still be in place when the American political system regains its senses. Just keep pushing back. 

Tuesday, February 7, 2017

The U.S. Constitution, the Public Trust Doctrine, and the Right to a Stable Climate

By Ed Jewell, Energy Fellow
Image Credit: Our Children's Trust

Amid an onslaught of foreboding news for U.S. democracyhuman and civil rights, and the environment, a small beacon of hope shines out of the District Court of Oregon. On November 10, 2016, plaintiffs in the case of Juliana v. United States won another important, if preliminary, battle in the fight to maintain an atmosphere capable of sustaining the ecological systems of the planet. Plaintiffs survived a motion to dismiss, and the case is scheduled to go to trial in summer or early fall 2017.

Throughout the coming weeks, I will discuss in greater detail the arguments put forth by the plaintiffs and provide analyses on the legal merits of their claims. For now, I would like to simply introduce the parties, provide a brief description of the claims at issue, and alert readers to the possibility that not everything is going poorly

The Parties

Plaintiffs in the case are a group of youths and environmentally-focused youth organizations. Dr. James Hansen, former Director of the NASA Goddard Institute for Space Studies, is also a named plaintiff as guardian for his granddaughter and future generations. Plaintiffs are represented by lawyers affiliated with the nonprofit organization Our Children’s Trust. Our Children’s Trust has filed numerous lawsuits in state courts across the U.S. and internationally alleging a right to a stable climate under various legal theories, including state constitutional claims, administrative law claims, federal constitutional claims, and the public trust doctrine.

Defendants in Juliana are the President of the United States and numerous federal agencies, namely the Environmental Protection Agency, the Department of Energy, the Department of the Interior, the Department of Transportation, the Department of Agriculture, the Department of Commerce, the Department of Defense, the Department of State, the Council on Environmental Quality, the Office of Management and Budget, and the Office of Science and Technology Policy. The American Petroleum Institute, the American Fuel and Petrochemical Manufacturers, and the National Association of Manufacturers have also intervened in the suit on behalf of the government.

The Legal Theories 

Plaintiffs allege that the U.S. government has known for over fifty years that extreme CO2 pollution caused by the burning of fossil fuels is likely to destabilize the global atmosphere and that the federal government has nonetheless continued to allow and encourage the exploitation of fossil fuels. Plaintiffs allege that defendants have willfully ignored the impending harm of climate change and have substantially caused or contributed to the increase in atmospheric CO2 through the permitting, authorizing, and subsidizing of fossil fuel extraction and consumption.

Plaintiffs assert four legal causes of action in Juliana, three of which are constitutional, and one of which is pre-constitutional. The first argument is that the U.S. government has violated the Due Process Clause of the Fifth Amendment by authorizing, permitting, and subsidizing the extraction, consumption, and export of fossil fuels, which contributes to the destabilization of the global climate. Plaintiffs allege that the right to a stable climate is protected by substantive Due Process jurisprudence because a stable climate is implicit in the concept of ordered liberty.

Related to the claim of an unenumerated fundamental right under the Due Process clause, plaintiffs assert a violation of the Ninth Amendment. The Ninth Amendment states that the enumeration of specific rights "shall not be construed to deny or disparage others retained by the people." Thus, plaintiffs argue that even though the right to a stable climate does not appear in the text of the Constitution, case law establishing a substantive Due Process cause of action against the federal government under the Fifth Amendment, and the text of the Ninth Amendment, do not foreclose courts from recognizing a stable climate as a fundamental right protected by the Constitution. 

Plaintiffs’ third constitutional argument alleges that defendants have violated the principle of equal protection. Under this claim, plaintiffs assert that the youth petitioners and future generations are a protected class of people that need extraordinary protection from the political process due to an immutable characteristic. The immutable characteristic asserted is not merely their age, but the fact that an entire generation (and many more after that) will not be able to reverse the damage of climate change caused by present decision makers. The claim for protection for posterity is based on the Founders’ concern for intergenerational equity, as illustrated by the preamble to the Constitution, which announces the intention of the document to, in part, “secure the Blessings of Liberty to ourselves and Posterity”. 

Petitioners' fourth legal claim is based on the Public Trust Doctrine. The Public Trust Doctrine is an ancient common law doctrine that has been incorporated into U.S. jurisprudence through a long string of judicial decisions dating back centuries. The doctrine can be traced from Roman law to English common law to American common law. The Public Trust Doctrine requires the government to prevent "substantial impairment" of vital natural resources for the benefit of present and future generations. In Juliana, plaintiffs must convince the court that the Public Trust Doctrine applies to the federal government, and not just state governments. Additionally, plaintiffs must convince the court that the Public Trust Doctrine protects the atmosphere, or alternatively, that damage to sea shores from ocean level rise and ocean acidification is a cognizable claim under the Public Trust Doctrine. 

Juliana raises numerous other legal questions that courts have struggled to deal with in the context of climate change. Specifically, issues of standing (the right of plaintiffs to be in court), the political question doctrine (the ability of the court to decide the issue within the tripartite form of U.S. government), displacement (whether federal statutes such as the Clean Air Act swallow common law causes of action in the field of climate change), and remedy (what the court could order defendants to do if it found for plaintiffs) are all very much live issues in Juliana

In addition to the fascinating legal theories, the stark juxtaposition of the identities of parties, and the fierce urgency of acting on climate change, there is yet a bit more intrigue. Plaintiffs seek to depose Rex Tillerson, recently confirmed as the U.S. Secretary of State, in order to ascertain information relating to the relationship between the U.S. government and private fossil fuel companies. Attorneys for Intervenors and Defendants have both opposed the deposition of Mr. Tillerson. 

The role of the judiciary in the U.S. constitutional system is an intriguing theme in the uncertain political times that we find ourselves in. With an executive branch and a legislative branch living in a universe of alternative fact, it may fall on the courts to protect both our democratic and ecologic systems. Juliana going to trial means that climate science and climate policy will be aired out in public and judged within a framework of vetted facts applied to concepts of fundamental rights and fiduciary duties rather than merely within the realm of fake news and echo chambers. Such a prospect is highly encouraging in the current social, political, and ecological context and is very important for the development of the law in relation to climate change as well .

If you’re looking for something to be hopeful about, follow along over the coming weeks as I explore the legal theories that animate this case.