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The Insider

Lawsuit Threats Add To Legal Push-Back Against Pruitt EPA's Agenda

A slew of new threats from environmentalists and other EPA critics are adding to massive legal push-back against agency Administrator Scott Pruitt's deregulatory agenda, ranging from likely litigation over its approval of a state's coal ash disposal program to a possible lawsuit over its decision against pursuing a new Clean Water Act (CWA) hazardous chemical spill rule.

The growing slate of litigation over EPA's policies underscores that many -- if not all -- of Pruitt's policies will remain on uncertain ground for years after enactment, with everything from major rulemakings to state delegations of authority facing lengthy court challenges.

The Democratic minority in Congress is unable to pass legislation to undo President Donald Trump's environmental agenda without support from some Republicans in the majority in the House and Senate -- and winning that support is all but impossible. As a result, federal district and appellate courts could be the main battleground over the fate of EPA's policies.

Recent legal developments help to highlight the potential for lawsuits to stymie or slow the agency's agenda. The biggest relevant ruling of this week comes from the U.S. District Court for the Northern District of California, where a magistrate judge rejected EPA's bid to dismiss Center for Biological Diversity (CBD) v. EPA, the long-running “mega suit” that aims to force the agency to consult with wildlife officials on impacts to listed species when it considers pesticide registrations:

Environmentalists May Tighten Demands After Pesticide 'Mega' Suit Proceeds
A judge is allowing environmentalists to continue their long-running suit seeking to force EPA to consult with wildlife regulators on risks of dozens of pesticides to endangered species, but the plaintiffs may face new complications, including a requirement to seek vacatur of the products' registrations because EPA's bar on settlements may preclude a deal on the review deadlines the group is seeking.

While preserving the suit is a win for environmentalists, they could be unable to get the relief they sought when filing it -- a schedule for conducting the species-impact reviews. If EPA is unwilling to settle the case thanks to Administrator Scott Pruitt's Oct. 16 order barring so-called sue-and-settle deals, it could prevent any such agreement in the mega suit.

Should the agency refuse to negotiate, a CBD source says, “then our remedy is different. Our remedy has to be to get rid of the products that are offending the” Endangered Species Act, by canceling already-issued pesticide registrations -- a far more extreme outcome.

Meanwhile, the Natural Resources Defense Council's suit to scrap the proposed Toxic Substances Control Act (TSCA) framework for assessing new chemicals faces greater hurdles than the mega suit, especially given that the framework has not been formally finalized. But sources say the case seems to be putting pressure on EPA to hold off on using the process even informally:

NRDC Suit Faces Hurdles But May Dissuade EPA Use Of New Chemicals Plan
Environmentalists' lawsuit challenging EPA's framework for reviewing new chemicals appears to face legal hurdles because it challenges a policy that is not yet final, but it nevertheless appears to have dissuaded the agency from following the novel process it floated last year to speed chemical reviews, industry and environmental attorneys say.

Rather than adopting the streamlined one-step approach, an environmental attorney says, the agency seems to have increased the use of its long-standing two-step approach. That source says nearly three-quarters of all recently approved new chemical uses are subject to the two-step process.

Even industry attorney Herb Estreicher, of Keller and Heckman LLP, agreed with that assessment on a recent webinar, despite calling the case “frivolous.” Describing EPA's recent chemical assessments, he said, “I think the lawsuit has been successful in modifying or attempting to modify agency behavior.”

And even though they are not yet the subject of court challenges, EPA raised early defenses against likely lawsuits in new rulemakings this week. For example, it outlined possible legal arguments in support its first approval of delegated authority to permit coal ash disposal sites, and separately its proposal not to craft a new CWA chemical spill rule, despite a 2016 settlement that requires considering such a policy.

The approval of Oklahoma's coal ash permit program, issued June 18, rejects environmentalists' arguments that the Sooner State lacks resources to add a new permit program, citing widespread budget shortfalls and resulting service cuts. EPA says it is bound to consider only the state's regulations and legal authorities rather than its implementation capacity, but environmental groups have already vowed to block the approval in court:

EPA Raises Early Defenses Against Likely Suit Over Ash Program Approval
EPA is raising early legal defenses against environmentalists' promised legal challenge to the agency's approval of Oklahoma's first-of-its-kind coal ash disposal permit program, with EPA downplaying as irrelevant environmentalists' claims that the Sooner State lacks the resources to adequately implement its new permitting regime.

Similarly, the CWA proposal rests on a wide-ranging review of current EPA and other policies that govern industrial sites in order to argue that a comprehensive spill-prevention rule under the water law would be redundant:

EPA Drops Plan For CWA Spill Rule Despite Settlement To Consider Policy
EPA is proposing to formally drop plans for a Clean Water Act (CWA) rule to prevent or contain industrial chemical spills by claiming that current policies already cover all the requirements that a comprehensive spill policy would include, drawing fire from environmentalists who had a settlement with EPA to consider pursuing the new rule.

If EPA finalizes the decision as proposed, it would tee up either a new suit or the resumption of the case the Obama administration settled in 2016 where environmentalists argued that the agency had ignored for over 40 years a CWA mandate to regulate coastal facilities to minimize spills of hazardous substances.